By Mary Kasher, MSN, JD
OMIC Claims Manager

[Digest, Winter 1999]

Allegation

Delayed diagnosis of an eye infection and dispensing medication without a license.

Disposition

Claim dropped by plaintiff prior to litigation.

Case Summary

A 73-year-old woman who had been under the care of the insured ophthalmologist for several years called the insured's office to report redness and soreness in her left eye. A prescription was called in to a local pharmacy. At this point, the patient's version of the facts differs from the ophthalmologist's version. The patient relayed that she called the insured's office to report severe pain and an extremely red left eye and to make a same-day appointment. She claimed that she spoke to a secretary who told her it was not necessary to be examined and that she would call in a prescription to the pharmacy. The patient picked up the medication and put two drops in each eye as prescribed. The redness and pain worsened at which point she called another ophthalmologist who saw her the next morning. The second ophthalmologist told the patient she had a very bad infection and had been prescribed the wrong drops. She was given a new prescription to start immediately and told to call back if there was any increase in her symptoms. The patient tried the new drops and was instantly relieved of the pain and redness.

According to the insured's medical records, the patient called his office to report that she had lost the eye drops and needed a refill on the prescription. During the conversation with the office technician, the patient reported that the pain and redness had decreased since the previous day and that the drops appeared to be working "but not very fast." The tech-nician contacted the ophthalmologist who called in the prescription to the pharmacy himself. The technician then called the patient back to tell her to pick up the prescription and to call the office if her eye did not improve.

Analysis

Often, when a patient relates the facts of a case to an attorney, there is a significant variance from the actual facts. The patient may well believe his or her own rendition of the facts and may relay them very convincingly to the plaintiff attorney. Following the initial meeting with the patient, the plaintiff attorney generally will turn to the medical record for additional facts. A medical expert may be called in to review the records after which the plaintiff attorney will determine if the case has enough merit to pursue liti-gation. In this case, the plaintiff attorney skipped the review by the medical expert and sent a scathing letter to the insured alleging: (1) Negligence by the insured for failure to diagnose and correctly treat an eye infection; and (2) Practicing medicine without a license by his secretary for prescribing medication.

During discussions with the insured and a review of the medical record, it became clear to the OMIC claims staff that there were discrepancies in the plaintiff's presentation of the facts. First, the record showed that the patient had been diagnosed with blepharitis and was on medication that was improving the condition. (The subsequent treating physician also diagnosed blepharitis and prescribed the same medication!) Second, it was the ophthalmologist who called in the prescription to the pharmacy, not the technician. A phone call from the OMIC claims staff to the plaintiff attorney to point out that neither of the plaintiff's contentions could be sustained by the medical record was sufficient to dissuade the attorney from continuing litigation.

Risk Management Principles

Melvin Belli, the notorious San Francisco plaintiff's attorney, once said, "In the eyes of the law, the best doctor in the world is only as good as his worst employee." In this case, the staff was exceptional in handling the patient and documenting what occurred in the record. Would your staff have documented this situation as well? Here are some tips for handling patient phone calls.

• Office staff should have clear guidelines for handling phone calls from patients. These guidelines should include telephone triage instructions such as those suggested by the American Academy of Ophthalmology's Allied Health Audio Education program (call the Academy to order, 415-561-8540).
• If you are away from the office, make sure staff refers all medical questions from patients to the doctor who is covering for you. Leave instructions on how staff should deal with inquiries about prescription refills and other routine matters.