Top Triggers for Malpractice Suits

What you need to know to keep you - and your patients - safe.

What you need to know to keep you -- and your patients -- safe.
JEROME SHERMAN, O.D., F.A.A.O., New York, N.Y.

Optometry's scope of practice has dramatically changed over the last 10 to 20 years, and we're in the public's eye now more than ever as the primary providers of eye care. In addition, technological advancements have made it possible to detect ocular conditions earlier, faster and with greater accuracy.

Although these changes serve patients well and advance our profession, we need to be aware that with all of these positives come increased responsibility for properly diagnosing patients and for not missing any sight- or life-threatening conditions. Perhaps the worst experience an optometrist could have in his professional career is to be involved in a lawsuit stemming from alleged malpractice. The nightmare sometimes lasts years, resulting in sleepless nights, feelings of guilt and anger, depression and the inevitable second-guessing. What if I'd dilated? What if I'd performed fields? What if I'd asked about any headaches?

A peripheral retinal fundus photo revealing two retinal tears, which often lead to a total retinal detachment if not treated in a timely fashion. They're often missed without a dilated fundus exam with binocular indirect ophthalmoscopy.

On rare occasions, a major case goes to trial and a jury finds the optometrist culpable, resulting in a well-established practitioner suffering from immediate, irreparable damage.

We all can reduce our risks of malpractice litigation to near zero by covering all our bases and keeping in mind the things most commonly overlooked when caring for patients. To write this article, I pored over nearly 200 cases to identify and report to you the most common triggers of optometric lawsuits. Find out what they are and how you can avoid making these mistakes to keep yourself safe from a potentially devastating malpractice lawsuit.

Covering the bases

The vast majority of malpractice cases fall within three categories of disorders: retinal detachment, glaucoma and tumors. Failure to diagnose choroidal neovascularization and proliferative diabetic retinopathy are important, but are less frequent causes of malpractice litigation.

The simple rule of covering the bases relates to all eye clinicians, and most cases could've been avoided had the clinician done so.

A threshold visual field depicted in a 3D hill of vision plot. This patient had no symptoms in his right eye, 20/20 vision and normal IOPs, but a large, arcuate scotoma and nasal step, which are characteristic of moderate nerve fiber layer loss in glaucoma. Fields are required in any glaucoma suspect.

  • First base. This base is reserved for 20/20 best corrected visual acuity (VA). You must always seek and establish an explanation for acuity not correctable to 20/20. If the patient's VA is reduced monocularly in a youngster with a normal-appearing fundus, it's tempting to attribute the VA reduction to amblyopia. But amblyopia is a diagnosis of exclusion. If the media are clear and the macula appears intact, consider optic nerve and visual pathway involvement.
    Perform an automated visual field even if confrontation fields are normal. Amblyopia is almost never the cause of VA reduction unless an amblyogenic factor is present, such as constant unilateral strabismus or significant anisometropia.
  • Second base. Intraocular pressure (IOP) measurements represent second base. Basically, you should measure and document IOPs for all patients, regardless of age. This includes patients who present with symptoms that appear unrelated to high IOPs. Children, especially those with VA not correctable to 20/20, also deserve tonometry.
  • Third base. Here we have a fundus exam, preferably through a dilated pupil. All patients deserve a fundus examination even if the presenting symptoms appear to have an external cause. A diabetic patient presenting for the first time with a red, irritated eye believed to be caused by a minor corneal problem still requires that you perform a comprehensive fundus exam.
  • Home plate. To cover this base, we need to perform a visual field exam, preferably an automated visual field. Granted, some clinicians are adept at performing confrontation fields, but most aren't. Besides, the printed page generated by an automated field machine contains the patient's name, date of the test and indication of your findings, providing invaluable evidence if malpractice allegations ever result.
    You'll have difficulty proving that you performed confrontation fields, and a plaintiff's attorney at trial could make any doctor look foolish for relying on this method. Think of how an antagonistic lawyer might play this out in court: "So doctor, rather than use a sophisticated computer to check Ms. Smith's peripheral vision, you waved your fingers at her. Why didn't you wiggle your ears, too?"
    No reasonable clinician relies on confrontation fields to detect field loss in early glaucoma, so why do we rely on confrontation fields to detect visual pathway disorders such as brain tumors?

What's malpractice anyway?

For an optometrist to be culpable of malpractice, three factors must be present.

Case 2: The tumor (hemangioblastoma) that was partially surgically removed 1 year after visual acuity was documented as reduced to 20/60. The teenager lost all light perception in both eyes and the jury awarded nearly $10 million to the patient.

