In March 2005, a 59-year-old woman underwent cataract surgery performed by an ophthalmologist. After the procedure, a chronic detached retina was found. The patient’s pain persisted, and she underwent three subsequent retinal surgeries. Her left eye is still painful.
The plaintiff alleged negligence in the ophthalmologist’s failure to refer her either for a B-scan ocular ultrasound or to a retinal specialist prior to determining whether cataract surgery would be appropriate. Since the plaintiff was not a good candidate for retinal surgery, she claimed the cataract surgery was unnecessary.
The defendant argued that the patient eventually underwent surgery to repair her detached retina, and the cataract surgery (in addition to the retinal surgery) was required to restore any meaningful vision.
OUTCOME
A $678,483 verdict was returned.
COMMENT
This is an interesting case: The plaintiff did not allege that the cataract surgery itself was negligent, but rather inappropriate because she had a chronic detached retina and couldn’t benefit from the procedure. The jury agreed, concluding that the standard of care required the ophthalmologist to confirm that the retina was viable prior to the surgery.
The lesson here? For surgical services, take reasonable efforts to ensure the patient will receive the benefit of those services.
Nationally, there is growing media attention on “unnecessary surgeries.” For example, last summer, a 22-year-old semiprofessional baseball player, Jonathan Stelly, made headlines after a Louisiana cardiologist implanted a pacemaker in him following a single syncopal episode. Several cardiologists who subsequently reviewed the case determined that placement of the pacemaker was grossly inappropriate. The offending cardiologist is now in prison, serving a sentence for Medicare fraud after billing for dozens of similar unnecessary procedures.
As the federal government becomes more involved in health care, we can expect aggressive auditing that seeks to ferret out “unnecessary” or “inappropriate” surgeries. The question is, who makes that determination?
Do your part to protect yourself, your practice, and most importantly, your patient. Communicate all surgical procedure risks, expectations, and limitations to the patient. Discuss and document all options, especially nonsurgical ones. Be particularly cautious in “borderline” cases in which either the indication for surgery is a close call or the benefit is uncertain or minimal.
Should you find yourself trapped in a practice in which surgeries are performed that are clearly fraudulently inappropriate, it is your ethical duty to get out of the practice and make reasonable efforts to stop the fraudulent activity. —DML