As the national rates of malpractice litigation across all medical specialties continue to increase,¹ it is important for glaucoma physicians to be up to date regarding malpractice litigation trends, results of litigation, and financial awards. In addition to these updates, we will discuss how glaucoma physicians can best avoid litigation based on a review of the literature.

Proportion of Glaucoma-related Litigation

Glaucoma-related malpractice encompasses a small portion of ophthalmology-related litigation and has similar outcomes as ophthalmology overall. Glaucoma-related malpractice litigation encompasses 4.0% to 7.8% of all ophthalmology cases within databases such as Westlaw, the Ophthalmic Mutual Insurers Company (OMIC), the Physician Insurers Association of America (PIAA) Data Sharing Project (DSP), and the National Health Service Litigation Authority.^2-7 In a recent review of the Westlaw database, the authors found that the majority of glaucoma malpractice cases (62.3%) were resolved in favor of the defendant, whereas 61.7% were resolved in favor of the defendant in all of ophthalmology. For cases that proceed to jury trial, they found that the proportion of decisions in favor of the plaintiff also reflects ophthalmology as a whole (27.6% in glaucoma vs 29.6% in ophthalmology).²

Glaucoma-related Malpractice Payments

A consistent finding throughout the literature is that glaucoma indemnity payments are substantially higher than those in other subspecialties.^4,5,7 Craven, who authored one of the oldest studies on this topic, found that the mean glaucoma indemnity payment was almost 20% higher than in ophthalmology as a whole in the OMIC database; his findings were supported by Ali, who replicated his study 10 years later and found the average indemnity paid for glaucoma claims was higher than for ophthalmology as a whole ($179,000 in glaucoma vs $166,000 in ophthalmology as a whole).^3,5 Ali et al also found that glaucoma-related payment rose by $37,000 when comparing the period between 1985 and 2005 to the period between 1985 and 1995, suggesting a trend of increasing payments over time.⁵ Engelhard et al noted a trend in which median plaintiff awards, jury verdicts alone, and settlements alone for glaucoma were 1.7, 1.6, and 1.2 times higher, respectively, in glaucoma than all of ophthalmology.

In comparison, the average indemnities for all settled glaucoma claims were found to be lower in analyses by Craven and Brown et al using the OMIC database ($142,088 and $177,511, respectively)^3,8 However, comparison is limited due to uncertainty as to whether Craven and Brown et al adjusted past indemnities for inflation in their studies. The mean settlement for glaucoma was lower ($1,210,414)² than that for pediatric ophthalmology ($1,912,738)⁹ but higher than the mean settlement value for oculoplastic surgery ($826,190),¹⁰ corneal and refractive surgery ($782,533),¹¹ vitreoretinal surgery ($726,003),¹² and uveitis-related malpractice litigation ($724,302).¹³ The mean jury award in glaucoma-related malpractice litigation ($994,260)² was the third highest when compared to vitreoretinal surgery ($5,222,894),¹² pediatric ophthalmology ($4,815,693),⁹ corneal and refractive surgery ($588,896),¹¹ and oculoplastic surgery ($371,501).¹⁰

The Proportion of Glaucoma-related Lawsuits Related to Medical Management

Although glaucoma physicians may fixate on difficult situations, such as a recurrent leaking bleb or persistent hypotony, the cases that lead to litigation are not necessarily surgical or complex in nature. A majority of glaucoma-related malpractice focuses on medical, rather than surgical or procedural, management.^2,3,5,8 Additionally, cases with a medical etiology have been found to be more likely to result in an indemnity payment,^3,8 although Craven noted no significant difference in the mean payment to plaintiffs between cases with alleged medical misadventure vs a surgical etiology.³

Craven found that 4 types of medical misadventures accounted for the majority of allegations in his study: diagnostic error was most common, followed by improper performance of care, medication error, and failure to supervise or monitor the case. While the order may vary, subsequent studies of this topic found a similarly high prevalence of these allegations within their own review of legal databases.^2,5,8 Craven also found that the most expensive allegation of medical misadventure is failure to refer, and the most frequent and second most expensive allegation of medical misadventure is a diagnostic error. Claims of abandonment accounted for the largest average indemnity payment among claims with an associated issue, although this was an infrequently cited allegation.³

Steroid Response and Angle Closure

Ali et al noted the high prevalence of steroid-induced glaucoma, which has been described in several additional studies.^2,8,14 Ali et al described 2 cases: one in a patient who used topical steroids longer than their physician intended, and the other in a patient with Crohn’s disease taking steroids for whom glaucoma was not detected. For both patients, intraocular pressure (IOP) was not regularly monitored for the duration of their steroid treatment.⁵ Patients should be informed of the possible development of secondary glaucoma due to steroid use regardless of medication route and purpose, especially if their steroids have been prescribed by a physician other than an ophthalmologist. Review of patients’ medical histories and medication lists at every visit and subsequent appropriate IOP monitoring are important in these cases.

