Avoiding 10 Common Malpractice Claims

Prevent the risks that expose your practice to lawsuits.

By Jerry Helzner, Senior Editor

Anger, disbelief, guilt and depression are some of the emotions reported by physicians who have been sued for medical malpractice. Some cases have dragged on for as long as a decade, with appeal after appeal putting doctors on a gut-wrenching emotional rollercoaster that saps the joy out of everyday life.

Doctors who have been successfully sued are prone to play “Monday-morning quarterback” as they relive the disastrous decisions they made that led to the lawsuit. “If only I had done more testing or gotten a second opinion instead of jumping to that diagnosis. If only I had documented more carefully. If only my informed consent process had been more specific. If only I hadn't re-used that single-use cannula to save $20.”

With the emotional and financial stakes being so high, the Ophthalmic Mutual Insurance Company (OMIC) places the highest priority on practices having sound risk management programs. OMIC even offers reduced premiums to physicians who take their risk management courses, some of which are available online. Here, with input from OMIC, I will discuss 10 areas of ophthalmology practice that have a high risk of leading to a lawsuit and what you can do in terms of preventive measures to deter any such litigation.

THIS IS NOT AN ACTUAL INFORMED CONSENT FORM. THE LANGUAGE IS DERIVED FROM SEVERAL SOURCES.

1. Inadequate Informed Consent

Having the proper informed consent document for each patient is a critical defense against litigation and one of the easiest areas of your practice to correct if it is currently lacking.

OMIC offers these basic guidelines for developing your informed consent process:

► The purpose of informed consent is “to honor the patient's right to make decisions about health care, ensure patient understanding and prevent allegations of lack of informed consent.”
► The healthcare provider performing the diagnostic procedure or surgery must obtain informed consent for it. “The duty to obtain informed consent cannot be delegated.”
► Informed consent begins with a discussion between doctor and patient. “The discussion includes the condition, recommended treatment or procedure, and the risks, complications, benefits and alternatives.” An individual patient's known risk factors that increase the likelihood of a poor outcome must also be part of the discussion.
► The informed consent discussion must be held when the patient is alert and has the ability to make a rational decision.
► If at all possible, the informed consent discussion should be held prior to the day of the procedure.
Ophthalmologists should especially be aware to inform the patient if they intend to use an off-label drug or have a physician assistant perform any surgical tasks. Elective procedures carry a particular litigation risk because patients may sue if they are not happy with the outcome.

All physicians seek to develop an ironclad informed consent process and the OMIC Web site (www.omic.com) offers a number of sample informed consent documents for specific ophthalmic procedures.

If you seek an even higher level of comfort, you can contract with a private company such as iMedConsent or Consent Technologies that specialize in providing informed consent packages that are comprehensive and highly defensible if challenged.

The iMedConsent application (www.dialogmedical.com) offers a Web-based informed consent tool that produces detailed, easy-to-understand consent forms. Information specific to the practice is entered only once and it appears on all consent, patient educations, and pre- and post-procedure instruction documents. Content is continuously reviewed and updated so physicians are assured of always presenting the latest known risks and potential complications of all ophthalmic procedures.

Consent Technologies (www.consenttec.com) has developed a touch-screen format that allows a patient to view animations of common ophthalmic procedures and record his or her understanding of what the procedure entails by touching the screen at various points in the presentation. The format also includes a space for the patient's signature and an opportunity to record the patient's voice confirming full understanding and awareness of the procedure to be performed.

In addition, Eyemaginations (www.eyemaginations.com) offers compelling and informative animations of ophthalmic procedures that can be shown to patients to supplement the practice's official informed consent document.

Check with your insurance carrier as some, like OMIC, offer incentives to encourage participation in risk management initiatives.

2. Unsafe Office Environment

Many ophthalmology practices don't even consider the fact that a cause for litigation can occur before the patient even gets to see a doctor. Given that ophthalmology practices see a very high percentage of elderly and visually impaired patients, a safe office environment becomes a critical element in your risk management procedures. Your practice must do everything in its power to reduce the risk of accidents and emergency situations.

Experts in risk management suggest that each practice form a safety audit committee to identify potential hazards that could harm patients. Such simple precautions as installing no-slip mats in bathrooms, providing brighter lighting, marking curb levels at entrances and in the parking lot, and securing anything attached to a wall can go a long way in avoiding potential problems.

Additional precautionary steps can include walking patients to their cars in inclement weather, adding trashcans to minimize litter, avoiding office design elements that could disorient patients and eliminating standalone water coolers that could tip over if leaned on and cause a patient to fall. One practice suggests having staff members wear eyeglasses coated with Vaseline to see what dangerous obstacles a visually impaired patient might encounter in your office or in the parking area.

