39 Staying Out of Trouble: Strategies Based on Recent OMIC Oculofacial Plastic Surgery Claims
Abstract
Every treatment or surgery has the risk of failing to accomplish the intended objective of improving patients’ condition or appearance. Hence, every physician must learn to manage this disappointing outcome and help patients move forward with acceptance or additional treatment. Breakdown in the physician–patient relationship can contribute to the likelihood of medical malpractice claims against the physician. This chapter discusses the causes for common problems and suggests strategies to avoid malpractice claims.
39.1 Introduction
In the United States, there are approximately 1,600 ophthalmologists who self-identify as specialists in oculofacial plastic surgery according to the American Academy of Ophthalmology (AAO). Among these are the nearly 800 members of the American Society of Ophthalmic Plastic and Reconstructive Surgery (ASOPRS). In addition, there are numerous surgeons from related disciplines such as otolaryngology, plastic surgery, and dermatology who also frequently perform oculofacial plastic surgical procedures.
The Ophthalmic Mutual Insurance Company (OMIC) provides medical liability insurance (malpractice insurance) for the largest segment of U.S. ophthalmologists, with approximately 5,000 member physicians as of 2018. Using OMIC’s internal database of over 4,500 closed claims since 1987, lessons can be learned regarding the problems and issues that arise in the practice of oculofacial plastic surgery. Approximately 20 to 25% of all claims will end in an indemnity payment to the claimant or plaintiff, typically a settlement (or more rarely, jury verdict award). Indemnity payments for oculofacial plastic surgery are generally lower than those for many higher risk medical specialties such as neurosurgery and obstetrics, but average about $215,000. For comparison, recent indemnity payments for all branches of ophthalmology averaged about $280,000 based on a study from 20 U.S. medical liability carriers. 1
Laws governing the practice of medicine are state-dependent, and the 50 U.S. states vary considerably. Physicians must become familiar with the laws of the states in which they practice, but certain concepts are universal. The standard of care is an important concept that is defined as the level and type of care that would be provided by a reasonably competent and skilled physician with a similar background in the same medical community. The standard of care is determined on a case-by-case basis by the medical experts who testify about the care. While practicing medicine at the standard of care does not necessarily protect against dissatisfied patients and potential malpractice claims, practicing below the standard of care is definitely associated with successful claims against doctors. In a recent OMIC study, in cases for which the medical care provided in oculofacial plastic surgery cases was judged by physician reviewers to be below the standard of care, an indemnity settlement was made in 84% of claims. Conversely, for cases with alleged patient harm due to complications that are well-recognized in the medical literature, but with medical care at the standard of care, indemnity settlements were made in only 10% of claims. 2 Circumspect judgment, timely referrals to colleagues for assistance when needed, and continuing education are among the most useful tactics to maintain the standard of care.
Lawsuits for medical malpractice are civil, not criminal, legal actions and are thus governed by tort law: allegedly injured patients must show that the physician acted negligently in rendering care and that the negligence resulted in injury. Typically, four legal elements must be established: (1) that the physician had a professional duty owed to the patient, (2) that the physician breached that duty, (3) that an injury was caused by the breach, and (4) that there were resulting damages, which are economic (lost wages, cost of health care) and noneconomic (“pain and suffering”).
Although trends and past experience will not necessarily predict the future medicolegal climate, this chapter will summarize some of the most useful lessons learned from recent claims.
39.2 Particular Problem Areas in the Practice of Upper Facial Plastic Surgery
Cosmetic dissatisfaction with the results of blepharoplasty (or other surgery) is the single most common reason for a claim against the surgeon; however, such claims rarely result in a financial settlement or other indemnity payment. 2 When loss of function occurs from surgery, there is a higher risk that a claim will result in an indemnity award to the patient.