  1. The professional care rendered needs to be below the generally accepted standard of care. The American Optometric Association (AOA) Practice Guidelines are often used as a standard, when applicable. If the standard is somewhat difficult to determine, a judge will often instruct the jury to consider a like practitioner under like circumstance. The like practitioner isn't the Harvard professor, but another clinician who's in a similar setting to the plaintiff.
  2. The patient must suffer a loss. Just because an optometrist failed to perform a fundus exam on Mr. Jones, there's no case unless Mr. Jones suffered some type of loss that was preventable if the doctor had in fact performed the fundus exam. The loss is usually in the form of irreversible loss of vision, but it can occasionally mean loss of life, too.
  3. Some link or connection must exist between what the clinician failed to do and the loss suffered by the patient. If a patient has retinitis pigmentosa and the optometrist failed to diagnose it, the loss of vision isn't related to the missed diagnosis but to the untreatable and progressive degeneration from the disease.
    As a general rule, a clinician isn't held responsible for missing a diagnosis of an untreatable disorder. But if the failure led to vision loss that could've been prevented if he had met the standard of care, the issue of causation has been met and the doctor will likely be found culpable.

What has had the most impact on our standard of care?

Curiously, the standard of care in both optometry and ophthalmology has changed most because of two precedent-setting cases -- not because of standards created by the professions. Here are some cases in point:

  • Helling vs. Carey. In this case, a young female contact lens patient sued her ophthalmologist for missing her glaucoma over a 10-year period. The experts for the defendant ophthalmologist testified that the standard of care is to perform tonometry on patients over the age of 35, but the patient plaintiff was under care between the ages of 23 to 33.
    The judge instructed the jury to disregard the standard of care if a simple test, readily available to the ophthalmologist, could've prevented blindness. The jury, under the instruction of the judge, found the ophthalmologist culpable and, in effect, created the new standard requiring tonometry on every patient regardless of age.
  • Keir vs. the United States. This precedent-setting case involved Karen Keir, age 4, who was evaluated on a military base for a routine exam. Less than a year later, her parents noticed that her pupil had turned white. She was diagnosed with a retinoblastoma.
    The three-judge federal panel determined that even though Karen didn't have symptoms or reduced VA, her doctor should've performed a dilated fundus examination using binocular indirect ophthalmoscopy. Furthermore, the judges determined that this test should've been performed on the first visit and every periodic re-evaluation.
    As the outcome of this case, an appellate level federal court created a new standard requiring dilation on nearly every patient.
    This important case is well known by most plaintiffs' attorneys and is often cited whenever a patient suffers vision loss because of a retinal disorder that wasn't detected by an O.D. because he failed to perform a dilated exam.

With regard to routine automated visual field screening, several major cases that are presently making their ways through the courts could create a new standard requiring routine field screening.

An axial MRI revealing a large, chiasmal tumor in a patient with advanced nuclear cataracts. Fields were never performed and the patient's visual symptoms were all attributed to his cataracts. 

The AOA Practice Guidelines include a visual field evaluation on comprehensive exams but the method of testing was intentionally left vague. Most clinicians interpret this as meaning that confrontation fields are adequate in routine cases.

Putting it all together

I've covered much ground so far, but by now you should have a good idea of the conditions most commonly cited in lawsuits, and about which bases you need to always cover.

Here are a couple of actual cases that illustrate some common trigger points for malpractice lawsuits. See if you can identify what the practitioners should've done to avoid these following lawsuits.