Having staff trained and prepared for in-office emergencies such as allergic reactions is critical in avoiding liability. COURTESY OF BRADLEY C. BLACK, MD

Having an office emergency kit that includes epi-pens for allergic reactions is also recommended. Staff should undergo training for such emergencies and at a minimum be certified in CPR, though Advanced Cardiac Life Support (ACLS) training is strongly recommended.

3. Failure to Document/Altered Documents/Incomplete History

Any plaintiff attorney will tell you that gaps in documentation are a primary target in any malpractice litigation. This is especially true in glaucoma and glaucoma-suspect patients, where intraocular pressures should be entered even when these patients show pressures within a normal range.

Be sure to document any and all incidents of noncompliance with a medication regimen.

Glaucoma patients are notorious for forgetting or deliberately skipping medications, particularly if they are not experiencing loss of vision. Patients with financial problems may choose to discontinue medications rather than pay for them. The noncompliance can be 100% the fault of the patient but it is up to the practice to make sure the noncompliance is documented or the plaintiff attorney will seize on this point to put you on the defensive.

Also document all missed appointments, another area where glaucoma patients are among the worst offenders.

It should go without saying that altering documents after the fact will put a practice in the most severe jeopardy if such alterations are discovered by the plaintiff's attorney. In addition, inconsistent or contradictory documentation in a patient's record will raise red flags that a plaintiff's attorney can successfully pursue.

A close relative of failing to document is the egregious error of taking an incomplete history. If the practice has not noted possible allergic reactions and adverse drug interactions, it leaves itself wide open to litigation if the patient is unfortunate enough to suffer a serious allergic event through this type of neglect.

4. Patient Abandonment

One complication with patients who are noncompliant, miss appointment after appointment and ignore bills is that after a while you may just forget about them. Then, two years later you are hit with a lawsuit charging patient abandonment.

Unfair? Yes. But a fact of medical practice? Also yes.

There is a protocol for terminating a physician/patient relationship and avoiding charges of patient abandonment. It must be followed. Failure to pay is not a reason for dropping a patient without written notice or without helping the patient seek alternate care. A patient in critical need of continued care cannot be summarily dropped.

If a friend, relative or caregiver says they will take responsibility for transporting a patient, make sure to get it in writing. COURTESY OF BRADLEY C. BLACK, MD

Here is an OMIC report on the appropriate actions of a refractive surgeon who attempted to correct a poor outcome from another ophthalmologist's initial procedure.

“The insured ophthalmologist did several things that were instrumental in minimizing the chance of a lawsuit. First, he discussed the procedure and all possible risks, complications and alternative treatments available to the patient. He obtained a detailed consent form and made no guarantees as to the outcome of the surgery.

“After the procedure, the insured thoroughly documented in the chart when the patient failed to comply with treatment and followed up with several letters expressing concern and disappointment that she had not kept her appointments. The insured also communicated the need for follow up so that the medications could be adjusted and the cornea monitored for continued healing, and he mentioned the adverse consequences of continued noncompliance. Furthermore, the insured wrote to the patient to advise that he was discontinuing his service as her ophthalmologist and to suggest that she select an ophthalmologist who could continue to care for her. Finally, he wrote off the remainder of the patient's bill without suggesting there was any improper care or liability

Elevated curbs can be a danger. Have them brightly marked. COURTESY OF BRADLEY C. BLACK, MD

Note how many attempts were made by the ophthalmologist to communicate with the patient before terminating the relationship. His actions headed off a malpractice claim that was already in the process of being filed.

Although there is no guarantee that every ophthalmologist who terminates the doctor/patient relationship will have the same result as this insured, there are some guidelines to follow which may protect one against a claim of abandonment.

► Document in detail the patient's noncompliance with treatment and failure to keep follow-up appointments.
► Write or telephone the patient communicating your concern and the consequences of noncompliance and document that communication.
► Suggest that the patient obtain a second opinion.
► Write to the patient noting the reasons why you are terminating the relationship and recommending that the patient obtain another ophthalmologist for continued care.

5. Jumping to a Diagnosis

Plaintiff attorney Brian Wilson, JD, of Canton, Ohio, notes that many of his malpractice cases are the result of a physician's misdiagnosis. He says that, surprisingly, these mistakes involve doctors who are among the most self-confident and experienced.

“They see something and they say, ‘I’ve seen this before, it's probably X, or it looks like Y,'” says Mr. Wilson.

