Medical Law Advice for David Thompson - Essay Example

Re: DAVID JOHNSON ADVICE I am asked to advise Mr. David Johnson in the matter of a claim for clinical negligence made against Eyes Right as well as Dr. Donald Ivy (DI) and Dr. Benjamin (DB). Mr. David Johnson sustained damage to his corneal flap as a result of a Lasik Eye Surgery performed by Drs. Ivy and Benjamin performed at the Eyes Right Clinic on September 29, 2003. I am asked to advise generally on evidence, merits and as to an appropriate figure for a Part 36 payment into court, if so advised. I am also asked to advise specifically on the following; (a) The merits of the claim, especially on the issue of causation and whom to sue; (b) The value of the claim, so far as the evidence allows; (c) Any evidentiary matters arising, especially with regard to expert evidence; (d) The advisability of a Part 36 offer by complainant. Summary of facts 2. Mr. David Johnson went to Eye Right Clinic on August 5, 2003 to enquire about the possibility of undergoing Lasik Eye Surgery to correct his nearsightedness. He was attended to by DI. He underwent to treatment to his right eye but was told that the operation was only partially unsuccessful. On August 12, he returned once more, but was again told that the operation was only partially successful. On August 19, he returned for treatment on his left eye, and this yielded completely satisfactory results. Additional treatment on his left eye was conducted on September 29. This operation was done both by DI and DB. It was during this visit that complications arose. Mr. David Johnson was informed that there was a problem as his cornea has been penetrated. In a subsequent examination by DI, he was told that his corneal flap had been damaged and that a corneal graft was probably necessary. He was referred to Dr. Singh (GS) at the Grafton Hospital in Oxford. 3. Mr. David Johnson has had several operations and procedures to correct the damage to the cornea, beginning with the stitching the damaged corneal flap on September 30, 2003 and culminating in a corneal graft on September 24, 2004. The sight on the right eye is still problematic. He is on the NHS waiting list to have a contact lens implant. After the operation at Eye Right, he experienced pain due to “dry” eye, reduced and disturbed sight and very poor night vision. Until the corneal graft, he could not drive. His vision was unbalanced as his left eye was normal. He became solely dependent on his family. He became prone to headaches and fatigue and was unable to work for 6 months, although he received sick leave pay. He has since returned to his job as librarian, earning 32,575 p.a. (net). He still requires constant application of eye lubricant to counteract the dry eye syndrome, I.e., one NHS prescription per month. He must wear special glasses costing 195.00 and dark glasses in the sun costing 105.00. 4. According to GS, an expert in the field of ophthalmology, during the September 29 operation, the laser perforated the cornea such that there was egress of fluid through the small hole in the central part of the cornea and it was impossible for the flap to be repositioned. The LASIK flap was found by him to be oedematous and floating free with a low intraocular pressure and a visual acuity of counting fingers. Further, GS said that after Mr. Thompson had resuturing of the LASIK flap, and this had a chance to settle down, it was found that the cornea was extremely thin and ectatic, bulging forwards and with a huge degree of astigmatism. The only way to correct this was to replace the cornea with a penetrating keratoplasty which was done on September 24, 2004. The corneal sutures were then removed on December 12, 2005 and he is due to be reviewed again in the future. 5. GS found that there were two possible reasons for the laser penetrating the cornea. The first is that the bed of the cornea was so thin (and had been made thinner by the initial treatment) that the very small amount of additional treatment to what was already a very thin cornea caused the perforation. The second possibility is that the incorrect data was entered into the laser computer and instead of treating 1.6 dioptres of myopia, as intended, much more laser ablation, i.e., 16, was applied, resulting in the corneal perforation. It is the expert opinion of GS that the doctors who conducted the operation are guilty of negligence. Summary of Advice 6. It is my opinion based on the available evidence, that the Claimant Mr. Johnson is in a good position to successfully prosecute this claim. There is absolutely no showing that the Claimant suffered from any pre-existing condition or disorder that could have contributed to the laser penetrating the cornea. Assuming arguendo that such a pre-existing condition could be proven, it cannot be denied that the Claimant was examined prior to the operation by DI. He had the benefit of medical experience and background and is better situated to determine if there was a hindrance to the operation, or if there was anything that could imperil the health and well-being of Claimant. Moreover, there is no showing that Claimant performed any negligent acts at any time before, during or after the operation that would have constituted a novus actus interviens, breaking the chain of causation. He was in fact very religious in going back for check-ups and the like. The defense of contributory negligence may not be availed of by the defendants. Defendant’s Knowledge 7. At the time of the initial visit of Claimant to the clinic, the Defendants were aware that the Claimant was consulting them with the end in view of having a LASIK eye surgery performed on him to cure his astigmatism. The initial check-up did not yield results that were out-of-the-ordinary, and