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Reporter
TEXAS MEDICAL LIABILITY TRUST
Special issue: Ophthalmology 2007
NEGLIGENCE IN PRESCRIBING
OPHTHALMOLOGY CLOSED CLAIM STUDY
by Barbara Rose,
Senior Risk Management Representative
The following closed claim study is based on an actual
malpractice claim from TMLT. This case illustrates how
action or inaction on the part of physicians led to allegations of professional liability, and how risk management
techniques may have either prevented the outcome or increased the physician’s defensibility. The ultimate goal in
presenting this case is to help physicians practice safe medicine. An attempt has been made to make the material less
easy to identify. If you recognize your own claim, please
be assured it is presented solely to emphasize the issues of
the case.
Clinical presentation
A 45-year-old woman came to the emergency department (ED) complaining of pain, blurry vision, and
sensitivity to light in the left eye. Examination confirmed a corneal abrasion. The patient was given an
antibiotic eye drop and instructions to follow up with
the defendant ophthalmologist.
She was seen the next day in the defendant’s practice. At that time, the history revealed that the patient
had not filled the oral antibiotic prescription. She also
had not administered the topical antibiotics as instructed by the ED physician.
Physician action
Visual acuity was 20/200 in the left eye. A corneal
ulcer with an infiltrate was diagnosed. The defendant
started the patient on topical Tobradex, a combination
antibiotic and corticosteroid medication. The patient
was instructed to return the next day for repeat evaluation. At that visit, she reported less discomfort and improved vision. On examination, the visual acuity had
improved to 20/80 and the infiltrate was still present
but improved. Tobradex was continued as well as
Ciloxan that had been prescribed by the ED physician. A return appointment was made in five days.
On the appointment date, the patient came to the
same ED and was instructed to see the defendant as
scheduled. She did not keep this appointment, but
was seen the next day. The patient reported an increasing foreign body sensation in the affected eye. Visual acuity had decreased to 20/200 and an infiltrate
was still noted. A therapeutic bandage contact lens
was inserted and the patient was advised to continue Ciloxan and Tobradex and return in two days.
At this appointment the patient complained of increased pain and decreased vision in the left eye. She
informed the physician that she thought a piece of
asphalt had flown into her eye the first day she went
to the ED. Visual acuity was 20/400 and the infiltrate
was larger, involving the inferior cornea. The bandage
contact lens was exchanged and Ancef and Atropine
drops were added to the topical medications.
The patient was seen the next two days (Saturday
and Sunday) by the defendant. No improvement was
noted. On Sunday, the patient was referred to a corneal
specialist. The defendant paged the on-call specialist
for the corneal group and that physician agreed to see
the patient on Sunday at a medical center. The patient
was examined in the ED and appropriate cultures
were done.
On Monday, the corneal specialist recorded a corneal abrasion 4mm by 6mm that had not increased
from the earlier measurements. Two days later, the
abrasion had decreased in size to 3mm by 5mm. The
final results of the cultures were determined five days
later (April 16th), and were positive for a fungal corneal ulcer. Amphotericin B was started and Cosopt
for increased intraocular pressure.
A return visit with the corneal specialist on April
21st listed Amphotericin B, Vancomycin, Gentamycin,
continued on page 2
continued from page 1
and Cosopt as the medication regimen. Demerol was
also prescribed for pain. The patient reported hand motion vision. Pressure had increased to 42, and the infiltrate was described as light blocking and dense, about
5 mm. The plan was to continue therapy and see the
patient in five days. On April 26th the patient described
less pain and vision to count fingers. The impression indicated some improvement in the fungal infection, and
an order to decrease the anti-fungal medication to every
two hours. A return appointment was scheduled in four
days. From April 30th to June 16th, the patient was seen
12 times with the indication that the ulcer was responding to treatment and continued therapy recommended.
Amphotericin, Cosopt and Atropine were continued.
At an appointment on June 16th with the corneal specialist, his findings indicated increasing pain despite Demerol every three hours, light perception only, pressure
of 34, 75% hypopyon, filamentary keratitis and continued infiltrate. The fusiform ulcer was not responding to
medical treatment. Xalatan was added for pressure reduction. Surgery was scheduled for a corneal graft. The
transplant was done on June 18th. In spite of aggressive
follow up and care, the transplant subsequently failed.
