Medical Malpractice Lawsuits Involving Ophthalmology Trainees

Although medical malpractice lawsuits may not be as common, or as expensive, in ophthalmology as in other medical subspecialities, as evidenced by the lower malpractice premiums (eg, ~$8600 per year^[1] vs $46,000 per year for obstetrics/gynecology in 2019^[2]), they remain a problem. Some malpractice cases are related to true mistakes, and patients rightly deserve compensation. These cases are often settled before a jury trial. Others are related more to poor outcomes where no clear mistake can be identified. These cases may be dropped if a strong plaintiff expert witness cannot be identified, but many of these go to trial and a judge or jury decides the outcome. And of course, other cases are frivolous and hopefully are dropped before they proceed too far.

Being named in a malpractice case is a universally traumatic event for a physician. Having been sued for malpractice (many years ago, and I was found unanimously not guilty at trial) and spoken with numerous doctors who have also been sued, many describe it as the most painful experience of their professional careers. The vast majority are doctors who are trying to do the right thing and take excellent care of their patients, and for a patient to accuse them of not doing so (or often worse) is devastating. Having said that, if this occurs after 10 or 20 years of practice, the physician has hundreds, if not thousands, of happy patients to balance out the one unhappy one. But if this occurs to a trainee with much less clinical experience, it can be especially destructive both short- and long-term.

Watane and colleagues reviewed 28 malpractice cases involving trainees from the LexisNexis Academic legal database from 1989 through 2018. Although there was no single factor that resulted in all these cases, they noted that "communication discordance was an underlying issue for many allegations." This includes communication of the attending physician to the patient (eg, how involved the trainee would be in surgery), communication of the trainee with the attending physician (eg, regarding a patient's postoperative sign or symptom), and communication of the trainee with the patient (eg, a nighttime phone call in which the trainee didn't communicate the urgency of the condition to the patient).

I recently gave a short talk on medical malpractice issues to the incoming fellows at Wills Eye Hospital, and I stressed the need for excellent communication. As a corollary, I also emphasized the need to document all of these communications. When it comes to lawsuits, the adage "if it's not in the chart, it wasn't done" is absolutely true. I reminded them that it is often rather difficult to diagnose eye conditions over the phone, and they should offer to see patients in the office or emergency department if the patient wants and document that conversation in the chart.

Over the years, I have reviewed many malpractice cases. One issue that is becoming more and more prominent is inaccurate information in the chart, primarily due to the "copy forward" or "pre-populate" functions, where with one simple click of the mouse, the last exam or last impression and plan or a "normal" exam is inserted into the note. I tell trainees that these functions are extremely useful as a time-saver — but if they are used, the doctor must read each line to make sure it is still true for that visit. If a jury sees that the exact same note (often with identical misspellings) or exact same exam (often with identical intraocular pressure measurements many visits in a row), they may well conclude that the physician is sloppy or uncaring or, worse, a liar. Those impressions are hard to battle, even if you did nothing wrong.

Christopher J. Rapuano, MD, is a nationally and internationally recognized expert in corneal diseases, chief of the Wills Eye Hospital Cornea Service, and professor of ophthalmology at Sidney Kimmel Medical College at Thomas Jefferson University.

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