Protect Yourself  from the risks of treating other surgeons' complications.
By Louis Pilla

In a perfect world, every LASIK patient would go home delighted with his or her improved sight and every cataract patient would relish his or her restored vision. Every procedure would be flawless, every operation a success, and no doctor would ever be sued.

Unfortunately, ophthalmologists practice in an imperfect world. Mistakes happen. Unexpected outcomes occur despite the best efforts of all involved. Patients get upset and decide to call an attorney.

And some of those patients show up in the office of another ophthalmologist, looking for answers, validation, solutions and, most of all, looking for hope.

Perhaps you've had a patient like the one treated by Eric Donnenfeld, M.D., founding partner, Ophthalmic Consultants of Long Island. After LASIK, the patient suffered a bacterial infection, developed a dense corneal scar, and now needs a corneal transplant. The patient sued the original physician for not preventing and managing the infection properly. Dr. Donnenfeld, named as a treating physician in the lawsuit, spent a day in a lawyer's office giving a deposition.

Patients with complications from refractive surgery, cataract surgery or other types of procedures present a unique challenge to everyone involved in their care. Issues exist on many fronts, beyond the clinical and patient management challenges. And hanging about it all, like fog around a battlefield, is the unwelcome possibility of legal action against physicians involved in the case.

In this article, we'll offer practical strategies for managing these patients. We'll also examine the legal ramifications of caring for them and offer ways to protect yourself against legal action. First, though, let's examine the decision to treat these patients in the first place.

Take the case or not?

While no set-in-stone guidelines exist on deciding whether to treat surgical complications patients, physicians who care for these patients say it's important to take each one individually. Consider the patient's expectations, his or her personality in general, and whether the clinical presentation lends itself to a solution.

If a patient seems to have had a rift with the previous surgeon based on unrealistic expectations, you may not want to treat the patient. Take, for example, a cataract surgery patient who expects to see both up close and far away with each eye. The surgeon inserts a multifocal IOL, after which each eye is emmetropic and J1, but the patient now complains about glare or ghost images. In a case like this, be cautious about suggesting surgical cures, says Kerry Assil, M.D., medical director, Sinsky Eye Institute, Santa Monica, Calif. Also exercise caution with someone who exhibits strong perfectionist tendencies. The patient's personality before LASIK has great bearing on how he or she responds to the result, says Roy Rubinfeld, M.D., a partner at Washington Eye Physicians and Surgeons. Dr. Rubinfeld, a Washington D.C.-area refractive surgeon, estimates that up to 15% of his practice involves caring for patients with complications. He does his best, he says, not to perform LASIK on inflexible, very perfectionist people who can be dissatisfied even with great results.

He also accounts for the patient's previous experience with physicians. If a patient comes in and says, for instance, that he hates the last five doctors he's seen, Dr. Rubinfeld won't treat the patient because "I'm next on the list," he says.

Still, it's important that physicians take on patients with complications, who can suffer from significant handicaps, says David Hardten, M.D., partner, Minnesota Eye Consultants, Minneapolis, Minn.

"It's important for these patients to get care in some fashion," he says. What's more, it's also vital that someone manage their care, as often the patient has bounced from doctor to doctor.

Make sure to factor in the additional time you'll spend with these more complex patients. "It's almost never a quick visit," says Dr. Rubinfeld. "You need to be willing to listen."

Not only do they present atypical clinical challenges, but as we'll see in a moment, they require emotional handholding as well. James Salz, M.D., American Eye Institute, and clinical professor of ophthalmology at the University of Southern California, Los Angeles, used to see second-opinion patients at no charge. Now he imposes a consultation fee of $100 to $350 because so many of these patients seek his care.

Dealing best with these special circumstances

Once you've decided that you can help a patient, you'll need to use some special techniques to provide optimal care -- and keep yourself free of legal trouble. Many of them seem simply common sense. They include reassuring the patient, dealing with emotions, validating concerns, and setting appropriate expectations.

One thing that's tremendously therapeutic is when the patient knows that you're willing to listen and "journey with them," says Scott MacRae, M.D., who sees complications from LASIK, cataract and anterior segment surgery. Another is when the patient knows that you understand the problem. If the physician can say that something can be done, that gives the patient tremendous hope, suggests Dr. MacRae, professor of ophthalmology and visual science at the University of Rochester, Rochester, N.Y.

You also may have to deal with significant emotions, such as anger, anxiety, and fear. The patient wants answers, and many times physicians haven't been able to provide those answers, says Dr. MacRae. He'll let them vent their emotions, within reason. But if a patient seems stuck in the emotion, Dr. MacRae will start pointing out what needs to happen for the patient to obtain resolution or improvement.

