Ophthalmic Surgery, Lasers and Imaging Retina

Clinical Science 

Malpractice Litigation in Vitreoretinal Surgery and Medical Retina

Stephanie B. Engelhard, MD; Grant A. Justin, MD; Ingrid E. Zimmer-Galler, MD; Austin J. Sim, MD, JD; Ashvini K. Reddy, MD

Abstract

BACKGROUND AND OBJECTIVE:

To report and analyze the causes and outcomes of vitreoretinal surgery and medical retina malpractice litigation.

PATIENTS AND METHODS:

The WestLaw database was reviewed for all vitreoretinal malpractice litigation in the United States between 1930 and 2014.

RESULTS:

One hundred forty-two retina cases were included. Overall, 64.1% of cases were resolved in favor of defendants. Eighty-three (58.5%) cases were resolved via jury trial, 30.1% of which were associated with plaintiff verdicts with mean adjusted jury award of $5,222,894 (median, $691,974). Eight cases (5.6%) resulted in settlements with mean adjusted indemnity of $726,003 (median: $437,165). Jury awards were higher than settlement awards (P = .04). Commonly litigated scenarios included retinal detachment (46.5%) and retinopathy of prematurity (9.2%).

CONCLUSIONS:

The complexity of treating vitreoretinal problems and the high potential for vision loss inherent in many diagnoses make treating retinal problems high-risk. Many cases in this series resulted in multi-million-dollar plaintiff awards.

[Ophthalmic Surg Lasers Imaging Retina. 2020;51:272–278.]

Abstract

BACKGROUND AND OBJECTIVE:

To report and analyze the causes and outcomes of vitreoretinal surgery and medical retina malpractice litigation.

PATIENTS AND METHODS:

The WestLaw database was reviewed for all vitreoretinal malpractice litigation in the United States between 1930 and 2014.

RESULTS:

One hundred forty-two retina cases were included. Overall, 64.1% of cases were resolved in favor of defendants. Eighty-three (58.5%) cases were resolved via jury trial, 30.1% of which were associated with plaintiff verdicts with mean adjusted jury award of $5,222,894 (median, $691,974). Eight cases (5.6%) resulted in settlements with mean adjusted indemnity of $726,003 (median: $437,165). Jury awards were higher than settlement awards (P = .04). Commonly litigated scenarios included retinal detachment (46.5%) and retinopathy of prematurity (9.2%).

CONCLUSIONS:

The complexity of treating vitreoretinal problems and the high potential for vision loss inherent in many diagnoses make treating retinal problems high-risk. Many cases in this series resulted in multi-million-dollar plaintiff awards.

[Ophthalmic Surg Lasers Imaging Retina. 2020;51:272–278.]

Introduction

Medical malpractice litigation presents a significant financial burden to physician-defendants, plaintiffs, and the public. Although paid medical malpractice claims have decreased in the last two decades, rates of plaintiff awards exceeding $1 million continue to increase.1 In spite of the overall decrease in paid claims, fear of litigation influences clinical decision-making across medical specialties,1 and surgical specialties carry higher risk than nonsurgical specialties.2 In ophthalmology, between 5% and 10% of physicians face a malpractice claim each year.2 Within ophthalmology, medical and surgical retinal problems represent a high risk of litigation both because of the complexity of retinal procedural and surgical interventions and the high potential for vision loss and blindness inherent in the natural history of many vitreoretinal diseases.3,4 Because retina presents a relatively high-risk practice environment, analysis of litigation allows for the identification of high-risk clinical and surgical scenarios, which may help both vitreoretinal specialists and general ophthalmologists stratify risk as well as provide a higher level of care.

Several publications have highlighted the heightened malpractice risk environment in retina compared to other areas of ophthalmology,3–8 but these analyses cull information from single insurers or survey data, whereas others focus only on a single entity within retina practice.9,10 Information on outcomes based on jury trial versus settlement and other differences to guide physicians is not readily publicly available. In this analysis, we present data from all vitreoretinal malpractice cases over a 40-year period from the WestLaw database (Thompson Reuters, New York, NY), which contains verdicts and settlements from all 50 states, representing a variety of insurers. Understanding causes and outcomes of litigation in retinal practice may provide insight into opportunities for improvement and help avert malpractice action in the future.

