Risk Management— How to Decrease the Chance of Malpractice Claims

1. Risk Management—How to Decrease the Chance of Malpractice Claims W. Howard McAlister, O.D., M.P.H.

2. Legal Basis for malpractice • Definition. Any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct. • A tort (civil wrong) – Not a criminal offence Concept of negligence – some conduct that is below the standard that is established by law for the protection of others against an unreasonable risk of harm.

3. There are four distinct elements to medical negligence that must be present in order for a practitioner to incur legal liability. (But not for settlement.) • A duty—or obligation—recognizable in the law, such as that existing between doctor and patient, requiring that the doctor conform to certain recognized standards of conduct in order to protect the patient against unreasonable risks. • A failure by the doctor to conform to the required standard. • Actual loss or damage to the patient. • A reasonable and close casual relationship between thedoctor’s conduct and the resulting injury to the patient.

4. Burden of proof is on the plaintiff except in the case of “Res Ipsa Loquitur” (The Thing Speaks for Itself). In this case all that must be proved is: • The accident is of the kind that does not happen as a result of negligence. • The apparent cause is in the exclusive control of the defendants. • The person suing (plaintiff) could not have contributed to the difficulties. • Evidence of the true cause is inaccessible to the person suing. • The fact of injury is evident.

5. Courts have frequently applied this rule to two types of malpractice cases: • Sponges or F.B.’s unintentionally left in the body. • Injuries to parts of the body distant from the site of Tx – ex. Nerve damage to a hand during a hysterectomy.

6. Res Ipsa Loquitur doesn’t automatically establish negligence—defendant can argue, for example, that sponge was left in because patient had to be closed quickly to save their life.

7. Concept of “Respondeat Superior” (Let the Master Answer)—employers liable for the consequences of employee activities within the course of employment for which the employee could be liable.

8. Statute of Limitation --depends on state law Historically, most source of claims against O.D.’s --failure to detect • Open-angle glaucoma • Ocular tumors • Retinal detachments Optometry insurance premiums still far below 1% of gross income, one of the best among health professions.

9. In adhering to the Standard of care (the doctor utilizes the degree of skill and learning ordinarily expected of a like practitioner under the same or similar circumstances) the optometrist faces potential liability in five major areas. • The doctor is expected to understand the properties of the therapy that he administers or applies, including dangerous side effects.

10. The doctor is expected to choose the therapy that is suitable under the circumstances and is proper lens, pharmaceutical agent, etc., for the patient’s condition. i.e. Don’t dilate a grade 1 angle Don’t use 10% neosynephrine on hypertensive Don’t put EW CL’s on brittle diabetic • The doctor is expected to take a reasonable effort to determine if an allergic reaction will occur by making all necessary inquiries of the patient to determine if there is any evidence which would indicate the possibility of a reaction.

11. The doctor is expected to warn the patient of side effect which may result from the patients use of the prescribed therapy, and the doctor is expected to comply with the doctrine of informed consent in this regard. • The doctor is expected to monitor the patient adequately while the patient is taking a prescribed medication or contact lens and is expected to be able to manage any adverse side effects suffered by the patient as a result of the drug or contact lens (or to refer the patient as necessary).

12. As a general rule a doctor of optometry is at greater risk of professional liability if he chooses not to use D.P.A.’s (i.e., Risk vs. benefit: the likelihood of diagnosing a problem utilizing D.P.A.’s prudently is much greater than the risk of an adverse drug effect). When to dilate—everybody? If patient refuses, educate and note in record. —myopes >3D, flashes & floaters, Fm Hx of RD

13. Informed consent • Adequate disclosure of the risks of procedures to be performed • Legal definition of “adequate”

14. II. Practical considerations—Legal Realism • Merit of the case • Jury of lay people • “Deep pockets” • “Conspiracy of silence” • Importance of good records • Tempchin vs. Sampson • Who does the jury believe? • If it isn’t written in the record it was not done!!

15. Suits rarely decided strictly on merit • Estimates that 50% of cases settled against Dr. aren’t malpractice • Settled by a jury of laymen, often viewing a pitiable “victim” whose circumstances may in no way be due to the highly insured Dr.—“After all, it wouldn’t cost the Dr. any out of pocket money, and the poor fellow sitting there is now blind. Why not give him a few million dollars from a big, rich insurance company?”

16. On the other hand, the patient who has been “wronged” used to confront the “conspiracy of silence” – “No Dr. readily testifies against another.” – Whether to protect himself or because he is more understanding of his colleague’s plight.

17. Classic optometric cases Temphchin vs. Sampson in Maryland • Classic in that decided on the basis of who the jury believes.

18. Mrs. Sampson was advised by an examiner of the department of motor vehicles to have her eyes examined before her license could be renewed. She sought care from Dr. Temphchin. She stated he told her she had cataracts. She asked if she should see an ophthalmologist. He said no, he would see her every year for 2-3 years and refer when necessary. He prescribed spectacles.

