This was originally printed in our Third Quarter 2022 issue of The Scope: Medical Edition.
When the MLMIC-insured ophthalmologist first treated the patient, a 51-year-old married male who was a physical education teacher and coach, he diagnosed bilateral cataracts and open-angle glaucoma with visual acuity of 20/70 in the left eye. During the next two years, the patient underwent cataract surgery on both eyes, which restored his vision to 20/20.
The ophthalmologist continued to treat this patient for another two years. During this time, he documented poor compliance by the patient regarding the treatment of his glaucoma, which was shown to be worsening on visual field testing. The patient missed numerous appointments and did not return to see the ophthalmologist for months at a time. Even more significantly, he frequently failed to take his glaucoma medication. Due to the patient’s poor compliance, the ophthalmologist had to perform a left selective laser trabeculoplasty (SLT). One year later, a right SLT was performed by an associate.
An Accident Occurs
The following year, the patient slipped and fell at work, injuring both his knee and his head. Four days after this fall, he experienced headaches, dizziness, and visual changes. At that time, he texted the ophthalmologist and advised of these visual issues, and also that he had stopped taking his medications several months prior to this.
The patient scheduled an appointment online and was seen by the ophthalmologist within two days. This was 20 months after the patient’s last appointment. He complained of shadows over his left eye over the previous five days. His uncorrected vision was 20/20, with pressures of 12 in the right eye and 16 in the left eye. A visual field test found a dense superior defect in the right eye and a dense nasal defect in the left eye.
The patient underwent a complete examination and was immediately referred to a glaucoma specialist. Glaucoma medications were also prescribed for him. Unfortunately, this glaucoma specialist was not available to see him right away, so an appointment was made for the following week.
The following day, the patient experienced a flickering in the left eye, but did not report this to the ophthalmologist.
The patient came unannounced to the ophthalmologist’s office the day after experiencing flickering. The ophthalmologist performed an SLT on the patient’s left eye, which reduced the pressure to 11.
Later that day, when attempting to report new complaints of flashes and floaters, rather than calling the office number as he had been instructed to do, the patient called the ophthalmologist’s cellular telephone number. The recorded greeting at this number indicated that patients should “come to or contact the office the following day.” This message had not been changed to reflect that the doctor was going to be unavailable for several days. However, the recorded greeting at the physician’s office number directed all patients to proceed to the hospital in an emergent situation when the physician was unavailable.
When the patient appeared in the office for his scheduled appointment with the ophthalmologist, it was noted that the vision in the patient’s left eye had decreased to 20/200. Additionally, a positive afferent pupillary defect was noted in this eye. The pressure was 13, but a dilated examination was not performed.
The following day, at his next appointment, the patient’s vision had decreased to only detect hand motion. The ophthalmologist performed a B-scan ocular ultrasound. A retinal detachment was noted, and the patient was promptly referred to an ophthalmological specialist, who performed a scleral buckle procedure with a pars plana vitrectomy. The patient’s visual acuity was subsequently documented to be 20/50 in his left eye. After his appointment with the ophthalmological specialist, the patient never returned to the initial treating ophthalmologist’s office.
A lawsuit was filed against the treating ophthalmologist alleging a failure to diagnose retinal detachment and the misdiagnosis of glaucoma. It also alleged that the ophthalmologist improperly performed a laser trabeculoplasty. As a result, the patient allegedly suffered decreased vision in the left eye, visual distortion, dry eyes and difficulty focusing on objects.
In addition, the suit further claimed that, as a result of the treating opthalmologist’s actions, the patient had required more extensive surgery, had had a longer recovery period and now had an increased chance of further retinal detachment The patient, in fact, had required three weeks in a special chair with his head down as a result of the retinal detachment he suffered.
Finally, the patient claimed he had experienced pain and suffering for a period of 10 weeks, was unable to coach his students and had $5,000 in lost earnings. His wife also made a claim for loss of consortium. Fortunately, the patient was eventually able to return to work in his original capacity.
The patient underwent an independent medical examination that confirmed post bilateral cataract extractions with posterior chamber lens implants; status post scleral buckle in the left eye; and mild epiretinal membranes in the left eye. The patient’s best corrected vision was 20/60 -2 in the left eye and 20/30 +2 in the right eye.
