OMIC Blog

OMIC Forms 43rd Educational Alliance with the Michigan Society of Eye Physicians and Surgeons (MiSEPS)

Robert Widi — Thu, 10 May 2012 19:58:29 +0000

This cooperative venture will significantly reduce malpractice premiums for MiSEPS members by offering a 10% discount (averaging more than $1,300) to members for attending a qualifying cosponsored risk management event. CME credit available for some courses.

For more information on OMIC’s CV program contact Deena Mader at OMIC at 800-562-6642, ext. 628. www.omic.com

For Michigan state society membership, please contact Theresa Wiley, Associate Director for the Society at 313 823 1000 or email at twiley@miseps.org.

Visit the MiSEPS website for more info: www.MiSEPS.org.

How to Prevent Harm from Improper Use of Single-dose/ Single Use Vials

Paul Weber — Thu, 03 May 2012 01:24:27 +0000

Every year, ophthalmologists give hundreds of thousands of intravitreal and intraocular injections. The Center for Disease Control (CDC) has been very active in promoting safe injection practices. This CDC Position Paper provides the CDC’s “position” and “general messages” that all ophthalmologists should be aware of and implement in their practice.

The following is from the CDC website http://www.cdc.gov/injectionsafety/

Injected medicines are commonly used in healthcare settings for the prevention, diagnosis, and treatment of various illnesses. Unsafe injection practices put patients and healthcare providers at risk of infectious and non-infectious adverse events and have been associated with a wide variety of procedures and settings. This harm is preventable. Safe injection practices are part of Standard Precautions and are aimed at maintaining basic levels of patient safety and provider protections. As defined by the World Health Organization, a safe injection does not harm the recipient, does not expose the provider to any avoidable risks and does not result in waste that is dangerous for the community.

Visit the page on CDC’s role in safe injection practices.

LIVE BLOG: 2012 ASCRS/ASOA Meeting in Chicago

Robert Widi — Sun, 22 Apr 2012 19:06:38 +0000

UPDATE: A BIG thank you to the 200 attendees at OMIC’s risk management seminar Professional Liability Risks Associated with Premium IOL Implants yesterday! OMIC insureds earned an average of more than $1,100 in discounts for attending.

If you missed the event, there are still plenty of ways to earn your discount. See below for links to OMIC’s risk management seminar schedule and list of cooperative venture opportunities, and online and recorded courses.

We were delighted to see OMIC’s patient consent templates and other risk management resources referenced in the Ophthalmology Management article Avoiding 10 Common Malpractice Claims

See: http://www.ophthalmologymanagement.com/articleviewer.aspx?articleID=106880

http://www.ophthalmologymanagement.com

BLOG:

If you are attending the ASCRS-ASOA annual meeting at the McCormick Place, please plan to visit the OMIC Insurance Center at booth number 1423.

OMIC Risk Management Seminar:

Saturday, April 21, 2012 (Completed)

Professional Liability Risks Associated with Premium IOL Implants- Effective Management of Presbyopia-Correcting Patients
American Society of Cataract & Refractive Surgery 2012 (ASCRS)
McCormick Place West Convention Ceter, Chicago, IL
Time: 1:00-2:00 pm
Register with ASCRS at (800) 748-5064 or go to www.ascrs.org

This seminar qualifies for a risk management discount equal to either 5% (standard) or 10% (approved cooperative venture event*) of the insured physician’s premium.

*Insureds who are members of a cooperative venture society earn a 10% discount (a credit worth up to $3,000) by participating in an approved OMIC risk management activity, which may be either a live seminar or an online or recorded course.

For more information on OMIC’s educational alliances with ophthalmic societies offered through the Cooperative Venture Network go here. If your state or subspecialty society has the words “LIVE EVENT REQUIRED” then you must attend the OMIC seminar conducted at that organization’s annual meeting (or other approved event) in order to earn the discount. For any organization that has an OMIC CV but does not have those words, any OMIC risk management event qualifies and your attendance at the ASCRS event above will earn the 10% CV discount.

If you have any questions, don’t hesitate to call Linda Nakamura at (800) 562-6642, ext. 652, or lnakamura@omic.com.

OMIC Insurance Center Exhibit:

See OMIC.com for resources related to issues in the news and discussed at this year’s ASCRS/ASOA course topics.

Analyses of Malpractice Claims Related to Premium IOLs. Read the Interesting Findings here.
Recommended Guidelines for Refractive Surgery here.
Corneal and Refractive Surgery Consent Forms here.

Also stop by to see us for:

On-site Premium Quote or Coverage Check-up
2012 Policyholder Dividend Information
Risk Management Course Schedules and Discount Information
State and Subspecialty Educational Alliance Discounts
Patient Phone Call Record Pads
OMIC 25th Anniversary Pens and Chocolates!