As a physician providing a second opinion, often what's fruitful is not intervening but explaining, says Dr. Assil, who handles both cataract and refractive patients. Instead of simply handing the patient a diagnosis, one of the most valuable things you can do is to back up and explain why something is the way it is, he suggests.

Dr. Assil may declare to the patient that he's starting from scratch. When he does so, about half the time this will "completely alter the terrain," he says. The patient becomes reasonable and is more likely to buy into the game plan that Dr. Assil proposes.

Validating concerns

Besides these techniques, clinicians who work with these patients stress the importance of validating the patient's concerns. "Don't try and minimize their complaint," says Dr. Rubinfeld.

Never tell a patient who is unhappy with an outcome that he or she should be pleased with the result, says Dr. Donnenfeld, who estimates he sees about a dozen patients a week with refractive complications. "If the patient thinks it's bad, it's bad," he says. Instead, explain the options so that the patient can make an informed decision about what to do next.

Though you may not see sequelae of dry eye, for instance, if the patient complains of dry eye and you don't account for it, you can create a disconnect, says Dr. Assil. Instead, he would tell the patient that his or her observation is real, adding that the dry eye condition won't harm the eye. Then he'd address what's causing the dry eye sensation and help the person understand why he or she needs to be patient.

Setting expectations

Clinicians also stress the importance of setting reasonable expectations for patients who come in with complications. Spending extra time with patients and giving them a lot of information helps in developing realistic expectations, says Dr. MacRae.

Some LASIK marketing hasn't helped this cause. Expectations get set in that no matter what the small print says, the bold print on the highway billboard sign, for instance, says that LASIK will allow the patient to see with "crystal clear acuity," says healthcare attorney-consultant Robert Wade, of Wade, Goldstein, Landau & Abruzzo, PC, Berwyn, Pa. That means that in re-operating, you have to be cautious in "setting the table for the patient as far as what's happened in the past," he says.

You'll be under more intense scrutiny

At the same time you deal with your patient's emotions and expectations, you also have to take care of yourself. A patient with complications may heighten your chances of becoming involved in a lawsuit -- perhaps not as a target, but as a witness, for instance. You need to be aware, says Dr. Donnenfeld, that you're assuming "significant legal as well as medical responsibility in their care."

You take additional legal risks, says Dr. Hardten, because you'll be more highly scrutinized. What's more, because the patient has already suffered a poor outcome, your outcome may not be as good or as predictable as the first. That's partly because you're starting with a more difficult case, but also because the patient may respond unusually to surgery or disease.

On a contrary note, Dr. Salz feels that touching up a LASIK patient who had surgery with another physician
doesn't put him at increased medical/legal risk. He also notes that he doesn't pay higher malpractice insurance premiums because he cares for such patients.

To help ensure that you don't wind up on the wrong end of a lawsuit, you can take various steps. These involve using a more conservative treatment plan, obtaining a solid informed consent form, doing a thorough exam, and documenting carefully and thoroughly.

Similar to setting appropriate expectations, clinicians will sometimes follow a more conservative treatment plan with these patients. If Dr. MacRae's impression is that a patient puts his group at high risk for a lawsuit, he'll be extremely cautious and put a conservative treatment plan in place.

In the same vein, a tightly crafted consent form can help protect your interests. For more complex cases, Dr. Rubinfeld tends to dictate a special consent form. It makes clear that the patient's problem isn't typical, the associated risks are higher, and the patient has chosen to accept those risks. If Dr. Donnenfeld entertains further surgery for a patient, then the informed consent specifically states that pre-existing problems may mean the result won't be as good as with a virgin eye.

Malpractice defense attorney C. Gregory Tiemeier, J.D., of Tiemeier & Hensen, PC, Denver Colo., has developed a specific consent form for subsequent refractive surgery. It makes these points:

• All of the risks, benefits, and alternatives spelled out in the consent form the physician generally uses apply.
• The aim of this procedure is to improve a suboptimal situation, but chances are good the operation won't achieve the results expected with the first operation.
• All the risks and complications of the first operation are still present and this procedure won't give the patient a fresh start.
• Because this is repeat surgery, risks and complications may be more likely to occur than if this was a first operation.

He also inserts a statement that the patient understands his or her vision may be made worse from this surgery.

Dr. Assil takes a different approach. He doesn't use an informed consent form for a patient with complications that's any different from his normal consent form. He argues, in fact, that such a form could create exposure: One could argue that you're treating a patient differently because he or she was dissatisfied with a previous provider. Instead, he discusses the worst possible scenario with the patient, and notes on the chart that he discussed risks, including worsening of the existing problem and possible loss of vision or of the eye.

