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Optometrists should prepare for potential rise in AMD lawsuits
Advanced technology and therapeutics increase our opportunity and responsibility to prevent vision loss.
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Today, most optometrists recognize how to minimize the risk of vision loss in glaucoma suspects. Patient risk factors such as family history, high intraocular pressures and thin corneas (in a patient with normal-appearing discs and normal visual fields) warrant more frequent monitoring. A patient with IOPs in the high 20s and corneas thinner than 500 µg is typically evaluated several times a year.
Nerve fiber layer thickness (measured with either optical coherence tomography or polarimetry), ganglion cell assessment with OCT, short wavelength-automated perimetry and frequency doubling technology visual fields, pattern visual-evoked potentials and pattern electroretinography should be obtained when the technology is available. Early detection and treatment of glaucoma results in significantly better outcomes while dramatically decreasing the risk of malpractice allegations.
Although optometrists have been sued, frequently and successfully, for failure to diagnose glaucoma for decades, lawsuits involving age-related macular degeneration were nonexistent until recently.
Because effective treatment is not available for retinal degenerations such as retinitis pigmentosa, missing these early diagnoses does not change the patient outcome, and, therefore, the issue of causation, which is necessary to the success of a lawsuit, is not met.
Jerome Sherman
In contrast, with the rapid growth rate of choroidal neovascular membranes in wet AMD (at about 20 µg/day or 600 µg/month) and the availability of anti-VEGF agents, early detection is crucial to successful treatment. A 6-month delay in diagnosis of glaucoma has little effect on patient outcomes, but a 6-month delay in the diagnosis of wet AMD may result in 3,600 µg (or several disc diameters) of irreversible central scotoma.
Nowadays, patients who suffer vision loss from AMD are often influenced by family members and friends to find a good attorney and sue, and attorneys are successfully applying strategies learned from glaucoma cases to AMD. Optometrists who have gone through depositions and jury trials often describe the experience as the worst in their entire professional careers.
Court cases can create new standards of care
The following scenario, based upon an actual, recent malpractice allegation, exemplifies the optometrist’s risk in managing AMD patients. As the expert witness for the defendant optometrist in this ongoing case (and in another similar case), confidentiality rules apply, so some of the following has been altered to protect the identity of those involved.
However, if this case goes to trial and the optometrist is found culpable of malpractice, all the details of the case could then be revealed. Such an outcome could change the standard of care for all eye care practitioners. Recall that a new standard of care resulted from the Keir vs. U.S. case in which a federal appellate court concluded that the optometrist who examined an asymptomatic 4-year-old should have performed a dilated fundus exam and binocular indirect ophthalmoscopy, which would have detected her retinoblastoma.
Hence, the courts can create a precedent that determines the standard of care. Malpractice attorneys are extremely well versed in verdicts of such courts and will readily apply them to future cases.
The case
An active 66-year-old white female presented for her annual eye examination with some complaints of blurred vision in both eyes at distance and near. She mentioned that her 1-year-old glasses were scratched and she desired new lenses as well as a second pair for tennis.
With a slight change in prescription, visual acuity was 20/25+ in each eye. The optometrist diagnosed both early nuclear and post subcapsular cataracts in each eye (not noted on several previous exams), which he discussed in detail with the patient. She recalled the optometrist mentioning that the cataracts were much too early to remove, but that cataract surgery would likely be necessary in the future if the vision continued to worsen. The optometrist’s records mention some scattered drusen in both posterior poles, but this finding was not discussed with the patient.
As instructed, the patient returned about a year later and complained that the cataract in the right eye had worsened over the past several months, and she now was willing to consider cataract surgery if so advised. She reported that the left eye was still seeing fine, and with both eyes open she had no real problem in her daily routine, save for her weekly tennis match.
Best-corrected visual acuity was now 20/200 OD and 20/25 OS. A dilated fundus exam revealed macular hemorrhaging and an elevated macular scar. The patient was told that she required immediate treatment and was referred to a retinal specialist. Several anti-VEGF injections appeared to stabilize the wet AMD, but the visual acuity remained at about the 20/200 level in the right eye. Spectral domain OCT revealed total destruction of the photoreceptor integrity line (PIL) in the macula. Perhaps not surprisingly, she sued the optometrist with whom she had developed a good rapport over the past decade.
What to expect in court
Prior to jury trials, depositions occur in malpractice cases. The attorney, well versed in previous glaucoma cases, will likely draw parallels between glaucoma and AMD with regard to the identification of risk factors, utilization of contemporary technology and importance of careful follow-up. Moreover, the attorney will ask the plaintiff’s experts to compose a series of questions that the attorney might then ask the defendant doctor. Many attorneys are quite aggressive during both depositions and the jury trial.
For example, in a lawsuit involving a patient with AMD, optometrists will be expected to know that the results of the Age-Related Eye Disease Study (AREDS) indicated that the risk of progression to vision loss in a patient with intermediate AMD can be reduced by 25% by prescribing a nutraceutical containing antioxidants and zinc.
They may also be expected to know that genotype-directed nutritional therapy could double the reduction in rate of progression to advanced AMD compared with therapy with the AREDS formulation (Awh et al).
These images show a patient, similar to the woman in the case study, who started with dry
AMD in both eyes and progressed to wet AMD in one eye, as indicated in the bottom left photo.
Images: Sherman J
Optometrists are expected to be aware of the fact that anti-VEGF injections can successfully treat wet AMD if diagnosed and treated early.
Prosecuting attorneys will most likely question the optometrist about available genetic testing to identify the risk of vision loss. Such testing can help differentiate that risk among patients with intermediate dry AMD and similar-appearing drusen.
Optometrists will be asked about their knowledge of diagnostic testing procedures to detect early wet AMD, including SD-OCT, fundus photography, autofluorescence, visual fields, preferential hyperacuity perimetry (PHP), home PHP and home Amsler grid testing, as well as their knowledge of recommended testing frequency.
OCT can detect choroidal neovascularization before it is visible with ophthalmoscopy. Optometrists will be expected to know that many cases of wet AMD begin outside the macula.
Learning from mistakes
As the defendant optometrist’s expert witness, I am certainly not looking forward to taking the stand. The parallel to glaucoma and the logic above practically insures a culpable verdict and just monetary compensation.
The silver lining to this case is that we can all learn from the experiences and mistakes of our colleagues. Will this case become a precedent for the evolving standard of care for patients with AMD? It is certainly possible.
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Disclosures: Sherman consults for Zeiss, Optovue, Topcon, Heidelberg, Optos, ArcticDx, MacuHealth and Diopsys.