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Managing medical malpractice
Tenth in a series of the top 10 reasons for poor premium IOL outcomes and how to remedy them.
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Medical malpractice is never the most desirable topic to discuss or read about as a practicing physician. My thoughts on managing malpractice close out my 10-part series on how to remedy poor premium IOL outcomes.
From frivolous lawsuits to real eye injuries, malpractice can bring physical, financial and/or emotional turmoil to both the patients and physicians involved. The good news is that only one in 25 patients with negligent or preventable medical outcomes results in a lawsuit, presumably due to patients’ reluctance to sue their doctor. Of those suits that are actually filed, only about 7% end up in front of a jury. Vidmar reported that jurors are usually not focused on sympathy for the plaintiffs or the presumed “deep pockets” of defendants. When jurors were asked, their reactions were too many people are trying to get something for nothing and doctors who are trying to help cannot be expected to be perfect always.
Medical malpractice is defined as any bad, unskilled or negligent treatment that injures the patient. A majority of states define the standard of care as that degree of skill and learning ordinarily possessed and used by other members of the profession. A physician who has met the standard as established by expert testimony generally cannot be found negligent. Some states have even passed statutes that establish the standard of the profession to determine negligence. In the end, there has to be negligence that causes harm to a patient to be considered medical malpractice. As a disclosure, I am not an attorney or tout to be one, and my recommendation is to contact your malpractice carrier and/or personal attorney immediately upon threat or filing of a medical malpractice lawsuit against you or your ophthalmic practice.
Mitchell A. Jackson
Preventing lawsuits
Medical malpractice laws vary from state to state in terms of arbitration/mediation, stabilization funds/caps, settlement options and the actual trial process. Prevention is still the best means to avoiding a lawsuit. In two of my previous articles in this 10-part series, Managing Patient Expectations and Managing the Dissatisfied Patient, many helpful tips were discussed to avoid a potential lawsuit. A 10-year study conducted by OMIC revealed that IOL power calculations represent the single largest malpractice risk to a practicing ophthalmologist. My recent implementation of intraoperative wavefront aberrometry (ORA, WaveTec) in up to 50% of my cataract surgery cases has lessened this liability risk for me. Scheduling your most difficult cases such as small pupil/pseudoexfoliation/black cataracts toward the end of the day will prevent efficiency disruptions to your normal operative day and allow the surgeon to feel as relaxed as possible to handle these complex cases. Another preventive measure that has reduced liability and chair time is letting the “no-retina-view” cataract patient know preoperatively that a visit to a vitreoretinal specialist will be required postoperatively for a second procedure. Always make sure a family member is available at the preop evaluation so they are also aware of the complexity of a surgical case in order to limit liability postoperatively.
Most patients trust their surgeon already, or they would not have allowed surgery on their eye in the first place. Once a potential negligent or harmful outcome has occurred, surgeons tend to assist a potential plaintiff unintentionally by showing arrogance or lack of concern for the patient (the latter especially pertains to the complaining 20/20 postop patient). In the premium IOL arena, patients have spent their own money for a premium outcome, and what a patient perceives as a premium outcome does not necessarily match that of the premium surgeon’s opinion. The surgeon should always validate the patient’s complaint, accept responsibility and provide real solutions, even if it means referring a patient to a colleague for a valid second opinion.
Personal counsel
Unfortunately, the physician-patient relationship can break down, confidence can be lost, and your patient will seek either a second medical opinion from a competitor or legal advice from their attorney about their outcome, even if medical malpractice has not been committed by definition. The good news is due process exists in the United States. My best piece of advice is always contact your personal attorney in addition to your malpractice carrier once a suit is filed. Legal counsel for your malpractice carrier typically represents the best interests of the carrier and may want you to settle prematurely in a case in which you want to go to trial. Obtaining advice from your personal attorney will eliminate any potential conflict of interest from your malpractice carrier.
A personal example is my one LASIK suit that was eventually dismissed based on my personal legal counsel recommending I hire a private investigator in a case in which a patient complained of the inability to drive at night. It became the primary focal point of the lawsuit only after the lawsuit was filed but was never a complaint by my patient prior to lawsuit filing. The private investigator videotaped my patient driving at night after work daily for two straight weeks after testifying to the opposite. This evidence was allowed and resulted in immediate dismissal of the suit without prejudice and no legal allowance to file suit again in the future. It was interesting that my malpractice carrier wanted me to settle the case before obtaining this evidence.
In the end, medical malpractice ultimately requires negligence with a harmful outcome. Avoiding lawsuits is the goal of every surgeon and can be achieved with appropriate management of patient expectations, maintaining patient trust and confidence, and detailed attention to all standard of care medical and/or surgical therapies currently available for the primary patient complaint/complication causing concern in the first place. And do not be afraid to obtain legal advice from personal counsel if ever needed.
It has been a pleasure discussing the top 10 reasons for poor premium IOL outcomes and how to remedy them, and I hope to hear about future great success stories as related to premium IOL technology.