Patients and Methods

WestLaw is a subscription-based legal research search engine comprised of more than 40,000 databases of case law, public records, jury verdicts, and settlements at the state and federal level in all 50 states. The jury verdict and settlements section of WestlawNext legal database collects jury verdicts that commercial vendors have deemed important, either due to precedence or content. However, it is not a representation of all cases of litigation performed in the United States. The database compiles cases that are publicly available in federal and state court records.

As described in previous publications,11–14 the database was queried to search all U.S. civil trials involving ophthalmologists using the search terms “ophthalmology” or “ophthalmologist” and “malpractice” anywhere in the retrieved documents. Exclusion criteria included (1) ophthalmologist named as expert witness but not defendant, and (2) filings before January 1, 1930, or after December 31, 2014. All search results that referenced malpractice litigation but that were not themselves malpractice lawsuits were excluded. Duplicate lawsuits or WestLaw citations also were combined and represented as a single case. Record review included date of occurrence, year of suit, defendant(s), geography, patient age, patient sex, diagnosis, outcome, presence of disability, nature of injury, plaintiff legal allegation, indemnity, verdict, and plaintiff award. Because all data in this study are publicly available and no human subjects were involved, institutional review board review and informed consent were not required.

Not all information was available for every case. Cases were also categorized by intervention (surgical/procedural, medical, or noninterventional) and by subspecialty focus by a faculty ophthalmologist (AKR). The subspecialty focus of the case was defined based on the nature of the allegation rather than the subspecialty training of the physician defendant. Even though retina specialists frequently are involved with the care of post-cataract endophthalmitis, these cases were categorized as general ophthalmology and are not included in this analysis. Settlements and awards were adjusted for inflation to 2015 U.S. dollars ( http://www.bls.gov/data/inflation_calculator.htm) to permit meaningful comparison. General ophthalmology cases were included for statistical analysis in the comparison of settlements and awards between vitreoretinal and the complete ophthalmic database.

In this analysis, all vitreoretinal malpractice litigation was identified from a database of 1,063 ophthalmology litigation cases. Descriptive statistics were used to report the findings, and, when possible, the Student t-test (MedCalc for Windows, Microsoft Excel for Windows; Microsoft, Redmond, WA) was used to compare groups.

Results

The WestLaw database was searched using the terms “ophthalmology” or “ophthalmologist” and “malpractice,” yielding 1,294 jury verdicts and settlements and 1,261 appellate cases, of which 1,063 cases met inclusion criteria.11–14 One hundred forty-two vitreoretinal surgery and medical retina malpractice cases were identified, representing 13.4% of cases. The cases occurred between 1974 and 2014. Plaintiffs were male in 61.3% of cases and minors in 10.6% (Figures 1A and 1B). Cases involving minors were resolved in favor of the plaintiff 53.3% of the time, compared to 34.1% for adult plaintiffs (P = .19). Overall, 64.1% of cases were resolved in favor of the defendant (Figure 1C). Eighty-three cases (58.5%) were resolved via jury trial (Figure 1D).

Demographic and verdict results. (A) Sex. (B) Age. (C) Outcome. (D) Jury trial outcomes.

Figure 1.

Demographic and verdict results. (A) Sex. (B) Age. (C) Outcome. (D) Jury trial outcomes.

The most common entity resulting in litigation was retinal detachment, representing 46.4% of all vitreoretinal cases (Figure 2). Overall, 33.3% of these cases were resolved in favor of plaintiffs with 18 cases resulting in payments to plaintiffs and a mean plaintiff award of $2,808,741 (median: $626,636). Retinal detachment allegations with breakdown by defendant and plaintiff verdicts can be found in Figure 3. The majority of cases (66.7%) alleged failure to diagnose and treat retinal detachments due to failure to perform indirect ophthalmoscopy, misdiagnosis causing treatment delay, or failure to refer to a specialist.

Cause of malpractice litigation.

Figure 2.

Cause of malpractice litigation.