39.2.1 Blepharoplasty and Ptosis Repair
Blepharoplasty is the surgery most frequently associated with a malpractice claim for this specialty. This is not surprising since blepharoplasty is the single most common oculofacial plastic procedure. Large settlements ranging from $300,000 to $1,300,000 have been negotiated by OMIC for permanent visual loss due to retrobulbar hemorrhage after blepharoplasty, most commonly from failure of the surgeon to promptly and adequately address the situation. Smaller settlements of $150,000 to $430,000 have been negotiated for other complications, including lagophthalmos, corneal damage, and worsened dry eye. Similar settlements are associated with ptosis repair. Practice patterns that avoid or aggressively manage these problems are recommended to prevent malpractice settlements.
39.2.2 Brow Lifting
Most other types of oculofacial plastic surgery care are less commonly associated with claims, although claims related to orbital, lacrimal, trauma, and periocular reconstruction have all occurred. Brow lifting is rarely associated with successful claims; only one has resulted in indemnity (under $30,000) in the past 20 years for OMIC. The majority of brow lifting claims have been cosmetic, resulting in no indemnity payment.
39.2.3 Invasive Skin Treatments
Laser and chemical peel skin treatments for actinic damage and/or facial aging such as rhytids and dyschromias are also common oculofacial plastic procedures performed in many practices, often by the physician and sometimes by ancillary staff. In OMIC’s experience, skin scarring with periocular deformity (e.g., ectropion) and/or perioral and cheek deformities have led to multiple settlements with indemnity payments ranging from $125,000 to $900,000. Conservative planning, careful training and supervision of ancillary staff, and close postprocedure management are each reasonable tactics to prevent scarring and subsequent liability claims.
39.3 Fillers and Autologous Fat
While there have been no claims related to autologous fat grafting or hyaluronic acid fillers in the recent OMIC database, there have been several claims associated with adverse outcomes from Radiesse hydroxylapatite facial filler in the upper face. 2 Of these, two claims alleged unsatisfactory cosmetic appearance, while the third alleged infection. It is recommended that careful informed consent be obtained regarding the potential complications with Radiesse (and fat) including the relative difficulty in removing either material in the event of a problem.
39.4 Goals for the Upper Facial Surgeon
The goal of every upper facial surgeon should be to meet the needs of the patient. To do this, the surgeon must establish the correct diagnosis, know when to say no to surgery, communicate effectively with the patient, obtain a good informed consent with the risks/benefits/alternatives to the treatment, execute the surgical plan, follow-up with the patient, and manage complications.
39.4.1 Establishing the Correct Diagnosis
In many published series of malpractice cases against internists and general surgeons, the most common paid claim has been failure to diagnose or failure to treat a serious medical problem to the local standard of care. Although this type of claim is much less common for oculofacial plastic surgery, several large settlements have resulted from these claims. For example, a claim for alleged failure to diagnose squamous cell carcinoma that resulted in enucleation and maxillectomy led to a $975,000 indemnity payment, and another claim for alleged failure to diagnose glaucoma for a patient who was left on topical loteprednol for months after blepharoplasty resulted in a $400,000 indemnity payment. Physician clinical vigilance during routine patient care is the best defense to avoid similar claims and indemnities. For unusual or difficult situations, it may be helpful to arrange re-evaluation on an additional visit, or referral for a second opinion.
39.4.2 Knowing When to Say No to Treatment
There is a complex interplay between the patient’s anatomy, pathology, and coexistent medical, psychological, and social factors that may affect surgical decision-making and outcome. Not every patient is a good candidate for treatment, nor is the evident pathology always amenable to successful treatment. Consider saying “No, I am unable to help you” to new or existing patients if:
Multiple prior surgeries for the same (or similar) problems have been unsuccessful. Particular caution may be exercised if no records are available, or if the records show that the previous failed plans are similar to the ones you propose.
Substantial anger at a previous surgeon is detected or the patient describes social isolation as a result of previous treatment. Listen and avoid patients who share phrases such as “My life is ruined” or “I can’t go out.”
A patient treats your staff with disrespect, violence, or consistent rudeness.
A patient pushes you to cut corners or create a new procedure just for him/her.
Magical or utopian thinking is detected, for example “My husband will love me again” or “This surgery will help me get a promotion at work.”
Your trusted staff tells you the patient seems “crazy” or extraordinarily demanding.
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