|Foreword by Dr Paul Riordan-Eva FRCOphth, consultant ophthalmologist and MDU president.
Although there is continual progress in ophthalmic practice, there are some common features to claims brought against MDU ophthalmologist members over the period of this analysis. Allegations often centre on inadequate consent, unexpected intra-operative and post-operative complications, unfulfilled patient expectations and delayed diagnosis.
It goes without saying that an uncomplicated operation with the expected successful outcome should not result in a clinical negligence claim. However, an unexpected, non-negligent complication that has been dealt with appropriately may do so. Claimants often allege that if adequately warned they would not have consented. Robust documentation is a mainstay in successfully defending such claims. Before any procedure the surgeon needs to record what information about potential risks has been provided.
The MDU has well over 1,000 members currently working in ophthalmology in the UK. Every year we advise or assist hundreds of those members facing issues ranging from regulatory investigations, service complaints, performance concerns, inquests and tricky medico-legal or ethical scenarios.
Many ophthalmologists have a private practice and the MDU indemnifies this work. Almost every week we expect to see one or more new ophthalmology clinical negligence claims notified to our claims handling team. This article focuses on the factors driving litigation in the specialty.
A claim for clinical negligence can be brought at any time, often without warning and sometimes many years after the incident occurred.
Claims can come from a number of causes, not always related to surgical error. Informed consent, dissatisfaction with the outcome and delayed diagnosis were a feature of many cases in our study of ophthalmology claims. Managing such risks is important in avoiding future claims.
It can be very distressing to find out a patient is bringing a claim against you. If you face a claim you can be assured that the MDU’s expert claims handlers and medico-legal advisers understand how stressful this is and the importance of mounting a robust defence of your position.
Over a ten-year period, nearly 80% of ophthalmology claims were successfully defended with no payment of compensation or claimant costs. The highest value settlement in the period (compensation and legal costs) was for around £1 million and resulted from allegations of failure to appropriately monitor a patient following a phakic lens implantation.
The levels of compensation paid in clinical negligence claims bear little or no relation to the seriousness of the allegations, but reflect the cost of restoring the claimant to the position they would have been in had the negligence not occurred.
However, when a claim is settled and damages are paid, the MDU is also required to pay the claimant’s legal costs. These costs can be disproportionately high and can significantly exceed the amount of damages paid. For example, in a claim involving alleged failure to diagnose acute retinal necrosis resulting in loss of vision in a single eye, the damages paid were £125,000 while the claimant’s legal costs were £150,000. This demonstrates how expensive defending and settling claims can be.
The MDU will defend claims whenever possible and we involve members in the conduct of their cases and the decision on whether to defend or settle a case.
While claims numbers have remained steady in recent years, the cost of claims has spiralled. This is not due to clinical standards but to a deteriorating legal environment, which the MDU is campaigning to reform. You can see more at themdu.com/faircomp
Outcome of cases
Claims that were not settled were either won, discontinued by the claimant or statute barred. A claim is statute barred if the claimant fails to bring a claim within three years from the date of the incident or the date of their knowledge of the alleged harm. This restriction does not apply to children with capacity, for whom the limitation period begins at 18 (16 in Scotland). There is no time limit for patients who lack capacity to conduct their own affairs. Some claims were initially investigated by the MDU but successfully argued to not involve an MDU member.
Figure 1 shows the outcome of the claims in the analysis.
Reasons for claims
By far the most common procedure which led to claims was cataract surgery, which accounted for over a third of cases. The highest amount paid in compensation and legal costs was in excess of £700,000, in a case that also involved allegations in relation to glaucoma.
Common reasons for cataract claims were intra-operative and post-operative complications, resulting in deterioration of vision or the need for further corrective procedures. Post-operative infection was also a common factor, as was rupture of the posterior capsule. Other claims involved equipment failure during surgery, incorrect medication provided post- surgery and claims for insertion of the incorrect lens.
Laser refractive surgery
The reasons for claims in this area ranged from inadequate consent and failure of treatment, to dissatisfaction with the results and post-operative complications. This highlights the importance of a stringent consent process and a realistic discussion of the risks and likely benefits of such procedures.
Allegations in relation to consent were directly involved in a number of cases in our analysis, but inadequate consent was also a common allegation in many other claims. In most cases the informed consent related to allegations that if the surgeon had adequately explained the risk of the procedure, the claimant would not have chosen to undergo the treatment, or may have done so at a later time.
Around a third of these cases were settled highlighting the continued importance in ensuring the patient provides proper informed consent and this is appropriately documented. These claims may be significant in size, with settlements seen in excess of £150,000.
In one settled case the claimant alleged there was inappropriate consent for a combined vitrectomy and cataract surgery. The claimant argued they would have preferred the procedures performed separately as the operation had unintended consequences and they lost vision. However, the MDU argued on the member’s behalf the claimant would have needed the surgery in any event and that they were in part responsible for not attending follow-up. The compensation was reduced as a result, although the legal fees exceeded the amount the patient received.
Failure to diagnose, delayed diagnosis and inadequate treatment of glaucoma all resulted in claims. Often, cases arose following cataract surgery or were related to allegations of mismanagement and treatment of glaucoma.
Delay or incorrect diagnosis
Around half of allegations of a delay or incorrect diagnosis were about a missed tumour. This highlights the importance of ensuring that the examination of the eyes is considered holistically and that impairment of visual fields and acuity should be considered in light of pathology outside the eye.
Figure 2 shows the most common reasons or procedures leading to claims.
Manage the risk
Claims involving ophthalmologists are made for a wide variety of reasons. However, as outlined below, there are some common risk factors which can help to reduce risks if managed appropriately.
- 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, such as from the GMC on consent, royal college guidance and NICE guidelines.
- 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 transparent with the patient by providing an explanation of what has happened and the likely short and long term effects of this. Say sorry and get advice from the MDU if you believe the incident triggers the organisation’s duty of candour requirements.
Infection following cataract surgery
The following anonymised case example illustrates the type of scenario that can evolve into a clinical negligence claim.
A member was notified of a claim from a former patient alleging 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 simple 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 acknowledged that consent and the records could have been more detailed. In the experts’ view the claimant may not have suffered from infective endophthalmitis, but a sterile inflammation. The MDU 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.
This guidance was correct at publication 19/11/2019. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.