She is legally blind in the left eye.
Allegations
The general ophthalmologist was sued and the plaintiff
alleged negligence in prescribing both an antibiotic and
steroid concurrently as it helped promote the growth of
the infection. The plaintiff further alleged that the defendant should have added other antibiotics and an anti-fungal medication earlier thus causing a delay in treatment
and the need for corneal transplant.
Legal implications
Physician consultants for the defense described the
ophthalmologist’s care and treatment as reasonable and
meeting the standard of care. They felt it was appropriate
to treat a mild corneal ulcer without cultures in the beginning. When the patient’s condition did not respond
to treatment, an emergent referral on a Sunday demonstrated the defendant’s concern. The physicians who
reviewed this case consistently acknowledged that fungal corneal infections are difficult to detect in their early
stages. It was also noted that most ophthalmologists
may see only one to two fungal infections in their entire
careers.
One reviewer emphasized that there were no apparent signs of fungal infection during the time the defendant treated the patient. He felt strongly that no physician could have identified this infection any sooner, and
there was no requirement on the part of the defendant to
perform a culture earlier, as alleged by the plaintiff.
With regard to causation, the corneal specialist who
cared for the patient stated that upon first examining her,
the eye did not appear to have a fungal ulcer present. He
also agreed that the type of fungal infection the patient
had is rare and very difficult to treat. This physician further opined that fusarium is a particularly nasty strain
of fungal ulcer and generally results in the outcome this
patient experienced regardless of the treatment.
The plaintiff’s expert stated that the standard of care
had been breached by the defendant because he prescribed a steroid (Tobradex) in combination with antibiotic drops (Ciloxan). The expert did agree that ophthalmologists may differ in their opinions regarding the
use of Tobradex. The Physician’s Desk Reference lists treatment of corneal abrasions with Tobradex as appropriate
and its use does not breach the standard of care. During
deposition this expert also acknowledged that fungal
infections are rare and the fusarium infection was even
more rare. He agreed these infections are generally not
diagnosed until the later stages and that patients often
lose their eyesight. This physician went on to describe
the characteristics of a fungal lesion and admitted to defense counsel that at no time under the defendant’s care
were these findings present.
Disposition
This case was taken to trial and the jury returned a
unanimous verdict in favor of the defendant.
Risk management considerations
It is satisfying to present a claim in which the defendant physician is exonerated at trial. It is also noteworthy to add that none of the physician consultants or experts participating in the review of this claim expressed
any criticisms about the defendant’s practice protocols
or quality of the medical record.
Barbara Rose can be reached at [email protected].
Want more closed claim studies?
Case Closed: A collection of TMLT closed claim studies, Volume 1 and
Volume 2 are currently available. Each book contains closed claim
studies based on actual TMLT claims.
Physicians can earn 4 hours of CME — including 1 ethics hour — by
completing the CME activity included in Case Closed. TMLT policyholders who complete this activity will earn a 3% premium discount
(maximum $1,000) applied to their next eligible policy period.
Request a free copy of Case Closed Volume 1 or Volume 2 by emailing
[email protected]. Please include your name and mailing address
in your email.
2 Ophthalmology 2007
risk
management 101
The FDA in 2007: criticism, caution, and confusion
by Barbara Rose and Anna Tauzin
It seems safe to say that many physicians and a well-informed segment of the
population have experienced confusion and
sometimes distrust regarding the actions of
the Food and Drug Administration (FDA)
in recent years. Drugs and devices have
been approved as safe and subsequently
withdrawn, sometimes in quick succession
to the dismay of physicians and patients. In
the case of silicone gel-filled breast implants,
the implants were approved, pulled off the
market, and then approved again.
This article will address the mission,
responsibility, and decisions of the FDA in
recent years; its impact on the delivery of
health care, physician confidence, and patient safety; and ways to stay informed and
react in a timely manner when the care of
your patient(s) requires a change.