If you’re not already an OMIC insured, complete this Quick Quote form and bring to the OMIC exhibit or send it to us now and we’ll have a proposal packet waiting for you at the meeting. Just a few minutes of your time may save you thousands of dollars.

We look forward to seeing you in Chicago!

Making BOTOX Liability “Wrinkles” Disappear…

Robert Widi — Mon, 16 Apr 2012 14:22:00 +0000

It was 10 years ago this week that the FDA approved BOTOX for cosmetic uses. Now the most popular cosmetic procedure in the United States, BOTOX treatments were performed nearly 6 million times during 2011. See OMIC’s risk management recommendations, coverage requirements, and sample consent form, (and more) below.

History of BOTOX. Ophthalmologist Dr. Alan Scott of the Medical Research Institute in San Francisco and biochemist Dr. Ed Schantz of the University of Wisconsin were first to work on a standardized botulinum toxin preparation for therapeutic purposes in the 1960′s. Since then, the drug has been approved for 6 therapeutic indications.

Although the largest malpractice awards have been related to therapeutic applications, its the drug’s cosmetic use, approved by the FDA on April 15, 2002, that garners the most media attention and has produced several significant losses as well. Malpractice liability concerns often involve the aggressive marketing and lax oversight regarding when, where, and by whom the procedure is being performed.

OMIC Articles:

Managing the Risks of Botox

Facials, Fillers, and Physicians: Keeping the “Medi” in Medi-Spa

OMIC Recommendations:

Botox Recommendations

Botox Use Consent Form

OMIC Coverage Questions:

Am I covered for botox injections?

Can my technician administer cosmetic Botox injections?

Interesting Fact: When Dr. Scott was unable to continue to manufacture and distribute the drug due in part to the lack of professional and product liability insurance available during the same malpractice “crisis” that prompted the formation of OMIC, patients were forced to go to Canada for therapeutic BOTOX treatments. Read more about it here. In a recent interview below, Dr. Scott states he “wasn’t the best business man,” when he sold his share of the rights to BOTOX to Allergan for $8 Million. Today, BOTOX is Allegan’s best-selling drug, accounting for 30% of the company’s revenue and produces a billion (with a “b”) dollars in yearly sales.

Related Articles:

Botox: A story with a few wrinkles

Cosmetic Botox: The inadvertent discovery

Are You Leaving a Practice or Retiring? Here’s a Checklist

Robert Widi — Mon, 02 Apr 2012 18:51:53 +0000

Ophthalmologists leave practices for many reasons. Whether discontinuing your practice due to an illness or disability, retirement, changes in employment status, or other personal or family reasons, you must take various actions to avoid allegations of patient abandonment.

OMIC has created a comprehensive guide to prevent liability and ensure continuity of care for your patients.

Checklist

Notify Third Parties:

Managed Care Companies and Hospitals
State Board of Medicine
Professional Liability Carrier
Legal Counsel (to review all contracts and agreements)

Notify Patients:

Certified Letter with Return Receipt for High Risk Patients
Letter to All Other Patients
Notice Printed in Local Ads and Displayed in Practice
Clear Instructions and Protocols for Staff

Notify Other Caregivers:

New Physicians Assuming Care (Ensure they have appropriate training or subspecialty experience)
Referral Practioners
Staff Members (Create script and office procedure notes)
Records Custodian (Ensure appropriate transfer protocols in place)

See OMIC’s Risk Management Recommendation Guide – When Physicians Leave a Practice or Retire for detailed recommendations and tips to ensure compliance and prevent liability.

For a full list of OMIC’s Risk Management Recommendation Guides go here.

HIPAA-proofing Your Smart Phone or Mobile Device

Robert Widi — Sun, 01 Apr 2012 05:55:22 +0000

In recent months OMIC has noted a surge in regulatory and HIPAA Privacy claims, especially involving malicious acts by disgruntled employees and unhappy patients.

In one case, a physician’s smart phone was compromised and more than 30 unauthorized breaches were recorded in one four hour period, requiring the practice to notify hundreds of patients of a potential release of their medical information. They also were required to report the incident to government authorities in order to comply with HIPAA requirements.

See here for HIPAA Security Rule.

While some of the costs associated with data breaches may be covered by your insurance (See here for information on OMIC’s BRP and eMD policy benefits) the damage to your reputation would be difficult to measure not to mention the time you and your staff must devote to addressing the issue.

Interestingly, a leading security firm recently “lost” 50 phones to track the behavior of those who found the phones. Of the 50% of the phones that were actually returned, 43% attempted to gain access to a banking app, often attempting to “guess” the login code based on other data accessable on the phone and 80% tried to access folders titled “HR Salaries” “HR Cases” and “saved passwords.”