Claimant was, for all intents and purposes, qualified for LASIK surgery. Defendants also knew that the procedures on the right eye conducted before September 29 were only partially successful, as in fact, more operations were scheduled on the right eye. Moreover, Defendants were aware that the laser had penetrated the cornea, and this is manifested by the correspondence to GS. 8. LASIK stands for Laser-Assisted In Situ Keratomileusis and is a procedure that permanently changes the shape of the cornea, the clear covering of the front of the eye, using an excimer laser. A knife, called a microkeratome, is used to cut a flap in the cornea. A hinge is left at one end of this flap. The flap is folded back revealing the stroma, the middlesection of the cornea. Pulses from a computer-controlled laser vaporize a portion of the stroma and the flap is replaced. Laser in situ keratomileusis (LASIK) is a rapidly evolving ophthalmic surgical procedure. Several anatomic and refractive complications have been identified. Anatomic complications include corneal flap abnormalities, epithelial ingrowth, and corneal ectasia. Refractive complications include unexpected refractive outcomes, irregular astigmatism, decentration, visual aberrations, and loss of vision. Infectious keratitis, dry eyes, and diffuse lamellar keratitis may also occur following LASIK. Liability of DI Failure to adequately apprise Mr. Johnson of risks 10. Even though LASIK eye surgery may be said to be a routine procedure, relatively safe as compared to other medical procedures, doctors performing it are still required to adequately apprise the patient of the risks of such surgery, as well as the possible complications that might arise. In the facts, there was no showing that Mr. Johnson was given a thorough discussion of the risks entailed by LASIK eye surgery. 11. The law requires that a health care practitioner provide the patient with accurate information as to diagnosis, the nature of the proposed treatment, any risks associated with that treatment, alternatives to that treatment along with their associated risks, and the risk of no treatment. The failure to provide that information is, in and of itself, a violation of the patients rights. This is in line with current standards in professional care. 12. Whilst it is true that the doctors subsequently informed the Claimant that the operation was only partially successful, such pronouncement is belated, inasmuch as the Claimant should have been forewarned at the onset of the operation. If GS is correct in his opinion that there was a mistake in recording and incorrect data was entered into the computer, then Claimant should also have been apprised of this. There is no showing in this case that he was. 14. It would be advisable therefore to seek any additional evidence to support that no full disclosure was made to Complainant, at the start of the operation, and to some degree, when it became apparent that complications were arising. Liability of both DI and DB Performing the surgery 15. The facts state that DB and DI performed the operation together; hence, they must be made jointly liable. It was on September 29, 2003 that they worked together; and it was on that same date when it was discovered that Claimant’s corneal flap had been damaged and that a corneal graft was probably necessary. 16. When the claim is based on negligence, the facts to be proved include those constituting actionable damage as well as those giving rise to the existence of a duty of care and its breach. It is clear in this particular case that DI and DB had a duty of care to Claimant. This is made even more apparent by the fact that Claimant had parted with a sum of money for the procedure to be conducted. At the very least, there was a breach of contract in that the service was deficiently rendered. Certainly, there was medical malpractice, in that the doctors occupied a position of ascendancy, and enjoy the benefit of medical knowledge and expertise. 17. The fact that incorrect data was entered into the laser computer speaks of negligence in the highest possible degree. Even though the entry into the laser computer was performed by subordinates, the fact remains that the doctors should have reviewed what was entered to make sure that no errors would take place. Also, the evidence states that the cornea was already excessively thin. This should have put the doctors on guard and should have made them desist from continuing the procedure. Liability of Eyes Right Clinic 18. Eyes Right Clinic should also be held liable for the unfortunate incident that happened. It should not be allowed to exculpate itself from liability on the mere allegation that the doctors were independent contractors and the clinic exercised neither supervision nor control over them. By offering its services to the public as a laser eye clinic, it in effect, offers the services of DB and DI, who are the doctors performing said services. There is an implied “warranty” that the doctors will perform with the required degree of care and the operation to be performed, safe and satisfactory. Given the fact that most clinics actually do procure the services of doctors on an “independent contractor” basis, the allegation of Eyes Right Clinic, if allowed by the Court, would result in the absurd and most unfortunate situation of clinics and hospitals all over the country acting with impunity because they cannot be made liable for transgressions of their doctors. 