History
Following the exposure of hazards in the
meat-packing industry, Congress passed the
Federal Food and Drugs Act in 1906. The
law required adequate labeling of food and
drugs, specifically that the label could not
be incorrect or misleading. However, deceptively packaged products continued to
materialize.
A more stringent act was introduced in
1938, bringing cosmetics and medical devices under the FDA’s control. It required
drug labels to provide directions for safe
use. The act also required that new drugs
meet pre-market approvals, forcing manufacturers to prove to the FDA that their
products were safe before being approved
for public use. 1
In the last quarter-century, regulation of
food on planes, radiation-emitting products,
and pre-market licensing for therapeutic
agents have been added to the list of FDA
responsibilities. The administration is also
accountable for post-market monitoring
and recall authority of medical devices.
Through decades of change, the FDA strives
to adhere to it’s mission statement, found at
www. fda.gov.
“The FDA is responsible for protecting the public health by assuring
the safety, efficacy, and security of
human and veterinary drugs, biological products, medical devices,
our nation’s food supply, cosmetics,
and products that emit radiation. The
FDA is also responsible for advancing
the public health by helping to speed
innovations that make medicines and
foods more effective, safer, and more
affordable; and helping the public get
the accurate, science-based information they need to use medicines and
foods to improve their health.” 2
Recent issues
Disrepute has tainted the FDA in recent
years. Critics have asked if the FDA is losing sight of its responsibility to the public. Is
the FDA too anxious to push certain drugs
or products through the approval process
without sufficient research?
The most recent and media-saturated
issue involves Merck and their anti-inflammatory drug Vioxx (rofecoxib). A companysponsored trial from 2004 showed that patients who took the medication for more
than 18 months were at an increased risk
for a heart attack or stroke. Following this
trial, Merck voluntarily recalled the drug.
However, later evidence suggested that the
FDA knew about the increased risk long before Merck’s recall. 3
According to Dr. Richard Horton, editor
of The Lancet, “In the case of Vioxx, the FDA
was urged to mandate further clinical safety testing after a 2001 analysis suggested a
‘clear-cut excess number of myocardial infarctions.’ It did not do so. This refusal to
engage with an issue of grave clinical concern
illustrates the agency’s in-built paralysis, a
predicament that has to be addressed through
fundamental organizational reform.” 4
In June 2006, longtime FDA critic Senator Charles Grassley of Iowa said, “I’m fed
up with resistance from the bureaucracy.
It’s been one excuse after another. Practices
and policies have changed from one day
to the next. Files available one day become
‘confidential’ overnight. A line agent isn’t
allowed to tell his story, even though line
agents have been made available in other
cases.” 4 (Line agents are domestic representatives to foreign pharmaceutical companies.
The FDA requires that all foreign pharma-
ceutical companies who import drugs into
the U.S. appoint a domestic representative
through whom all communication with the
FDA takes place.)
Senator Grassley, in a follow-up letter
from September 2006, expressed concern
about the FDA’s handling of pre-market review and post-market surveillance of drugs,
biologics, and devices. Grassley is not the
only one who has noticed a problem within
the FDA. Scientific journals, the Government
Accountability Office (GAO), the Institute
of Medicine, and current and former FDA
employees have all expressed their dissatisfaction with the FDA’s leadership.
Said Senator Grassley, “The FDA needs
to distance itself from the industry and return to its role as regulator, not a facilitator.
Despite findings from a Merck study that
heart attacks were five times higher for
Vioxx patients than for patients on another
drug, nearly two years passed before label
changes were made. The overriding concern
of the FDA should have been the health and
safety of the American people. However,
while the FDA was negotiating label changes
with the company, patients and doctors remained largely unaware of the cardiovascular risks.” 5
Risk management considerations
How do physicians manage the almost
daily reports regarding FDA actions, notices to pharmaceutical companies, alerts,
recalls, etc.? Ultimately, the responsibility
for understanding and keeping up with
this information falls squarely on the shoulders of physicians, who may not be given
enough information to help patients make
informed decisions. With this in mind, the
following risk management practices may
help avoid patient harm and possible litigation related to the prescription and use of
FDA-approved products.
