At a local auto mechanic's shop, a man pounds on a crank shaft with a ballpeen hammer in an attempt to loosen a part. Suddenly, a tiny piece of metal flies off and hits his unprotected eyes; he is not wearing goggles. It hurts and he presents himself to an emergency room where he is seen by the physician on duty - not an ophthalmologist. The physician diagnoses a corneal scratch, medicates and patches the eye and sends the patient home. A good outcome? Definitely not!
As the facts set forth above suggest, "eye" cases are not as simple as they seem. The beleaguered auto mechanic actually had a retained metal fragment in the eye. The fragment had penetrated through the cornea and was floating in the vitreous of the eye. Because of the delay in detection and removal, the patient developed a raging infection, metallosis and, ultimately, a retinal detachment. A retinal repair surgery was only successful in restoring vision to a level of being able to detect light and large object motion.
An ophthalmologist performing even the most routine examination in these circumstances would have detected the retained fragment by using an indirect ophthalmoscope - an instrument designed to enable the physician to examine the "inside" of the eye. Even the history would have alerted a competent ophthalmologist - metal fragments tend to be hot (due to the friction and force of the splintering blow) and, after penetrating the cornea, there is no blood or obvious puncture of the cornea because the wound is literally self-cauterizing. So, even if the fragment cannot be seen via indirect ophthalmoscope, an ophthalmologist would know to order an x-ray and possibly ultra-sound just to rule out a retained fragment. Prompt removal of the fragment, once discovered, saves vision in the eye.
These types of cases are rampant in HMO and managed care practices where "Gatekeeper" physicians, with a financial incentive to limit referrals to specialists, fail to promptly send "eye cases" to an ophthalmologist and the results can be disastrous. Even within the ophthalmological specialty, failure to refer to a sub-specialist frequently forms the basis of the malpractice claim. A general ophthalmologist may fail to refer a patient out to corneal, retinal, surgical or other sub-specialist. The sub-specialists may also have a duty to refer out: For example, a retinal specialist may attempt to treat a developing problem in the cornea when, in fact, a corneal specialist should have been called in.
As an off-shoot of these problems, special attention should be paid to the necessity of immediately detecting and taking steps to repair a retinal detachment. Failure to detect a retinal detachment and/or delay in treatment is disastrous for the patient's vision in the affected eye: a general "rule of thumb" is that the patient loses one line on the eye chart for every day that the detachment goes unrepaired.
It is crucial for the handling attorney to realize in cases like the auto mechanic fragment example that there is no comparative fault on the part of the patient for failing to wear protective goggles. Medical malpractice, in terms of duty, cannot occur until the patient actually comes under the physician's care. Emergency rooms and doctor's offices have doors on them so people can get in to get help - how the person injured himself in the first place is of no relevance. (Contrast this, however, with the analysis of causation - if the patient waits too long to seek care, it may be too late and then the causation element may be affected.)
Even where patients do see ophthalmologists for eye care, the lawyer must look carefully at informed consent issues in addition to the usual "diagnosis, care and/or treatment below the standard of care in the community" analysis. Television and other media abound with claims about "miracle" radial Keratotomy and exemer laser procedures and, usually do not address the risks. Unfortunately, neither do some eye physicians. Talk with your client in detail about what risks were discussed and compare those to the risks your expert tells you are inherent in the procedure. Check the doctor's chart carefully for any notations about risk discussion with the patient and find out if the doctor provides any written pamphlets about the procedure (or videos for the patient to watch) which include discussion of risks.
One of the ultimate risks, of course, is present in eye cases: total blindness.
A number of diseases cause various problems in the eye and this causes problems for ophthalmologists and other physicians equally. For example, diabetics frequently suffer retinal problems (a condition known as diabetic retinopathy). The treating internist must be alert, refer the diabetic to a general ophthalmologist or retinal specialist, who in turn must properly manage the retinal problems.
Herpes simplex virus in the eye (herpes Keratitis) can initially present itself as a simple inflammation - redness, swelling and itching. All too often medical malpractice occurs when the treating physician, ophthalmologist or otherwise assumes that a simple case of conjunctivitis, or other similar malady, is present and prescribes anti-inflammatory drops containing steroids. The cortico-steroid masks the symptoms by reducing the inflammation, but does nothing to control the herpes-simplex. The patient thinks he or she is getting well because the eye looks and feels less inflamed. But, the herpes is replicating unabated and spreading; dire consequences, including loss of vision, may ensue.
Loss of vision is one of the most difficult things to explain to a jury. While most people believe they intellectually understand what is entailed, they do not really understand - - in a real world sense - - what loss of vision means on a daily basis.
Loss of vision in just one eye affects depth perception. Skilled laborers and professionals alike need depth perception to perform their jobs: you cannot align drill bits, adjust machinery or even perform surgery without adequate depth perception. Driving a car can also be impossible. While loss of earnings and earning capacity always comes to the mind of the lawyer, care should be given to include a special damage amount at present cash value for needed items such as a driver, home assistant or other help needed for the sight impaired plaintiff.
In a courtroom without windows - - and there are many - - request that you be permitted to completely shut the lights out. Plunging the courtroom into total darkness, even for a few minutes, is an excellent method of making your client's plight clear to the jury.