Richard Breazeale

Fear of enormous liability costs has led a Chattanooga eye specialist to halt his weekly stops at local neonatal intensive care units to perform retina screenings on premature babies.

The retina screenings can identify premature babies whose underdeveloped retinas could leave them blind, if untreated.

“I’m sick about it,” said Dr. Richard Breazeale, a Chattanooga ophthalmologist and retina specialist. “This is something I love doing and that I want to do. I just can’t afford that enormous risk.”

In the spring, Dr. Breazeale said he was shaken by news of a $38 million verdict awarded to the parents of premature twins whose Florida doctor failed to diagnose the retina disorder known as retinopathy of prematurity.

In June, Dr. Breazeale said he told officials at Parkridge East and T.C. Thompson Children’s Hospital that, unless they could work out some way to help shield his practice from such high liability by Sept. 1, he would have to stop performing the service.

“This is something I do because I think the community needs somebody to do it, but $38 million?” he said. “I don’t have that kind of malpractice insurance. I don’t know anybody that does.”

Other specialists in the regional retinology practice, Knoxville-based Southeastern Retina Associates, also have stopped performing the eye screening out of liability concerns, despite the fact that the practice has never faced a lawsuit, said Alex Stockdale, chief executive officer of the group.

“We get about 10 cents on the dollar (for these screenings) and we’re happy to do it. We’re not asking for more money,” he said. “We just feel like that’s sort of a community service almost that we’re providing. ... We had hoped, maybe through our own naiveté, that maybe the hospitals could figure out a way to cover this.”

Southeastern Retina Associates is the only group of retina specialists in East Tennessee, but general ophthalmologists can perform the retina screening. Local hospital officials said they now are working to identify local ophthalmologists willing to do the screenings. Otherwise, babies will have to travel to the nearest retinologist at Vanderbilt Medical Center in Nashville to get preemies screened, said Susan O’Hare, Erlanger hospital’s senior vice president of specialty hospitals.

No child will go without needed screenings or treatments, she emphasized.

“If we run into a situation where we absolutely cannot provide a service, we find that service regionally and we get the baby taken care of,” she said. “This is just such a prime example of where malpractice insurance rates are driving up the costs of care and decreasing convenient access to care.”

Currently, Southeastern Retina Associates is paying $250,000 in malpractice insurance annually, Mr. Stockdale said.

Dr. Breazeale said he hoped the hospitals could either absorb some of the private practice’s liability costs or somehow give the practice some coverage under the hospital’s broad malpractice insurance. But in trying to create a contract that could bring outside doctors under the hospital’s coverage, local and regional hospital administrators came up against legal complications involving regulations against “kickbacks” to doctors, Ms. O’Hare said.

“We’ve been trying to figure out a solution that works and, quite honestly, none of us have figured out something,” Ms. O’Hare said.

VULNERABLE TO lawsuits

Cases involving retinopathy of prematurity are fertile ground for trial lawyers, Mr. Stockdale said.

“One, you’ve got a very bad consequence of not being treated — blindness,” he said. “And you’ve got an infant, so you’ve got that entire person’s life where that blindness affects them. ... You have law firms all around the country sort of trolling for these lawsuits.”

Florida malpractice attorney Philip Freidin is one of the plaintiff’s lawyers who handled the $38 million case in Florida. He acknowledged that the jury’s April award was large.

“They are high verdicts, but again the children are completely blind, so in that sense I don’t think the verdict is out of context,” he said. “I believe the ability to sue doctors is essential to elevating care. ... I think without it patients would lose an awful lot of leverage.”

Unlike some states, in Tennessee there is no limit to noneconomic damages such as “pain and suffering” that a jury can award to a plaintiff, said Steve Williams, CEO of State Volunteer Mutual Insurance Co., the physician-owned professional liability insurance company for doctors in Tennessee. Efforts by the Tennessee Medical Association and other professional groups to lobby the state Legislature for those limits have come up short, he said.

“Most physicians and most insurance companies that insure physicians believe there should be some kind of a benchmark or cap or some way to not have that exposure, that there’s going to be some runaway award that takes everything you have,” he said. “That is a terrifying potential event to contemplate.”