Engelhard et al also further characterized cases involving angle-closure glaucoma, finding that missed diagnoses or mismanagement of angle-closure glaucoma was the attributed cause of litigation in 18.8% of the cases in their study.² This diagnosis may be missed due to nonspecific symptoms of angle-closure glaucoma, such as vomiting, conjunctival injection, headache, and visual disturbances.⁵ These symptoms may be incorrectly attributed to other medical causes. Given that missed diagnosis or treatment of angle-closure glaucoma can result in permanent vision loss, angle-closure glaucoma should be on the differential, and IOP should be measured immediately.¹⁵ Routine and urgent gonioscopy is also crucial to diagnosis and prevention.

Communication in Surgical Etiologies of Glaucoma-related Malpractice Litigation

Brown et al more thoroughly examined surgical etiologies of glaucoma-related malpractice litigation using the OMIC database. The most common surgical etiologies were “negligent trabeculectomy” and “unknown complications of surgery,” followed by “combined cataract/trabeculectomy” and “failure of surgery and treatment combined.” “Negligent trabeculectomy” also resulted in the largest mean settlement amount paid.⁸ In their analysis, Engelhard et al also noted the prevalence of cases involving trabeculectomy and large payments associated with the procedure, with one case resulting in a payment of $1,522,344. Claims related to trabeculectomy included bleeding, endophthalmitis, the development of toxic anterior-segment syndrome, and blindness following orbital cellulitis. Other allegations related to surgical and procedural etiologies included unnecessary surgery, poor outcomes, poor follow-up care, and failure to attempt medical management prior to surgery.² Through discussing and documenting the benefits and risks of surgery, alternatives to surgical procedures, and expected outcomes given the patients’ specific ocular disease, glaucoma physicians can decrease the likelihood of these suits related to surgical and procedural etiologies.

Limitations of the Literature

Variations in these studies could be accounted for by the differences between using the Westlaw database and using databases of individual insurers, such as OMIC or the PIAA DSP.^3,8,16 Although Westlaw is not limited to individual insurers, it does not provide information regarding out-of-court settlements and dropped cases, only jury verdicts and settlements from federal and state court records.^17-20

Currently lacking from the literature is extensive characterization of glaucoma-related malpractice litigation involving surgical etiologies, such as characterization of the most common procedures, diagnoses, or alleged surgical complications implicated in litigation. Additionally, more recent minimally invasive glaucoma surgeries (MIGS) are likely not yet represented in these reviews: many of the studies^3,4 either predate or have minimal overlap with the development of MIGS given that devices such as the Glaukos iStent, Allergan Xen gel stent, and Alcon Cypass system were not approved by the Food and Drug Association until after 2012.^21-23 Malpractice litigation statistics are likely delayed: there is a delay between surgery and when surgical complications develop and further when litigation is pursued and then eventually completed. Future studies may include representation of MIGS procedures.

Strategies for Glaucoma Physicians to Decrease Their Risk of Litigation

When considering the clinical analysis performed within this article, we believe that we have identified several important points for providers:

• Educational materials in plain language can enhance patient care beyond the face-to-face physician–patient interaction.⁸
• In all physician–patient encounters, follow-up should be stressed as an essential component of glaucoma management. However, patients face myriad challenges to seeing their provider, including other medical issues, transportation issues, scheduling difficulties, and poor weather.²⁴ Due to the COVID-19 pandemic, telehealth has become a more familiar and valuable tool in the glaucoma physician’s arsenal. Hybrid models of telemedicine and home monitoring have been proposed as methods to expedite clinic visits and help physicians maintain contact with patients who live far away or who are unable to attend appointments during normal business hours.²⁵ It will be important to identify patients who are at risk of being lost to follow-up and may benefit from such hybrid models or office-based reminders. Medical malpractice issues specific to telehealth should also be considered; legal experts anticipate an uptick in medical malpractice litigation related to telehealth due to a diminished ability to form a personal connection between the patient and physician, misdiagnosis, and patients and physicians not understanding the limitations of telehealth.²⁶ Utilization of hybrid models of telemedicine and thoughtful selection of clinical scenarios appropriate for telehealth should hopefully mitigate these risks.
• Claims of abandonment are incredibly costly. Courts determine whether the patient was in the care of the defendant and whether adequate time was given to the patient to find alternative medical care before the physician–patient relationship was terminated. It is essential to document when you establish a relationship with a patient. When terminating a relationship with a patient, do not terminate the relationship when continuous care is needed, give adequate notice via certified mail (at least 30 days is required in most states), and support the transition by sending records and speaking with the new physician.²⁷
• Surgical malpractice risk can be mitigated through detailed discussions with patients that go beyond routine informed consent discussions. Patients may face risk during surgery that is specific to their anatomy, history, or degree of glaucoma. Reaching a place of understanding regarding personalized treatment goals decreases the chance of having a patient who feels dissatisfied postoperatively.
• The best measure against litigation is thorough documentation. Whether dealing with a complex noncompliant patient with frequent no-shows or interpreting routine test results, careful documentation detailing the steps of a patient’s care can be the difference between having a case dismissed and paying a hefty award.

As glaucoma-related malpractice litigation has become more common, we hope that this literature review can serve as a timely update and reminder of ways to decrease the risk of malpractice litigation.

References

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