MALPRACTICE LITIGATION RISKS TO OPHTHALMOLOGISTS
When Physicians LOSE Malpractice Suits
True tales from a plaintiff's attorney.
BY BRIAN R. WILSON, ESQ.

After 17 years of practicing plaintiffs' personal injury and malpractice law, I have reached the following conclusion about medical malpractice litigation: the odds are overwhelmingly in the physicians' favor.

Many studies generally confirm that physicians and other healthcare providers win approximately 75% of all cases brought against them. Contrary to the spin placed on this statistic by proponents of tort reform, these are not cases that meet the legal definition of a "frivolous" lawsuit. This overwhelming win rate involves lawsuits where there was expert testimony to support the plaintiff's allegations and where the trial court judge believed there was sufficient conflicting evidence to submit the case to a jury.

This general statistic has held true for well over a decade. The reason is simple: jurors initially start the trial with a bias in favor of the medical provider, and will generally hold onto that belief during the trial unless strong evidence to the contrary exists. If the evidence is truly conflicting, "ties" will almost always go to the physician.

Besides the blatant "cutting off the wrong leg" or other obvious cases of malpractice, what scenarios will reverse these odds and turn this general bias in favor of the plaintiff-patient in the courtroom? While some are simple and others are more nuanced, several recurring patterns exist that will increase the likelihood of a successful plaintiff's malpractice lawsuit. In this article, I'll discuss four cardinal sins that often cause physicians to lose malpractice cases.

I would estimate that 100% of all living, breathing adults believe they are entitled to a complete copy of their medical records on demand.

Problems with Records

Many physicians feel insulted or suspicious when a patient asks for his or her own records. Doctors would be advised to shed those feelings and simply cooperate. Although I have conducted no formal poll, I would estimate that 100% of all living, breathing adults believe they are entitled to a complete copy of their medical records on demand, or within a reasonable period of time (say, 10 to 15 minutes after the request is made). Imagine being the defendant and listening to the following testimony in court, from an actual case I tried:

Q. Did you ask for a copy of your records from Dr. Smith?

A. Yes I went to his office and spoke with his office manager personally.

Q. Did the office manager give you your records?

A. No, she asked me why I wanted them. I told her it was none of her business and that I was entitled to a copy of my records.

Q. What did she tell you?

A. She told me that it was office policy not to release the records unless the doctor was present and since he was not at the office, she would have to clear it with the doctor first.

Q. Did you then follow up with Dr. Smith's office on this issue?

A. Yes, I went back to the office at least two or three times and each time I was told that the records "were not ready." When I asked what was "not ready," I was not given an answer. Another time, I was told that the doctor was not in, but I saw his car in the parking lot.

Q. Did the doctor finally turn over his records to you?

A. No.

Q. What happened?

A. After 6 months of asking and personal visits and letters to him, I finally called the State Medical Board and registered a formal complaint against him. After a few weeks, I received a copy of my records in the mail.

Q. How long did it take you to get a copy of your own medical records from Dr. Smith?

A. Approximately 8 months.

Even worse than delaying a patient's right to records is any attempt to alter them. When this occurs, it is usually devastating to the defense of any medical malpractice case. Recently, we prosecuted a medication overdose case where we discovered two sets of records for the same patient. The altering party changed our client's vital signs and respiration rates in the original chart after the life-flight team had already made a copy of the true records, unbeknownst to the altering party. For those of us old enough to remember Watergate, the lesson learned is that the cover-up is often worse than the deed itself. Avoid "Chartgate" at all costs.

A third category of records problems involves records that are hopelessly inconsistent or contradictory, and thus become suspect. For example, in a laparoscopic cholecystectomy malpractice case I handled involving a transected common bile duct, (which is not supposed to be cut during surgery), the doctor's hospital records and office chart seemingly invoked every possible theory and/or defense to transecting the common bile duct. His explanations in the records ranged from a "distorted cystic duct due to inflammation" to "congenital defect — absent cystic duct" and ruminations about both, but with no real confirmatory evidence of either. In the end, it was confusing to the jury, and appeared to be merely a list of possible defenses to a lawsuit and nothing more.

