Defending claims is eye-watering

Claims experts Claire Wratten and Pete Renwick discuss what is to be learned from the claims they have received from ophthalmology members of the Medical Defence Union (MDU).

The MDU regularly assists ophthalmologists with a variety of issues ranging from regulatory matters and inquests to complaints and medico-legal or ethical scenarios. 

Many ophthalmologists work in private practice and this review focuses on the last ten years of  experience in handling clinical negligence claims against ophthalmology members (see box below).

The most common reason for a claim was following cataract surgery. 

Claims were often brought when the wrong lens had been used. Another common allegation was that the consent process had been inadequate and that the claimant had not anticipated they might continue to need glasses following surgery. 

Claims were also brought following postoperative complications such as glaucoma, retinal detachment, retained lens fragments and endophthalmitis. 

Refractive surgery

There were a significant number of claims in relation to refractive surgery. Slightly more of these related to lens surgery than laser surgery, although both primarily occurred due to an alleged failure of the treatment or postoperative complications. 

These issues often arose due to alleged failures to correctly assess suitability for treatment, alleged failure to obtain accurate optical values prior to surgery and alleged inappropriate choice of treatment. 

Civica Medical Billing

Postoperative concerns and complications included an on-going need to wear glasses, corneal damage and dry eye syndrome. 

There were also several claims related to lens surgery performed for age-related macular degeneration, which concerned allegations about consent and, in particular, failing to advise the patient that they were not a suitable candidate for the surgery and an unsatisfactory outcome in terms of improvement in vision.

The primary cause of claims following blepharoplasty was post-operative scarring. Other issues raised were postoperative pain, blurred vision and a failure to pick up on other conditions. 

Additional cosmetic procedures that were subject to claims included corneal tattooing, surgery to remove molluscum contagiosum and fat transfer pro­cedures. 

The majority of claims relating to an alleged delay in diagnosis were due to an alleged delay in diagnosis of an intracerebral tumour, including prolactinomas, meningiomas or glioblastomas, or an alleged delay in diagnosis of glaucoma. 

The potential for claims against ophthalmologists following diagnosis of an extra-ocular condition highlights the importance of examining the eyes holistically and considering pathology outside of the eye as a cause for visual impairment. 

Outcome of the cases

A clinical negligence claim can either be settled by the defendant, with a payment of compensation being made to the claimant; or it can be discontinued, become statute-barred – out of time – or a case can be won at trial by either party to the claim. 

There is a time limit for bringing a claim of three years from the date of incident or three years from when the patient became aware that they may have received negligent care. 

The date of knowledge may be some considerable time after the actual incident – for example, if the claim relates to a delayed diagnosis of malignancy – and these time limits do not apply to patients who lack mental capacity and for children, for whom the three-year period does not begin until they reach their 18th birthday – or in Scotland, their 16th birthday. 

This means that a claim may be brought many years after the treatment in question, which underlines the importance of keeping clear and accurate records, but also it can be helpful to retain copies of any patient information leaflets that were available at the time.

The vast majority of claims brought against ophthalmologists were either discontinued or became statute-barred, with only 22% being settled, and one case was won at trial. 

In general, very few clinical negligence claims end up at trial, because the whole claims process is designed to encourage exchange of information between the parties and resolution of the case without resorting to a trial. 

The MDU will always involve the member in the management of their claim and, depending on the stage at which the case is resolved, this can include an opportunity to discuss their case with the instructed solicitor, barrister and medico-legal experts. 

Views of the member are very important in decisions on how to manage the claim, including whether to make an offer of compensation to the claimant. 

Compensation costs

For damages paid by the MDU on the claims that were settled, the sums ranged from £100 to almost £400,000 for a claim following complications arising from laser refractive surgery. 

The purpose of compensation is to put the patient back in the position they would have been in had it not been for the problems caused by negligence. 

In addition, when a claim is settled by a defendant, they are also responsible for payment of the legal and expert fees incurred by the claimant’s solicitor in bringing the claim. These fees can often outstrip the damages paid to the claimant. 

For example, in a claim for which damages were agreed at only £85,000, the legal costs incurred by the claimant – and paid for by the MDU – amounted to £230,000. 

Solicitors’ costs

The disproportionate impact of costs incurred by solicitors for the claimant is even more marked in cases where damages are lower. 

In the majority of cases, where the sum of damages paid was below £40,000, the costs were greater than the damages paid, sometimes by as much as four times the sum.

Even if no payment of damages or claimant costs is made by the MDU, it can incur significant defence costs. These costs go to pay the solicitor, barrister and medico-legal experts instructed on behalf of the defendant ophthalmologist. 

For example, in this ten-year period, we successfully defended a claim leading to its discontinuation by the claimant, but incurred almost £60,000 in defence costs in doing so.

Due to legal reform called ‘qualified one-way costs shifting’, introduced in 2013 in relation to funding clinical negligence claims, it is very hard for the MDU even when we successfully defend a claim to recover any of the costs incurred.

Claire Wratten (left) is claims team manager and Pete Renwick (right) is lead claims handler at the MDU