Dr P, an ophthalmologist with expertise in laser refractive surgery, performed bilateral Lasik procedures to correct myopic astigmatism on Mrs A, a 33-year-old recruitment consultant. Prior to the procedure Mrs A had best corrected visual acuities of 6/5 in both eyes. She had a history of dry eyes treated with topical lubricants twice a day.
The refractive surgery was uneventful but five days postoperatively Mrs A started developing eye pain and worsening vision. She contacted Dr P two days later and was seen within four hours. Her visual acuity had deteriorated to 6/36 in each eye. Dr P diagnosed severe bilateral infectious keratitis, took microbiological culture samples and started her on broad-spectrum topical antibiotics. Culture identified Streptococcus pneumoniae, sensitive to the prescribed antibiotics, and the infection settled after a prolonged course of treatment. However, Mrs A was left with residual corneal scarring and exacerbation of her pre-existing dry eyes that were difficult to manage and took more than five years to stabilise.
At the last follow-up she required frequent topical lubricants to control her symptoms of dry eye. She was intolerant of contact lenses and required spectacle correction to achieve her best visual acuity. Her uncorrected visual acuities were 6/9 in both eyes, which improved to 6/6 with spectacle correction.
Mrs A brought a claim against Dr P, alleging problems with extended close reading, computer work and night driving due to glare, blurring and sensitivity. She also claimed that she suffered post-traumatic stress disorder (PTSD), requiring psychiatric consultation and intervention as a result of her experience.
Mrs A further alleged that the surgery should not have been performed due to her pre-existing dry-eye disease and that she did not give informed consent for the procedure. She also alleged that Dr P failed to ensure that the surgical pack was sterile before the procedure. She claimed that Dr P provided substandard postoperative care and that he had failed to explain the nature of the complications, and that he had given her no indication of the prognosis.
Mrs A said she lived in fear of becoming permanently blind and had no support from Dr P or his team while she was recovering, adding that he ignored the impact the symptoms were having on her life and did not show any concern for her deterioration. She was unable to plan her future, lost her confidence and ability to function both at work and at home.
Clinical records documented preoperative discussions with Mrs A, informing her of the risk of infection and the risk of worsening of the dry eye condition, and that she was consented appropriately. Surgical records showed that the surgical pack was checked and documented as sterile by theatre staff pre-operatively as routine. Expert ophthalmology opinion concluded that the ophthalmic care provided by Dr P met the standards expected of an ophthalmologist and that he did not breach his duty of care.
Expert psychiatry opinion was critical of Dr P, concluding that an average doctor would have invested more time in the doctor-patient relationship once a serious complication developed and that this aspect of Dr P’s care was below the standard expected of a doctor. Mrs A was severely traumatised by the surgical complications and suffered PTSD. The expert took the view that the PTSD may have been lessened had Dr P communicated sensitively and addressed her concerns adequately and in a timely manner.
It was alleged that Mrs A would have rapidly progressed in her career if not for her visual problems, which prevented her from returning to work on a full-time basis and taking on responsibilities that involved night driving. Mrs A also sought to recover the costs of assistance with night-time driving, taxi costs, cleaning costs and assistance with gardening and DIY. Compromise was reached at a joint settlement conference with acceptance of a moderate sum that covered losses to past earnings, expenses incurred during her recovery period and future losses resulting from the delay to career progression.
- Good record-keeping is key to a successful defence when responding to complaints about care. This applies to both clinical and non-clinical concerns and how they were addressed.
- There is a paradox that most complications and errors do not lead to complaints and most complaints do not arise from errors. Poor communication with patients is frequently what determines whether a complaint or claim is made. Key elements of effective communication include the following:
- Consultations should be directed towards meeting patient expectations. Use the consultation to build rapport, confirm patient understanding, address misconceptions and make joint decisions about care.
- The consenting process should give clear, accurate information about risks and outcomes that are personalised to the patient’s needs, requests and expectations, and it should be recorded as such. Making assumptions about what the patient wants may lead to misunderstandings. When discussions are complex, consider summarising the discussion with a written letter to the patient, and including the family in discussions if the patient agrees. Give the patient time and space before making a decision when possible.
- Open and honest discussions when complications arise may reduce the risk of litigation. Showing empathy, being available to address concerns, acknowledging the patient’s experience, taking responsibility by offering apologies if appropriate and feeding back to the patient lessons learned and steps taken to reduce the risk of further similar errors, may reduce the psychological impact of an adverse event on a patient.
- Patients’ perception of a doctor’s character may influence their decision to litigate. Patients are more likely to pursue claims against doctors they don’t trust or don’t like.
- A doctor who undervalues a patient’s concerns or expectations is likely to be seen as someone who does not care. A doctor who is not open and honest, or who misleads patients, risks being perceived as someone who cannot be trusted. Confidence in a doctor may also be undermined by injudicious comments from staff members that are inconsistent with the doctor’s advice. Good inter-professional communication and teamwork helps build trust in the doctor and the system.
- This is a UK case, so a financial claim against the doctor in a New Zealand setting would be extremely rare.
- The more likely pathway in New Zealand would be that an ACC Treatment Injury claim would be made. This would be the route by which the patient would receive any compensation or assistance. In this context, there is an ACC bar against civil litigation that would prevent a claim of compensation from the doctor.
- ACC does on occasion refer to the Ministry of Health or Medical Council of New Zealand (MCNZ) if it is considered there is a risk of future harm highlighted by the Treatment Injury claim. The MCNZ in turn frequently refers such concerns on to the Health and Disability Commissioner’s (HDC) office, who may then investigate the case. Alternatively, the patient may complain directly to the HDC.
- The HDC Code of Health and Disability Services Consumers’ Rights is the standard by which the HDC examines such complaints. In this case there would be close scrutiny of the informed consent process under right 6, “Right to be Fully Informed”, and the surgical procedure and postoperative care under right 4, “Right to Services of an Appropriate Standard”. The HDC frequently obtains an expert opinion to assist them in considering the standard of care provided.
- The clinical records documenting the discussions of risk and the consent process are crucial in providing evidence to the HDC. The HDC would be unlikely to find a breach regarding the informed consent process in this case because of the adequacy of the documentation. The HDC is influenced by their expert opinions on the standard of care provided and, with an expert ophthalmology opinion concluding reasonable care, there would likely be no breach found regarding the right to receive services to an appropriate standard. It would be very uncommon for the HDC to request an expert psychiatry opinion in a case such as this.