	Patient loyalty is the best malpractice premium you can ever have.

Communications Issues

The delivery of medical services is often a systems-based approach. As with any system, breakdowns in the chain of communication can occur. The following two examples illustrate this point:

A patient is diagnosed with Waldenstroms macroglobulinemia. A well-known side effect is hyperviscosity of the blood, which is determined by serial testing of the blood, including serum viscosity testing. The serum viscosity tests reveal that the patient's blood is too thick to run through the machine. The nurse does not then communicate the abnormal result to the oncology physician because she does not understand the significance of a lack of "numerical value" associated with the testing. After several months, the patient suffers a stroke in the cochlear of his right ear, and post-stroke his serum viscosity is measured at 37, while normal is 1.7. From the time the patient was diagnosed until his injury, a period of 4 months, no doctor ever reviewed the serum viscosity results.

A 50-year-old woman is injured playing volleyball. She presents to the local outpatient urgent care facility where x-rays are taken of a suspected fractured rib. The x-rays are read as normal, but are overread by the radiologist, who interprets the film as possible fractured rib and an infiltrate with a recommendation for follow-up. The urgent care physician calls the patient and tells her she may have a possible rib fracture, but does not understand the importance of the infiltrate. The patient requests the urgent care physician send the x-ray report to her family physician.

Twenty-two months later, the patient is diagnosed with adnocarcinoma of the lung in the exact spot where the infiltrate was noted and dies several months after the diagnosis. After a suit is filed, the family doctor claimed that he never received the fax from the urgent care center, but if he had he would have performed follow up x-rays for the infiltrate. The urgent care facility claimed that it had faxed the report to the family physician, but the fax confirmation sheet had been destroyed per the document retention policy of the urgent care facility.

Juries in both cases would not need to understand the nuances of "Waldenstroms macroglobulinemia" or "adnocarcinoma" to understand why those patients encountered medical tragedies. Both examples illustrate the importance of timely follow up that would have prevented either of these tragedies. The effect of such obvious communication lapses in litigation is the predictable finger pointing, as each provider testifies that he or she assumed that another provider in the chain was to provide the necessary information to the patient.

This is not an uncommon scenario. Each provider would be well served to undergo a self-critical analysis of his or her office and its follow-up procedures. Does your staff undertake responsibility for following up with patients to communicate their test results through phone calls or letters, or is this responsibility assumed by the patient? Are attempts to contact patients meticulously recorded in the patient's chart? When communicating vital information is left to others in the chain, or is forced upon patients to discover on their own, it is eventually a prescription for disaster.

Physician/Patient Issues

In my experience, physicians measure the worth of their fellow peers by their competence. However, your patients often measure it differently: by your bedside manner. Every time I ask my client, "What did you think of Dr. Smith," I have yet to get this answer: "He has a 37-page C.V., his technical skills are superb and he has performed 1,200 of these operations without incident." Almost uniformly, the response is much different: "I liked Dr. Smith. He spent the time to explain things to me. When I spoke, he listened. I didn't feel like he was rushing me out the door."

Patient loyalty is the best malpractice premium you can ever have. Put yourself in the shoes of your patients for a few minutes and you'll soon learn why.

Many patients wait over an hour for a 10-minute exam, only to be told many times by the physician that he's "seen this condition a hundred times" and may prescribe a test or two and/or some medication. The patient is then told to pay at the door on the way out and eventually may wait for weeks for test results that were not communicated until the patient tracks down support staff to obtain the results. Consequently, if you break that patient expectation model with a few extra minutes of time, drawing a diagram of a patient's condition, learning about the patient on a personal level, or perhaps the extra or surprise phone call — a bond is formed that is rarely broken.

