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Cover Stories | Mar 2006

Medical Malpractice Avoidance

Lessons from a refractive surgery case.

An ophthalmic surgeon who performs 10 to 15 surgeries in a day may be the subject of a medical malpractice lawsuit if there is a complication or a poor outcome. A jury will scrutinize the case for days or weeks at trial, and the fact that you successfully treated 10 or more other patients on the day in question will not work to your benefit. You still must take the time to document your presurgical findings, your diagnosis, and evidence that you disclosed the risks, benefits, and alternatives to the surgery.


In Mark Schiffer vs Mark Speaker, MD, et al. Supreme Court of the State of New York, County of New York. Index No. 101191-03 (the Schiffer case), the plaintiff made two claims. The first was that inferior steepening on topography was a warning sign that he was at considerable risk for postsurgical ectasia and that LASIK was thus contraindicated. The second claim was that he had not been properly advised that he was at increased risk of ectasia because of his “abnormal” or asymmetric presurgical topography.

With respect to whether the patient was a proper surgical candidate, Plaintiff's expert described the presurgical topography as contraindicating LASIK. Defendant's expert testified that, as of October 2000, no increased risk was perceived because of such asymmetric topography. It was the defendant's position that, when the surgery was performed, inferior steepening was not known to be a risk factor for post-LASIK ectasia. The medical record lacked any notations by the surgeon to corroborate his trial testimony that he had considered the asymmetric topography and, based on his knowledge at the time, there was no increased risk for post-LASIK ectasia. The ponytail-shaped defect from the trial exhibit, however, was colorful and easy to visualize.

Regarding the second claim, the informed consent prepared by the treating facility, TLC, was outstanding. It enumerated nearly every known complication, including ectasia. The patient was required to initial paragraphs to indicate that he had been told of the risks and that there were no guarantees as to the outcome.

In his summation, Plaintiff's attorney poked fun at the defendant with a reference to an episode of I Love Lucy in which Lucy runs into trouble at a chocolate factory. He compared Dr. Speaker's performing 10 surgeries in 1 day to Lucy's ineffectual attempts to box candy that is produced too fast for her to handle. Plaintiff's counsel claimed the defendant doctor was too busy to notice the patient's condition.

The jury found in favor of the defendant on the claim that he had not been properly informed of the risks prior to undergoing surgery.


No matter how busy you are, it is important that you document considerations relating to the patient's history and physical examination. If you note that you considered both the accurate history and physical findings, even an “error in judgment” to proceed with the surgery should result in a finding of “no liability” from a jury.

You should also document your discussions with patients. At trial, most patients do not agree that they had a lengthy preoperative discussion with their surgeon. Go so far as to document with specificity any visual aids (ie, models of the eye, diagrams, illustrations, videos, or films) used during discussions with the patient. Leave a copy of these aids in the chart or make reference to them such that they may be specifically identified at trial. Note the time and date when the discussion took place. Additionally, document the literature you give to patients. Many physicians send patients home with pamphlets but fail either to keep a copy in the patient's chart or to describe them specifically so that they can be identified several years after the treatment for a deposition or trial.

Documenting the topics discussed can have a tremendous impact. In a recent case I handled, the cataract surgeon recalled that, during presurgical discussions, the patient's husband revealed that he had experienced wound dehiscence after cataract surgery that required him to fly from Florida to New York for surgical repair. The patient herself denied that she was aware of the complication experienced by her husband, but he admitted the history of postcataract dehiscence in his deposition. Although the patient denied any significant discussion of risks before her cataract extraction, the fact that the surgeon had discussed the risks was corroborated by his knowledge of the complication experienced by her husband. The defendant's knowledge of such specific information enhanced his credibility and harmed the plaintiff's.
Finally, be sure to obtain the patient's signature on consent forms and have the patient initial key paragraphs that disclose the risks of and alternatives to the procedure. Administer the informed consent 3 to 4 days prior to surgery and document in the chart when and where the document was provided. Juries view informed consent more favorably when patients had a few days to read the document rather than a short time on the day of surgery.


The best trial lawyers often have a large number of cases to defend. As the saying goes, the squeaky wheel gets the oil. Ask to speak with your attorney from time to time during the pendency of your case. Attend the deposition of the plaintiff. You can help to educate your attorney and assist his preparation of your case with the visuals, expert witness, and details you want him to argue on your behalf.

If your case goes to trial, rest assured that the plaintiff will be present on each day of the trial. Be in the courtroom for jury selection and participate as your attorney's teammate. Jurors will be present every day, and they expect you to be there also. 

Peter C. Kopff, Esq, is Founding Partner of Kopff, Nardelli & Dopf LLP in New York City as well as a founding board member and past president of the New York State Medical Defense Bar Association. He served as the attorney for Mark G. Speaker, MD, and Laser and Corneal Surgery Associates, PC, on the Schiffer case. Mr. Kopff is a frequent lecturer at the bar associations, hospitals, and medical schools on the topic of the defense of medical malpractice cases. Mr. Kopff may be reached at (212) 244-2999; pkopff@kndny.com.
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