Avoiding the Agony of Costly Litigation

Take these prudent risk management steps.

BY JERRY HELZNER, SENIOR EDITOR

Physicians who have been sued for malpractice typically report feelings of anger, guilt and disbelief, sometimes leading to clinical depression. "No amount of risk management articles or seminars can prepare a physician for the emotional devastation of being sued," writes George W. Cibis, M.D., in the Ophthalmic Mutual Insurance Company (OMIC) Litigation Handbook for the Ophthalmologist.

With all due respect to Dr. Cibis, this is going to be one of those "risk management articles."

It may not prevent you from ever being sued, but the risk management ideas that will be presented here — many of them directly recommended by OMIC — will certainly lower the odds of having to face litigation.

The Many Facets of Risk Management

Ophthalmologists should first recognize that although TV shows and movies almost always portray malpractice cases as being based on direct medical negligence — such as leaving a sponge in a patient or operating while in an impaired state — other types of costly litigation can stem from such mundane errors as an improperly worded informed consent form, refusing to see a difficult patient or even from poor lighting in a bathroom used by patients.

This is why risk management begins with an auditing process. It's critical to know what the practice is already doing that offers protection from litigation and in what areas does the practice need to improve to reduce the chances of a future lawsuit.

Regular self-audits may be a good start, but if a surgery center is part of the practice it is wise to join ASC-related professional associations while also proactively seeking accreditation from an agency that is recognized by Medicare. By joining these types of organizations, a practice can take advantage of participating in external benchmarking exercises designed to identify "best practices" that can be shared by all participants. When implemented by a practice, these best practices offer more than just better risk management procedures. They can also generate efficiencies that lead to increased profit margins.

Anyone transporting a patient must sign a form taking responsibility for the well-being of that patient.

Among the organizations offering external benchmarking opportunities are the Outpatient Ophthalmic Surgical Society (OOSS), the Accreditation Association for Ambulatory Health Care (AAAHC), the Joint Commission for the Accreditation of Healthcare Organizations (JCAHO) and the American Association for Accreditation of Ambulatory Surgical Facilities (AAAASF). There are additional, more specialized, associations for operating room nurses and administrators that can also be helpful in providing guidelines for risk management.

Risk Management in the Office

ASC operation is always a focus of risk management because of the more complex nature of many of the procedures performed in the surgery center setting. However, good risk management begins in the office, where the potential dangers that could result in litigation may not be as obvious.

Bradley C. Black, M.D., of Jeffersonville, Ind., has conducted seminars on preventing and dealing with patient emergencies.

At Dr. Black's practice, practice administrator Sarah Cwiak, M.B.A., C.O.E., formed the "Insuring No Harm Committee," which first brainstormed, and then implemented, numerous ideas to prevent patient emergencies in the office.

Some of the safety steps taken as a result of the committee's efforts included installing no-slip mats around urinals and toilets; frames, flat screens and anything hanging on the wall were secured so that if a patient became disoriented and needed to lean on the wall, nothing would fall. The administrator also walked the facility (inside and out) with a pair of thick glasses on and found that a large fern in the lobby was difficult to navigate around, the patient restroom light switch was impossible to find and a step into the facility needed a yellow edge as it was impossible to see. These potential problem areas were all corrected.

In addition, patients were walked to their cars in inclement weather, technicians were trained to turn lights in exam rooms up before exiting rooms with patients and additional trash cans were added to the waiting room, minimizing chances of patients slipping on a candy wrapper or other litter.

To prevent errors in collection of patient data, the practice revisited how health histories were taken and gave the staff some new questions to draw needed information from patients. The practice also had a local pharmacy tech come and talk about the importance of finding out all drugs that patients are using. Staff members also began asking leading questions like, "Are you on any drugs that can make you drowsy?" Finally, the practice developed a check sheet for all surgical procedures. This allows techs to systematically go over steps pre- and postop, ensuring that each key area is discussed.

In an ASC setting, additional preventive steps are required, such as guarding against the implantation of the wrong IOL, limiting patient movement during surgery and double-checking for all medical and contact allergies.

In the office setting, Cwiak advises that all staff members who interact with patients should have CPR training at a minimum and Advanced Cardiac Life Support (ACLS) training as the ideal. The practice should have a wheelchair onsite. Doctors should be trained in the use of defibrillators and epinephrine pens, which should be easy to access in an emergency. It might also be wise to have a tracheotomy kit in case a patient's airway becomes blocked from a severe allergic reaction. It's a good idea to conduct mock drills to practice these emergency procedures.

In an ASC, where the risk of serious patient emergencies is greater than in the office setting, a fully equipped "crash cart" with ACLS-recommended contents and appropriate staff training is a must.

