Fact Pattern: Cataract

A 70-year-old diabetic male with a multi-year history of declining vision OD (right eye) is diagnosed with a cataract. Ophthalmologist removes the cataract by phacoemulsification but after the aspiration and irrigation, i.e., during the IOL (intraocular lens) placement, the lens is dropped from the anterior chamber into the vitreous, landing around the retina. Ophthalmologist, realizing the severity of this complication goes ‘fishing’ for the lens. During the this attempt to retrieve the lens which is sitting on the retina, the retina is damaged. Ophthalmologist closes and, a few days later the patient’s OD vision is not restored but, rather, is manifesting the symptoms of retinal injury.

Who should review it?

Most attorneys would seek out an ophthalmologist as an expert based on the ‘obvious’ need to have an expert in the same field as the defendant. So, why isn’t the analysis that simple? Because the lens fell not only into the eye, but “into” a subspecialty of ophthalmology called retina-vitreous ophthalmology. Subspecialists in that field are most equipped to assess the etiology, severity, and prognosis of retinal injuries. Also, did the attorney check if the patient was a diabetic? If so, for how long? Was it under control? Were there prior diabetic retinopathy symptoms? It is important to appreciate the ramifications of a diabetic diagnosis in a case involving a retinal injury.

What does diabetes have to do with cataract surgery?

Diabetics are prone to small vessel disease as the disease progresses. The smallest of the vessels in the body include those that are smallest and/or in the most distal periphery, like in the ends of the toes, the ends of the fingers, the kidneys, the brain, the penis . . . and the retina. Like the canary dying in the coal mine, these are the first to suffer the effects of diabetes, which is why, for example, diabetics will develop insufficiently perfused toes or have erectile difficulties amongst their first vascular symptoms. For diabetics, there might be very large, potentially dispositive, issues regarding the etiology of the retinal damage: was it caused by the instrumentation or was it from the preexisting diabetes? and, if so, can it be proven?

But the patient did not have retinal damage preoperatively, so isn’t it irrelevant?

Well, maybe and maybe not. It depends on the patient’s diabetic severity, duration, and control. Even if there was no known retinal detachment, the ophthalmology records might document diabetic retinal damage that might have been imminent. If such facts exist, it is better to know about them up-front and not be surprised at trial. In such a case, one should consider having a retina-vitreous ophthalmology expert review the case.

So, does this mean that a retina-vitreous ophthalmologist is the best expert?

It depends. On one hand, retinal detachment etiology should be a major focus (sorry for the pun) in such a case. On the other hand, if state law mandates that a medical malpractice deviation expert be in the same field as the defendant (specifically, that a generalist is needed as medical expert if the defendant is a generalist), then a (general) ophthalmologist will be needed–eventually–as an expert. Again, eventually.

There are (at least) two major sources of issues. Chronologically first is whether dropping the lens was a deviation, whether there was deviation in the attempt to retrieve it, and whether the operating surgeon should have been the one to attempt the retrieval (versus a retina-vitreous ophthalmologist). The second source of issues is the previously discussed etiology of the eventual retinal damage (idiopathic v. natural progression of the disease (perhaps inevitable)) and, if so, whether the retinal injury hastened the retinal damage to the patient’s vision. Having a retina-vitreous ophthalmologist is a way to have one expert opine on all the issues as every ophthalmologist has performed phacoemulsifications at least during training.

So, the retina-vitreous ophthalmologist is the easy choice.

It (still) depends. Even compared to general ophthalmologists, they are extremely well paid for what they do so they tend to be very reluctant to want to get involved as medical experts. Add to that they get their cases from (general) ophthalmologists (as well as endocrinologists and internists) primarily so they especially don’t want to get a reputation for testifying against any ophthalmologists at all. They are relatively hard to find and also relatively expensive.

What about having a (general) ophthalmologist as an expert first?

Well, the more likely dispositive issues in many of these cases tend to be regarding the retina-vitreous causation/damages, so one could spend money getting the easier issues reviewed rather than going for the likely dispositive ones on the first review. Besides, again, there may be a possibility to have only one expert (a retina-vitreous ophthalmologist) on the case.

One thing is certain, if there is a legitimate retinal detachment etiology issue, it could be fatal to the case to miss it until such time that adding a retina-vitreous ophthalmology expert is precluded.

Fact Pattern: Salmonella

A middle-aged woman goes to a barbecue where she eats something tainted with salmonella. She ends up going into renal failure, but recovers without much damage beyond her few days of hospitalization and the associated pain and suffering. The defense attorney wants an examination by a gastroenterologist in Widget County, PA.

So, what’s the problem with just providing what was requested?

Pretty much everything. First, a gastroenterologist is not the best choice. Although food poisoning cases typically raise issues in either gastroenterology, infectious diseases, or microbiology, this case differs. While a gastroenterologist could talk about the pain and suffering of food poisoning, an ID or a microbiologist might be better if issues of salmonella etiology or scientifically possible incubation period are involved or there were questions about the efficacy of treatment provided. Again, this case differs.

So, who should review it?

Nephrology is the medical specialty that treats kidneys. This includes kidney diseases, diabetic complications (as kidneys are subject to small vessel disease complications of diabetes), congenital kidney problems (more commonly those will end up with a pediatric nephrologist), and even autoimmune and (medical) kidney transplant issues. The questions in this case surround the renal damages so, absent a compelling reason otherwise, that would be best.

What about the exam?

