By Paul Weber, JD
OMIC Risk Manager
[Digest, Fall, 1999]
Comanagement of refractive surgery patients with optometrists is one of the most controversial and divisive topics among ophthalmologists. OMIC has never taken a position for or against patient comanagement, but is concerned that ophthalmologists who are comanaging do so in such a way as to minimize patient injury and reduce the risk of malpractice litigation. This column addresses some of the medical malpractice liability risks that arise when comanaging with optometrists. Future Hotline columns will address other legal risks associated with comanagement, such as allegations of fee splitting, improper referral arrangements, and postoperative treatment of patients who had surgery in Canada.
Q Can optometrists legally comanage refractive surgery patients?
A This depends on whether the optometrist practices in a state in which postoperative care is within the "scope of practice" of optometry. In many states optometrists are permitted to comanage surgical patients, but in others the law is in a state of flux. Ophthalmologists should seek the advice of legal counsel to determine the optometric scope of practice in their state.
Q Can an ophthalmologist be held liable for a comanaging optometrist's negligent treatment?
A Under certain legal theories, an ophthalmologist can be held liable for an optometrist's negligence. The theory of vicarious liability holds that if an ophthalmologist and optometrist are in an "apparent partnership" or act as each other's agents, they share liability if a patient incurs an injury as a result of either party's negligence. If their conduct causes others to believe they are in a partnership (e.g., joint advertising, billing on the same letterhead, referring to each other as partners to patients), they can be held vicariously liable for the other's actions. Even if only one party mischaracterizes the relationship as a partnership, the plaintiff still may be able to hold the other party liable under this theory. Therefore, ophthalmologists need to be aware of how comanaging optometrists portray the comanagement relationship to patients and others. This is especially true given the intense marketing surrounding refractive surgery.
The theory of negligent referral applies if an ophthalmologist refers a patient to an unqualified optometrist and the optometrist injures the patient while providing postoperative refractive care. The plaintiff has to prove that the ophthalmologist knew or should have known that the optometrist was unqualified. For example, is there a pattern of negligent performance that would indicate to a reasonable ophthalmologist that the optometrist was unqualified? To avoid claims of negligent referral, an ophthalmologist should check the qualifications, training, and malpractice history of a comanaging optometrist, including a visit to the optometrist's office to observe how thoroughly the optometrist examines the postoperative refractive patient. To help ensure quality postoperative care, some ophthalmologists sponsor training seminars for their comanaging optometrists to review proper examination of refractive surgery patients and diagnosis of common postop problems.
Q What can an ophthalmologist do to minimize the risk of injury and claims arising from refractive surgery comanagement?
A During the informed consent process prior to refractive surgery, the ophthalmologist should discuss with the patient who will provide the postoperative care. Clearly, the final
decision must be left up to the patient, and the ophthalmologist's input into that decision must be predicated on the patient's well being. If the patient elects comanagement with an optometrist, this decision and the reasons behind it should be carefully documented in the chart in the event the patient later claims abandonment by the operating ophthalmologist.
Even if the optometrist is allowed to provide postoperative care under applicable law, some states allow the physician to "delegate" only a portion of the postoperative care to a non-physician and require the physician to "supervise" the non-physician's care. OMIC has developed a postoperative care guideline that follows this rule and advises insureds to place documentation in the patient chart reflecting supervision of the comanaged postoperative care. This could be a signed review of faxed exam reports from the optometrist. The important thing is to make sure supervision occurs and is documented.