19. Moreover, hospitals should improve on efforts to use systems or processes of care to reduce the likelihood that human errors will be made, or than once made, the human errors will go unchecked and prejudice the patients. In this particular case, it is directly attributable to the hospital that no check-and-balance mechanism was in place to rectify the erroneous entry in the laser computer. Certainly, some form of technology must be in existence to at least provide a final opportunity to check data inputs before the actual operation takes place. Having none, the hospital is clearly liable. Causation 20. In my opinion the Claimant’s case will be able to establish a causal link between the Defendants’ breach of duty and or negligence and his injury, in view of the absence of potential and competing causes attributable to his injury as well as the blatant carelessness of the doctors in entering the data in the laser computer. The negligent acts did not just contribute to his injuries, they were the actual cause. No proximate cause can be seen, either externally or from prior or subsequent acts of the Claimant. 21. The “balance of probabilities” test, recognized in our jurisdiction, is also relevant to the case at hand. In the well known words of Lord Diplock in Mallett v McMonagle [1970] AC 166, 176: The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain.” In this case, the balance of probabilities tilts – and tilts overwhelming so – in favour of claimant’s claim. Mr. Johnson has had several operations and procedures to correct the damage to the cornea. Previous to the September 29 operation, he has had no history of damaged corneas, or no record that he performed any activity that could have led to the same. 22. The doctrine of RES IPSA LOQUITUR – meaning, the thing speaks for itself – likewise applies. Though legal scholars not actually be consider it a doctrine, it is highly relevant in medical malpractice cases. It has been taken to mean that the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the plaintiffs safety. 23. In sum, there can be no escaping the conclusion that the injury to Mr. Johnson’s eye would not have occurred had it not been for the September 29 incident. It is the only proximate cause and there are no intervening causes. Loss of Chance 24. The law treats the claimants loss of his opportunity or chance as itself actionable damage. The claimant must prove this loss on balance of probability. The court will then measure this loss as best it may. The chance is to be ignored if it was merely speculative, but evaluated if it was substantial In the current case, In this case, the lost chance is substantial. He became prone to headaches and fatigue, and this made him stop working for several months. Though he admittedly received sick pay, the loss of experience that would have been contributory to his career development should be factored in as well. 25. Also, his eyesight is permanently damaged, and he would have to incur costs in having it repaired. Poor eyesight could result in lost career opportunities, particularly in careers where clear eyesight is a requisite. A new schedule of loss should be sought which takes account of an expert opinion of the Claimant’s condition. This should include the Claimant’s prospects of work, future promotion, the risk of losing his job and being disadvantaged on the labour market. Part 36 Offer 26. In light of the facts, in my opinion the Defendants should consider making a part 36 offer in the pursuit of settlement in the region of £10,000, considering that eyesight is integral to a person’s wellbeing, job performance and quality of life. Evidentiary matters arising as regards expert evidence 27. The expert witness is allowed to compare the applicable standards of care with the facts of the case and interpret whether the evidence indicates a deviation from the standards of care. The medical expert also provides an opinion (within a reasonable degree of medical certainty) as to whether that breach in care is the most likely cause of the patient’s injury. Without the expert’s explanation of the range of acceptable treatment modalities within the standard of care and interpretation of medical facts, juries would not have the technical expertise needed to distinguish malpractice (an adverse event caused by negligent care or "bad care") from maloccurrence (an adverse event or "bad outcome"). 28. The evidence provided by GS is admissible as expert evidence. It is indubitable that GS is an expert in the field of ophthalmology and ophthalmic surgery as a consultant ophthalmic surgeon and is very much qualified in rendering expert opinion. According to GS, during the September 29 operation, the laser perforated the cornea such that there was egress of fluid through the small hole in the central part of the cornea and it was impossible for the flap to be repositioned. He also said that incorrect data was entered into the laser computer and instead of treating 1.6 dioptres of myopia, as intended, much more laser ablation, i.e., 16, was applied, resulting in the corneal perforation. The conclusion he reached was that DI and DB are guilty of negligence. 29. Absent any showing that GS is biased against defendants, or that there is any reason for him to render an opinion he believes to be untrue, his opinion must be given great weight. Moreover, defendants cannot now assail the credibility and integrity of GS as an expert witness, when in fact, it is on record that they have sought his opinion in a letter dated September 3, 2003. Conclusion 37. It cannot be gainsaid that the only conclusion that a reasonable person may reach in light of the facts of this case is that the negligence of the defendants was the proximate cause of the injuries sustained by Claimant. Professional negligence is manifest, particularly by the faulty recording of data in the laser computer. It is not only the individual doctors, but also the hospital, that must be held liable. This breach of duty by medical professionals should not be countenanced. Read More