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 Table of Contents  
GUEST EDITORIAL
Year : 2022  |  Volume : 34  |  Issue : 1  |  Page : 8-11

How to minimize litigations and medical malpractice claims during ophthalmic practice?


SuVi Eye Institute and Lasik Laser Center, Kota, Rajasthan, India

Date of Submission28-Jan-2022
Date of Decision28-Jan-2022
Date of Acceptance29-Jan-2022
Date of Web Publication21-Apr-2022

Correspondence Address:
Dr. Suresh K Pandey
SuVi Eye Institute and Lasik Laser Center, C 13 Talwandi, Kota - 324 005, Rajasthan
India
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/kjo.kjo_17_22

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  Abstract 

The health profession is considered to be one of the noblest professions in the world. While Indian medical infrastructure is being noticed and praised on the global map, on the contrary, the doctor-patient relationship is deteriorating, our internal medical setup is facing extensive problems with consumer cases/medical litigation fast becoming one of the most serious of all issues. The number of cases against ophthalmologists for malpractice is increasing. While very few cases may be legitimate and based on clinical negligence exercised by the doctors, most medical professionals are wrongfully accused because of the lack of public understanding. The eye care professionals must communicate empathetically, emphasize diligent service delivery and also maintain proper records about the patient history, examination, consent, treatment and follow-up, and referral. Eye camp surgery should be done only in the operation theater of the hospital set up and the permissible number of cataract-IOL surgery can be done following all checklist/protocols and precautions. Lawsuits for medical negligence in ophthalmic practice can be minimized or avoided by following surgical checklists, protocols, proper documentation (maintaining medical records), taking informed consent, communication about the cost and outcome of the procedure or treatment, timely referral of the patient (in case of any complication), and obtaining adequate professional liability insurance.

Keywords: Deteriorating doctor-patient relationship, Consumer Cases in Medical Practice, Medical Litigation,


How to cite this article:
Pandey SK. How to minimize litigations and medical malpractice claims during ophthalmic practice?. Kerala J Ophthalmol 2022;34:8-11

How to cite this URL:
Pandey SK. How to minimize litigations and medical malpractice claims during ophthalmic practice?. Kerala J Ophthalmol [serial online] 2022 [cited 2022 Aug 8];34:8-11. Available from: http://www.kjophthal.com/text.asp?2022/34/1/8/343661



“Medicine has become the art of managing extreme complexity and a test of whether such complexity can, in fact, be humanly mastered.”

~ Dr. Atul Gawande, The Checklist Manifesto: How to Get Things Right

The medical profession is considered to be one of the noblest professions in the world. While Indian medical infrastructure is being noticed and praised on the global map, on the contrary, the doctor-patient relationship is deteriorating, our internal medical setup is facing extensive problems with medical litigation fast becoming one of the most serious of all issues. We live in a culture in which displeased patients have increasingly turned to litigation as a means of obtaining redress from perceived deficiencies in the quality of care received from their physicians. Exaggerated claims of miracle cures and widespread media publicity hinting at the wonders of newly developed medical technology have resulted in unrealistic patient expectations, and this combined with diminishing trust in doctors has fueled the development of our litigious society. Many doctors are accused of lack of diligence, leading to litigations in the consumer courts and civil or criminal courts.

According to a published study,[1] more than 250,000 people in the United States die every year because of medical mistakes, making it the third leading cause of death after heart disease and cancer. Of the hundreds of thousands of medical mistakes that occur each year in hospitals and other medical settings, the most common preventable medical errors that may lead to medical malpractice claims include misdiagnosis, surgical errors, failure to treat, birth injuries, prescription drug errors, etc.

In the Consumer Courts, one of the highest number of medico-legal cases in India are against obstetrics-gynaecologists, followed by other sub-specialities such as orthopedics and pediatrics, etc. Ophthalmology, in this respect, is no different from other medical sectors. Being one of the most complex and high-tech specialties, even the slightest error from the ophthalmologists' end can lead to severe consequences, including lifetime blindness and visual impairment of the patient.[2],[3]

A retrospective review in ophthalmology examined 10 years of closed medical professional liability claims (90,743 total) against ophthalmologists and other specialties and found that just 2.6% (2,325) of closed claims and 2.2% of paid claims (564/24,670) were filed against ophthalmologists. Ninety percent of ophthalmic liability claims that received verdicts were favorable to the ophthalmologist.[4] Cataract and corneal surgeries were the most prevalent and costly claims.

Another review looked at 159 litigated cornea and refractive surgery cases from 1964 to 2014. Ninety-three of these (58.5%) went to jury trials, 21.5% of the trials yielded plaintiff's verdicts with a mean adjusted jury award of $588,896. Another 11.9% of those jury trials ended in settlements with a median adjusted indemnity of $782,533.[5] Data from the Ophthalmic Mutual Insurance Company (OMIC) have shown a threefold increase in LASIK claims and suits between 1998 and 2001. Medical and surgical retina specialists, representing 17% of those insured, paid US $4,972,000 at an average of US$248,600 per case. Pediatric ophthalmologists, however, representing only 4.39% of those insured, paid the most, an average of US $874,600. Failure to diagnose retinopathy of prematurity, by either a pediatric ophthalmologist or a medical retina specialist, incurred some of the greatest losses, more than US $1 million in four cases.

