malpractice

Protect Against Malpractice

These tips will help you to avoid malpractice lawsuits — and survive them should they occur.

Frank Giardina, O.D., F.A.A.O., Santa Maria, Calif
Mai-Anh Nguyen, O.D., San Jose, Calif.
Richard K. Simonds, O.D., San Diego, Calif.

Between 1991 and 2008, a total of 609 optometric malpractice settlement payments were reported nationally, ranging from $50 to $2.05 million, according to the National Provider Data Bank (NPDB).¹ The average dollar and frequency of payments have increased little through that 18- year period, notes a study published in the journal Optometry¹, yet this statistic comes as little comfort to those who have been named as defendants in malpractice suits.

How do you, a competent and caring optometrist protect yourself against malpractice? No O.D. is totally immune to malpractice lawsuits. However, you can drastically decrease your chances of facing a claim by abiding by a few simple rules.

Definition of malpractice

Malpractice is an act or the continuing conduct of a professional that does not meet the standard of professional competence and results in probable damages to his/her patients, through negligence, ignorance or intentional wrongdoing.

In general there are elements that must be present for a patient to win a malpractice lawsuit:

► Professional care rendered must be below the generally accepted standard of care.
► The patient must suffer a loss. It can be visual, emotional or financial.
► A connection must exist between what the clinician failed to do and the subsequent loss suffered.

An interesting case is that of a 33-year-old registered nurse who visited an optometrist for the first time with a chief complaint of blurred vision in her right eye both without glasses and with her two-year-old prescription. Her uncorrected distance visual acuity was 20/80 in the right eye and 20/25 in the left. The subjective refraction was OD -0.50 (20/25-) and OS plano (20/20). A funduscopic exam showed a single notation of 0.3 cup-to-disc ratios in both eyes and IOPs of 17mmHg OD and 18mmHg OS. No entries existed for other tests.

Two years later when the patient visited another optometrist, her best-corrected VA was 20/50 OD and 20/20 OS. A relative pupillary defect was found in the right eye as well as abnormal color vision and a grossly constricted visual field in the right eye.

A subsequent MRI revealed a mass of the right sphenoid wing and optic nerve sheath. Surgery was deemed essential; sadly the visual outcome following surgery was light perception.

Was the first optometrist guilty of malpractice? The case was settled before trial for an undisclosed amount, but the message is clear: Cover all your bases. Investigate why the patient isn't seeing 20/20 corrected, and have him/her perform a visual field test.²

Avoid malpractice

Here are seven tips to avoid a malpractice lawsuit:

1. Keep these eye exam pointers in mind. To start, the best-corrected VA should be 20/20. If not, why? Does the patient have cataracts, macular degeneration, or optic nerve atrophy? Second, remember that amblyopia is a diagnosis of exclusion. There are three basic etiologies for amblyopia. They are anisometropia (usually greater than 2.00D between the eyes), strabismus or occlusion (such as ptosis or a congenital cataract). Don't skip on the ocular health testing (such as pupillary reflexes, IOP, SLEx, DFE and visual fields). Third, obtain intraocular pressure on almost all patients on almost all visits using air puff tonometry, as this is simple, quick and a great screening device. You don't want to be “puffing” the eye when a foreign body is still there. Fourth, during the dilated fundus exam, take a good look at the posterior pole. Remember that even external “red eyes” can have an intraocular cause. Fifth, use automated visual fields, since the printout provides you with medicolegal documentation. Don't forget to place the printout in the patient's record. Sixth, when it comes to contact lenses, document that the patient understands how to care for the lenses. Have the patient read, sign and date an informed consent agreement for contact lenses. Give one copy to the patient, and place a duplicate in the patient's record. Finally, when in doubt, see the patient again, and don't be afraid to repeat tests.

2. Stay educated. The vast majority of optometric malpractice lawsuits, often stemming from a failure to diagnose, fall into one of these five categories:
1. retinal detachment
2. glaucoma
3. tumors
4. diabetic retinopathy
5. contact lens complications

It's equally important that you, the optometrist, know the standard of care for various conditions. The AOA Optometric Clinical Practice Guidelines are often used as the standard. You should be familiar with these standards and follow them, which means keeping current and educated.

Know the current standards of care and treatment protocols. Lack of knowledge is not a legal defense. Read your journals, and take continuing education classes to stay current and informed.

3. Have a friendly chair-side manner. It is critically important to have a good rapport with your patients. It is generally known that patients rarely sue doctors they like. When errors do occur, studies indicate that it's not necessarily the medical error itself that causes patients or their families to sue, but the response to it. A study in the Journal of the American Medical Association reported that after an error occurs, patients want information about why it happened, how consequences will be mitigated and what's being done to prevent reoccurrence. They also want emotional support from doctors, including an apology.³

Good communication skills are critical to a successful practice. Treat all your patients with courtesy and concern, as you would treat a close friend or family member. Most grievances are the result of a breakdown in communication between the doctor and patient. Communication is of paramount importance, so use language that your patient understands, and avoid optometric jargon. If a patient returns to you complaining he can't see well out of his glasses or contact lenses, be understanding and not defensive. Show your concern, and consider whether you may have missed something. And don't be afraid to smile or be friendly.

