Few words engender more anxiety in a retinal physician than “malpractice.” There are varying implications, including psychological, professional, financial, interpersonal, and work-effort burdens. On a yearly basis, approximately 7.4% of physicians incur a malpractice claim.¹ The average ophthalmologist has a 90% 10-year risk of a claim.² Thus, it is important to understand how malpractice claims and lawsuits affect ophthalmologists, and specifically retina specialists. During these times of the COVID-19 pandemic, it is even more important to limit liability that may arise from unprecedented challenges in patient care.

MALPRACTICE CLAIM BASICS

A malpractice claim alleges negligence. To prove negligence, the plaintiff must establish duty, a breach of that duty, harm, and causation. Duty hinges on the establishment of a patient–physician relationship, which obligates the physician to provide care for this patient. Breaching the duty of care, or negligence, is when the physician has practiced below the standard of care, which resulted in patient harm. Standard of care is what a similarly qualified provider in a similar position would provide for a similar patient. The range of standard of care may be narrow or broad, based on the standards of the profession, and there might be multiple standards of care in a given situation. However, negligence is not established, unless the patient has suffered harm as a consequence of the alleged breach of the standard of care.

Determining whether the standard of care has been met is usually the pivotal element in figuring out how to handle a claim. The breach characteristically involves failure to diagnose and treat the specific condition correctly, such as delay in care or inadequate treatment and follow-up. Injury to the retina patient usually includes vision loss, pain, unnecessary surgery, loss of income, or other compromised function. The final element in proving negligence is demonstrating causation between breach of duty and injury to the patient.

REASONS FOR CLAIMS

Why do patients sue? Invariably, a plaintiff is unhappy with a real or perceived poor outcome. Unrealistic expectations may be the basis of the patient’s dissatisfaction. The decision to file malpractice claims may be driven by complex reasons. The perception that the physician or staff failed to treat them with empathy and urgency may influence a patient’s decision to file claims.

According to the Ophthalmic Mutual Insurance Company (OMIC), of the overall claims closed between January 1, 2010 and December 31, 2019, cataract cases ranked first with 32.5%, retina cases and procedures represented 23% and comprehensive ophthalmologic cases were 21%.³ Pediatric cases accounted for 11% of OMIC’s total indemnity payments, but they garnered the highest settlement payouts, peaking at $3.375 million for a case of retinopathy of prematurity.⁴ Looking at a subset of 218 malpractice cases from 2008-2012, general ophthalmologists (60%) had an average indemnity cost per malpractice case of $175,196, retina specialists (17%) had an average indemnity cost per case of $248,600, and pediatric ophthalmologists (4.9%) had an average cost per case of $874,600.⁵

In a study of 349 claims involving retina specialists only, 286 (82%) claims were dismissed, 43 (12.3%) claims settled, and 20 (5.7%) claims were resolved by trial; of those that went to trial, 95% of the defendants prevailed.⁶ Retina specialists paid an average of $150,000 in indemnity payments.⁶ Another study reported that of 142 retina cases between 1974 and 2014, the most common cause of litigation was retinal detachment (46.4%).⁷ Less common causes include ROP (9.2%), improper laser treatment (9.2%), damage after retrobulbar block (7.0%), failure to diagnose and treat diabetic retinopathy (5.6%), failure to diagnose or treat macular holes (4.2%), and vision loss secondary to intravitreal injections (2.1%).⁷ According to OMIC, an average indemnity payment for failure to diagnose retinal detachments was $275,000 for retina specialists.⁸ Claims related to endophthalmitis had an average indemnity payment of $233,634; the majority of endophthalmitis cases was from cataract surgery, but the most expensive cases came from endophthalmitis secondary to pars plana vitrectomy (average indemnity cost of $675,000).⁹

Kim et al reported that change in visual acuity was the most important factor for legal outcomes involving retained lens fragments. When the final vision was hand motion or worse, indemnity costs averaged $146,277, but for final vision better than 20/40, indemnity costs averaged $82,000.¹⁰

PROTECTING FROM A CLAIM

What can retinal physicians do to protect themselves from being falsely accused of negligence? Maximally clear communication to a patient and family members regarding the diagnosis, prognosis, and treatment options, while offering eye contact, giving full and undivided attention to the patient, and avoiding multitasking may allay miscommunication or later ill will. In the event of an unexpected poor outcome, taking extra discussion time with the patient and the family may win over family members as a physician’s best ally, as they may be able to better understand and communicate with the patient.¹¹ Physicians can train their staff to be kind with the patient and family. Availability and extra phone calls to a patient can demonstrate empathy. A patient who is more involved and understands their situation may be less likely to bring forward a claim. The University of Michigan’s apology model encourages ophthalmologists to admit avoidable errors resulting in patient harm, and to provide an explanation and compensation, which has led to less filed claims and better learning opportunities.¹² Contemporaneous documentation is important and should include potential risks and benefits of treatment, potential for future surgeries, and a discussion of realistic expectations. Informed consent might be euphemistic, but it should be specific, revised, and inclusive of potential risks of treatment and alternative options. Finally, offering and documenting timely and appropriate second opinions may clarify the patient’s understanding.

RETINA CARE DURING A PANDEMIC

During the COVID-19 pandemic, retina specialists have been faced with unprecedented challenges in the medical community without clear guidelines. Ethical codes require physicians to prioritize patients’ welfare over their own. While federal and state immunity laws provide protection from malpractice lawsuits except in cases of gross negligence, the best way to limit liability is providing continued excellence in patient care, using ethical guidance. Deviations in standard of care may be necessary to limit patient exposure or because of limited hospital resources. These deviations in the retina clinic may include shorter clinical examination, limited testing, longer follow-up periods, telemedicine visits, and changes in management. It is important to document any deviations from standard of care at the time of the visit for future reference.¹³

CONCLUSION

Malpractice is almost never intentional, but it may carry potentially serious consequences for retinal physicians. A better understanding of the process may help minimizing the occurrence and grant peace of mind. RP

REFERENCES

1. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365(7):629-636. doi: 10.1056/NEJMsa1012370
2. Ali N. A decade of clinical negligence in ophthalmology. BMC Ophthalmol. 2007;7:20. doi: 10.1186/1471-2415-7-20
3. Ophthalmic Mutual Insurance Company. Unpublished data on closed claims between 2010 to 2019. May 2020.
4. Burling L. How to manage your malpractice risk. EyeNet Magazine. 2019;23(3):51-52.
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13. Yan J. Medical-legal and ethical challenges during the pandemic. Presented at: the Retina Society 2020 annual meeting, RS2020VR; September 22, 2020.