Causes of litigation in retinal detachment (RD) cases.

Figure 3.

Causes of litigation in retinal detachment (RD) cases.

Retinopathy of prematurity (ROP) represented 9.2% of cases. All 13 ROP cases involved noninterventional allegations, 53.8% were resolved in favor of the plaintiff. Only three cases resulted in monetary awards to plaintiffs; however, these awards were among the highest in the database. As stated in a previous report,12 all ROP cases involved allegations of failure to follow-up with patients with whom they had an established relationship.

Thirteen cases (9.2%) involved laser treatment-related allegations, 38.5% of which were resolved in favor of the plaintiff. Two cases resulted in payments to the plaintiffs. Eleven cases alleged complications during or as a result of laser treatment, and two claimed that defendants were negligent in failing to perform laser treatment. Three cases involved allegations of vision loss secondary to negligent burning of the fovea during laser treatment for diabetic retinopathy (DR).

Ten cases (7.0%) involved claims of injuries caused by inadvertent damage to the optic nerve or penetration of eye during retrobulbar injections performed during vitreoretinal procedures. Half of these cases were resolved in favor of the plaintiffs. Three cases resulted in payments to plaintiffs. In eight cases (5.6%), plaintiffs alleged failure to diagnose and treat DR. Three cases resulted in payments to plaintiffs. In six cases (4.2%), allegations involved either failure to diagnose or properly treat macular hole. In three cases (2.1%), plaintiffs alleged improper administration of intravitreal injections resulting in loss of vision.

Overall, 80 cases (56.3%) involved allegations of insufficient intervention, including failure to diagnose or treat, resulting in disability. Of these cases, 30.0% were resolved in favor of the plaintiff. Fifty-eight cases (40.8%) involved surgical or procedural claims. Surgical and procedural claims were more likely to be resolved in favor of the plaintiff (P = .12). Non-interventional claims resulted in higher plaintiff awards (P = .13). Four cases (2.8%) involved medical claims only.

The overall rate of plaintiff jury verdicts in this series was 35.9%, which was higher than the rate of plaintiff jury verdicts across all ophthalmology subspecialties combined (29.6%) (P = .57). Overall, mean plaintiff award for all vitreoretinal malpractice litigation was $4,130,731 (median: $690,448), which was higher than the mean award across all of ophthalmology (mean: $1,401,268; median: $568,302) (P = .10) (Figure 4). For jury verdicts alone, the mean award in retina was $5,222,894 (median: $691,974), higher than the mean jury award for ophthalmology as a whole (mean: $1,724,358; median: $603,726) (P = .11). Median plaintiff award in cases involving minors was $12,790,465 compared to $562,825 for adult plaintiffs (P = .22). Finally, for settlements alone, the mean indemnity payment for retina was $726,003 (median: $437,165), which was similar to the mean awards for settlement awards for ophthalmology as a whole $822,897 (median: $441,560) (P = .72).

Awards (mean).

Figure 4.

Awards (mean).

Discussion

The treatment of retinal problems represents a high-risk area for potential litigation within ophthalmology. Analysis of malpractice litigation in medical retina and vitreoretinal disease allows for the identification of commonly litigated clinical and surgical scenarios for the purpose of improving risk management and thereby clinical practice. In this analysis, retina-related litigation represented 13.4% of all ophthalmology cases in the WestLaw database, which is consistent with other reports.5–7,15–17 Retina-related litigation is routinely reported as second only to cataract with regard to number of claims.5–7,15

Retinal detachment was the most common reason for litigation in this series, representing 46.5% of all cases. Previous studies have reported similar results,3,5,18 and in one report that focused on ophthalmology litigation with the highest monetary awards, 25% were related to either failure to diagnose or treat or negligent treatment resulting in retinal detachment.8 In this series, the majority of retinal detachment cases resulted from failure to diagnose or treat. Case notes often pointed to defendants' failure to perform indirect ophthalmoscopy or to dilate plaintiffs' eyes. The relative commonality of retinal detachment as reason for litigation in this series and in previous studies underscores the importance of thoroughly examining every patient with potentially concerning symptoms.