That’s the second problem. There is no need for an exam. Exams on the defense side fall into three categories: needed, not needed, and not-really-needed-but-one-should-be-done-to-make-the-eventual-witness-not-seem-like-s/he-hasn’t-looked-at-everything. This last category is really: “it’s not necessary, but the jury won’t understand what is necessary, so do one anyway.” That said, a nephrologist (or any other doctor) wouldn’t get any relevant information (beyond history) so an exam is really not in the needed category. Frankly, an examining physician can’t say “turn your back to me so i can cut you open and touch your kidney.” Again, even if an exam was needed, a nephrology expert–not a gastroenterology expert is the right choice. The evaluation of this case is completely based on the paper; the patient (meaning for an exam) is not needed. Again, this does not address the category “not-really-needed . . ..”

And the lesson?

Think very carefully about why an exam is being done (because sometimes it really is not needed) and think even more carefully about which expert is really the correct one.

Fact Pattern: Melanoma

A 47-year-old female presents to a dermatologist complaining of a “discolored” mole on her back in November. The dermatologist says it’s nothing serious but decides to freeze it off with liquid nitrogen in the office. After noticing the “discoloration” returning over the next few months, the patient decides to have it checked. She presents to an urgent care center, where the physician immediately refers her to a dermatologist, who does a biopsy. The report comes back as melanoma with penetration into the dermis, Stage IIA (T2b, N0, M0).

Who should review it?

Some attorneys think they should get a dermatologist first, the worry about everything else (perhaps a (medical) oncologist) later. In these situations, though, the causation/damages issues, including “Wouldearlier treatment have changed the outcome?” typically predominate and are more likely to include a dispositive issue. As a result, it’s usually better to have causation/damages reviewed first. Frankly, if you’re going to get a “no,” you really want to get it on the first review–not on the second, third, etc. So, again, who should review it? Well, how about a surgical oncologist–one who handles melanomas?

So, what’s a surgical oncologist?

It’s a general surgeon who’s specially trained in cancer surgery. Wait . . don’t all general surgeons operate on cancer? Well, yes, technically, but there’s more to it than that. For example, if there’s an ascending colon cancer, yes, they would remove it. So aren’t all general surgeons surgical oncologists? No. A surgical oncologist will handle colon cancers but also breast cancers, and peripheral cancers (like on the legs or arms) and even endocrine tumors. They may or may not handle thyroid, depending on their training. Surgical oncologists have had specialized oncologic training so a surgical oncologist is sometimes best for the initial review--followed by a dermatologist to opine about standard of care (of the dermatologist).

Are there any other choices for causation?

Well, how about a Mohs surgeon? Alright, what’s a Mohs surgeon? That’s a dermatologist by general training who then decides to do Mohs training which is the methodical removal of tumors of the skin a bit at a time, with the Mohs surgeon looking at each ‘slice’ on site under a microscope to assess whether there are clear margins on all facets and continuing to remove slices until all margins are clear. So, can a Mohs handle both duty/breach as well as causation/damages? That depends.

Is a Mohs better than a surgical oncologist for causation?

Not necessarily. In fact, the surgical oncologist’s oncologic background may make him/her a more credible witness about cancer surgery than a Mohs.

What about a plastic surgeon for causation?

Yes, they do these removals. If the damages are “Was the surgery more disfiguring due to the delay?” then a plastic surgeon may be a good choice for causation/damages. If the question is or also includes “Did the cancer staging/prognosis get worse due to the delay?” then aplastic surgeon may have some shortfalls. Each choice weighs more toward plastics or surgical oncology, respectively. Also, plastic surgeons are pretty expensive if it comes to trial so there may be a less expensive option (or two).

Does the law in the state require the expert’s practice to ‘match’ the defendant’s?

If so, a Mohs surgeon may not be compliant and a separate (general) dermatologist will be required. That said, a Mohs may be the better choice initially because such an expert could definitively answer the causation/damages questions about the effect of the delay and also give insight or even a definitive answer on duty/breach.

What if the law requires an affidavit by an expert in a matching field and the statute of limitations is nearly up?

In that situation, one may have to forego having the likely (for the sake of this hypothetical) dispositive causation/damages issues reviewed due to the need for an immediate affidavit. Even the choice of a Mohs surgeon may have to be abandoned due to the need for an expert in a ‘matching’ field.

What if the delay in diagnosis didn’t result in the cancer progressing past Stage 0 (in situ)?

In that case, there would likely be no provable damages, but there’s still an open question about the delay causing an aesthetically more damaging surgery.

What if the situation involved a delay between Stage II and Stage IV melanoma, meaning the difference in survival was between less than 50% (Stage III) and much, much less than 50%?

The critical parts of this question involve whether the state allows recovery for loss of chance and whether it allows recovery at all if the patient never had a time at which a deviation would have meant, to the requisite level of certitude, that s/he would have survived.

If there’s an issue with ‘what was really on the slides,’ is a pathologist necessary?

Yes and no . . . and maybe. It depends on whether the pathology issue is beyond what the other expert(s) can testify about, i.e., is it esoteric or more within the general knowledge of one of the other experts. Even then, if there’s an esoteric issue, a dermatopathologist would be best.

Is a dermatopathologist necessary or could a regular pathologist suffice?

That depends on the scope of the practice of the pathologist. It also depends on whether opposing counsel gets (or could get) a dermatopathologist. Most critically, it also depends on whether the original diagnosis was made by a dermatopathologist. Walking into court with a ‘mere’ pathologist, may be a fatal mistake or it may be a fine choice.