4. Speak no evil. In addition to being a competent, caring optometrist, it is important to carefully monitor what you say and what you don't say.

Don't speak ill of your fellow health professionals. This will prevent you from being sued for slander. Avoid the temptation and remember, “What goes around comes around.” Obviously, if a colleague is a true danger to the public, you have a duty to speak up, but the proper venue is with the licensing authorities, not your patients.

The same applies to your patients. Resist the temptation to chart your patient records with descriptions, such as “crazy” or “hysterical.” You may pay dearly for this, whether you're right or wrong. Remain professional at all times. Rather than use derogatory comments, you can document that the patient is “uncooperative.”

5. Keep accurate records. Poor records will haunt you. Good records are your best defense against malpractice. Remember: What is not documented is assumed to not be provided. If you make a correction to your chart in the form of additions or deletions, be sure to initial and date the changes. Make deletions by drawing a line, and never attempt to erase and write over.

The prudent optometrist should document all patient encounters, whether they are phone conversations, office visits or the release of trial contact lenses. In addition, never make alterations to your charts after a lawsuit has been filed. Tampering with the records will be detrimental to your defense.

6. Provide informed consent. The legal doctrine of informed consent requires that a patient must be familiar with the risks of and alternatives to treatment. This holds true even for simple, routine procedures, such as prescribing contact lenses. Always inform the patient of the risks and options. Have the patient sign and date an informed consent agreement. Give one copy to the patient, and place the other in the patient's record.

7. Make appropriate referrals. Don't be afraid to make a referral when warranted. Never let your ego prevent you from making a referral. Too many times, optometrists worry that the referring doctor will think he/she should have easily diagnosed or treated the patient. Understand your limitations, and do not feel embarrassed or ashamed to bring in a specialist, especially in an area with which you might not be familiar.

In addition, be sure to refer the patient to a qualified professional. How do you make an appropriate referral? Simply telling the patient that he needs further examination with another professional won't prevent a malpractice lawsuit. Follow these five simple steps:
► Once you identify the referral doctor, schedule the appointment. Try to refer your patients to specialists with whom you've developed a relationship and trust.
► Send a letter to the doctor detailing your findings, purpose of the referral and request for a summary of the findings.
► Give your patient a copy of the referral letter.
► Keep copies of all correspondence in the patient's record.
► If the patient doesn't keep the appointment with the referral doctor, contact the patient to find out why, and note it in the patient's record.

You've been sued. Now what?

Despite your best attempts at being a caring, competent optometrist, you may be sued for malpractice. If so, once you take a deep breath, it is important that you contact your insurance company without delay. Some policies have a provision stating that their duty to cover you is waived if you don't give them notice of a legal claim within a specified number of days.

Place all relevant patient records and files in a secure location. It looks very bad if important documents are missing, so don't lose or destroy records.

Listen to the advice of your insurance company and their lawyer. Let them handle the legal proceedings. After all, would you trust your attorney to perform an eye exam?

Also, don't discuss your case with others, especially your patient or the plaintiff's attorney. In these cases, “silence is golden.”

Deposition advice

The purpose of a deposition is to allow the opposing side an opportunity to learn the facts of the case. Keep your answers short and to the point. Answer truthfully, but don't volunteer any information that was not specifically asked. During a deposition, there is no jury or judge present. This is not the time to argue the merits of your defense. Above all, listen to the advice of your attorney. He's the expert in legal proceedings, not you.

Dealing with the State Board

What happens if you lose your malpractice lawsuit? In California, your insurance carrier is legally obligated to notify the State Board of Optometry for any judgment or settlement greater than $5,000, but this will vary from state to state. Now you have to deal with your State Board. What should you know?

The function of the State Board is not to advocate for optometry but to protect the public. This is a serious responsibility, and the State Board has significant enforcement powers. The State Board must investigate any complaint itself or have a designee perform that function.

If the State Board has contacted you concerning a malpractice issue, contact your professional liability insurance carrier, and don't answer the board's charges until you have consulted your attorney. Be sure to actively defend yourself. Educate your attorney. Suggest expert witnesses. Collect all pertinent documents, and give photocopies to your attorney.

In addition, should an investigator from the State Board present to your office, notify your attorney, be polite and take their business card. Never let him/her wander around your office, and take notes of what is said and when the investigator was there.

Summary

The best way to avoid a malpractice lawsuit is not to make mistakes. However, mistakes do happen. In addition, not all medical procedures are successful. We live in a litigious society, so be prepared to follow the advice of your attorney. OM

1. Duszak RS, Duszak R Jr. Malpractice payments by optometrists: an analysis of the national practitioner databank over 18 years, Optometry. 2011 Jan;82(1):32-7. Epub 2010 Jul 24.
2. OptometricManagement.com. O.D. Flunks Optometry 101. Sherman,J./www.optometricmanagement.com/articleviewer.aspx?articleID=70578 (Accessed 7/19/12)
3. Gallagher TH, Waterman AD, Ebers AG, Et al. Patients' and physicians' attitudes regarding the disclosure of medical errors. JAMA. 2003 Feb 26;289(8):1001-7.