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Failure to diagnose and treat infection

By Sara Bergmanson, Digital and Social Media Specialist, and 
Roxanna Maiberger, Risk Management Representative

Presentation and physician action

A 72-year-old woman with a history of diabetes went to the emergency department (ED) of a local hospital due to pain in her left eye. The ED physician suspected orbital cellulitis, but CBC and CT scans were normal. The patient was treated with topical ciprofloxacin and oral amoxicillin for bacterial conjunctivitis.

The next day, April 30, the patient went to see Ophthalmologist A due to worsening pain and decreased vision in the left eye. The patient had a large corneal abrasion and hypopyon (white blood cells in the anterior chamber). With the help of a physician colleague, Ophthalmologist A attempted an anterior chamber (AC) tap, but they were unable to obtain a sufficient sample.

The patient was treated with topical antibiotics and steroids, including oral ciprofloxacin and 80 mg of prednisone. Ophthalmologist A thought the uveitis might be herpetic and prescribed antiviral oral medications two days later. Multiple antiglaucoma medications were also given to the patient to control increased intraocular pressure.

Between April 30 and May 10, the patient saw the ophthalmologist eight times. The patient initially began showing clinical improvement, but her vision remained poor with only light perception. During this time period, Ophthalmologist A and the patient corresponded via text message about the patient's symptoms, prescriptions, and progress. 

On May 12, the patient sought a second opinion from Ophthalmologist B, a retina specialist, who diagnosed endophthalmitis. (Ophthalmologist B was a friend of the patient.) The next day, Ophthalmologist B performed a vitrectomy, lensectomy, membrane peeling, and an intravitreal injection with antibiotics and steroids.

The eye culture revealed Streptococcus pneumoniae and coagulase-negative staphylococci. Due to continued pain and the loss of light perception, the patient underwent enucleation of the left eye, and now has a prosthetic eye.



A lawsuit was filed against Ophthalmologist A alleging failure to perform an adequate investigation and timely diagnose the cause of the patient’s eye infection. It was further alleged that if the vitrectomy had been completed sooner, the patient would have a functioning left eye.


Legal implications

The biggest issue in this case was that Ophthalmologist A failed to obtain a culture and administer antibiotics early in the treatment. Consultants believed the standard of care required Ophthalmologist A to obtain a culture at the first visit.

Endogenous endophthalmitis occurs more commonly in patients with diabetes. The unsuccessful AC tap did not rule out the diagnosis, and Ophthalmologist A did not send the patient to a specialist.

Defense experts said it was unlikely the patient would have recovered useful vision due to the presence of Streptococcal pneumoniae, which can cause vision loss within one to two days of signs and symptoms. She may have regained 20/400 vision at best. Early intervention may have prevented the enucleation, but not loss of eyesight.



This case was settled on behalf of Ophthalmologist A.


Risk management considerations

Several risk management issues proved challenging for the defense of this case, including texting patients/protected health information (PHI); having a protocol to track patient referrals; consistent documentation for lab and diagnostic test review; and when the patient should return to the clinic.

Ophthalmologist A engaged in ongoing text correspondence with the patient, and it was not indicated in the patient record whether it was in a HIPAA-compliant or secure method. From a risk management standpoint, ensuring electronic device security is essential to HIPAA-compliance. Correspondence by text message is considered part of the medical record and should be saved appropriately. It is also important to note that not all smartphone devices are encrypted and could result in correspondence not being secure. One consideration would be to use a HIPAA-compliant app to securely correspond with patients. (1)

Ophthalmologist A did not recognize the need to refer the patient to a specialist. When referrals are made, and especially for patients with concerning health issues, a tracking protocol should be in place. Consider implementing a policy that allows providers and appropriate staff to follow up on referrals. Document patient noncompliance if applicable during follow up attempts. These standardized protocols should be in writing and updated at least annually.

Adequate documentation of the provider’s review of lab results and/or diagnostic imaging is important to the defense of a claim or lawsuit, along with documentation of when the patient should follow up. Documentation of any lab/diagnostic report review should include the provider’s initials and date. Some reports in this case only contained the physician’s signature, which made it difficult to know when they were reviewed in relation to the patient’s chronology of care.

Documentation of patient follow-up instructions (e.g. when to return to the clinic) was also inconsistent. For example, documenting, “follow up as needed” or, “PRN” is preferable to leaving this information out of the medical record.



1.Awalt G. Texting patients while staying HIPAA compliant. 2019. Texas Medical Liability Trust. Available at Accessed August 19, 2020.


Sara Bergmanson can be reached at

Roxanna Maiberger can be reached at