In ophthalmology, the emergence of OCT as a diagnostic tool has lulled some general ophthalmologists into thinking that they can diagnose macular issues with OCT alone.

However, experienced retina specialists, such as Carl Awh, MD, of Nashville and Jordan Graff, MD, of Phoenix, note that more specialized tests such as fluorescein angiography (FA) and ICG are much more accurate than OCT in detecting such diseases as diabetic retinopathy, vein/artery occlusions, edema of the optic disc and tumors.

Dr. Graff told Ophthalmology Management about a case in which a general ophthalmologist found drusen through an OCT examination and diagnosed the patient as having wet AMD. When the patient was referred to Dr. Graff, he used FA and ICG tests to identify an ocular melanoma.

Another common example of misdiagnosis in ophthalmology involve males of Chinese ancestry who, because of an ethnic anomaly, are often diagnosed with glaucoma when they do not have the disease. Also, patients misdiagnosed with multiple sclerosis when they actually are afflicted with Devic's Syndrome, a blinding eye disease also known as neuromyelitis optica.

When uncertain of an accurate diagnosis, ophthalmologists need to practice defensive medicine by ordering additional specialized tests. If still uncertain, get a second opinion from a subspecialist.

Ego should never stand in the way of an accurate diagnosis.

6. Re-using a Single-Use Instrument

When an instrument is designated for single-use only, do not try to save a few dollars by sterilizing it and using it several times. This is the ultimate definition of being pennywise and pound foolish.

One of the most lethal potential results of re-using a single-use knife or cannula is a prion disease such as Creutzfeldt-Jakob Disease, an incurable and always fatal relative of so-called “Mad Cow Disease.”

Francis Mah, MD, a highly respected ophthalmologist at the University of Pittsburgh Medical Center, has conducted research into prion disease, which has been found to be able to enter the body through eye surgery.

Dr. Mah has called prions “highly infective and virtually indestructible.”

While there are now strict protocols for sterilizing diamond knives and other multi-use ophthalmic instruments, single-use instruments are just what the name implies — to be used for one patient only.

Malpractice claims in which contaminated single-use instruments play a role are among the easiest for plaintiff's attorneys to win as the evidence is usually compelling.

7. Surgical Errors

Though relatively rare, surgical errors such as amputating the wrong leg tend to garner a great deal of media attention. Enforcement of mandatory surgical checklists have eliminated surgical errors to a great degree.

As Ophthalmology Management columnist Steven Silverstein, MD, FACS, has noted, nothing has been more effective in preventing surgical errors than the OR “time out” checklist, a final check to ensure that the surgeon has the right patient and is performing the right procedure at the right site. If the procedure is cataract surgery, a final check on the choice of lens is also conducted.

“Checklists are essential for safety, consistency and efficiency,” advises Dr. Silverstein. “In our ASC, just such a checklist has prevented dosing errors and surgery performed on the wrong eye.”

8. Failure to Follow-up

Just because a kindly neighbor or relative has agreed to transport the patient to and from your ASC, don't assume that all is well. Make sure that the caregiver takes responsibility for the patient in writing.

One practice reports that an elderly patient was dropped off in front of her house by a “caregiver” following routine cataract surgery and was later found by a passerby lying at the bottom of her steps. She had passed out going up the steps. Fortunately, she suffered no serious or permanent injury.

It's incidents such as these that make it imperative for the practice to make a follow-up call on the same day to ensure that the patient has arrived home safely and is experiencing no adverse effects from the procedure.

Not only is the follow-up call an important safety measure, it also reinforces the idea that the practice has the patient's welfare in mind and is interested in communicating with the patient on an ongoing basis.

9. Failure to Stay Current

One of the drawbacks of private practice in a small town or rural community is the sense of isolation that ophthalmologists often mention. These doctors go to work every day and often do not keep up with new studies and techniques that appear in the literature (or in general interest publications such as Ophthalmology Management).

For example, a new study has indicated that, when giving intravitreal injections, retina specialists could reduce the risk of endophthalmitis by not talking and by wearing a mask. If you are a retina specialist and are not aware of these new findings, you are increasing the risk of infection in your patients who receive intravitreal injections.

10. Failure to Show Empathy

There is no specific claim that can be made for failure to show empathy to a patient, but in the real world it is one of the biggest reasons why some doctors get sued and others are beloved by their patients.

Plaintiff attorneys have commented many times that even when their clients have an airtight malpractice claim, many are reluctant to follow through because “Dr. X has just been so nice to me.”

In the world of malpractice claims, it pays a physician to be seen by his patients as caring and empathetic as opposed to being viewed as a standoffish cold fish. OM