  • Case 1. A 32-year-old patient with a history of diabetes presented for the first time with the chief complaint of right eye irritation for 3 days. The patient's VA was 20/20 in each eye, and the optometrist found a corneal defect, which stained temporal to the visual axis, along with cells and flare in the right eye only. He diagnosed kerato-uveitis and treated the patient with topical steroids, an antibiotic and dilating drops.
    The patient was seen on four consecutive days and showed some improvement. But within 10 weeks, the patient returned with the same complaints. This time, the corneal problem was diagnosed as recurrent corneal erosion and treated.
    About a week later, the patient presented to a different doctor with the same complaint of right eye irritation but also of blurred vision. This doctor found VA of light perception only in the affected right eye. Unlike the previous five examinations, this doctor covered his bases. Eye pressures were 70 mm Hg in the right eye, and a fundus exam revealed proliferative diabetic retinopathy OU. The patient was then treated appropriately with medications to lower the pressures and pan-retinal photocoagulation to treat the retinopathy.
    A review of all the records reveals that the doctors in the first practice failed to perform tonometry, gonioscopy, a fundus exam or visual fields on all five of the visits. The corneal involvement, documented in the same location on all six records, was bullous keratopathy secondary to high IOPs. The bullous keratopathy was only the tip of the iceberg, but it caused the patient's right eye to be irritated with each blink of the lids.
    The patient had diabetes for 20 years, developed fibroproliferative diabetic retinopathy without macular involvement, and then developed rubeosis and secondary neovascular glaucoma, which resulted in pressures of 70 mm Hg, a compromised corneal endothelium and hence a corneal bullae.
    This case exemplifies the problem with providing problem-oriented care without also covering your bases and performing tonometry and a fundus exam. Remarkably, in this case, the patient presented to the first practice on four of five occasions dilated -- and yet the fundus wasn't evaluated.
    In addition to revealing the importance of covering the bases, this case highlights other important clinical pearls:
    • Never treat a patient with an iritis without examining the fundus first. Fundus lesions, such as active toxoplasmosis and even malignant melanomas, can result in a spill-over iritis.
    • You should always perform a comprehensive fundus examination on a patient who has diabetes. If a patient with diabetes has a serious visual problem, it's highly likely to be from diabetic retinopathy and its attendant complications.

This case also highlights the point that an "iritis" may not be caused by inflammation but instead by compromised, leaky blood vessels as found in patients who have diabetes with rubeosis.

A choroidal malignant melanoma that was previously diagnosed as central serous choroidopathy. When the tumor progressed, the true diagnosis became more obvious.

  • Case 2. A 13-year-old girl presented for the first time with a chief complaint of blurred vision in the right eye. (The record is unclear about whether this was a recent event or a long-standing condition.) The rest of the history was unremarkable, but it was revealed that the patient's aunt had amblyopia.
    The best corrected vision with -0.25 sphere was 20/60 in the right eye and 20/20 in the left eye. The external exam revealed a small exophoria and normal pupils. Confrontation fields were recorded as normal.
    A dilated fundus exam revealed normal discs and macula. Polaroid fundus photos were obtained, later reviewed and found to be normal. The doctor told the patient and her mother that all was okay except for a mild lazy eye. He told the patient that because of her age, it was too late to treat this condition and glasses wouldn't correct it. He suggested a routine follow-up exam in a year.
    Reassured, the teenager returned to her normal, hectic life and had no additional problems until about 50 weeks later, when she noticed flashing colored lights. The next morning, the mother brought her back to the doctor for further evaluation.
    VA was now below 20/400 in the right eye and 20/20 in the left eye. The pupils and fundus were still reported as normal. An immediate referral resulted in neuro-imaging, and this test revealed a large brain tumor slightly anterior and superior to the right side of the chiasm.
    Doctors explained the risks and benefits of immediate neurosurgery to the patient's parents, who then signed an informed consent. After two surgeries, the teenager was left completely blind in both eyes.
    The only one sued was the optometrist for the care provided on the first visit. A jury trial revealed that the patient had normal vision on three previous school screenings.
    The experts in neuro-surgery testified that the tumor could've been successfully treated a year earlier with gamma knife radiation without surgery and without further vision loss if it had been detected then.
    The jury finds the optometrist culpable of malpractice and awards the teenager $9.2 million.
    This is but one of dozens of similar cases of reduced vision incorrectly attributed to amblyopia that has been reported over the past 2 decades. These clinicians all unfortunately failed to cover their bases.
    In this landmark malpractice case, the patient's reduced VA was attributed to amblyopia, but she demonstrated no amblyogenic factors, such as constant unilateral strabismus or significant anisometropia. The teenager and her mother also testified that the blurred vision was of recent onset.
    Whenever VA isn't correctable to 20/20, the fundus exam is normal and the cause of the problem is unclear, you should perform automated visual fields. Normal confrontation visual fields in this and other cases have lulled clinicians and patients into a false sense of security.

Learning from others

By following some simple guidelines, such as covering the bases, we can all provide better care to our patients and dramatically reduce our risk of being involved in malpractice litigation.

I hope you'll keep these points in mind when caring for your patients. Look for more true cases of alleged optometric malpractice to learn from next month and in subsequent issues of Optometric Management, which will contain my new column "Malpractice Management."

Dr. Sherman practices at the Eye Institute and Laser Center in Manhattan and is a distinguished teaching professor at the State University of New York College of Optometry.