Chapter 7

MEDICOLEGAL ISSUES

Wesley D. Blakeslee

This chapter, based on the United States legal system, reviews ocular trauma surgery-related medicolegal issues from two perspectives: that of the physician as defendant and as expert witness. Both arise from the physician’s obligation to provide quality and competent care. While the role as surgeon and healer is most important for the patient’s well-being, the physician’s significance as authority and expert witness must be neither overlooked nor minimized.

In many cases, liability or compensation remains irrelevant, but if compensation becomes an issue, the surgeon’s role as witness often substantially affects the patient.

PROFESSIONAL LIABILITY

The legal definition of negligence is the doing of an act (or an omission) that a reasonably prudent person under the same circumstances would not do (or fail to do).

The physician must act as any reasonably competent physician would act under the same circumstances, which will vary depending on factors such as specialization, the availability of facilities, and advances in the profession.

To maintain a successful claim of negligence, the plaintiff must show that:

• the physician failed to adhere to the standard of medical skill and care ordinarily exercised in similar circumstances^1,a; and that

• the physicians’ failure to observe the proper standard of care was a direct cause of the injuries of which the patient complains in the malpractice action.²

Although the law provides special rules in emergency situations, the physician must still provide care in accordance with the standard of medical skill and care ordinarily exercised in emergencies.³

Because medical negligence claims are based upon a failure to adhere to a medical standard of which the trier of fact (judge or jury) has no knowledge, the establishment of a claim virtually always requires the testimony of an expert witness on behalf of the plaintiff, with rebuttal by an expert witness of the defendant. Although treatises and textbooks may be introduced to describe the standard or rebut an expressed opinion, the standard of care and whether there has been a breach of that standard is dependent upon expert testimony.

SOURCES OF LITIGATION IN OCULAR TRAUMA

The physician owes the patient the duty to properly informb or advise of the potential risks of any medical treatment and to obtain consent for any procedure contemplated.^c The disclosure must include:

• the diagnosis made by the physician;

• the nature and purpose of any proposed treatment;

• the risks and consequence of the treatment (including other risks associated with the surgical procedure, such as those of anesthesia);

• feasible treatment alternatives; and

• the prognosis if the treatment is not undertaken.⁵

The typical informed consent claim arises when a known serious consequence occurs of which the patient claims not to have been informed. To prevail, the patient must satisfy the trier of fact that had he been forewarned of the consequence, he would not have undergone the procedure.

Defective eyewear

Defective eyewear that fails to protect from a known hazardous condition may result in a claim against the medical practitioner who prescribed it (e.g., to prevent sports-related injuries). The physician who supplies safety eyewear must be familiar with its types and the safety standards that apply.^e If the product itself is defective, the manufacturer will likely be the primary target, but the medical practitioner may be brought in under a number of theories. Such claims may include:

• failure to prescribe appropriate lens material (i.e., polycarbonate);

• failure to warn not only concerning the material but also of the fact that injuries can still occur while wearing safety glasses; and

• failure to inspect the eyewear prescribed.^6–10

Improper or Incomplete Localization or Removal of IOFBs

The sources of litigation include:

• failure to use proper available equipment resulting in failure to find the IOFB;

• incorrect location of the IOFB; and

• failure to remove all particles if multiple IOFBs are present.^10,11

Equipment Usage and Failure

The physician should:

• always use the diagnostic tools reasonably necessary and which are available;

• have knowledge of the limitations and proper use of the equipment;

• be cognizant of the ability of the staff to operate specialized equipment; and

• train new residents and staff in the usage of the equipment.

Failure to Diagnose and Delay in Diagnosis

The nature of the emergency situation and the overwhelming demands upon the physician may lead to a failure to diagnose, especially because some complications may initially be obscured by others.

Delay in diagnosis is another frequent source of claims (e.g., the injury does not appear to be an emergency; the patient does not present immediately but contacts the physicians’ office for an appointment).

Failure to Warn of Future Complications

Many conditions (e.g., cataract, retinal detachment) may develop years following the trauma. Proper follow-up must be arranged by the initial treating physician (see Chapter 8) or the patient must be clearly warned and instructed to be reexamined for that particular possibility.¹²

Anesthesia

Significant eye injuries and claims have been reported in association with anesthesia. Patient movement during ophthalmic surgery represented 30% of the claims in one study, resulting in blindness in all cases with significant awards.¹³

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