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Up Front | Jul 2002

Malpractice Litigation and Refractive Surgery Complications

How do you release legal risks?

With the number of refractive surgery-related lawsuits, as well as the amount of attention these cases receive from the media increasing, the risks and complications involved with performing surgery now go far beyond the actual procedure. However, refractive surgeons are not wholly defenseless against this trend. Although it is difficult to prevent these lawsuits, there are a number of measures you can incorporate into the regular activity of your facility that may help you to avoid exacerbating them.

Trial attorneys are zeroing in on unsatisfied LASIK patients not only because of the large price tags of recent verdicts, but also due to comanagement and complications issues, which are common in these cases because of the high-volume approach taken with the procedures. Unfortunately, there is little time for patient interaction. In fact, most, if not all patient education is carried out by the referring optometrist or members of the clinical staff. The problem for ophthalmologists is that the pockets of the optometrist are not terribly deep, so the surgeon is most often the party that winds up in a lawsuit. Because of media reports and input from friends, many patients approach refractive procedures with a cavalier attitude. Knowing this, the comanagement team must clearly and thoroughly explain the risks involved and ensure that the patient understands the possible complications of the procedure that he or she is about to undergo. This discussion should be documented in the medical record. It is important to note, however, that because patients (and possibly juries) may see you and your referring optometrist as a single entity, you must be certain of their competence, or you risk the possibility of being sued for the optometrist's mistakes.

Another in-house issue to consider is how you should handle terminating employees. Because a disgruntled former employee can significantly strengthen the plaintiff's case in the eyes of the jury, always be professional if you must fire a staff member. Make sure to document the reasons for termination, and rather than focusing on a personality conflict, emphasize the issue of competency. This will indicate to the jury that your goal is to provide optimal care, and it may also diminish the former employee's status as a credible witness.

There is no such thing as “bulletproof” informed consent, but one of the things you can do to protect yourself is to interface with each patient on a day prior to surgery. During this meeting, discuss risk benefits, alternatives, complications, and answer questions in detail. After the consultation, write about two or three sentences on the patient's chart explaining that you conducted the meeting, what you discussed, and that the patient has read the informed consent. This brief note can be an enormous help in defending yourself against a lawsuit; a signed informed consent is simply not enough. Videotapes of the presentation and explanation of the informed consent documents can be helpful in refuting the testimony of the patient should they say at any point that they were not informed of an issue, but it should not be considered a substitute for your one-on-one meeting with him or her.

Despite the absence of negligence in many instances of buttonhole flaps, short flaps, and DLK, for example, there have been many lawsuits surrounding these occurrences. However, properly documented informed consent and additional meetings can dramatically strengthen the case of the defendant, possibly even dismissing such lawsuits before they go to court. Because refractive surgery is more often than not an elective procedure, you may also want to have the patient write their reasons for undergoing the surgery. This will weaken any allegation that you actively talked him or her into the procedure, which is a common argument in these cases. Considering the recent decisions in refractive surgery cases, surgeons should take every patient's line of work into consideration and carefully document this information.

How and when do you explain to your patient that a complication has arisen? First, document the occurrence immediately and accurately, because if you do not and a suit is filed against you, it may appear that you intended to hide the problem. Also, never destroy or alter any of your records. If an incident occurs, leave it in the documentation. The time you set aside for making amends for a complication is better spent in discussion with your patient. Show concern, support them, and refer them appropriately and promptly. Timely referral for a complication is extraordinarily beneficial to your defense, because it shows that you recognized the extent of the problem and that you were genuinely concerned enough to refer the patient to an expert.

Always convey your concern and empathy, and never make far-reaching promises about new procedures or technology that will soon be available to correct the problem. If you do, and then for any reason your promise is not kept, you may have a very angry (and possibly litigious) patient on your hands. Instead, tell the patient that an unforeseen problem has arisen, and that although you will try your best, you cannot guarantee your ability to correct it to their full satisfaction, and document the fact that you did so. The importance of this documentation, in your own handwriting, cannot be stressed enough.

The patient may ask for a fee reduction or an elimination of any outstanding balance. Call your malpractice insurer regarding payment issues, and ask for a second opinion from their risk management or claims department. A jury could see such an action as a compassionate gesture. On the other hand, be aware that a plaintiff's attorney might turn this around on you, asserting that it is an acknowledgement of guilt. If after a complicated procedure the dissatisfied patient does not return to your office, write a friendly letter to him or her every month, keeping a copy of each. If you must appear on the witness stand, you can say you did everything you could to help the patient, and show your compassion in writing to the jury. Having a jury become somewhat sympathetic to your position may not win you the case, but it could significantly reduce the amount of the award.

Richard Abbott, MD, is a Professor of Ophthalmology and the Codirector for the Corneal and Refractive Surgery Department at the University of California, San Francisco. Dr. Abbott may be reached at (415) 502-6265; rabbott@itsa.ucsf.edu

Material adapted from a seminar given by Dr. Abbott, Paul Weber, JD, and C. Gregory Tiemeier, JD, entitled “Update: Malpractice Litigation and Refractive Surgery; Complications: How Do You Reduce the Legal Risks?” presented at the ASCRS meeting in Philadelphia, PA, on June 1, 2002

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