A recent retrospective review in Ophthalmology examined 10 years of closed medical professional liability claims (90,743 total) against ophthalmologists and other specialties, and found that just 2.6 percent (2,325) of closed claims and 2.2 percent of paid claims (564/24,670) were filed against ophthalmologists. Ninety percent of ophthalmic liability claims that received verdicts were favorable to the ophthalmologist.1 Cataract and corneal surgeries were the most prevalent and costly claims.
Another review looked at 159 litigated cornea and refractive surgery cases from 1964 to 2014. Ninety-three of these (58.5 percent) went to jury trials; 21.5 percent of the trials yielded plaintiff verdicts with a mean adjusted jury award of $588,896. Another 11.9 percent of those jury trials ended in settlements with a median adjusted indemnity of $782,533.2 Below, a medical malpractice defense attorney who has represented ophthalmologists for nearly 30 years and an ophthalmologist who’s run the malpractice gauntlet share their insights.
“You can talk to any doctor about what it feels like to be sued, and they will tell you it’s a horrible experience that weighs on them every single minute of the day,” says C. Gregory Tiemeier, Esq., of Tiemeier & Stich in Denver. Evidence that ophthalmologists incur a smaller share of med mal claims than many other medical specialties is cold comfort if you find yourself on the wrong side of that data. “The fact that you’ve been sued means that you’ve already lost,” he observes.
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“I still remember it like it was yesterday,” says an ophthalmologist practicing on the East coast, recalling a wrong-IOL lawsuit brought by a patient several years ago. Despite a quick and favorable jury verdict, he says, “You never shake it off; you’re always thinking about it in the back of your mind.”
The Journal of Health Care Law and Policy cites a 1994 study of Florida physicians by Randall R. Bovbjerg and Kenneth R. Petronis which suggested that simply being sued—regardless of
As if that’s not sobering enough, Mr. Tiemeier says that in his experience in Colorado, competitors will exploit a fellow ophthalmologist’s misfortune for their potential gain. “You’ll lose standing in your community because all the other doctors will know you’ve been sued. Colorado is really a hotbed of this because of we’re one of the highest-penetration markets for LASIK and refractive surgery in the country. I see this more in ophthalmology than in any other medical specialty. Doctors will almost go out of their way to criticize the competition.”
Changing Times
Despite his practice area’s busy refractive-surgery market, Mr. Tiemeier says that anecdotally, he believes improvements in corneal topography and biometry have led to decreased malpractice claims arising from cataract and refractive procedures. “I really haven’t had an ectasia case in over 10 years,” he notes, “since corneal topographers have indices on them now to better alert doctors to the potential for ectasia.”
Although Mr. Tiemeier says he used to counsel ophthalmologists more strenuously about the potential risks of operating on patients with a prior medical history of depression or anxiety, he now finds that advice less practical. “A long time ago, I told surgeons to consider whether patients were on antidepressants, but now it seems as though half the population is on similar medications, so that would eliminate too many patients,” he says. He does, however, still warn surgeons to proceed cautiously with certain patients, including fellow doctors, lawyers, engineers and airline pilots. “They tend to have personality types prone to dissatisfaction with an objectively reasonable result,” he opines.
There is some evidence supporting a relationship between preoperative mental health and satisfaction with the visual outcome of refractive surgery. Mr. Tiemeier cites a prospective study of active-duty military patients undergoing bilateral LASIK where preop levels of depression were positively correlated with dissatisfaction with visual quality at one and six months post-surgery.5
Another behavioral factor that could lead to trouble is patient noncompliance. To protect against the possibility that a noncompliant patient may later allege that you abandoned them, Mr. Tiemeier urges ophthalmologists to keep at least a virtual paper trail. “Send them an email,” he says of follow-up for no-shows. “Send reminders. There should be something in the EHR to document your outreach.” If your front office staff has the time and the capability, Mr. Tiemeier also recommends “a nice old-fashioned phone call” for patients who aren’t following up as recommended. The content of your office’s phone messages and call-log notations must be specific, he says, using the example of glaucoma to illustrate. “When you call patients, don’t just say something like, ‘It’s important to see your doctor,’ he says. “Tell them instead, ‘You have glaucoma: This can lead to sudden and irreversible vision loss and perhaps blindness if you don’t continue to follow up and take your eye drops.’ You need to make sure the patient understands the possible consequences of not coming in,” he stresses, adding that your staff should log the substance of their messages whenever they leave voicemails for the patient.