Unauthorized access to sensitive information on your device would be considered a HIPAA Privacy violation. And while a data breach or HIPAA violation could be the result of a deliberate act of a person intentionally trying to harm you or your practice, it may also simply arise from the loss or theft of your mobile device.

Steps you can take to HIPAA-proof your smart phone:

1. Activate Phone Passcode. Choose a four-digit passcode that would be difficult to easily guess. Don’t use birthdates, street address numbers or anything else that would be obvious if a person was able to identify you and guess basic “expected” codes from an internet search. Your phone will often have a setting that, when turned on, will wipe all information from the phone if the wrong code is entered more than a set number of times. (I have my iPhone set to 10 wrong codes triggers phone data wipe-out). Turn this setting on.

2. Don’t Use Email. Regular email communications are rarely encrypted and should never be used for transfer of HIPAA protected information. Email accounts are easily breached and would almost never provide defensible protections for sensitive medical data or attachments if a HIPAA Privacy claim were filed against you or your practice. If you are sending sensitive information unencrypted, stop now, and use a cloud-based encryption service or VPN only.

3. Set “Required Login” for Apps. Some applications will save your information so that after you log in once on your smartphone you will no longer have to enter the login information for subsequent visits. Although convenient, this would make it easy for anyone gaining access to your phone to also potentially gain access to HIPAA protected information. Make sure that for any app that delivers sensitive data to your device, the settings require physical login credentials each time you enter the app.

4. Download an Encryption App. There are many cloud-based applications you can use to encrypt the data that is being transferred to and from your device but you also need to protect information that is downloaded or resides on your device itself. Therefore if you will download any sensitive information to the device itself, use this type of app. Encryption apps generally run from a buck or two to over $50. There is even a call encryption app for $1,600 that meets FBI standards! (You probably don’t need that one). These apps are available for both Apple and Android phones and they are of varying quality so research online and read app reviews for more information. Simply search for “encryption” in the app store. Your HIPAA-related texts, messages, and images that are downloaded to your device will be encrypted again, requiring another password. This is important since any previous encryption during transfer from a cloud server to your device would most likely not protect the data once it is downloaded to your phone. These apps can be configured to encrypt all data or only certain selectively identified folders, images, or documents.

CLOUD 101:

First, go here to learn about encryption.

“Off-the-Shelf” Cloud Apps: Cloud technology uses the same security as your bank to encrypt and protect data. Search for one that is HIPAA compliant or certified. OMIC does not endorse third-party products, however one popular app is Citrix Sharefile. There may be other HIPAA compliant (or certified) applications that are comparable or superior to Sharefile so do a thorough search before deciding on which service to use. Information sits behind a cloud-protected server. If you wish to share information with another physician, you can send them an invitation and they would receive an email with a link to the cloud-based confidential information.

Personal VPCs and VPNs: If you have installed electronic medical records (EMR) software, your vendor may already have a cloud-enabled HIPAA compliant encryption solution for you such as a VPN (Virtual Private Network) or a VPC (Virtual Private Cloud) and you may not need to search for separate software. They most likely will have discussed this with you during implementation of your EMR system. If not, ask them to describe in detail how sensitive information is protected. VPNs are basically protected private “intranet” networks within the internet that are set up to securely access your practice’s networked computer system. See this HHS article about EMR remote access liability.

Cloud vs. VPN?

There may be reasons you do not want to ever send HIPAA-protected data electronically, however that is becoming almost impossible in today’s web-based world. Many legal and health experts agree that if data is to be transferred, encryption within VPN or VPC would be preferable to completely unprotected email or text communications.

A VPN enables you to extend your own network across one that isn’t necessarily secure (i.e. the internet). You would use VPN for access to your practice’s internal network from your home or when traveling and you would use it to transfer information securely from one computer to another, maintaining confidentiality of data and identity.

Cloud computing (VPC) enables you to send data into the cloud, often using VPN encryption technology as a foundation. Clouds have enhanced capabilities that may not be available in a simple VPN environment however data security in a cloud context depends on who manages the cloud, how easily you can access data, whether the cloud is HIPAA compliant, and who else might have access to it.

ONE MORE TIP: Don’t let your judgment be clouded. You should not assume that “clouds” protect information sent to your device. While the transfer of information may be encrypted, information does “sit” on your phone temporarily. In addition to enacting the “required login” for cloud apps, you should also immediately exit these apps when you are not actively viewing them.

As outlined above, your efforts to limit access for your sensitive data including the passcode for the phone itself, encryption apps for sensitive documents, and protection during access to cloud-based apps or VPNs are all part of a “layered” approach that will help defend your practice against allegations of insufficient HIPAA-related data protocols.

