Welcome to the Medical Liability Minute: A podcast where we summarize medico-legal threats to physicians, so you can continue practicing great medicine with peace of mind. I’m your host, Dr. Jeff Segal, Founder and CEO of Medical Justice, an organization dedicated to protecting doctors from frivolous lawsuits, internet libel, unwarranted demands for refunds, and a bevy of other medico-legal threats. Today, I’m joined by my co-host, Mike Sacopulos, JD, who serves as our organization’s General Counsel. 

Glad to have you with us, Mike. 

Mike Sacopulos, JD 

I’m glad to be here. Let’s jump into today’s case. 

Jeff Segal, MD, JD 

Today, we have a situation where a patient went in for a routine lower eyelid blepharoplasty, performed by a plastic surgeon and his staff. During the procedure, a needle popped off a syringe and pierced the patient’s eyeball, causing an injury. Following the surgery, the doctor did not inform the patient of the pierced eyeball and instead advised the procedure had gone well. The patient was sent home. Several hours later, the patient returned to the plastic surgeon, complaining of lack of vision in her right eye. 

This is probably an early warning sign that not all was well, correct? 

Mike Sacopulos, JD 

I would say so. I struggle to see how the surgeon thought he could bluff his way through this kind of outcome. 

Jeff Segal, MD, JD 

The plastic surgeon then disclosed the injury to the patient and referred her to a hospital for further care. She (the patient) was diagnosed with a vitreous hemorrhage – that’s blood within the eye – and a retinal detachment from what was a 30-gauge needle puncture. She underwent several intensive ophthalmological procedures to treat her injured eye, including laser treatment and intra-ocular antibiotic injections. 

This sounds like it was anything but a trivial problem to be solved. The patient suffered irreparable and permanent vision loss in her right eye, rendering her legally blind. She sued both the surgeon and the staffing company that supplied the scrub tech; the argument being that the surgeon didn’t take proper precautions in checking that the needle was properly secured before applying pressure. 

It was also alleged the surgeon failed to check all the medical instruments properly before the procedure. Not surprisingly, the plastic surgeon tried to defend by stating that it’s not his job to check the syringe and the needle. That is the job of the scrub tech. He’s only one person and can do one thing at a time, which is to operate or check all the instruments, but not both. That is not an unreasonable argument to make. 

So, how did this pan out? This went to a jury trial – and that already tells you that there was no meeting of the minds. And the jury found that the plastic surgeon was 20 percent negligent and that the staffing company was 80 percent negligent. The total award was about half a million dollars. The doctor ultimately had to pay about one hundred thousand dollars. This isn’t a horrible outcome. I think that would be considered, in today’s dollars, a modest payout, particularly for someone who is legally blind in one eye. 

But there are several interesting points. The key point is that the doctor likely had no power and no control over the hiring of this scrub tech. It is likely this individual just showed up in the room. I don’t know if that applies in this case, but it is plausible. Meaning, that in this case, the doctor is being held responsible for anyone who is in the room, even though he lacks the power to control who is in the room. 

And you see this frequently. There are surgeons that like working with the same people. It’s like doing a ballet where the choreography is well understood in advance. You don’t even need to talk. The proper instrument is always in your hand before you even think about it. And sometimes they give you the instrument you need, rather than the instrument you are asking for, because that’s how well they know you. That’s when magic happens in the operating room. 

That’s the A-Team. Sometimes you get the C-Team. That’s someone who has barely been in the operating room in the past for your type of procedure. They may have a lot of experience in treating other types of cases, but it can be a very frustrating experience for both you (the surgeon) and the scrub tech. 

Mike Sacopulos, JD 

I can’t imagine it’s a picnic for the scrub tech, either. 

Jeff Segal, MD, JD 

I still remember on occasions asking a C-Team scrub tech, “Can you please help me without leaving the room?”, implying that they could help me out if they just left. 

That didn’t endear me to the scrub tech, but you can’t always choose the people that you’re going to be working with. Because you are in the same room, frequently the “captain of the ship” doctrine plays out. Let’s spend a couple of minutes talking about that. 

Mike Sacopulos, JD 

Right. It is your patient, and you’re in charge of this procedure. You are going to be held liable for the results, whether you think it’s fair or not. I think that this situation was made worse by the fact that this was an aesthetic procedure that resulted in blindness. 

What if they’d been hit by a baseball or a tennis ball and had a detached retina? Would that make a difference? 

Jeff Segal, MD, JD 

I think it would have made a big difference. Why? In the case of an elective surgery, you are taking an entirely healthy patient and subjecting them to surgery. You make them sick to make them healthy again, meaning that you go through the procedure and your goal is to get them back to the physical health they were at before the procedure. 

And anything short of that is a mismanaged expectation. And we do tell patients preparing for blepharoplasty that there is a risk you’re going to go blind or die. But nobody hears that. They just assume they’ll be fine because they know everyone under the sun has had this type of procedure and recovered without incident. This patient likely knows no one that has gone blind and knows no one that has died as a result of this type of surgery. Because it’s so uncommon. 

The expectation is such that those bad outcomes will never happen to them. Because this was an entirely elective procedure that had an adverse outcome, that created a mismanaged expectation, which turned into litigation. 

Mike Sacopulos, JD 

Patients are looking to the physician to be the captain of the ship. They expect the physician will ensure their safety. And it’s just not going to play well if, in the event of a bad outcome, the doctor says, “Well, unfortunately, someone else was in charge of that aspect of your care.” The patient is going to think, “You let this guy into the OR, didn’t you? This is your problem.” 