19. Eleven days later she was taken to an ophthalmologist who diagnosed uveitis. He testified if she had been referred early by Dr. Tempchin much less damage would have resulted. Dr. Tempchin stated when he saw Mrs. Sampson, he told her to seek medical attention and she obviously ignored him. He had not stated so, however, in the record! The decision was based strictly on who the jury believed. They believed Mrs. Sampson!

20. Never alter a record after you have been informed that you are to be the subject of a professional liability suit.

21. Impact of pharmaceutical utilization • Unofficial authorization to use D.P.A.’s first encountered in the health care delivery systems of Department of Defense. • First state to authorize D.P.A. use was Rhode Island in 1971. • Today D.P.A. use by doctors of optometry is authorized by all fifty states, the District of Columbia, Puerto Rico, all health care delivery systems under the Department of Defense, the Department of Veterans Affairs, and the Public Health Service.

22. Today T.P.A. (West Virginia, first state, 1976) use by doctors of optometry is authorized by fifty states, all health care delivery systems of the Department of Defense, the Department of Veterans Affairs, and the Public Health Service.

23. The following information should be in the patient record when D.P.A.’s or T.P.A.’s are utilized. • Previous history of dilation. • Previous history of adverse reactions to a drug. • Current medications being taken and history of allergies. • Identification of drugs being used and their concentration and dosage. • Signs and symptoms of an adverse reaction to a drug being employed. • Required warning to patients as to the possible side effects of drug use and of action to take in the event of adverse reaction. • Management of the patient in the event there is an adverse effect.

24. Standard of care • A solid defense? (Helling vs. Carey) • A common defense has been following the “standards of care.” • This is no longer a safe defense due to Helling vs. Carey in Washington state (by the state supreme court) • Local vs. national. Darling vs. Charblon Community Hospital

25. An ophthalmologist had been treating a young woman when she was 23 years old for a period of 9 years, as a C.L. patient. He performed various tasks but not tonometry. She had glaucoma and it progressed to tunnel vision before detected. The ophthalmologist’s defense was tonometry was not routinely done on patients younger than 40. The court decided the standards of the profession were too low for the best interests of the public.

26. Important points from these cases • Carry high limit malpractice insurance no matter how good and ethical you are • Even if you are adequately insured and have a good defense, malpractice claims, even if groundless, are very traumatic and obviously should be avoided if at all possible. Even if you are exonerated your practice will be damaged.

27. How to avoid malpractice • Never promise successful results. This puts the Dr. in a no win situation. If you are successful that is not big deal as that’s what the patient expected. If you aren’t successful you “broke your guarantee.” The patient may relieve his frustrations via a law suit. • Avoid arguments over fees.

28. Keep accurate, legible, and contemporaneous records. This probablywould have saved Dr. Tempchin. • Maintain a professional yet friendly relationship with your patients. This is why primary care Dr’s. patients know are less likely to be sued than specialists the patient only sees a few moments. This is one reason successful large claims against O.D.’s is rare.

29. How to protect yourself • “Adequate coverage” (who makes the decision to settle or go to court?) • Claims made policies • Occurrence policies • Provide the best possible care but never promise success. • Avoid arguments over fees. • Keep accurate, legible, and contemporaneous records. • Maintain a professional yet friendly relationship with your patients.

30. Key Points in Avoiding Malpractice • Misdiagnosis is the most likely cause of malpractice. Do not permit reduced acuity, visual field loss, diplopia, or other signs or symptoms to go unexplained. • If the case is not one that a practitioner wishes to handle, the patient should be referred to a practitioner who will provide the necessary care. If further diagnostic testing is required (including a dilated fundus examination), be certain that the referral is made before the patient has left the office.

31. When making a referral, schedule the appointment for the patient and record the doctor, date, and time of the referral. In a busy office, this may best be accomplished by a telephone call by the assistant. If referral is suggested, this fact should always be documented in the patient record. • Document all recall appointments (and patient failures to return as scheduled) in the patient record). • Maintain clear, accurate, contemporaneouspatient records at all times.

32. Obtain written permission before initiating any experimentation with a patient or before releasing any patient information to a third party. • When appropriate, discuss examination findings with the patient, as required by the doctrine of informed consent. • Test for glaucoma on all patients, regardless of age. • Warn all patients with reduced or impaired vision who can be expected to encounter difficulty while driving a vehicle of operating dangerous machinery of the increased risk of injury they face when performing these tasks.

33. Prescribe polycarbonate plastic when impact resistance is a key clinical consideration, and warn patients of the limited impact resistance of glass and allyl resin lenses. • Verify all orders of ophthalmic materials to ensure that they comply with impact-resistance standards, particularly orders for safety eyewear. Verify all contact lenses prior to dispensing to ensure they are correct. • Select the appropriate ophthalmic drug and adhere to generally accepted standards as to dosage and concentration. Warn of the side effects of drug use as required by the doctrine of informed consent.

34. Supervise employees adequately and do not permit them to perform duties that they are not qualified to perform. • Routinely inspect equipment and premises to ensure that they are not hazardous to patients and personnel. • Obtain adequate professional liability insurance coverage. From: Legal Aspects of Optometry, 1st edition, by John G. Classé, O.D., J.D.