ROP was another major cause of litigation in this series. Plaintiff awards in ROP cases were the highest awards in all ophthalmology litigation in WestLaw. As discussed in a previous report,12 ROP patients represent a vulnerable patient population and miscommunications regarding follow-up for these patients are common owing to the stress surrounding the initial months of life for premature infants. ROP is widely recognized as a high-risk clinical scenario in ophthalmology;9,10,19,20 however, here, as in retina practice in general, it is important that patients and families understand the importance of following follow-up schedules and the consequences of failing to keep appointments. It must also be emphasized that appropriate training and expertise is necessary when performing ROP evaluations.

Much has been written about the importance of establishing rapport with patients;5,21,22 however, it has also been reported that a high proportion of legal action in ophthalmology is taken within a short time of an ophthalmologist's initial encounter with a patient.8 In retina, due to the emergent nature of many diagnoses as well as the fact that retina specialists are often called upon to intervene once a complication has already occurred, the importance of quickly establishing trust cannot be overstated.

There are several publications in the literature focusing specifically on retina-related litigation that provide insight into this topic; however, they focus primarily on vitreoretinal surgery over a short time period, are based on survey data,3,4,18 or provide limited information useful to practicing ophthalmologists. In this series, cases were included over a wide time frame and represent cases from a variety of insurers, an advantage of the WestLaw database, as reported previously.11–15 Although WestLaw has many advantages and has been verified for use in malpractice research in a variety of medical specialties,23–31 it is important to note that out-of-court settlements and dropped cases are not included, which is significant considering that up to 95% of cases do not make it to trial.32 Furthermore, although the wide time frame of this study does provide a long-term view of litigation trends over time, it is possible that changes in technology as well as patient and physician characteristics alter the applicability of some cases. The level of detail provided about the cases varied to some degree, and it is possible that some decisions were appealed or overturned without our knowledge. The monetary awards reported are important as they reflect the degree of disability patients may potentially face. Importantly, this series found that there was no significant difference in plaintiff jury verdicts and value of settlements of retina cases versus all litigation in ophthalmology. In this series, surgical retinal cases, cases of nonintervention, plaintiff awards, and jury awards for retinal disease compared to all ophthalmology approached significance. This provides insight into litigation trends in retina practice that are relevant and may help ophthalmologists stratify risk.

Malpractice litigation in vitreoretinal surgery and medical retina represents a significant proportion of the ophthalmology litigation in the WestLaw database. As detailed above, many of the plaintiff awards in this series are among the highest across all subspecialties of ophthalmology. This likely relates to the nature of treating retinal pathology, which is characterized by diagnoses with high potential for vision loss and highly complex surgical procedures. Although some degree of litigation is unavoidable, it is possible that with careful attention to patient concerns, thorough examination, detailed record keeping, and disclosure of risks, benefits, and goals of treatment, many of these cases discussed may have been avoided.