The patient apparently had a history of floaters and flashes that he never reported to the ophthalmologist. Had he done so, a detached retina might have been suspected. Due to the patient’s failure to comply with properly taking his glaucoma medications, the ophthalmologist felt his symptoms were the result of worsening glaucoma. Additionally, the patient’s use of the physician’s cellular telephone number may well have led to his delay in being directed to the hospital for this emergent situation.
The treating ophthalmologist had made multiple attempts to maintain the patient’s vision, despite the patient’s constant lack of cooperation and noncompliance with the glaucoma treatment. This was documented in the medical record. However, a review by an ophthalmology expert for MLMIC suggested there were other serious departures from the standard of care by the treating ophthalmologist, including a clear delay in diagnosing the retinal detachment. Fortunately, the patient’s visual acuity did not appear to have been affected.
In addition, this expert believed that the treating ophthalmologist should have referred the patient to a glaucoma specialist who was available at the time the patient came to see the physician with visual changes. Further, the treating ophthalmologist did not examine the patient’s retina at that visit. This, according to the expert, was a clear departure from the standard of care.
Although the patient was historically noncompliant with his treatment, the MLMIC-insured ophthalmologist’s departures from the standard of care clearly caused delay in treatment, and, with the ophthalmologist’s consent, a decision was made to settle this matter for $287,500.
Case Study: A Legal and Risk Management Analysis
There were several serious flaws in the actions of the ophthalmologist that resulted in liability.
Maintaining Proper Communication
The biggest issue in this case was the fact that the physician gave his cell phone number to the patient without clarifying that it was for a one-time use. As a result, the patient typically called the cell phone and only used the office number to make appointments.
This breakdown in communication was compounded by the fact that the physician failed to change the recorded greeting on his cell phone when he was unavailable to answer. Therefore, the patient was still able to leave messages and rightfully expected that the physician would return his call promptly. Unfortunately, despite experiencing serious visual problems, the patient left additional messages on the physician’s cell phone instead of calling the office or seeking care in the nearest emergency department.
The physician was left without a defense to the fact that the patient was abandoned during the time the physician’s cell phone was turned off. Although the patient had repeatedly called the ophthalmologist’s cell phone in the past, there appeared to be no credible effort shown or documented that the physician had asked him to use the office number instead. It is unlikely that a jury would have seriously considered that the patient had inappropriately called the physician on his cell phone since the physician had always responded to the patient’s cell phone communication in the past.
Unfortunately, it is common practice to save a cell phone number from a prior call for future use. When a physician provides a patient with cell phone access, it is strongly advisable to give the patient clear, and perhaps written, instructions not to use it regularly. In addition, patients should be informed that if they do not receive a return call within a short period of time, they should call the office or emergency line in the event of a serious medical situation. In this case, the recorded messages at both the physician’s cell and office phone numbers should have told patients to go immediately to the hospital in the event of an emergency and not wait for a return call from the physician.
As this case clearly exemplifies, it is possible for a noncompliant patient to impose liability on a treating physician. Efforts should be made to contact the patient to improve compliance with the physician’s treatment plan. However, when it is apparent over an extended time frame, such as in this case, that the patient’s behavior will not change or improve, discharge is indicated.
Patients Dictating Care
Finally, this patient seemed to be trying to dictate his treatment to the physician. When patients think they know more than the physician does, and they try to control the care they receive, this disruption may trigger the need to terminate the physician-patient relationship. Unfortunately, in this instance, the physician seemed overwhelmed by, and tended to adhere to, the patient’s demands, and accepted his noncompliant behavior. As a result, the ophthalmologist was responsible for what eventually occurred to the patient’s vision.
Please do not hesitate to contact MLMIC Insurance Company with any questions you may have regarding the treatment of a difficult patient.
Kathleen Harth is an Assistant Vice President, Claims, with MLMIC Insurance Company.
Donnaline Richman, Esq. is an attorney with Mercado May-Skinner.
Marilyn Schatz, Esq. is an attorney with Mercado May-Skinner.