Feed a patient, starve a lawyer

In the case of a complication, maintain patient relations to avoid lawsuits.

Issue: March 1, 2000

ORLANDO, Fla. — What gets surgeons sued in today’s litigious marketplace? Often it is not the intraoperative error, but the postoperative follow-up that initiates a lawsuit.

Robert Keller Maloney, MD, spoke about preparing for and dealing with complications at the American Academy of Ophthalmology’s Refractive Surgery Subspecialty Day held here.

He cited an example of how two surgeons handled similar surgical error.

One programmed the wrong axis into his excimer laser, inducing 2 D of astigmatism instead of correcting 2 D. First, the surgeon denied the problem. He then blamed the technician. He was then sued and ended up losing a judgment for $173,000.

But when another surgeon in another city programmed the wrong axis into his laser, the surgeon took full responsibility from the get-go. The patient sued the laser center but not the surgeon. They settled for $25,000 and the patient came back to the surgeon for an enhancement.

“This is the difference between not maintaining a relationship and not taking responsibility, and maintaining a relationship and taking responsibility,” Dr. Maloney said.

Document the process, and maintain the patient relationship, he said, even when the surgery goes badly.

“If you do these things, I think we can achieve the goal that we would all want, which is to starve a lawyer,” Dr. Maloney said.

Informed consent

The first step to avoiding litigation after a complication is obtaining proper informed consent. Informed consent involves disclosing all relevant, material information to the patient. Surgeons need to disclose what is relevant to the typical patient.

Ignorance is not protection, Dr. Maloney said. “You can’t say to the court of law, ‘Well, I didn’t know that you could have keratitis after LASIK [laser in situ keratomileusis]. I just haven’t been keeping up on the medical literature.’ That doesn’t defend you.”

If a surgeon does not provide adequate informed consent, problems can arise if the patient later states that he or she would not have agreed to the procedure had the potential complication been made clear. Juries tend to agree with the patient, not the doctor, in such disputes.

“Informed consent is not the piece of paper the patient signs,” Dr. Maloney said. “That provides some protection, but really you need a whole process of educating the patient that informs them about the procedure.”

Surgeons should document the educational process. Dr. Maloney shows videotapes and has the patient consult with a surgical counselor. Technicians answer questions, and then he answers questions. He documents the steps along the way.

“You must do part of the process,” he said. “You can’t leave the whole thing up to your ancillary personnel. Courts look very unfavorably on lack of involvement by you. But you can delegate the background information.”

Why do patients sue?

Patients generally sue surgeons because they feel that they had a bad relationship. He provided four examples.

The first case was an expulsive choroidal hemorrhage during keratoplasty in a monocular patient, leaving him with no light perception (NLP). A second was a child with endophthalmitis who ended up with NLP.

A third was a radial keratotomy patient overcorrected by 0.125 D. A fourth was a LASIK patient whose floaters worsened postoperatively.

The first two patients did not sue, the latter two did. “It’s because I failed to maintain a relationship with these patients, for one reason or another,” he said.

Dr. Maloney suggested ways to avoid litigation.

Doing the informed consent procedure the day of surgery is not optimal, he said. A patient could say he or she could not properly evaluate the consent on the day of surgery when he or she had taken off work, arranged a ride with relatives and felt nervous as well.

“Meeting a patient under the laser is a big blooper,” he said.

Some other mistakes also can make a lawyer happy, Dr. Maloney said.

Surgeons sometimes write detailed chart entries blaming someone else, or explaining the mistake. They can send the patient to a collection agency for not paying the surgical bill.

While giving patients a videotape of the procedure is standard, it should not be so if the surgical technique is substandard.

For Your Information:

Robert Keller Maloney, MD, can be reached at the Maloney Vision Institute, 10921 Wilshire Blvd., Ste. 900, Los Angeles, CA 90024; (310) 208-3937; fax: (310) 208-0169. Dr. Maloney has no direct financial interest in any of the products mentioned in this article, nor is he a paid consultant for any companies mentioned.