It's wise to hold regular drills on dealing with potential patient emergencies, such as this one where the staff re-enacts response to a severe allergic reaction to fluorescein dye.

Get the Paperwork Right

Risk management specialists advise that two key areas of paperwork must be specifically addressed to ensure that the practice is on sound legal footing if an emergency incident occurs.

First, your informed consent must be clear and unambiguous, providing patients (and/or their caregivers) with appropriate knowledge of the treatments being performed and any attendant risks.

Second, any friend or relative of the patient who will be providing transportation and immediate aftercare must take responsibility, in writing, for the patient's safety. The practice should always be aware of transportation arrangements for patients who have been dilated or undergone medical treatment. For surgical patients treated in an ASC, it is a good idea for the practice to provide door-to-door transportation.

In addition, next-day follow-up calls are recommended in the case of elderly, frail or seriously vision-impaired patients to ensure that they are not experiencing additional problems that may need attention.

Basic OMIC Recommendations

Risk management specialists from OMIC — and other medical liability insurers — emphasize that all practices need to have sound risk management strategies in place. When properly implemented, these relatively simple strategies can significantly reduce the odds of being sued for medical malpractice.

Following are five basic policies that risk management specialists from OMIC say can serve as the foundation of a risk management plan. A number of other specific practice-protecting ideas may be found under the "Risk Management Recommendations" icon at www.omic.com. Sample informed consent forms are also available on the OMIC Web site.

■ Document all patient interactions. Risk specialists caution that the increased use of cell phones, car phones and pagers has made it somewhat more difficult for physicians to document all of the patient calls that they take. Yet, it is the lack of documentation that puts physicians at risk when patients make claims of malpractice that cannot be adequately refuted.

■ Communicate with patients and colleagues. Clear and complete communication with patients, staff and colleagues is a must if errors and misunderstandings are to be avoided.

It has been shown that patients are reluctant to sue a doctor they like, especially a physician who takes the time to explain medical issues and answer all questions. A brusque and abrupt manner may equate with efficiency for some physicians but it does not help build positive relationships with patients.

Some patients expect that any procedure performed by an ophthalmologist will result in perfect vision. Risk management specialists say that many malpractice claims occur because the expectations of the patient do not coincide with the limits of the outcomes that specific procedures can produce.

Ophthalmologists should be clear in managing patient expectations and should even consider having patients write down in advance of the procedure what their expectations are in terms of improved vision. If the patient's expectations are too high, the physician needs to correct those expectations to more realistic ones that the patient can accept.

In terms of communicating with staff and colleagues, it's a given that all staff members should be regularly evaluated for competence in the skills that are critical to their specific jobs. Practices must also devise a system that ensures that all messages are received clearly and in a timely manner. One of the great advantages of electronic medical records is the easy accessibility of the patient record from even remote sites and the elimination of errors caused by sloppy or illegible handwriting.

■ When in doubt, get a second opinion. Risk management specialists say that one of the major causes of malpractice litigation is misdiagnosis based on having previously treated "similar" cases.

When patients present with a set of symptoms or complaints that seem to be the same as similar cases treated in the past, it is important that doctors avoid getting into the habit of saying "it's probably X" or "it's most likely Y."

Especially with those cases that appear to be more serious and more complicated, risk management experts say that it is wise to practice "defensive medicine" and order additional tests that could reliably confirm or discount any preliminary diagnosis.

If the physician still has doubts when all the ordered tests are in, a second opinion should be sought from a respected colleague who has wider experience in the type of case being evaluated.

■ Do not deny treatment for financial reasons. Several physicians have lost malpractice cases solely because they withheld treatment until the patient paid them for their services.

The quality of care eventually provided in those cases did not matter. The failure to treat in a timely manner, even if it was a question of a few hours, decided the cases in favor of the plaintiff.

Holding back treatment for financial reasons is a sure way to turn a jury against a physician. It should never happen. There are legal and ethical ways to end a relationship with a problem patient without running the risk of a charge of patient abandonment. Ending such relationships always requires that the physician give advance notice to the patient, usually 30 days.

Every interaction with a problem patient must be thoroughly documented and treatment needs to be provided during the 30-day period if the patient requests it.

■ Have thorough and specific informed consent documents. This aspect of risk management cannot be emphasized enough. It is especially important when using off-label medications, which occurs frequently in ophthalmology and particularly in retina practice. All patients receiving off-label medications or treatments should be closely monitored.

Risk Management is Prudent Business

Following sound risk management procedures does not mean being fearful that every patient who walks in the door is a potential litigant. Studies have shown that patients are extremely reluctant to sue a physician who they connect with on a personal level, so being wary, distant and overly cautious can actually work against you. Once you have the right risk management procedures in place you can go through the day knowing that you have done everything possible to protect your practice, your reputation and your pocketbook. OM