Although a serious “hacker” may be able to penetrate many or all of the individual protections you employ, the more walls you build the more likely a person with a electronic forensic background would simply choose to move on to the next “unprotected” device. Similar to a steering wheel lock or house alarm, the technology is not the primary issue here, but rather a few simple steps that may make a potential criminal feel their time would be better spent moving on to next device.

http://www.ama-assn.org/amednews/2012/03/26/bica0326.htm

http://www.hhs.gov/ocr/privacy/hipaa/faq/securityrule/2001.html

http://www.ama-assn.org/amednews/2012/03/26/bisa0326.htm

OMIC Resources:

What You Should Do Now To Protect Your Patient’s Eye Health Information

EMR Data Breach: Who Ya Gonna Call?

BRP/eMD Q&A

OMIC Encourages Prompt Reporting of Endophthalmitis in Patients given Brilliant Blue G (BBG)

Robert Widi — Thu, 22 Mar 2012 19:49:31 +0000

An alert was released this week by the American Academy of Ophthalmology (AAO) and the Food and Drug Administration (FDA) regarding the use of Brilliant Blue G for eye surgery. (See below) OMIC encourages policyholders who report cases to the FDA’s MedWatch Safety Information and Adverse Event Reporting Program to also call OMIC’s Risk Management Hotline to report the incident and for advice on mitigating risks associated with the event. Hotline: OMIC’s ophthalmic risk management hotline receives thousands of calls each year from policyholders and their employees in every region of the country. Policyholders and their staffs should know that any time they encounter a difficult situation, they can call an OMIC Risk Manager for help. OMIC’s risk management hotline is confidential from other OMIC Departments and Risk Management staff does not discuss any issues raised through the hotline with anyone else..Records are kept within a secure document imaging system and access to files are limited to Risk Management/Legal staff only.

Policyholders should encourage staff members to use this policyholder benefit whenever needed.

Call (800) 562-6642 then press 4.

UPDATE: FDA Clarifies Its Recall of Brilliant Blue G for Eye Surgery 

The U.S. Food and Drug Administration issued additional clarifications this week regarding a March 19 recall of Brilliant Blue G (BBG). The FDA recommends that ophthalmologists immediately quarantine and return only any remaining Brilliant Blue G product that was received from Franck’s Compounding Lab in Ocala, Fla.

Prior quarantine recommendations had not been specific to that compounding laboratory.  Academy members are asked to report any cases of post-procedural fungal or bacterial endophthalmitis that occurred in the last six months that are associated with eye surgery in which BBG was used. Reports should be made to the FDA’s MedWatch Safety Information and Adverse Event Reporting Program:

Online at www.fda.gov/MedWatch/report.htm; or

Call 800.332.1088 to request a reporting form and return to the address on the pre-addressed form, or submit by fax to 800.332.0178.

AAO/FDA Alert:

The Academy is assisting the U.S. Food and Drug Administration, the U.S. Centers for Disease Control and Prevention and state and local health agencies with an ongoing public health investigation. The FDA has received reports of fungal endophthalmitis in patients who were given Brilliant Blue G (BBG) during eye surgeries. Clinicians in several states have reported adverse events. The BBG was supplied by Franck’s Compounding Lab in Ocala, Fla. The pharmacy issued a recall of all lots of BBG on March 9.

Brilliant Blue G is not an approved drug in the United States. The FDA recommends that all Brilliant Blue G be immediately quarantined and returned. This includes all lots of BBG received from Franck’s Pharmacy. To assist with this investigation, Academy members are asked to report any cases of post-procedural fungal or bacterial endophthalmitis that occurred in the last six months that are associated with eye surgery in which BBG was used. Reports should be made to the FDA’s MedWatch Safety Information and Adverse Event Reporting Program:

Online at www.fda.gov/MedWatch/report.htm; or
Call 800.332.1088 to request a reporting form and return to the address on the pre-addressed form, or submit by fax to 800.332.0178.

For more information, contact the Academy’s Governmental Affairs Office at 202.737.6662.

UPDATE: 2012 OMIC Seminar and Course Schedule

Robert Widi — Thu, 22 Mar 2012 11:49:17 +0000

OMIC has issued more than $16 Million in premium credits for participation in our popular risk management courses since 2000. Upon completion of an OMIC online course, CD/DVD, or live seminar, OMIC physician insureds receive one risk management premium discount per premium year to be applied upon renewal. All programs qualify for a risk management discount equal to either 5% (standard) or 10% (approved cooperative venture event) of the insured’s premium.

Insureds who are members of a cooperative venture society earn the higher 10% discount (a credit worth up to $3,000) by participating in an approved OMIC risk management activity, which may be either a live seminar or an online or recorded course. Jointly-sponsored cooperative venture live events are indicated by CV Event below.

For more information on OMIC’s educational alliances with ophthalmic societies offered through the Cooperative Venture Network go here.

Contact Linda Nakamura at (800) 562-6642, ext. 652, or lnakamura@omic.com for questions about OMIC’s risk management seminars, CD/DVD recordings, or computer-based courses.

