The MDU regularly assists ophthalmologists with a variety of issues ranging from regulatory matters and inquests to complaints and medico-legal or ethical scenarios. Many ophthalmologists have a private practice and the MDU indemnifies this work. This analysis focuses on the factors driving litigation in the specialty.

Reasons for claims

Over the last 10 years, the most common reason for a claim was following cataract surgery (45%). Claims were often brought when the wrong lens had been used or where it was alleged that the consent process had been inadequate, and that the claimant hadn't anticipated they might continue to need glasses following surgery. Other reasons for claims included refractive surgery (15%), lens surgery performed for age related macular degeneration (8%) and alleged delays in diagnosis of extra-ocular conditions, such as an intracerebal tumour (5%).

The time limit for bringing a claim is three years from the date of incident, or three years from when the patient became aware that they may have received negligent care. Consequently, the date of knowledge may be some considerable time after the actual incident, meaning that a claim may be bought many years after the treatment in question.

Outcome of cases

A clinical negligence claim can either be settled by the defendant, with a payment of compensation being made to the claimant; or it can be discontinued, become statute barred (out of time) or a case can be won at trial by either party to the claim.

The vast majority of claims brought against MDU ophthalmologist members were either discontinued, became statute barred, or were successfully defended at trial, with only 22% being settled.

One such claim settled for almost £400,000 relating to complications arising from laser refractive surgery. The purpose of compensation is to put the patient back in the position they would have been in, had it not been for the problems caused by negligence.

In addition, when a claim is settled by a defendant, they are also responsible for payment of the legal and expert fees incurred by the claimant's solicitor in bringing the claim. These fees can often outstrip the damages paid to the claimant. For example, in a claim for which damages were agreed at only £85,000, the legal costs incurred by the claimant (and paid for by the MDU) amounted to £230,000.

In general, very few clinical negligence claims end up at trial, because the whole claims process is designed to encourage exchange of information between the parties, and resolution of the case without resorting to trial.

We will always involve the member in the management of their claim, and this can include an opportunity to discuss their case with the instructed solicitor, barrister, and medico-legal experts to inform decisions on the optimal management of the claim, including whether to make an offer of compensation to the claimant.

Manage the risk

Claims involving ophthalmologists are made for a wide variety of reasons. However, there are some common risk factors, which if managed appropriately, can help to reduce risks. These include:

ensure patients understand the potential risks and benefits of the procedure in order to give their consent
provide written information leaflets if possible as this may help the patient to remember what was said in a consultation so they can reflect on it later in their own time
document discussions with patients and the consent process clearly
be aware of relevant guidance, including GMC guidance on consent, as well as royal college guidance, NICE guidelines and local policies
ensure you have the appropriate training and experience to carry out a procedure. Consider referral to a specialist in those cases which fall outside your skill set or knowledge
if things go wrong, be open and honest with the patient by providing an apology and an explanation of what has happened, and the possible short- and long-terms effects of this. Also seek early advice from the MDU.

Case study: infection following cataract surgery

The following anonymised case example illustrates the type of scenario that can evolve into a clinical negligence claim.

An MDU member was notified of a claim from a former patient alleging that he had performed inappropriate cataract surgery, which resulted in post-operative complications causing considerable loss of vision in one eye.

The claimant had a history of COPD which had worsened around the time of the procedure. While still in hospital, the patient had started to suffer pain in his eye and was discharged and advised to take analgesia and use topical steroid drops.

A few days later, the claimant returned to hospital because of worsening vision where a vitreous aspiration was performed and a provisional diagnosis of infective endophthalmitis was made. The claimant was treated with intravitreal antibiotics and was monitored in hospital, and it was later decided he required a vitrectomy. He never fully recovered his vision in the affected eye.

It was alleged the member should not have performed the surgery while the patient was unwell with COPD, that he failed to diagnose the post-operative infection fast enough and should not have allowed the claimant to be discharged home. The claimant was seeking around £500,000 in compensation.

Experts instructed by the MDU were not critical of the member for operating at that time, although they acknowledged that consent and the records could have been more detailed. In the expert's view the claimant may not have suffered from infective endophthalmitis, but a sterile inflammation. We were also able to show that the member’s post-operative management was appropriate and lodged a defence to the claim denying negligence on this basis. In light of this, the claim was discontinued by the claimant’s solicitors.

Claims in ophthalmology

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