VBS 2023: Medicolegal Section

Tavish Nanda MD
Tufts University / Ophthalmic Consultants of Boston
Boston, MA

Medicolegal Disaster Cases “Some Men Just Want to Watch the World Burn”

As a part of the Vit-Buckle Society agenda on a balmy Vegas morning, several renowned panelists and a representative from OMIC (Ophthalmic Mutual Insurance Company) presented on a topic that sent shivers through the room. The discussion was on malpractice risk – something affects nearly every physician.

One of the defining elements of what makes VBS such a unique meeting is the close-knit feel and confidence placed in discussing less-than-pretty facets of our field, from surgical complications to malpractice. That even super heroes of retina are only human behind the mask. As such, the details of the cases presented are being omitted at request of the panelists (nor will there be any associated photography).

While both cases presented were ruled in favor of the physician defendant, the financial, emotional, and psychological toll was palpable. Retina was second in the number of annual lawsuits filed, just below our cataract colleagues – but was highest in terms of pay out. Retinopathy of prematurity remains the highest risk, as expected. In recent years, alleged wrong gas mixture, has become a close second in terms of pay out.

Wrong Gas Mixture

Wrong gas mixture has led to potential complications such as intra-ocular pressure rise, optic neuropathy and vision loss. The ability to defend this particular scenario is difficult, but also preventable. As such, much of the discussion was focused on reevaluating how specialists draw up and confirm gas mixture at their institution. The root-cause is variable. Did the nurse open the wrong tank? Did the scrub tech make the wrong calculation? Did the surgeon state the wrong percentage? OMIC advised reevaluating how we draw and mix gas. Recommendations included making sure to perform a separate gas time-out, pausing surgery to draw and mix gas, having surgeons mix the gas, and closing the loop with clear, concise language.

Soft on Palpation

The mantra of medicolegal practice is “if it isn’t documented, it did not happen.” Operative notes are key in this regard and often fall short for reasons we rarely realize. After the talk I reviewed our own op note template. It is not enough to state that the eye was “soft on palpation” at the end of the case. It must state a physiologic pressure and the apparent health of the disc as well. These steps are routinely performed, though less than routinely documented. In the era of dot phrases and electronic records, more tools are available to support the completeness of documentation. While excess jargon is the bloat we try to avoid, referring to OMICs website to best determine succinct and significant clauses can be a make-or-break decision in a malpractice lawsuit.

See the Patient

A post-op with blurry vision or foreign body sensation can lead to extra postoperative visits. An extra ten minutes can feel like a lifetime in the face of a 60 patient clinic day. But OMIC’s advice was clear – this takes precedence.

“The worst thing you can do, is make a patient feel abandoned,” the speakers recommended.

The logistical difficulties of post-op visit is far outweighed by the trauma of a lawsuit. And if a patient is being referred back to their original physician, or someone closer to home, document the call with the referring office so that if the patient no-shows, blame doesn’t fall on your practice for a lack of diligence.

Salient Points

  1. “A deposition…is a boxing match.” This is where the opposition will attempt to determine your suitability to stand trial and defend yourself, understand your decision making, discuss any supporting literature and to rattle you into a settlement. Don’t be afraid to say, “I don’t know.”
  2. Who you have in your corner can be the key to victory. Are your supporting experts articulate, supportive, convincing, and empathetic? Research the competition. Who are their experts, have they ever been sued personally? Get your hands dirty.
  3. Be proactive. Be involved. Communicate with your lawyer weekly and collect documentation. You’ll need it for future licensing/hospital privileges.
  4. Some things are out of your control. In certain counties it’s statistically harder to win trials. Your insurance carrier will have that information and will factor it into a settlement recommendation.
  5. A settlement or loss is reported to a national (publicly available) database with implications for future credentialing.