The doctor won’t get off the hook. 

Jeff Segal, MD, JD 

I don’t think so. Not unless you tell the patient up front, “Hey, by the way, I have zero control over the scrub techs in my operating suite. I’ve never seen them perform. And candidly, I have no idea about their level of skill.” 

Now, if you said that and the patient jumped in anyway, then you might have an argument that the patient assumed the risk for the staff’s inexperience. I’d be shocked if you could find one patient to consent to any surgery after setting that kind of expectation. 

Most will wait until they can get the A-Team.  

One of the other things that did not play well here was presumably the plastic surgeon was aware of the needle shooting off the syringe and piercing the eye. I think it was a judgment error to assume that no harm occurred to the patient. 

I think honesty upfront would have been better and may have prevented a lawsuit. When these things happen, just fess up and explain that you’re taking ownership. Tell the patient you are going to do what it takes to make sure that the eye is evaluated appropriately, timely, and that if treatment is needed, you’re going to make sure the patient gets it as quickly as possible. 

Here, the patient didn’t immediately find out about the complication. Worse, she was told that everything was wonderful. The patient went home and returned a short time later with deteriorating eyesight. It was only then she learned about the missile that pierced her eyeball.

Mike Sacopulos, JD 

It also seems possible for a plaintiff’s attorney to argue the delay in treatment exacerbated the injury. Had the doctor addressed it immediately, told the family, and taken ownership, he could have intervened and limited damage to the retina. I have no idea if that’s medically accurate in this case or not, but you can imagine how that argument would be made. But now you’ve lost all trust with the patient by trying to conceal what happened. 

And you may have further harmed the patient by delaying treatment.

Jeff Segal, MD, JD 

You’re better off erring on the side of caution. Better news would have been, “Hey, a needle went through your eye. I’ve got an ophthalmologist coming over here now to do a visual inspection of the external and internal eye. We’re going to take care of you.”  

You’ve already brought in the best possible person to manage this outcome. It shows you are in front of the problem instead of hoping against hope that you won’t have an even bigger problem down the road. 

The patient could have easily found an expert willing to argue the delay in treatment exacerbated her injury. And when you’re dealing with vision and lack thereof, that’s considered a horrific injury. That’s like losing a limb. That’s like death. These are big injuries. And big injuries typically are associated with large awards. What is most shocking to me about this case is the compensation (damages) was limited to half a million dollars.  

That, to me, seems like a surprise.

Mike Sacopulos, JD 

Not a trade that I would take, shifting off the vision for half a million dollars.

Jeff Segal, MD, JD 

Me neither.

Mike Sacopulos, JD 

But I do agree with you. The payout seems incredibly low. Which brings up the point that awards and damages to patients can vary state to state and patient to patient. Compensation is a spectrum. Some states have caps on damages. Some states are more liberal than others. Jury makeup plays a role. 

Take it with a grain of salt that this payout was half a million dollars. The same set of facts could have resulted in different payouts in other states.

Jeff Segal, MD, JD 

We’ve used this illustration. I used to live in Terre Haute, Indiana, which was on the border of Indiana and Illinois. And we have this vignette where you have three patients who live across the street from each other. One gets care in Terre Haute, Indiana, where the state has implemented substantive tort reforms. And so, it is a much more inviting medico-legal environment for physicians.  

The other patient gets their care in Illinois, which is often considered a judicial hellhole, particularly if you’re in Cook County. Other parts of the state aren’t as bad. But Madison County is horrible, which is East St. Louis, and, as stated, Cook County in Chicago is bad.  

And then the third patient in this vignette gets care at the V.A., meaning that it’s a federally insured program. 

And in this vignette, each of them experiences the same type of injury. Nothing is different. They live right across the street from each other and in the same neighborhood. They just elected to get care in a different state or federal environment. The amount of money each could collect varies significantly for the same injury. The Illinois patient would likely get the most. The Indiana patient would be next in line. The federal patient would be hopeful to get anything, if at all. 

It’s very challenging to sue the federal government, although there are certainly ways to do it. It’s just a lot more difficult. So, the take home point from this case is when you’re in the operating room, you are the captain of the ship. There are exceptions to that rule, but by and large, you’re playing defense. And finally, be candid and transparent with your patients. I think they will appreciate the candor, hearing about bad outcomes sooner rather than later. 

Any final thoughts on this, Mike?

Mike Sacopulos, JD 

No, that that wraps it up nicely, especially the candor to the patient. Because in my experience, that propels more med mal claims than anything. If someone thinks that they’ve been intentionally deceived, they will likely propel a claim.

Jeff Segal, MD, JD 

Audience – how do you think the case should have turned out? Was the surgeon to blame? Or should his scrub tech shoulder the responsibility? Comment below.

Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief) and a meritless litigation. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, request a consultation.

If you have any questions, please send them our way to info@medicaljustice.com.com. Until we meet again.

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Meet Your Hosts

Jeff Segal, MD, JD

Michael Sacopulos, JD

Medical Justice General Counsel

medriskinstitute.com

Michael J. Sacopulos is an attorney who has been educating and advising physicians how to identify and reduce liability risk for more than 20 years. Known for his sharp wit, common sense guidance, and ability to turn mundane legal topics into entertaining educational sessions, Michael speaks nationally on privacy, security, and compliance issues.