It truly amazes me to hear how brusque or crass some physicians can be with patients. A bad patient result with a bad physician attitude is much more likely to generate a phone call to our office than a bad result from a caring doctor with a good attitude. On this score, you'd be surprised to learn that on numerous occasions, I have had some clients bluntly tell me, "If investigating my case means eventually suing Dr. Smith, I won't do it even if he made a mistake." What does that tell you about patient loyalty and how patients view physicians they like and trust?

Indeed, the primary component of a solid physician/patient relationship is trust. Frequently, clients come to us after a medical tragedy with no idea why their loved one died or is comatose. Why? Because none of the providers undertook responsibility for explaining the causative chain of medical events or were sufficiently vague in explaining what transpired that it raised the malpractice index of suspicion.

Medical providers and hospitals have been slow to realize that a culture of honesty and decency after a sentinel event is infinitely superior to stony silence in staving off potential lawsuits. Again, from the patients' perspective, they're dealing with a tragedy of epic proportions. Yet, many times, they get no real explanation as to what happened. It is a shame when it takes a team of lawyers and experts to explain to the client what happened in the OR or the ICU months ago. Sadly, many of our malpractice investigations begin in that manner. The recent passage of "I'm Sorry" legislation, which permits providers to apologize to patients without fear of it being used in court, codifies what we have known anecdotally for years: that simple honesty goes a long way towards curbing malpractice suits, legislation or not.

Sometimes familiarity and experience breed a sense of self-confidence such that the diagnostician feels it unnecessary to investigate the problem further.

"Rush to Diagnosis" Syndrome

As with any profession, sometimes familiarity and experience breed a sense of self-confidence such that the diagnostician feels it unnecessary to investigate the problem further, opting for the common or frequently seen diagnosis. This is understandable in medicine, particularly when physicians frequently have to make a timely diagnosis of a constellation of symptoms. However, this can lead to a rush to diagnosis when in actuality, the patient's problem is uncommon or different from the norm. An actual case example illustrates the point:

A 23-year-old woman presents to the ER with a sudden onset of severe, stabbing, chest pain while folding laundry. The physician questions her extensively about illicit drug usage. She is given Toradol for the pain and is released. No cardiac workup is performed. Sixteen hours later, she is found dead at home secondary to a dissecting aorta as a complication of Marfan's Syndrome.

All experts agree that an EKG would not have revealed the dissection, but the plaintiff's expert, one of the world's leading authorities on Marfan's Syndrome, testified that an echocardiogram should have been performed on a patient with a sudden onset of stabbing chest pain, and with Marfanoid characteristics.

This example highlights an element of malpractice litigation that is frequently overlooked in the physician's antecedent diagnostic chain: that the magnitude of potential harm is extremely high despite the probability of harm being low. In busy doctors' offices or crowded ERs, it is quite easy to discount the worst case scenario diagnosis in favor of the most probable one.

Unfortunately, the medical standard of care for purposes of malpractice litigation takes into account both the likelihood of harm as well as the magnitude of harm as part of the malpractice equation. Thus, it is not an automatic or particularly compelling defense to a malpractice case that the plaintiff suffered from a rare or unusual condition, and it brings into play what, if anything, the provider considered or did when presented with potentially life-threatening symptoms that carry a low probability of occurrence.

Although this issue may raise the hue and cry of practicing "defensive medicine" again, a view from the patient's standpoint may provide a different insight. If given the choice, most patients would opt for an additional test to rule out a remote but potentially serious condition. But many times they are not given that choice by the physician.

Why is ordering a CT scan for a 35-year-old man who presents with the "worst headache of his life" to rule out a 5% to 10% risk of a brain bleed considered bad or defensive medicine? If explained to lay persons in this manner, most would think positively about defensive medicine, much like defensive driving. Whatever label is applied, many real world examples exist where defensive medicine may constitute good medicine.

The thoughts that form the matrix of my views are probably less than illuminating in this era of endless risk management seminars and talking points. But perhaps they might be salutary given the messenger is one from the other side, or "dark side" if you prefer. 

Brian R. Wilson is a partner with the Okey Law Firm in Canton, Ohio, where he has represented plaintiffs in auto, medical malpractice and products liability cases for more than 15 years.