If we talk about the situation in India, several cases have been reported against ophthalmologists and decisions have been taken by the National Consumer Disputes Redressal Commission (NCDRC). It is reported that 942 cases of medical negligence were decided by the NCDRC from 2002 to 2018, and out of these cases, 30 were related to ophthalmology. A total of 73.3% of the alleged cases of medical negligence in ophthalmology were proved, and compensation for the cases ranged between Rs. 200,000 and Rs. 10 million.[6]


  Why Litigations are Increasing in Ophthalmology? Top


A good quality vision is must to drive, to do activities of daily life including reading news paper and watching TV or using mobile phone. Severe visual impairment/blindness is ranked third as a major fear after cancer and heart disease. Cataract-intraocular implant surgery is advertised as “no patch”, “no stitch”, “no pain surgery”, with immediate gain of vision that can be performed in ten minutes on day care basis. The same is true for laser vision correction. This type of message may have played some role to increase the chances of litigations carried out against ophthalmologists. With increasing patient's expectations and increasing cost of treatment, ophthalmologists are more vulnerable towards getting complaints registered against them.


  How to Minimize Medical Error(s) by Following the “Checklists” and “Protocols”? Top


The WHO surgical safety checklist is a prominent example of a surgical checklist intended to ensure safe surgery and minimize complications.[7] Train your entire ophthalmic team to follow the checklists and protocols. Examine each and every patient very carefully. Ask for the previous medical records and never forget to take a complete history of systemic illness, drug allergy, previous surgery, trauma, etc. Perform a comprehensive ocular examination as well as relevant investigations (such as indirect ophthalmoscopy, optical coherence tomography, specular endothelial cell count, topography, or B scan ultrasound in presence of media opacities). Always document your findings in clear words (without abbreviations) with date, time and signature. Never hesitate to refer a patient for second opinion and complex cases (requiring multiple surgeries) can be referred to higher ophthalmic institutes for the best management.

It is important to counsel and explain each and every patient about the surgery, cost, visual outcome, need for follow-up, and possible complications. The preoperative stage entails taking valid informed consent (video consent in all high-risk cases) of the patient for executing the proposed treatment, taking and recording the history of the patient, carrying out a proper examination, diagnosis, and investigations, pre-anesthetic check-up, detailed counseling, complete systemic and ophthalmic investigations and then proceeding with treatment.

Always take the help of an anesthesiologist for monitoring vital parameters after taking patients in the operation theater. The surgeon and entire team should be vigilant to minimize the complications encountered during the surgery in the operation theater, accidents, and mishaps experienced while operating, (for example surgery in the wrong eye, implanting wrong IOL), death during operation, and other similar incidents. Always document all operative notes, follow-up advice, detailed instructions about using the medications/eye drops, and communication about the postoperative complications, etc. Ophthalmologists like doctors of other specialties use abbreviations and short forms instead of detailed notes, and this needs to be minimized, specially in the instructions for the patients.


  Training of the Operation Theater Staff Top


Periodical training/checking your staff members and operation theater team is a must to ensure they follow the checklist and protocols to minimize any error (s) when the patient is taken for eye surgery. Double-check the patient records, investigation reports, consent signed by the patient, site of operation, and medical records related to systemic illness, etc. Before taking the patient to the operation theater, check the IOL type and its power, carefully inspect the irrigating solution for any floating particles, always cross-check the date of expiry of drugs and devices. Train your operation theater team to always follow the practice to minimize postoperative endophthalmitis such as the application of adhesive drapes, preoperative cleaning of the eye and periocular area with 5% povidone-iodine solution, and instillation of one drop of povidone-iodine solution after completion of intraocular surgery.


  Minimal Talking During Surgery Top


Exercising utmost care while performing eye surgery or giving intravitreal injections is important as the patient is actively listening to all conversations and may (wrongly) correlate negligence in case of lack of desired results. Most of the eye surgeries are done under topical or local anesthesia with the doctor speaking to their staff or anesthetists and the patient hearing everything.


  Follow A Strict Protocol for Free Eye Camps Surgery: Top


In India, the prevalent tradition of providing free service has also resulted in a lowering of guard by eye surgeons. These mass cataract-IOL surgery assemblies popularly called “free eye camps” have seen millions of people benefit. But recently there have been cases where an exorbitant penalty has been imposed by the courts, on ophthalmic surgeons for any deficiency in service or complications (such as cluster endophthalmitis), and this has destroyed the careers of many young ophthalmologists. 2, 3 With huge compensations being awarded even where cataract surgeries have been done free of cost or on a discounted basis, the eye camp surgery should be done only in the operation theater of the hospital set up and the permissible number of cataract surgery can be done following all protocols and precautions.