Informed Consent
Informed consent is more than a piece of paper bearing the patient’s signature. Ideally, the executed form commemorates the completion of a process during which the surgeon answers any questions the patient may have. Some surgeons stick with a traditional paper informed-consent form, while others find greater peace of mind in interactive electronic informed-consent software that prompts patients to confirm understanding by clicking, for instance, before the program advances. Electronic informed-consent products can feature educational animations depicting the procedure and its risks, benefits, and alternatives. Some even eliminate the need for reading because they rely on
Whether your consent documents are digital or paper, Mr. Tiemeier recommends that you introduce them to the patient prior to the day of surgery. “Something that I see commonly in LASIK centers is that the surgeon doesn’t see the patient until the day of surgery,” Mr. Tiemeier says. “Although technically you can do that, I’ve never considered it a good idea. Whenever I see a lawsuit, this is one of the details that the patient is most concerned with. They’ll testify, ‘I didn’t even see the doctor until the day of surgery, and the conversation consisted of, “Do you have any questions for me about the surgery?” and, “Did you read the consent form?” ’ ” Since the patient did review the consent form and the risks are written on it, the doctor has technically met their obligation to the patient. Can I defend it in the courtroom? Yes, but the doctor doesn’t want to be in that courtroom in the first place.”
Mr. Tiemeier adds that because your informed-consent process will be scrutinized in the event of a claim, you should allow your patients time to review your informed-consent documents prior to the day of surgery whenever possible. That way, they won’t be able to claim that they felt unduly pressured to sign at the ASC because the surgeon and staff were waiting; nor can they claim that any preoperative medications diminished their capacity to give informed consent. It may be worthwhile to send patients home with informed-consent documents and educational materials after talking with them about the proposed procedure during a preoperative
“Although there is a high probability of successful outcomes for
Mr. Tiemeier says that a comprehensive informed-consent process is a matter of enumerating as many risks as possible within the limits of economic feasibility. “The answer is, the more you can do, the better,” he explains. “There is no bright line where if you do this, you’ll win; and if you don’t, you’ll lose. But as a businessman or businesswoman, you need to understand that it comes down to how much risk you’re willing to take for the return you’re going to get. In a lot of high-volume LASIK centers, patients are not going to see the surgeon until they’re literally in the operating room minutes before the surgery. It’s a very economical and efficient way of doing things, but it carries with it the risk of patient dissatisfaction if there’s a bad outcome. That’s why, with respect to the preoperative informed consent, more is better. You figure out where on that scale you can economically draw the line. The ideal would be to spend two or three hours with each patient, discussing every single aspect of LASIK and complications, for example. But you’re never going to be able to stay in business if you do that,” he acknowledges.
However you choose to approach your informed-consent process, you are ultimately responsible for ensuring it—not techs, not nurses and not preoperative counselors. There’s legal precedent at the state level to back up this idea: a 2017 Pennsylvania Supreme Court decision (Shinal v. Toms, 2017 WL 2655387 (Pa. June 20, 2017) holds that ensuring informed consent is the “nondelegable” duty of the treating physician alone. Although Shinal is only binding in Pennsylvania, it could be persuasive in other jurisdictions.
If the Worst Happens
Some of the more memorable cases Mr. Tiemeier has defended include one that arose from a surgeon suffering a seizure while performing surgery. “I had another one where the anesthesiologist let the patient get too light during a corneal transplant. The patient woke up and moved when the doctor had just unroofed the eye. Everything avulsed forward, and the patient lost the eye,” he recalls. More typical, however, are “wrong-axis, wrong-power or wrong-eye” claims, he says. The surgeon is ultimately responsible for making sure all the data is correct before proceeding, even if he or she didn’t personally commit the alleged error. “Typically what happens is that patients sue the technician, the surgery center, and the optometrist in addition to the surgeon. Typically, the technician and optometrist are let out of the case or they settle out,” he explains.
