Malpractice: How to Stay Out of Court

There are steps you can take before and after surgery to minimize your risk of an unhappy patient who decides to sue.

Walter Bethke, Managing Editor
12/9/2013

For many refractive surgeons, finding themselves in a courtroom for malpractice may make them feel as if they’ve already lost; the entire process maligns their name, impugns their skills, drains them of money and saps them of energy. However, despite the best intentions, malpractice suits can occur. Here, experts in litigation and managing risk outline steps you can take in all phases of the doctor/patient interaction to minimize your risk of being dragged into the courtroom.

Advertising Issues

How you represent the procedure in your ads or on your website can expose you to risk later, experts say.

“Advertising was one of the big issues in a case I tried in May of this year,” says C. Greg Tiemeier, a medical malpractice defense attorney in Denver. “The plaintiff had a Consumer Protection Act claim, focused on the absence of a discussion on my client’s web page about any of the refractive procedure’s risks other than a general statement. We wound up winning on the consumer protection claim largely because the plaintiff’s expert’s advertising was just as optimistic as the defendant’s in terms of not really discussing the risks of the procedure. My advice would be to list the procedure’s risks if you list its benefits, which goes along with instructions from a joint paper by the FTC, AAO and ASCRS. You can point out, in a realistic fashion, that the risks are pretty remote and that the patients are mostly satisfied.

“Another aspect to note is that a lot of surgeons use patient testimonials in ads or on their websites,” Mr. Tiemeier continues. “Know though, that, as far as the FTC and a jury are concerned, what you say on your site—whether it’s from your or your patient’s mouth—is going to be attributed to you.”

The Preop Process

You can either increase or decrease your risk of a lawsuit at different stages of the preoperative evaluation and informed consent process. Here are key aspects to be mindful of.

• Patient expectations and personality. Hans Bruhn, senior risk management specialist at the Ophthalmic Mutual Insurance Company, says it’s important to make sure the patient is coming for the procedure for the right reasons. “Try to get at what the motivating factors are for the patient,” he says. “Some think their whole life will change after refractive surgery and that, for instance, the perfect spouse will now be accessible to them if they have the procedure. This is unrealistic. Effective surgeons ask patients: ‘What is your lifestyle? What do you do? What are your hobbies? And what you expect to be different, if anything, in those dimensions of your life after the procedure?’ Clarify where a patient’s expectations are unreasonable and have the courage to say, ‘You’re a candidate for the procedure but I don’t think you’re right for it because your expectations are out of sync. I respectfully decline to perform it.’ ”

Mr. Bruhn says that some physicians will alter the consent form to make sure the patient knows the possible effects of the procedure. “Some physicians will put a line next to key paragraphs for the patient to place his initials,” he says. “This gives the patient a moment to really pause and consider what he’s embarking on. Another technique is to have the patient hand write a statement to the effect, ‘I have been informed of the possible results and risks of the procedure.’ ”

Risk experts say that it might help to screen patients with personalities that might predispose them to fixating on negative aspects of the procedure. “The majority of refractive malpractice cases that I get are from patients who either have a history of depression or anxiety disorders,” says Mr. Tiemeier. “I think it’s worthwhile to have a question about what medications the patient is taking on the consent form, and if the patient indicates he’s taking anti-anxiety or anti-depressant medication, it might behoove you to have a two or three-minute discussion with him on why he’s on them, how long he’s been taking them and how severe his condition is. Also, I see stock questionnaires in offices all the time that ask, ‘Would you call yourself a perfectionist?’ and ‘Do you tend to be unhappy when things don’t go exactly as planned?’ If a patient answers yes to these, it warrants a brief discussion in which you inform him that he has to understand his vision won’t necessarily be perfect. For example, if he’s a rigid contact wearer, inform him that LASIK won’t make his vision as good as it is with RGPs.” In some perfectionist cases, experts say it might be better not to operate.

• Informed consent.
Ectasia and dry eye remain big items that should always be mentioned in the informed consent process. “Overall, the number of LASIK lawsuits is down,” says Mr. Tiemeier. “I think doctors have gotten a lot better with patient screening, particularly with respect to ectasia. However, it remains an issue because a few studies have found that you can’t always predict it. Consequently, informed consent becomes key. A consent form should include the risk of ectasia, if it’s not already part of it, because it’s a big ticket item that will likely lead to a corneal transplant postop, at least until we get approval of corneal cross-linking. And, in my experience, the need for a transplant has been a trigger for lawsuits over and over again.”

A mention of epithelial ingrowth is especially helpful on consent forms for LASIK retreatments, experts say.
 
Mr. Tiemeier says that, when checking for ectasia risk, it’s not so much what new imaging technology you have, but that you properly use whatever devices you do have and then pay close attention to the results. “It doesn’t do any good if you use the latest corneal diagnostic imaging device to screen for ectasia but don’t really look at the results and analyze them effectively,” he says. “The ‘standard of care’ is a legal doctrine, not a medical one, and it is what I can get six jurors to believe it is based on the testimony of experts. I’ve had two trials where jurors believed 32-incision RK was within the standard of care, for instance. In the end, you have to have a reasonable basis for what you do in terms of what is in the patient’s best interest. I’ve been able to win cases where I think some surgeons would say the care was not within the appropriate standards, but I proved that the doctor had a reasonable basis for doing what he did.”

Dry eye is another post-LASIK issue that can lead to problems. “Some surgeons think of dry eye as a transient condition that’s no big deal,” says Mr. Tiemeier. “They believe you put in some over-the-counter artificial tears and the patient is fine. But patients don’t look at it that way. In fact, dry-eye complaints were involved in almost every refractive surgery lawsuit I’ve defended. Dry eye is overwhelmingly the most common complaint. However, dry eye is something I don’t think many doctors discuss much with patients preoperatively, but I think they would be better off if they did. In my opinion, based on the multitude of ophthalmology and refractive surgery cases I’ve tried, informed consent isn’t just a shield that we use at trial. It’s the kind of thing that, if done right, will keep the doctor out of the courtroom.”

Mr. Bruhn also says to consider the possibility of needing the patient’s consent for ancillary procedures that might be necessary if the primary one can’t proceed. “A patient might go in for a LASIK but, due to some situation that arises during surgery, another procedure needs to be done instead,” he explains. “The question is, did you advise the patient that you may have to do a different procedure and get consent for that once you get in there? That could be a point of risk, and the patient might allege that no consent was obtained for the other procedure.”

Postop Care

Finally, a surgeon can put himself at risk postop if he doesn’t respond appropriately to a patient who is become non-compliant and/or foul-tempered.

“Is the patient not coming in for his postop visits, becoming a no-show?” asks Mr. Bruhn. “Is he not complying with his postop drops? If this is occurring, you have to follow-up with him. The patient/doctor relationship is based on mutual trust. If that’s broken by this behavior, or if the patient makes an aggressive statement such as, ‘I’m going to sue you’—admittedly that’s overt—you have to take note. You may have to decide if you want to terminate the relationship. It might be best to say, ‘We don’t seem to be on the same page, so it might be best for you to find someone who you are comfortable with. And, if you don’t get this appropriate care, then X, Y or Z can occur.’ You can then provide resources the patient can use to find another physician.”  REVIEW