  Post-op Counseling & Communication: Top


Despite the best intentions and practices, some complications are bound to occur, and at these times, effective communication with the patients and attendants is the key to avoid these complications from becoming lawsuits. While communicating with these patients, we need to be honest and sympathetic, but not overly defensive. It helps to clearly admit that a problem has occurred rather than being evasive. However, the responsibility doesn't end with good communication, we need to do our best to ensure that the complications are handled well, or are referred to the right place. Support the patient at this time, by explaining the attendants, helping to take the patients elsewhere etc. The right attitude and communication at this crucial time can make a huge difference to the reaction of the patients and avoid litigation despite unfavorable outcome.


  Should “Dr. Google” Be Blamed for Malpractice? Top


The main factor behind increased penalties against doctors/ophthalmologists concerning medical negligence is greater consumer awareness as well as information (including incomplete/false information) about diseases and treatment available on Internet (“Dr. Google”). The patients are now more aware of their consumer rights and are provided forums and legal means to pursue their claims against the doctors. This awareness has led many ophthalmologists to unnecessary legal charges, and the decision against doctors are published by the media houses prominently encouraging other patients to follow the same route.


  Never Criticize Your Colleague Top


Never criticize or disapprove of treatment or surgery done by your professional colleague in front of patients or relatives as it can provoke them to file malpractice lawsuits. The increased cost of service delivery has ultimately led the consumers to have higher expectations from the medical providers. Combined with the increased awareness and the availability of means to vocalize their grievances, patients can highlight cases of negligence even for the smallest deficiency in the service.


  Professional Liability Insurance Top


Ophthalmologists must cover themselves under professional liability insurance. One may take the help of ophthalmic societies for bulk purchase and to reduce the premium. Ophthalmologist should take an indemnity insurance of at least Rs 50 lacs. A group of doctors can always negotiate better terms with the insurer than any individual. If the insurance company is being changed, one should always insist on retroactive cover. It is also better if two insurances of 2 million and 3 million are taken from the same insurer rather than one single policy of 5 million.


  Conclusion Top


The number of cases against eye care professionals for malpractice is increasing because of the increased awareness among patients. While very few cases may be legitimate and based on clinical negligence exercised by the doctors, most doctors are wrongfully accused because of the lack of public understanding. The eye care professionals must communicate empathetically, emphasize diligent service delivery and also maintain proper records about the patient history, consent, and treatment. This practice will bring down the incidents of malpractice and will protect the doctors from allegations and fake lawsuits.

It is imperative to take substantial measures to ensure due diligence while performing surgical procedures, follow the provided guidelines, and take all necessary measures before performing any eye surgery in the hospital, avoid doing cataract surgeries in remote areas during eye camps. Following surgical checklists, protocols, proper documentation (maintaining medical records), taking informed consent, communication about the outcome of the procedure or treatment, timely referral of the patient (in case of any complication), and obtaining adequate professional liability insurance are a few important tips to minimize the risk of litigation against ophthalmologists.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.



 
  References Top

1.
Anderson JG, Abrahamson K. Your health care may kill you: Medical errors. Stud Health Technol Inform 2017;234:13-7.  Back to cited text no. 1
    
2.
Nagpal N, Nagpal N. When the ophthalmologists turn blind. Indian J Ophthalmol 2019;67:1520-3.  Back to cited text no. 2
[PUBMED]  [Full text]  
3.
Pandey SK, Sharma V. Commentary: Increasing cases of litigations against ophthalmologists: How can we minimize litigations during ophthalmic practice? Indian J Ophthalmol 2019;67:1527-30.  Back to cited text no. 3
[PUBMED]  [Full text]  
4.
Thompson AC, Parikh PD, Lad EM. Review of ophthalmology medical professional liability claims in the United States from 2006 through 2015. Ophthalmology 2018;125:631-41.  Back to cited text no. 4
    
5.
Englehard SB, Shah CT, Sim AJ, Reddy AK. Malpractice litigation in cornea and refractive surgery: A review of WestLaw database. Cornea 2018;37:537-41.  Back to cited text no. 5
    
6.
Yadav M, Bansal MK, Garg P. Ophthalmology medical negligence cases decided by NCDRC: Retrospective study. Indian Internet J Forensic Medicine Toxicology 2018;16:64-8.  Back to cited text no. 6
    
7.
Haynes AB, Weiser TG, Berry WR, Lipsitz SR, Breizat AH, Dellinger EP, et al. A surgical safety checklist to reduce morbidity and mortality in a global population. N Engl J Med 2009;360:491-9.  Back to cited text no. 7
    




 

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Abstract
Why Litigations ...
How to Minimize ...
Training of the ...
Minimal Talking ...
Follow A Strict ...
Post-op Counseli...
Should “Dr...
Never Criticize ...
Professional Lia...
Conclusion
References

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