The ophthalmologist contacted for this article prevailed in a malpractice lawsuit arising from a mismatch between IOL and patient during cataract surgery performed at an ASC. The surgeon was working with some unfamiliar staff when the mismatch occurred despite performing his customary preop checks. “We gave them the correct lens power; we gave them the correct patient. All they had to do was pull the lens,” he recalls. “They got the patient’s name wrong, although another patient’s similar name contributed to the mix-up, and they handed over the wrong IOL. We did everything in our power to prevent it; we did the same checks we do every single week. But unfortunately, one nurse was relieved and another nurse came in. There was a similar-name issue between patients, and a failure to double-check wristbands. We were in the middle of the
The ASC paid the affected patient a settlement to avoid trial. When his patient decided to pursue a med mal claim against him after reaching a settlement with the ASC’s insurer, the ophthalmologist decided to fight
“My carrier said, ‘We’re not going to settle this,’ ” he recalls. “I was unwilling to have my name go down in a database for settling on something like this and to have it ruin my reputation and affect my ability to get more insurance or be a part of a
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Although he ultimately did end up in court, the ophthalmologist who won his suit addressed the surgical error promptly. “As soon as I found out there was an improper lens, I told the patient exactly what happened and exchanged it immediately. That became part of the record, and I think it’s one of the reasons that the decision went my way. And the patient ended up with 20/20 vision after the lens exchange,” he says. “Even though the patient was 20/20 after the procedure, she said to me, ‘You’re a nice guy. But I lost work because of this, and so I’m going to have to sue you.’
“I said, ‘Thank you very much for that information. I’m sorry you feel that way, but if there’s anything else I can do for you, let me know.’ ” he continues.
Mr. Tiemeier says that measures like those taken by this surgeon can keep you out of court altogether in many instances. “It’s a physician’s lack of communication with the patient, and lack of the development of any type of rapport with the patient, that I believe most often leads to medical malpractice lawsuits,” he says. “I can’t prove this, but there are numerous studies showing that communication can deter lawsuits.” One review of malpractice plaintiff deposition transcripts indicated that problematic doctor-patient relationships featured in 71 percent of the depositions reviewed, which totaled 3,787 pages of testimony: Deserting the patient came out on top of these relationship troubles, followed by devaluing the patient and/or family views; poor delivery of information and failure to understand the patient and/or family perspective.8
“Showing that you care about the patient makes an enormous difference,” says Mr. Tiemeier. “The thing I hear over and over in plaintiff’s depositions is, ‘The doctor just ignored me after this happened. When I tried to get an explanation as to what happened, I couldn’t even see him or her.’ That is probably the most common comment I’ve heard from patients after they’ve had a complication.”
As difficult as it may be, Mr. Tiemeier urges taking tangible steps to let your patient know that you’re accessible in the aftermath of
One ophthalmologist Mr. Tiemeier met during an educational speaking engagement shared that she schedules an unhappy patient at the end of the day as her last patient, so she can spend unhurried time with him or her.
“I think that’s a great idea,” he says.
What you do and say once you’re in the room with your patient is critical, Mr. Tiemeier adds. “You need to sit down with the patient and with the chart and say, ‘This is what happened to you. I’m not sure why it happened, but this is what happened.’ The doctor doesn’t have to admit negligence, but it’s okay—in fact, it’s a good idea—to say, ‘I’m sorry that this happened.’ Not ‘I’m sorry I screwed this up,’ but ‘I’m sorry that this happened to you.’"
Mr. Tiemeier’s next recommendation may seem counterintuitive. “Ask, ‘Is this going to affect you financially?’” he says, adding that some ophthalmologists he has suggested this to have given him blowback, believing that this smacks of assuming financial responsibility for the patient’s suffering. “Sometimes, all you need to do is fill out a form for them to send to their employer, or for them to send to their disability insurance carrier,” he clarifies. “Showing that you care about the patient makes an enormous difference.”
“Just try to offer assistance,” concurs the ophthalmologist who was sued after doing an IOL exchange. “Admit that an error occurred. I didn’t try to hide anything, and I admitted that there was an error. My feeling is that you have to be up-front. You have to be clear that something occurred
“The initial reaction is to want to pretend that it didn’t happen or pretend that it wasn’t his or her fault or to blame it on the patient,” Mr. Tiemeier observes. “It’s not something they’ll necessarily verbalize, but I’ve detected that attitude many times in many surgeons. That is the opposite of what you need to do. If you have a complication with a patient, you need to fully embrace that patient. You need to do this as the surgeon—not the technician, not the optometrist, not the office manager but the surgeon,” Mr. Tiemeier stresses.
The East coast ophthalmologist says he now performs procedures in his own
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