January 27, 2016 – Alexandria, VA
Let’s switch gears a little and talk about a tort law case, rather than a constitutional law case. And I seem to be picking on eye doctors recently, but I swear that is unintentional! That is just how it turned out.
Helling v. Carey is not a Supreme Court case, but it’s an interesting medical malpractice case. The facts were as follows. A 32-year-old woman complained of nearsightedness, which her eye doctors treated by prescribing contact lenses. After complaining over the course of five years, she was diagnosed with glaucoma. The patient sued her eye doctors because they had not screened her for it, and thus had not caught it in time. Her doctors responded that they had followed medical guidelines in not screening her, because the probability of someone that young having glaucoma was low.
Now, I have a great deal of sympathy for physicians. They’re damned if they do, and damned if they don’t. If they order many tests for patients, they are criticized for only being interested in billing patients and making money. If they don’t order every test imaginable, they are criticized for not being thorough and, as here, subject to a possible lawsuit. It’s a tough call. Here, while I sympathize with the physicians in this case, it’s horrible for the patient, a young person who suffered permanent damage from glaucoma because it wasn’t caught timely.
Here, the main issue for the court to decide was whether the eye doctors’ compliance with the standard of the profession of ophthalmology insulated them from liability. The medically accepted standard at the time was that giving a routine glaucoma pressure test to people under 40 years old was not required. The rationale was that the probability of someone under 40 having glaucoma was very low, such that the expense of the test was not justified.
One of the defendant physicians testified that, regarding statistics, the incidence of glaucoma in someone younger than 40 is less than 100 to one percent. It was thought that one in 25,000 people under the age of 40 had glaucoma. Incidence of glaucoma over age 40 was noted to be about 2 to 3%.
Now, the glaucoma test is relatively simple and inexpensive. Further, glaucoma can easily be detected via the test. Risk to the patient is great if indeed he has glaucoma that goes undetected.
The Court here fashioned a test to apply in these situations. The eye doctors argued that the medical standard was not to give glaucoma tests to patients under a certain age because the low probability of someone that young having the disease made administering the test to every single patient inefficient.
But the Court here responded by stating that a 1 in 25,000 chance was not that low, especially when considering that the risk was blindness. The Court found that it is the job of the courts to decide the acceptable risk.
Now, in every field you make decisions regarding what risks are appropriate and whether you should take steps to avoid risk or not. In Helling, the Court found that the risk of blindness was too great and that the burden (i.e. costs of administering the test to everyone) was very small. These factors were what prompted the Court to find against the eye doctors.
The Court’s position was that the legal field involves determining acceptable versus unacceptable risks, and involves trials where expert testimony can inform the jury. Courts ultimately make the call as to whether a standard of care is reasonable and prudent, and courts must in the end say what is required. Indeed, the Court found that there are precautions so imperative that even their universal disregard will not excuse their omission (quoting The T.J. Hooper, 60 F.2d 737).
The Court held that under the facts of this case, reasonable prudence required the timely administration of the pressure test to the patient. In failing to do so, the Court found that the ophthalmologists were negligent, which proximately resulted in the blindness of the patient.
There are several lessons here. First, following standard practices/guidelines will not necessarily get doctors off the medical malpractice hook. Second, even a small probability of risk may be too great, especially when you could incorporate practices whereby you could check for the risk at low cost. Third, it is the court system that ultimately makes the call about whether physicians should be engaging in a practice or not, by weighing costs against risk to the patient.
And, by the way, this case is the reason why you have to do the glaucoma test at EVERY eye check-up.