"Exhaustive evaluation" is a must

Clinicians also stress the importance of doing a thorough examination. Dr. MacRae's staff obtains a "pretty exhaustive evaluation" of patients with LASIK complications to articulate why the patient is having visual difficulties. That his staff knows how to do that kind of evaluation and use advances such as wavefront technology reassures the patient, he says.

Attorney Tiemeier recommends doing a thorough baseline exam, including topography, Orbscan, visual fields, and contrast sensitivity -- anything you can, he says, to establish the patient's situation when the patient first came to see you. Every patient who visits Dr. Donnenfield's practice with a refractive problem gets topography, and most get Orbscan, central pachymetry, Schirmer's, and a refraction.

On a related note, a highly skilled staff can make your job easier. If the staff can do a lot of the testing, says Dr. Assil, then your job becomes more a matter of assimilating the information, focusing on a few exam points, and educating the patient.

He cautions, though, that the staff has to know how to talk to the patient without saying too much. For example, staff shouldn't provide a diagnosis or talk about a treatment plan. "That would be disastrous for all parties," says Dr. Assil.

Finally, thorough documentation is also key with such patients. Dr. Donnenfeld is careful to document all aspects of preoperative evaluation and treatment.

Commenting on initial care

One of the stickiest areas in caring for a patient with complications is dealing with the initial treating physician. You have to find the line between being honest and forthcoming and not saying too much about the previous physician's care.

Many clinicians recommend restraint when speaking about the previous physician's care. For one thing, you weren't present when the first physician performed the surgery. Even if you've talked to the initial physician and obtained records, "it's hard to put it all together," says attorney Paul Weber, risk manager at Ophthalmic Mutual Insurance Company, San Francisco, Calif. The best course "is to refrain from criticizing a colleague" he suggests.

"It's only appropriate to assume that the other surgeon did a good job and cares about the patient," says Dr. Rubinfeld. If you've decided to accept the patient into your care, "don't condemn the previous surgeon," advises Sylvia Norton, M.D., medical director, Jerva Eye Laser Center, Syracuse, N.Y.

You also have to be careful about commenting on the case based on information you get from the patient. You're "unlikely to get the full story from the patient," says Tiemeier. The treating physician may have information the patient couldn't disclose because of a lack of sophistication or understanding on the patient's part.

Dr. MacRae tries to provide answers to his patients "without necessarily pointing fingers at who did something right or wrong." In many cases, there's not a clear-cut reason why a procedure didn't go correctly or the desired outcome didn't materialize. "I try to remain neutral with regard to why they're in the position that they're in," he says.

Unfortunately, ophthalmologists who do refractive surgery appear to be more willing to criticize a competitor, Tiemeier says. He puts the blame for that on refractive surgery's "extremely competitive environment."

Tiemeier cautions that you shouldn't try to mislead the patient. Your first obligation, he notes, is to care for your patient. If that requires disclosing information about a medical condition that could harm the other physician, you must do it -- but you don't have to necessarily criticize the first physician, he says.

He suggests that you have two courses of action if you know all the facts and the patient asks you about his or her prior care. The first course is to say you don't want to comment on the previous physician's care. The second is to answer truthfully.

From time to time, says Wade, he's seen cases where a physician overstates his or her bounds and comments negatively about the prior procedure. By saying something, he may be "fanning the flames that are already burning."

James P. Gills, M.D., founder of St. Luke's Cataract & Laser Institute, Tarpon Spring, Fla., whose 22-physician practice handles both cataract and refractive patients, believes in always supporting the first physician. "Whatever the complication is, I could have had it myself," he says.

Dr. MacRae reports back to the first physician if the patient was referred. This can reinforce to the patient that the first physician had an appropriate plan. What's more, he and the first physician can also help to rehabilitate the patient, especially if the patient still trusts the first doctor and isn't involved in litigation.

Before treatment, get the patient's permission in writing to contact the prior doctor and to release the patient's records to you, says Tiemeier. You can then discuss what the physician tried to do to resolve the problem, which can prevent you from making the same mistakes and give you a heads up on the patient who is "unsatisfiable."

Once attorneys are involved in a case, the first physician's counsel may not want you to speak to that physician, notes Dr. Assil. That can compromise patient care to a small degree, he says, in that you can't call the first physician to answer a question. Once attorneys are involved, "it changes the dynamics abruptly," Dr. Assil says.

Big rewards

In the end, patients with complications may challenge your clinical and management skills and pose additional legal risks. Still, though you may not be able to achieve perfect postoperative results, "you can almost always make the situation somewhat better," says Dr. Rubinfeld. "It's important for them to always have hope that things can be improved."

Caring for these patients may be time consuming and difficult, acknowledges Dr. Rubinfeld. But, when you can help them, "it's often one of the most rewarding experiences you can have in practice."

Louis Pilla (pilla@netreach.net) is a healthcare journalist based near Philadelphia, Pa.