Calendar of Upcoming Live Events

Saturday, April 21, 2012

Professional Liability Risks Associated with Premium IOL Implants- Effective Management of Presbyopia-Correcting Patients
American Society of Cataract & Refractive Surgery 2012 (ASCRS)
McCormick Place West Convention Ceter, Chicago, IL
Time: 1:00-2:00 pm
Register with ASCRS at (800) 748-5064 or go to www.ascrs.org

Friday, May 4, 2012

OMIC Case Study
Maine Society of Eye Physicians & Surgeons 2012
Harraseeket Inn, Freeport, Maine
Time: 12 noon approximately
Register with the MSEPS at www.maineeyemds.com

Sunday, May 6, 2012 CV Event

OMIC Case Study
West Virginia Academy of Eye Physicians and Surgeons (WVAEPS) 2012
The Stonewall Resort, Roanoke, West Virginia
Time: 9:00-10:00 am
Register with the WVAEPS at www.wveyemd.org

Thursday, May 10, 2012

Lessons Learned from Malpractice Claims
Orange County Society of Ophthalmology
Grand Newport Plaza, Costa Mesa, CA
Time: Evening dinner event with speaker beginning at 7:45 pm
Contact Donna McPride at (949) 398-8100, ext. 107

Friday, May 11, 2012 CV Event

OMIC Closed Claims
Maryland Society of Eye Physicians and Surgeons (MSEPS) 2012
BWI Hilton, Linthicum Heights, MD
Time: 3:00-4:00 pm
Register with the MSEPS at (609)392-1201

Friday, May 18, 2012 CV Event

OMIC Closed Claims
Texas Ophthalmological Association 2012(TOA)
Sheraton Dallas Hotel, Dallas, TX
Time: 10:15 am-11:30 am
Register with the TOA at (512)370-1504 or go towww.texaseyes.org/

Sunday, May 20, 2012 CV Event

OMIC Case Study
American Society of Ophthalmic Plastic & Reconstructive Surgery (ASOPRS) 2012
Ritz-Carlton, Dove Mountain, Tucson, AZ
Time: 11:30 am to 12:30 pm
Contact ASOPRS at 952-646-2038 or go towww.asoprs.org/home.cfm

Saturday, June 23, 2012 CV Event

OMIC Closed Claims
Virginia Society of Eye Physicians & Surgeons 2012(VSEPS)
Sheraton National Hotel, Arlington, VA
Time: afternoon session
Register with VSEPS at (804)261-9890

Sunday, June 24, 2012 CV Event

OMIC Closed Claims
Florida Society of Ophthalmology 2012 (FSO)
Ritz-Carlton Grande Lakes, Orlando, FL
Time: Early morning, 7:00 am session
Register with the FSO at (904)998-0819 or emailcfilbert@mdeye.org

Sunday, July 1, 2012 CV Event

OMIC Case Studies
Grand Canyon Regional 2012 (Arizona Ophthalmological Society)
High Country Conference Center, Flagstaff, AZ
10:45 am to 11:45 am
Register with the AOS at (602)347-6901 or go towww.azeyemds.org

Friday, July 27, 2012 CV Event (see * below)

OMIC Closed Claims Study
Southeast Joint Annual Meeting includes the
- Alabama Academy of Ophthalmology (ALAO)*
- Louisiana Ophthalmology Association (LOA)*
- Mississippi Eye, Ear, Nose & Throat Association (MEENTA)
- Tennessee Academy of Ophthalmology (TAO)*
The Grand Sandestin Hotel, Destin, FL
Time: 7:00 am
Register with the TAO at (615) 794-1851 or contact specific ophthalmic society

Friday, August 10, 2012 CV Event

WIO (Weapons for Insurance in Ophthalmology): Risk Management Strategies You NEED to Know
Women in Ophthalmology 2012(WIO)
Kingsmill Resort, Williamsburg, VA
Time: 11:30 am-12:20 pm
Register with the WIO atwioonline.org/index.php/meetings/61

Friday, September 21, 2012 CV Event

OMIC Closed Claims
North Carolina Society of Eye Physicians & Surgeons 2012
Grandover Resort, Greensboro, NC
Time: Afternoon session
Register with Nancy Lowe, nlowe@ncmedsoc.org, (919) 833-3836 ext. 111.

Thursday-Saturday, September 27-29, 2012 CV Event

Table Rock Regional Roundup 2012 includes
- Arkansas Ophthalmological Society (AOS)
- Kansas Society of Eye Physicians & Surgeons (KSEPS)
- Missouri Society of Eye Physicians & Surgeons (MoSEPS)
- Oklahoma Academy of Ophthalmology (OAO)
Big Cedar Lodge outside Branson, Ridgedale, MO
Time: TBA
Register at www.tablerockroundup.org/

Sunday, November 11, 2012

OMIC’s Top Ten Indemnity Payments
American Academy of Ophthalmology Annual Meeting (AAO)
McCormick Place, Chicago, IL
Time: 2:00-3:30 pm
Free to AAO meeting registrants. Sign-in onsite while in the presentation room.