References

  1. Schaffer AC, Jena AB, Seabury SA, Singh H, Chalasani V, Kachalia A. Rates and Characteristics of Paid Malpractice Claims Among US Physicians by Specialty, 1992–2014. JAMA Intern Med. 2017;177(5):710–718. doi:10.1001/jamainternmed.2017.0311 [CrossRef] PMID:28346582
  2. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365(7):629–636. doi:10.1056/NEJMsa1012370 [CrossRef] PMID:21848463
  3. Kraushar MF. Medical malpractice experiences of vitreoretinal specialists: risk prevention strategies. Retina. 2003;23(4):523–529. doi:10.1097/00006982-200308000-00013 [CrossRef] PMID:12972765
  4. Fetherston T. Risk management, adverse events and litigation in vitreoretinal surgery. Clin Risk. 2007;13(1):7–11. doi:10.1258/135626207779598454 [CrossRef]
  5. Bettman JW. Seven hundred medicolegal cases in ophthalmology. Ophthalmology. 1990;97(10):1379–1384. doi:10.1016/S0161-6420(90)32406-5 [CrossRef] PMID:2243691
  6. Mathew RG, Ferguson V, Hingorani M. Clinical negligence in ophthalmology: fifteen years of national health service litigation authority data. Ophthalmology. 2013;120(4):859–864. doi:10.1016/j.ophtha.2012.01.009 [CrossRef] PMID:22386949
  7. Ali N. A decade of clinical negligence in ophthalmology. BMC Ophthalmol. 2007;7(1):20. doi:10.1186/1471-2415-7-20 [CrossRef] PMID:18096077
  8. Kraushar MF, Robb JH. Ophthalmic malpractice lawsuits with large monetary awards. Arch Ophthalmol. 1996;114(3):333–337. doi:10.1001/archopht.1996.01100130329019 [CrossRef] PMID:8600895
  9. Day S, Menke AM, Abbott RL. Retinopathy of prematurity malpractice claims: the Ophthalmic Mutual Insurance Company experience. Arch Ophthalmol. 2009;127(6):794–798. doi:10.1001/archophthalmol.2009.97 [CrossRef] PMID:19506200
  10. Mills MD. Retinopathy of prematurity malpractice claims. Arch Ophthalmol. 2009;127(6):803–804. doi:10.1001/archophthalmol.2009.117 [CrossRef] PMID:19506203
  11. Reddy AK, Engelhard SB, Shah CT, et al. Medical malpractice in uveitis: A review of clinical entities and outcomes. Ocul Immunol Inflamm. 2018;26(2):242–248. doi:10.1080/09273948.2016.1202289 [CrossRef] PMID:27715388
  12. Engelhard SB, Collins M, Shah C, Sim AJ, Reddy AK. Malpractice Litigation in Pediatric Ophthalmology. JAMA Ophthalmol. 2016;134(11):1230–1235. doi:10.1001/jamaophthalmol.2016.3190 [CrossRef] PMID:27584948
  13. Engelhard SB, Aronow ME, Shah CT, Sim AJ, Reddy AK. Malpractice Litigation in Ocular Oncology. Ocul Oncol Pathol. 2018;4(3):135–140. doi:10.1159/000479559 [CrossRef] PMID:29765942
  14. Engelhard SB, Shah CT, Sim AJ, Reddy AK. Malpractice Litigation in Cornea and Refractive Surgery: A Review of the WestLaw Database. Cornea. 2018;37(5):537–541. doi:10.1097/ICO.0000000000001534 [CrossRef] PMID:29419553
  15. Tomkins C. Over 120 years of defending ophthalmologists. Br J Ophthalmol. 2006;90(9):1084–1085. doi:10.1136/bjo.2006.097311 [CrossRef] PMID:16929059
  16. Laurenti K, Kim JE. Analysis of malpractice claims filed against retina specialists based on practice location: Is there a litigious trend?Investigative Ophthalmology & Visual Science. 2015;56(7):2147.
  17. Laurenti K, Weber P, Kim JE. Medical Malpractice Claims Resulting From Retinal Conditions and Procedures: A 10-year Review. Investigative Ophthalmology & Visual Science. 2014;55(13):687.
  18. Kraushar MF. Medical malpractice litigation in the management of vitreoretinal diseases. Arch Ophthalmol. 1987;105(2):187–190. doi:10.1001/archopht.1987.01060020041024 [CrossRef] PMID:3813947
  19. Reynolds JD. Malpractice and the quality of care in retinopathy of prematurity (an American Ophthalmological Society thesis). Trans Am Ophthalmol Soc. 2007;105:461–480. PMID:18427626
  20. Demorest BH. Retinopathy of prematurity requires diligent follow-up care. Surv Ophthalmol. 1996;41(2):175–178. doi:10.1016/S0039-6257(96)80008-7 [CrossRef] PMID:8890444
  21. Hiatt RL Sr, . The spectrum of child and parent response to eye disease. Ann Ophthalmol. 1989;21(9):325–330. PMID:2817658
  22. Kraushar MF. Toward more effective risk prevention. Surv Ophthalmol. 2009;54(1):150–157. doi:10.1016/j.survophthal.2008.10.007 [CrossRef] PMID:19171218
  23. Svider PF, Sunaryo PL, Keeley BR, Kovalerchik O, Mauro AC, Eloy JA. Characterizing liability for cranial nerve injuries: a detailed analysis of 209 malpractice trials. Laryngoscope. 2013;123(5):1156–1162. doi:10.1002/lary.23995 [CrossRef] PMID:23361657
  24. Jalian HR, Jalian CA, Avram MM. Common causes of injury and legal action in laser surgery. JAMA Dermatol. 2013;149(2):188–193. doi:10.1001/jamadermatol.2013.1384 [CrossRef] PMID:23426473
  25. Colaco M, Sandberg J, Badlani G. Influencing factors leading to malpractice litigation in radical prostatectomy. J Urol. 2014;191(6):1770–1775. doi:10.1016/j.juro.2013.12.003 [CrossRef] PMID:24333245
  26. Hong SS, Yheulon CG, Sniezek JC. Salivary gland surgery and medical malpractice. Otolaryngol Head Neck Surg. 2013;148(4):589–594. doi:10.1177/0194599813475566 [CrossRef] PMID:23380759
  27. Paik AM, Mady LJ, Sood A, Eloy JA, Lee ES. A look inside the courtroom: an analysis of 292 cosmetic breast surgery medical malpractice cases. Aesthet Surg J. 2014;34(1):79–86. doi:10.1177/1090820X13515702 [CrossRef] PMID:24396074
  28. Choudhry AJ, Haddad NN, Khasawneh MA, Cullinane DC, Zielinski MD. Surgical Fires and Operative Burns: Lessons Learned From a 33-Year Review of Medical Litigation. Am J Surg. 2017;213(3):558–564. doi:10.1016/j.amjsurg.2016.12.006 [CrossRef] PMID:28093118
  29. Choudhry AJ, Haddad NN, Rivera M, et al. Medical malpractice in the management of small bowel obstruction: A 33-year review of case law. Surgery. 2016;160(4):1017–1027. doi:10.1016/j.surg.2016.06.031 [CrossRef] PMID:27542436
  30. Kandinov A, Mutchnick S, Nangia V, et al. Analysis of factors associated with rhytidectomy malpractice litigation cases. JAMA Facial Plast Surg. 2017;19(4):255–259. doi:10.1001/jamafacial.2016.1782 [CrossRef] PMID:28199538
  31. Gupta R, Griessenauer CJ, Moore JM, et al. An analysis of malpractice litigation related to the management of brain aneurysms. J Neurosurg. 2017;127(5):1077–1083. doi:10.3171/2016.9.JNS161124 [CrossRef] PMID:28009242
  32. Jena AB, Chandra A, Lakdawalla D, Seabury S. Outcomes of medical malpractice litigation against US physicians. Arch Intern Med. 2012;172(11):892–894. doi:10.1001/archinternmed.2012.1416 [CrossRef] PMID:22825616
Authors

