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 spectacles to achieve her best visual acuity. Her uncorrected visual acuities were 6/9 in both eyes, which improved to 6/6 with spectacles.
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, had failed to explain the nature of the complications and 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.
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.
Dr P contacted Medical Protection, who requested Dr P’s clinical records from his preoperative discussions with Mrs A. These showed that Mrs A was informed of the risks of infection and 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 was supportive of this part of the care provided by Dr P. However, the expert was critical of some aspects of Dr P’s postoperative care, concluding that he should 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. An expert in psychiatry 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.
A member of the Medical Protection legal team accompanied Dr P to a joint settlement conference, where a compromise was reached and a moderate sum accepted by Mrs A, which covered losses to past earnings, expenses incurred during her recovery period and future losses resulting from the delay to career progression.
Poor outcomes are often a precipitating factor for litigation. However, only a small fraction of such cases end up in litigation and not all cases of successful litigation are a result of medical negligence. In England and Wales, since Bailey v Ministry of Defence, in order to establish causation a claimant only has to prove that substandard care has materially contributed to the poor outcome. ‘Material contribution’ is one that has made more than a minimal difference to the outcome; as each case is decided on its own facts, it’s not possible to clarify what is more than a minimal difference, although the bar is generally set very low.
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.
Doctors who have had a negligence claim are more likely to face litigation again even if the medical care they provide is no different from their peers. Complaints against these doctors are usually related to the quality of their communication. 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 an apology if appropriate, and feeding back to the patient the lessons that have been learned and the steps taken to reduce the risk of further similar errors, may reduce the psychological impact of an adverse event on a patient.
Medical Protection offers workshops and e-learning modules on record-keeping, communication skills and consent – visit medicalprotection.org to find out more.