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Legal Review and Commentary
Unnecessary, unauthorized glaucoma surgery doesn't result in award of damages
By Blake J. Delaney, Esq., Buchanan, Ingersoll & Rooney, Tampa, FL
News: An elderly man underwent cataract and glaucoma surgery in his left eye, after which he claimed his vision deteriorated. He sued the ophthalmologist. Although he signed a consent form, the man claimed that the physician did not explain the procedure to him, tell him that he suspected glaucoma, tell him that the glaucoma surgery and cataract surgery would be performed at the same time, or that there were any alternatives to surgery. A jury found that although the glaucoma surgery was likely unnecessary, the plaintiff did not suffer any damages.
Background: A 76-year-old man visited an ophthalmologist to treat a growing cataract in his left eye. Noting high intraocular pressures, the ophthalmologist suspected that the man was in the beginning stages of glaucoma, a disease of the optic nerve causing a loss of retinal ganglion cells. To treat the growing cataract, the ophthalmologist recommended cataract surgery. To treat the glaucoma, the physician recommended medication and monitoring of the intraocular pressure or, alternatively, glaucoma surgery, which would take only an additional 10 minutes if performed at the same time as the cataract surgery.
The patient agreed to the cataract and glaucoma surgery, with the surgery to be performed in two parts. First, the physician would perform a trabeculectomy to remove a piece of tissue in the drainage angle of the eye, which would allow fluid to drain out of the eye and bypass the clogged drainage channels of the trabecular meshwork. The doctor also would perform an iridectomy to remove a small piece of the iris to relieve pressure on the iris. The man signed a consent form indicating that cataract removal and a trabeculectomy would be performed.
After the surgery, the man claimed his vision had deteriorated, and he sued the ophthalmologist. The plaintiff maintained that the extra hole in his iris caused him to have a constant glare during the day and night that prevented him from engaging in his normal daily pursuits. He also claimed that he had constant headaches, double vision, shadow vision, floaters in his vision, and constant foreign body sensation. Even though he signed the consent form, the man argued that the doctor did not explain to him what a trabeculectomy was. He also claimed that the doctor did not tell him of the suspected glaucoma, that the glaucoma surgery and cataract surgery would be performed at the same time, or that he had been given any alternatives to surgery. The plaintiff's expert witness asserted that the man did not, in fact, have glaucoma and that the surgery was unnecessary.
The physician conceded that the patient did not have glaucoma, but he argued that the glaucoma surgery was advisable because the man showed indications of the initial stages of glaucoma and because the man's age and hypertension put him at risk for developing the disease. The defendant also maintained that the man's vision actually improved after the surgery (from 20/85 to 20/20) and that any visual complaints would be resolved if he would wear glasses.
After trial, the jury found that the ophthalmologist had acted negligently but awarded no damages. The jury apparently was influenced by the plaintiff's refusal to wear glasses even though his vision was correctable with glasses and by the plaintiff's failure to wear sunglasses or a hat when going outside even though he claimed that the glare from the sun made him virtually blind in his left eye.
What this means to you: Informed consent is an integral component to the delivery of health care. It is the mechanism that ensures appropriate communication between the provider and their patient. "Informed consent is not merely a signed piece of paper, but is instead a process that relies upon clear communication," says Cheryl Whiteman, RN, MSN, HCRM, clinical risk manager for Baycare Health System in Clearwater, FL. As such, it generally is the physician's responsibility to describe various treatment options to his or her patients, complete with explanations of the risks and benefits associated with each. Informed consent cannot be delegated to nonmedical staff personnel and should not be delegated to one's partners. Hospitals should have policies and procedures in place that pertain to verification that informed consent had been obtained as well to verification of the surgical procedure. A physician also is required to provide information to his or her patient in terms that the patient can understand. "This case demonstrates an apparent breakdown in that communication," Whiteman says.
A facility's policy and procedure on informed consent should consider various issues. For example, important to this case — or to any case involving allegations of failure to provide informed consent — is documented indication that the physician explained to the patient these risks, benefits, and alternatives. And just as important is documentation showing that the patient understood this information and that all of his questions were answered. Whiteman notes that because the average patient may not have the knowledge to ask pertinent questions, the physician should attempt to anticipate questions and provide additional information to enhance the conversation regarding the recommended surgery and alternatives. It should also be recognized that despite documentation of a thorough informed consent process, a patient-turned-plaintiff may provide compelling testimony that a treatment or procedure was not fully explained.
The timing of obtaining informed consent also is important. For example, attempting to obtain informed consent from patient in severe pain might be insufficient if the patient is not able to make an informed decision. On the other hand, in nonemergent situations where the patient is competent — such as in this case, for example — a physician will be charged with having had plenty of time to explain the options to his or her patient. A finding of negligence is rendered more likely if such a physician doesn't take the time to confer with his partners and describe additional options as needed in nonemergent situations.
An informed consent policy and procedure also should emphasize that a practitioner should not make any promises that he or she might not be able to keep. In a 1997 case from Louisiana, for example, a surgeon promised he would use surgical mesh when he obtained the consent. The surgeon changed his mind during the operation, and as it turned out, things did not go well. The patient subsequently sued based on the lack of informed consent. A patient also cannot be lied to or misled about the procedure. Practitioners should inform their patients that unanticipated circumstances might arise, and they should prepare their patients for the planned course of action should any foreseeable changed circumstances come to fruitionA health care practitioner simply cannot rely on a change in circumstances to negate his or her conversation with a patient, if the change was foreseeable. And finally, an informed consent process that includes material omissions is doomed from the beginning. Virtually every informed consent case is based on a failure to disclose something. A facility would do well to advise its practitioners that where there are doubts about whether to disclose a risk, err on the side of disclosure.
In this case, the physician's finding of high intraocular pressures, coupled with the aging patient's history of hypertension, clearly provided a firm framework for offering the trabeculectomy with an alternative plan to medicate and monitor. Also, the patient did not have glaucoma, even though the patient apparently thought that he had been told that he did. "The informed consent process should have included discussing with the patient the risks and benefits of the surgical procedure as well as alternative therapies to the trabeculectomy," Whiteman advises.
The theory of liability under which a patient can sue a physician who failed to provide the patient with informed consent varies from state to state. Most states used to view such an action as premised on the unauthorized use of force on another person, which is known as a "battery." Because most surgical operations involve some use of force, a lack of authorization would result in a battery claim. Some states, however, have decided recently that the proper cause of action for an informed consent case is negligence. Although a battery claim still may exist if a physician performs an operation that is substantially different from what he or she was authorized to do, or where no consent exists at all, the failure to inform a patient of all the risks and benefits of, and alternatives to, a procedure now goes to whether the physician acted reasonably (i.e., non-negligently) in performing the procedure. This distinction might be important in some states, where a physician might be unable to procure insurance coverage for intentional torts such as battery and where a battery claim would more easily expose a physician to a punitive damage award.
An interesting aspect of this case is that the physician was found to be negligent, and yet the jury chose not to award any damages. Whiteman surmises that the finding of negligence was premised on the physician's office notes not clearly reflecting the informed consent process. And the scenario indicates that the jury's decision to award no damages was the result of the patient's unwillingness to comply with a remedy to his complaints, such as wearing glasses and a hat when outdoors. Thus, even though the hospital made the "correct" determination that the patient in this case was not entitled to any damages, the practical reality is that by being forced to defend a lawsuit all the way through trial and to verdict, the hospital certainly incurred substantial legal fees. "The parties' respective unreasonableness resulted in a 'no win' for both sides," concludes Whiteman.