Great expectations

Case history

A 60 year old patient attended the ophthalmologist complaining of a gradual loss in her vision which was now causing problems with driving at night. Examination revealed bilateral cataracts and astigmatism. 

The ophthalmologist recommended bilateral cataract surgery using toric lenses. She discussed the benefits and risks of this surgery, and other options. The patient was also provided with some written information about the recommended management plan. A letter was sent to the referring GP summarising the findings and recommendations.

A week later the patient contacted the practice to book the surgery. The procedures were performed without complication. Postoperative reviews confirmed significant improvement in visual acuity and the patient reported that she was pleased with the outcome. 

Medico-legal issues

The ophthalmologist was therefore surprised and distressed when two years later she received a letter from the patient’s solicitors alleging her management of the patient had been negligent and demanding financial compensation.

The ophthalmologist contacted MDA National’s Medicolegal Advisory Service for advice and support.

The medico-legal adviser requested a copy of the solicitors’ letter and the patient’s medical records. She informed the ophthalmologist that MDA National would respond to the solicitors on her behalf and keep her informed of any developments.  The solicitors asserted in their letter that the patient had ongoing problems with night driving. It was also alleged that the patient was unable to continue to work as a fashion designer because she was no longer able to perceive colours properly. An optometrist had reportedly told the patient that this problem wascaused by the tinting in the intraocular lenses. 

The solicitors alleged that if the patient had been warned of this risk, she would have chosen to have clear intraocular lenses to treat her cataracts. 

There appeared to be absolutely no basis for the allegation that the patient’s visual function had been affected by the tinted intraocular lenses. There was also documentation that there was no guarantee that the patient’s night vision would improve and, indeed, there was a risk that her vision could deteriorate following the surgery.  An expert review of the matter by an ophthalmologist on MDA National’s Cases Committee confirmed that the ophthalmologist’s management was above standard of care and consistent with competent professional practice.

Outcome

The Medico-legal Adviser wrote to the patient’s solicitors advising that the ophthalmologist had acted in a manner that was widely accepted by peer professional opinion as competent professional
practice. The choice of lens was appropriate and her visual acuity after surgery was excellent. Any responsibility for the patient’s claim was denied and, if court proceedings were commenced, legal costs would be sought from the patient and her solicitors. No further correspondence was received from the patient’s solicitors. 

Preventing a claim

Informed Consent

This case highlights the importance of an appropriate consent process. 

In this case, the ophthalmologist was aware of the patient’s occupation and there had been a discussion about the effect that the cataracts had had on her ability to perceive colour. The consent process had been well documented in the ophthalmologist’s medical records, as well as in her letter to the GP. The consent discussion had been supplemented by the provision of written material. In short, there was good evidence of a comprehensive and informed consent process. 

It was the 1992 High Court of Australia judgment against an ophthalmologist that set the precedent in Australia for a doctor’s duty to provide information to a patient when asking them to consent to a procedure. In this High Court case, the patient was successful in her claim because the ophthalmologist had failed to disclose that as a result of surgery on her blind right eye, she may develop sympathetic ophthalmia in her left eye. The court determined that the risk of sympathetic ophthalmia was a ‘material risk’ which the patient should have been warned about. A risk is material if:

• a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it; or
• the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.

This duty is now generally referred to as the duty to obtain ‘informed consent’. 

Comments about colleagues

The case also highlights how inappropriate comments by colleagues can be the cause of claims against other health practitioners. This may arise when a patient seeks a second opinion. In this case, the reported comments by the optometrist were not only incorrect but appeared to be the basis for the claim against the ophthalmologist. 

If you receive a claim or complaint, contact  MDA National’s Medico-legal Advisory Service team  for advice and support on 1800 011 255.

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