• Physicians need to be proactive and stay
informed on a daily basis. If you have not
done so, sign up to receive the FDA’s MedWatch notices via email or RSS feed. (Visit
http://www.fda.gov/medwatch/ for complete instructions.) Open all of your mail.
For example, GE Healthcare mailed a letter
continued on page 4
Ophthalmology 2007
3
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Reporter
TEXAS MEDICAL LIABILITY TRUST
P.O. Box 160140
Austin, TX 78716-0140
800-580-8658 or 512-425-5800
E-mail: [email protected]
www.tmlt.org
Editor Jane Holeman
Managing editor
Barbara Rose
the Reporter is published by Texas Medical Liability Trust as
an information and educational service to TMLT policyholders. The information and opinions in this publication
should not be used or referred to as primary legal sources
or construed as establishing medical standards of care
for the purposes of litigation, including expert testimony.
The standard of care is dependent upon the particular
facts and circumstances of each individual case and no
generalizations can be made that would apply to all cases.
The information presented should be used as a resource,
selected and adapted with the advice of your attorney. It is
distributed with the understanding that neither Texas Medical
Liability Trust nor Texas Medical Insurance Company are
engaged in rendering legal services. © 2007 TMLT.
continued from page 3
to physicians in December 2006 informing
them of the reports on nephrogenic fibrosing dermopathy after imaging studies with
Gadolinium.
• Require a comprehensive medical history from patients including their use of illegal drugs, prescription pain medications,
and OTC products (analgesics, vitamins,
herbs, weight loss products). Patients may
be poor historians or may consider their use
of herbal medications unimportant. (For
example, use of St. John’s Wort is contraindicated in patients who will be undergoing
general anesthesia.)
• Review all current information about
drugs, medical products, and devices that
are part of your practice. It is unwise to base
treatment recommendations on the abbreviated information provided by a marketing
representative.
• When discussing treatment decisions
and options with patients, remember to
include the most current information available along with the known risks. Document
this exchange and the patient’s informed
choice in the medical record.
Sources
1. Swann JP. History of the FDA. 1998. Available at http://www.fda.gov/oc/history/
4
Emergency Medicine 2007
historyoffda/default.htm. Accessed January
15, 2007.
2. U.S. Food and Drug Administration. FDA
mission statement. Available at http://
www.fda.gov/opacom/morechoices/mission.html. Accessed January 15, 2007.
3. Horton R. Vioxx, the implosion of Merck,
and aftershocks at the FDA. Lancet. December 4, 2004;364:1995-1996. Available at
http://www.thelancet.com/journals/ lancet/article/PIIS0140673604175235/fulltext.
Accessed January 15, 2007.
4. United States Senate Committee on Finance. Grassley Comments at the Department of Health and Human Services Regarding Access to Information About the
FDA and The Antibiotic Drug Ketek. June
14, 2006. Available at http://finance.senate.
gov/sitepages/grassley2006.htm. Accessed
January 30, 2007.
5. Grassley C. Senator Grassley comments on the Institute of Medicine’s Assessment of the U.S. drug safety system.
Available at http://grassley.senate.gov/
index.cfm?FuseAction=PressReleases.
Detail&PressRelease_id=5180. Accessed
January 30, 2007.
Barbara Rose can be reached at barbara-rose@
tmlt.org. Anna Tauzin can be reached at [email protected].
Sample alerts from MedWatch
The FDA communicates their
safety and recall information to
physicians through several channels, including emails to those who
subscribe to the MedWatch e-list. The
following is a sample of notices sent
out in 2006 and early 2007:
• failure of implanted cardiac
defibrillator (ICD) devices;
• gadolinium used in imaging
studies and reports of nephrogenic fibrosing dermopathy;
• recall of the Davol/Bard
Composix Kugel large patch;
• an alert about the antibiotic
Ketek and links to severe liver
damage;
• potential side effects of antidepressant drug use in children
and adolescents generating a
Black Box warning;
• an alert about drug-eluting
stents; and
• the dangers of several over-thecounter drugs (analgesics, antipyretics, cough and cold medications) for infants and children.