Malpractice Management
Practice Persistence
Protect yourself from legal recourse by keeping a watchful eye on negligent patients.
by J. James Thimons, O.D.

Dr. Smith (not his real name) saw L.R., a 67-year-old white male, for evaluation of "poor vision" that had progressively worsened over the last six months. He last saw Dr. Smith for an exam two years ago, at which time Dr. Smith advised him that he had a cataract. L.R. elected not to undergo surgery.

L.R.'s medical history was positive for hypertension, arthritis and prostate disease, for which he was taking metoprolol, celecoxib and a naturopathic, respectively. The drugs kept all conditions under control. There was no significant family ocular history, medical history or allergies. Additionally, L.R. indicated that he hadn't changed his spectacle prescription at the last exam as Dr. Smith had advised.

Taking a closer look

Physical exam revealed a thin, poorly nourished, white male who had signs of significant tobacco use (staining of the nail beds and fingers) and general lack of hygiene. This was consistent with Dr. Smith's previous evaluations and notes.

Acuity at the last exam had been 20/40 best corrected in each eye with 2+ 3 nuclear sclerosis. IOP at that exam was 14 mmHg and the cup-to-disc (c/d) ratio was estimated as 0.4 OU. Current clinical exam showed a decrease in visual acuity (VA) to 20/60 OD and 20/70 OS with best correction and an advancement of the nuclear sclerosis to 3+ OU with cortical clefts at 1+. IOP was between 15 mmHg and 14 mmHg at 10 a.m. and Dr. Smith evaluated the c/d at 0.4 to 0.5 in each eye. He noted no evidence of macular disease.

Dr. Smith again advised L.R. that he could only improve his vision with surgery for the cataract and that glasses were of minimal value. L.R. again declined surgery and missed his six-month follow-up appointment.

"Don't be a stranger"

One year later, L.R. returned to Dr. Smith's office complaining about his VA and about increased night vision problems and difficulty reading. Slit lamp exam demonstrated an increase in nuclear sclerosis and a decrease in best-corrected visual acuity (BCVA) to 20/80 OD and 20/100 OS. Dr. Smith recorded the remainder of the exam as "unchanged with a 'poor' view of the posterior pole recorded."

Dr. Smith made extensive chart notes as to his discussions with L.R. relative to cataract surgery. He made an appointment for L.R. to consult with a local surgeon for evaluation of the cataract and for a six-month follow-up appointment back at Dr. Smith's office. L.R. didn't show for the ophthalmology appointment or for the next visit to Dr. Smith's office. Dr. Smith's staff attempted to contact and reschedule L.R., but to no avail. Dr. Smith and his staff never saw L.R. in the office again.

An unwelcome surprise

About one year later, L.R.'s attorney sent a request to Dr. Smith for L.R.'s medical records. Subsequently, the attorney advised Dr. Smith that legal action was being initiated against him in the care of L.R. with regard to glaucoma that had been identified at his recent exam and was found to be extensive.

Unfortunately, patients who don't adhere to their doctor's recommendations aren't uncommon in clinical practice. The question in this instance, and in others like it is, "Who has final responsibility in a scenario such as this and to what level does a clinician need to go to protect himself from the patient who won't follow medical advice?"

The malpractice literature is bursting with variations on this scenario, and while the outcomes vary, we all need to adhere to a few common key points to avoid a similar legal situation.

Put it in writing. We must document any treatment option we recommend to a patient in the medical record. If the patient elects to go against medical advice, then add a more detailed record as to the conversation you had with the patient.

Establish proof. Remember: We're responsible for our patients regardless of whether they follow our advice. That responsibility extends to following up on missed appointments and creating a paper trail of the offices attempts to appoint the patient.

Put forth the effort. We're responsible for attempting to schedule the patient for appropriate surgical or medical consultation. Simply advising him of the need isn't always sufficient. Some offices routinely schedule the appointment while the patient is present to avoid any miscommunication; others simply advise the patient of the need for further care and let him contact the specialist.

Protocol that protects

In L.R.'s case, two significant issues are evident:

1. L.R.'s chronic rejection of Dr. Smith's recommendations and the practice's eventual loss of him to follow up.

2. Given L.R.'s eventual glaucoma, the last note admitting that the view of the fundus was poor because of the cataracts.

In regard to the first issue, the clinician does bear responsibility to the patient when the clinical condition can lead to vision loss or bodily harm. In this case, the office may have been better served had it sent a letter to the patient detailing the concerns and requesting that he call for an appointment or recommending other clinicians who could see him if he didn't wish to return to the practice. Experts recommend that practices send a letter of this type registered receipt for the patient's signature only.

The second issue relates to the first in that the medical record indicates an incomplete assessment of the posterior pole and optic nerve at the last visit. This leaves the issue of glaucoma open to discussion and places Dr. Smith at a relative risk.

Persistence pays

It's unlikely that with stable pressures and optic nerve head findings over time that the patient accelerated into chronic open-angle glaucoma. But it is possible that, given the intumescent status of the lens, a narrow angle form of the disease developed in the extended period in which the patient was away from care. This possibility further underscores the need to diligently pursue patients who fail to show for their appointments and to establish policies for the office and for the staff that ensure that these patients don't "slip through the cracks."

Dr. Thimons is a nationally and internationally acclaimed speaker and serves as medical director at Ophthalmic Consultants.