Online Courses

To register for one of OMIC’s online risk management courses go here.

CD Recordings

NEW!
How to Survive Malpractice Litigation: Lessons Learned
This audio-course will explore the personal, professional and legal issues that arise in malpractice litigation. Specifically, the faculty will discuss the importance of positive collaboration between the insured, the defense attorney and OMIC, and how this essential teamwork helps minimize the stress of litigation and increase the potential for a favorable outcome. Contact Linda Nakamura at lnakamura@omic.com or (800) 562-6642, ext. 652, for additional information..

For more information and a list of OMIC’s other seminar CD recordings go here.

You’ve Been Yelped: What You Should Know about Responding to Negative Online Reviews

Robert Widi — Mon, 19 Mar 2012 04:00:01 +0000

The online review sites Healthgrades, Yelp, and Vitals have become a popular way for patients to research and choose an ophthalmologist. Like it or not, these (and other review) sites have virtually taken the place of the telephone book as the primary vehicle for people finding you. They also can pose a serious public relations risk for your practice since anyone can post practically anything they want – good or bad – about you in seconds, and often anonymously.

In recent months, OMIC policyholders have reported negative comments posted by both patients and disgruntled employees. Complaints have ranged from personal attacks on physicians and staff to angry and snide comments from patients who were refused drug refills or denied approval for false claims of workers compensation or disability benefits. In one instance, a practice fired an employee for fraudulent billing only to have the employee imply online that the practice “allowed” her actions and encouraged it before firing her. Some involved blunt assessments of perceived (poor) service or misunderstandings about the practice’s policies or procedures and the most common complaints are rude staff, poor bedside manner, improper billing, and long wait times prior to visit. Sometimes poor reviews, if there is merit to their claims, are ultimately good for a practice when used as constructive feedback in areas that need improvement. Inflammatory statements, however, will undoubtably also turn off potential patients.

There are conflicting opinions on how to handle the comments themselves, but it would almost certainly be a “lose” proposition to respond directly online discussing the specific negative comment (or initiating a lawsuit). It will only make the issue much more likely to come up prominently in future searches of the doctor’s name or practice and many potential patients would be turned off just as much or more by the suit and choose another practice. Online facts become subject to the eye of the beholder. Remember it could be a HIPAA Privacy violation if details of a patient encounter were discussed in an open venue.

Read the following for more information:

Q&A

Q: Can I buy insurance to protect myself from negative online comments?

A: Insurance generally covers your defense of a suit as opposed to initiation of one. If you want to initiate legal action against a patient or another practice for defamation, you most likely will have to sue at your own expense unless you’ve purchased some kind of product or service that would cover such expenses.

NOTE: If your practice is accused of slander or defamation, then a Business Owners Policy (BOP) may cover your defense, depending on the circumstances, and you should contact your agent or carrier. However this is usually a competing practice that would bring such a claim (as opposed to a patient) and there may be limitations under your policy terms and conditions, therefore it is advised that you read your policy booklet to see what coverage is in fact provided.

Q: Is there a contract that I can have my patients sign that would restrict them from writing a negative review about me or my practice?

A: Probably not. The First Amendment protects a patient’s right to post negative comments about you online. You must prove the comments are a violation of some law, rule, policy, or statute in order to prevail. Many legal experts believe that attempts to limit patient’s legal right to post negative online reviews are dubious and are unlikely to prevail if challenged in court.

UPDATE: It was reported that a North Carolina company called Medical Justice tried to use copyright infringement law to limit patient’s rights to post negative reviews by selling legal “templates” to physicians that they were advised to have their patients sign. Under the agreement the patient would forfeit their review “copyright” allowing the physician to then monitor review sites and demand that bad reviews be removed as a violation of copyright. The legality of these contracts was challenged by a group called Public Citizen and in response to the lawsuit the group filed in December 2011, Medical Justice announced they would immediately discontinue recommending that medical professionals have patients sign such forms.

Q: What do “reputation management” companies offer to protect my practice from negative online comments?

A: Generally, these types of companies will “package” the following types of services:

Monitor search engines, review sites, and social networks for sensitive information or negative comments that mention you or your practice.
Attempt to increase positive search engine results (also referred to as SEO or Search Engine Optimization) by giving you tips on how to move negative reviews “lower” on the list when people search for your practice online.
Suggest ways to claim online presence such as setting up online social media pages and blogging about your practice.

