Retinopathy of prematurity (ROP) is a treatable condition. The damage to vision resulting from retinopathy of prematurity can be minimized or avoided completely when the condition is properly diagnosed and treated.
In the absence of proper diagnosis and treatment, retinopathy of prematurity can have severe consequences to a child’s vision, including permanent blindness. These failures can lead to a medical malpractice claim on behalf of the child.
Standard of Care Medical Malpractice Cases – General Practitioner v. Specialist
Medical malpractice claims require a showing that the medical provider’s care and treatment fall below the standard of care. The standard of care is different for general practitioners and specialists.
General Practitioner Standard of Care – Local Standard
The requirements are set forth in the New Mexico Uniform Jury Instruction. The jury instruction for the general standard of care, 13-1101, states that the medical provider is:
“under the duty to possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified health care provider practicing under similar circumstances, giving due consideration to the locality involved.”
As the underlined language suggests, the standard of care for general practitioners depends upon local standards.
Specialist Standard of Care – National Standard
For the specialist, Jury Instruction 13-1102 sets forth a higher degree of skill, knowledge and care for the specialist:
“The degree of knowledge, skill, and care required of a specialist is usually higher than that required of a non-specialist, but it is never lower. Specialists are responsible for a certain base of knowledge in common with general practitioners, as well as additional knowledge in the field of their specialty.”
There is no such locality standard set forth in the specialist standard of care.
Local v. National Standards
The distinction between general practitioners and specialists is important. The standard for general practitioners is more localized depending upon the standard of care in the community.
The standard of care for specialists is typically a national standard governed by standards set forth for such specialists. Retinopathy of prematurity by its nature will involve specialist and these specialist will be governed by national standards.
This is very important because there are long-standing national standards of care for retinopathy of prematurity. Failure to abide by these standards can result in very serious harm to children, including permanent blindness.
Common Retinopathy of Prematurity Medical Malpractice Claims
There are numerous important requirements for the diagnosis and treatment of retinopathy of prematurity. Failure to abide by these requirements is a breach of the failure of care and can lead to a ROP medical malpractice claim.
One study of ROP medical malpractice claims found three failures most common to these claims. The common basis relates to failures to diagnose and detect the condition in a timely manner, and a failure to adequately follow up on the diagnosis.
The study found the following failures most common to ROP medical malpractice claims.
“(1) a failure to obtain ophthalmologic consultation in a timely manner that allows treatment intervention during the recommended window of disease opportunity; this can be an initial consultation or a necessary follow-up consultation;
(2) a failure to have mechanisms or protocols in place to assure proper care, i.e., screening protocols of some nature; a failure to supervise personnel, especially residents or non-physician care givers; and
(3) a failure of the examining ophthalmologist to adequately diagnose and/or appropriately follow these patients in such a manner that allows recognition of a degree of serious retinal disease that is within but not beyond the accepted window of opportunity for intervention.”
The study surprisingly found no claims based upon a failure to treat once the condition was properly diagnosed. Clearly, the key is in the timely diagnosis of the condition and appropriate follow up in the child’s care.
Bringing a Medical Malpractice Claim for Retinopathy of Prematurity
If your child has suffered permanent vision impairment or blindness from retinopathy of prematurity, it is important to take action immediately.
As suggested, these cases involve a medical specialist and a medical malpractice evaluation and ensuing claim requires expert review by the appropriate specialist. This takes time and all the while, deadlines are ticking.
The deadlines on medical malpractice claims for children can be complicated. Do not assume that the child has until adulthood to file a claim. In New Mexico, this is often not the case depending upon the nature of the medical provider.
It is important to contact an experienced medical malpractice attorney for a review of your child’s case as soon as possible to insure that these deadlines are not missed.