From the Department of Ophthalmology, New York-Presbyterian/Weill Cornell Medical College, New York, New York (SBE); the Department of Ophthalmology, Brooke Army Medical Center, San Antonio, Texas (GAJ); Wilmer Eye Institute, Johns Hopkins University, Baltimore, Maryland (IEZG); the Department of Radiation Oncology, Moffitt Cancer Center, Tampa, Florida (AJS); Athena Eye Institute, San Antonio, Texas (AKR); the Department of Ophthalmology, University of Texas Health Science Center, San Antonio, Texas (AKR).

The authors report no relevant financial disclosures.

Disclaimer: The view(s) expressed herein are those of the author(s) and do not reflect the official policy or position of Brooke Army Medical Center, the U.S. Army Medical Department, the U.S. Army Office of the Surgeon General, the Department of the Air Force, the Department of the Army, Department of Defense, the Uniformed Services University of the Health Sciences or any other agency of the U.S. Government.

The authors would like to acknowledge Dr. Christopher Shah for review of this manuscript.

Address correspondence to Ashvini K. Reddy, MD, 5282 Medical Drive #610, San Antonio, TX 78229; email: drreddy@athenaeyeinstitute.com.

Received: February 10, 2020
Accepted: April 02, 2020

10.3928/23258160-20200501-04

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