OMIC’s policy is to refrain from commenting on products offered by vendors or third parties. However it may be noted that most of the services provided by these companies can also be performed by you or your practice. Whether or not the cost of these services (which can be several thousand dollars per year) is justified is really in the eye of the beholder.

Tips for “Do it Yourself” Online Reputation Management:

Claim Your Online Spaces. Create social networking pages for you and your practice on major sites such as Facebook, Twitter, LinkedIn, and other communities. This alone will increase your positive search results as they will often appear high during web searches. Your practice should also claim your names and spaces on major review sites if you haven’t done so already so they cannot be “commandeered” by a disgruntled person or practice.
Register Your Name. Create registered domains for your name and/or practice for whatever is available: For instance .com, .net, .info, etc. Search engines tend to put registered domains higher on search lists.
Blog about Your Practice. Even if you don’t have time to do original content, blog about basic things like upcoming practice events, seminars, personal news, procedures offered, or marketing initiatives. Whether people read the blog or not, it will help with your SEO by pushing negative comments lower on search lists.
Download Tracking Apps. There are many inexpensive apps you can download on your computer or PDA that will notify you if your name or practice are mentioned on social media or review sites.
Offer Patient Surveys. Encourage your patients to complete surveys as part of their ophthalmic visit. Ask for permission to post their review or direct them to the online space to give a review. Most of your patients are probably happy and so the positive reviews will far outweigh any average or poor ones. Create your own surveys and incorporate into your patient visit procedures or investigate MedRounds.org below. (Practices should always have permission before publicizing any comments or testimonials from a patient)
Google Yourself. Attempt to identify sensitive or problematic online information and take steps to delete or respond to it.
Establish a Social Media Policy.See the OMIC article Social Networking Policy for Your Ophthalmic Practice for tips on securing and protecting your practice reputation and sensitive information from disgruntled employees

Go here for more advice: http://mashable.com/2010/09/30/improve-search-rank-for-your-name/

If you have discovered a negative online comment about you or your practice, here are suggested remedies you may choose to pursue.

Determine whether the post or comment is from a real patient that was treated by you.

Not all posts are from your patients. In some cases a review, comment, or rating may actually be intentionally untrue, left by a disgruntled patient, competitor, or employee. When the negative comment is posted, search engines like Google, Yahoo, or Bing may bring up the false statement every time someone searches your name for years to come.

Before responding to a negative review online, try to determine the following (if possible):

Mistaken Identity. Has the poster incorrectly identified you when actually referring to a different physician with similar name?

Fraud. Is the post an attempt by a competitor to attract new patients by casting your practice in a negative light?

Disgruntled Employee. Could this be the act of a current or former employee who is upset and wishes to damage the practice?

Friend or Relative of Patient. Is the post actually written by someone without any first-hand knowledge of the treatment?

What you can do:

Check medical records, appointment logs, billing ledgers, and office notes. If details are offered in the post it may be obvious whether or not was your patient. Discuss with staff members to determine whether it could be a legitimate post.

If after researching the matter you believe the post is not from an actual patient, contact your personal attorney to determine the best way to proceed. You will most likely be advised to do the following:

Contact the Poster. If the poster can be identified, try contacting them to respectfully request that they remove the comment. Remain civil and respectful and refrain from threats or provocative statements. If the poster refuses to comply with your request, ask your attorney to send a strongly worded letter to the poster asking that the comment be removed and warning of potential litigation.
Contact the Website. If the poster is not identified (or not cooperative), contact the website. DO NOT join the site if you are not already a member. Many review websites have policies against defamation and will examine the comments to make sure that they do not violate the sites terms and conditions. Be respectful and cooperative with the site, and be ready to justify why you believe the post is fraudulent and/or inaccurate. If you join the site, you may agree to the terms and conditions of the site which could limit or waive your rights to legally challenge defamatory comments in the future.
Seek a Subpoena. If the website provides no assistance in removing the comment, speak with your attorney about whether to seek a subpoena ordering the Internet service provider to give identification data. During a defamation investigation, you may be granted a subpoena to remove the comments in question. Identification information could be an Email address, name, or address of the poster.
File a Lawsuit. If all above attempts prove unsuccessful, you may decide to request a court order or to file a lawsuit. In order to be successful in having a court order the removal of online comments, you must be able to provide evidence that they most likely are inaccurate and are causing irreparable harm to your practice. This will most likely require that you proceed with a lawsuit or formal legal complaint first, which would then result in a court order for the removal of the comments.

If you are reasonably sure that the post is from an actual patient and refer to legitimate concerns or opinions, whether you agree with the views expressed in the post or not, you may want to try contacting the patient directly to discuss his or her concerns and to request that the comment be removed. You may find that there is a reasonable solution to the patient’s frustrations.

If the patient is uncooperative or if you feel it would be unwise to contact the patient directly, you may follow the steps described above to get the comments taken down or pursue legal remedies.

Observations:

Freedom of speech protections allow patients to say or write things about you as long as what they say does not cross a line of being defaming, slanderous, threatening, obscene, or in some way a violation of the terms and conditions of the site on which it is posted. Personal opinions and perceptions are protected and do not necessarily have to be accurate.

It is also often difficult to win defamation cases (i.e what you might consider “outrageous” or “slanderous” may not meet a legal definition for these terms). Because the First Amendment creates this high legal bar for legal defamation, it’s simply often not worth the effort to litigate such things, which can last for years and generate additional “bad publicity.” Therefore it is advised that you speak with counsel in order to determine whether the comments are simply strong opinions, which are most likely legally protected speech, or actual defamation that should be litigated.

The best way to handle these situations is probably to simply rise above it and encourage your other patients to write comments about their experiences. You should never ask patients to submit “rebuttals” to a negative review, but rather simply ask patients to post (or authorize you to post) honest comments about their experience. Most of the your patients are probably happy and if there is a consistent process for encouraging feedback the good reviews will eventually far outweigh any bad ones.

Other things to consider:

If you believe the comments could signal that a patient is considering additional actions such as a medical malpractice or fraudulent billing complaint against you contact your malpractice insurance carrier to report the incident.
If you believe that it would be in your best interest to terminate the physician-patient relationship, make sure to follow OMIC’s Risk Management Recommendations to avoid allegations of patient abandonment.
Do not contact an angry patient without consulting with an attorney first.

NOTE: The above article is not intended to constitute legal advice. You should always consult with an attorney prior to any actions you take regarding this legal matter.

http://www.ama-assn.org/amednews/2011/12/12/prsa1212.htm

http://www.kevinmd.com/blog/2010/01/poll-doctors-patients-give-negative-online-review.html

http://doctoredreviews.com/

http://techland.time.com/2011/04/14/how-do-doctors-avoid-bad-online-reviews-legally/

http://abcnews.go.com/blogs/health/2011/12/01/dentist-threatens-to-sue-patient-for-negative-yelp-review/

http://www.kevinmd.com/blog/2011/12/bury-bad-doctor-reviews-strong-physician-social-media-presence.html

http://www.thehealthlawfirm.com/resources/health-law-articles-and-documents/Online-Reviews-for-Doctors.html

http://www.rosemontmedia.com/industry-news/is-the-yelp-review-filter-hurting-doctors-reputation

Resources:

http://www.medrounds.org/main/ (Disclosure: OMIC Board Member Dr. Andrew Doan has financial interest)

Terminating the Physician-Patient Relationship

Social Networking Policy for Your Ophthalmic Practice

Read the Label Carefully: How Advertisements for “Off-label” Drugs or Devices Could Harm Your Practice

Robert Widi — Thu, 23 Feb 2012 03:50:08 +0000

When legal action is initiated against your practice alleging medical malpractice, plaintiff attorneys often carefully review your advertisements, radio and television commercials, web site and social media pages, marketing brochures, and patient education documents looking for inaccurate, unsubstantiated, or misleading information. Problematic statements in your advertisements, if relevant to the case, could sway potential jurors in favor of the plaintiff and require settlement of a claim even if your care was otherwise defensible.

Marketing for both refractive surgery and “off-label” usage of ophthalmic drugs or devices have been in the news recently after the FDA released a September 2011 statement highlighting increased scrutiny for advertising by ophthalmic practices. Because your marketing activities may carry significant legal and ethical risks for your practice, OMIC strongly recommends careful review of your marketing campaigns to ensure that all materials comply with FDA (and other regulatory and professional) requirements.

If a drug or device has been approved by the FDA for a specific use or medical procedure and subsequently is used “off-label” for a different procedure (regardless of how common the off-label usage becomes) the advertisement of the off-label use of an identified drug or device may not be allowed. Physicians should also not claim a drug or device is “FDA approved” when it is being used for an off label procedure that is different from the actual procedure for which the approval was originally granted.

Because ophthalmologists who publish misleading marketing materials may face increased professional liability exposure, your malpractice carrier may be unable to maintain coverage if advertisements fall substantially outside of required regulatory or ethical guidelines. You could also face lawsuits from other ophthalmic practices for “unfair trade” resulting from inaccurate or fraudulent advertisements or face ethics investigations by professional and medical societies.

See risk management tips below, including a list of resources that may help you identify and avoid increased exposures from your advertisements. Because of the prevalence of refractive surgery and off-label drug and device advertising, some resources are specifically related to those topics, however there are also general advertising guidelines and requirements that pertain to any ophthalmic practice. It is strongly encouraged that you instruct your marketing consultants to comply with all applicable regulatory and advertising restrictions.

Risk Management Tips: