No-Shows Can Spell Trouble for Attending Ophthalmologists
By Oksana Mensheha, MD
Argus, June, 1992
A patient’s failure to keep an appointment or to follow through on a referral to a specialist can expose the attending physician to liability if a complication or injury occurs because the patient failed to obtain treatment. The ophthalmologist should document missed or canceled appointments in the patient’s chart and, when appropriate, follow up with a phone call. Patients may simply forget routine visits, or they may be dissatisfied with the physician, and a no-show may be the first sign of a potential claim.
A case from the OMIC files illustrates the importance of the attending ophthalmologist communicating to the patient the potential seriousness of an eye problem and the need to follow through on a referral to a specialist.
A patient complaining of double vision was seen three times over a two-month period. At the third visit, proptosis of the right eye was noted. Three months later the patient returned with the same complaint. The ophthalmologist made a note in the chart to consider a neurological work-up and told the patient to return if there was no improvement. The patient never returned to this ophthalmologist, but a subsequent treating ophthalmologist obtained a CAT scan, which revealed a retrobulbar mass. Although the mass was removed, the patient sustained a residual defect and sued the first ophthalmologist. The case was settled for more than $100,000.
Sometimes, patients deny the seriousness of their problem; then, when the full problem unfolds and denial is no longer possible, they turn their frustration and anger on the physician. A young man was treated for “red eye.” He then missed his next two scheduled appointments and did not return until three months later when he presented with an overwhelming herpetic infection. The infection was successfully treated, but if the ophthalmologist had contacted the man when he missed his first appointment and treated him sooner, a potential claim would have been avoided.
In these cases, significant problems stemmed both from the ophthalmologist’s failure to communicate the seriousness of the problem to the patient and from the patient’s failure to return for scheduled appointments. This breakdown of mutual responsibility often results in lawsuits against physicians alleging failure to provide appropriate and timely referral or follow-up care. Although patients clearly bear some responsibility for follow-up care, especially when the need for such care or the patient’s role in seeking follow-up care has been explained to the patient, patient responsibility alone does not provide the ophthalmologist with an ironclad legal defense if a malpractice suit ensues.
Ophthalmologists would be well advised to consider the following risk management guidelines when dealing with patients who fail to follow through on treatment:
Listen to and document the patient’s complaints and symptoms.
Communicate to the patient all your concerns about the patient’s problem as well as your plans for further treatment.
Develop a system of reminding patients to follow through on referrals to subspecialists and document in the patient’s chart that you have done so.
Personally review all test results and reports from consulting physicians before they are filed in the patient’s record, and be sure that the patient has been notified of these results.
Document all missed appointments and have these charts placed on your desk at the end of the day for review. When appropriate, contact patients to reschedule. Do not erase or otherwise obliterate cancellations and no-shows in the daily log. If the patient has been referred, the referring physician should be notified of any missed appointments.
Documenting Patient Calls Is Prudent Risk Management
By Michael R. Redmond, MD
Argus, July, 1992
Most ophthalmologists know that the telephone is essential to their practice, but few think of it as an important aspect of risk management. Because the telephone is usually the patient’s first contact with the ophthalmologist’s office, it should be used to make the patient feel welcome and important, not put off or ignored. Telephone contact alone may be considered enough to establish the physician-patient relationship. Accordingly, telephone contact should always be courteous and helpful so patients hang up feeling that their problems will receive the proper attention and will be resolved appropriately.
The ophthalmic office staff often are responsible for “telephone triage.” Inability to reach the ophthalmologist by telephone in times of perceived crisis is a common complaint of patients. Untrained staff without proper guidelines for handling urgent and emergent care can create the risk that patients may not receive care in a timely manner, or that incorrect or inappropriate advice will be given out.
Every office should establish prescription renewal procedures. The staff person handling the renewal should secure the ophthalmologist’s verbal approval, document it fully in the chart, and date and sign it. Although not all telephone contacts require documentation, anything unusual-an angry, belligerent or threatening patient, for example-should always be well documented.
The ophthalmologist and office staff must be careful about giving treatment, advice or explanations, or obtaining informed consent over the telephone. Always have the chart available before talking to a patient, and document these conversations. They can be quickly recorded when the chart is in hand at the time of the call.
Treating a patient over the telephone without examination may leave you open to criticism. There is always the risk of incomplete information, misinformation or drug misuse, especially in a multi-physician practice where all the particulars of a patient’s condition may not be known to the ophthalmologist taking the call. Always ask about potential “problem patients” before assuming a call for another physician and pass on this information to any ophthalmologist covering for you, both as a courtesy and in the interest of patient care.
Periodically review your after-hours answering service as to qualifications, courtesy and timeliness of physician contact. Physicians have been held vicariously liable for the failure of their answering services to contact them in a patient emergency.
Once again, documentation is critical. Each physician in a practice should have a logging system both at the office and at home for recording and transcribing telephone notes into the office chart in a timely fashion. Nothing is more comforting when you are challenged than being able to go back to the chart and pull up an old note supporting your position.
Pre-printed phone record pads ensure that office staff renewing prescriptions by phone document the necessary information. This should include the approval of the treating physician, the caller’s and patient’s names, a phone number where they can be reached, a brief history of the patient and the nature of the call, the prescription name and recommended follow-up, and the pharmacy filling the prescription. The staff person should date and initial the phone call record, and indicate the times the call was received and returned.
OMIC offers pre-printed telephone record pads to its insureds. Call OMIC at 415-202-4652 for more information.
This continuing series on risk management is presented by the Ophthalmic Mutual Insurance Company (OMIC), a risk retention group providing professional liability insurance exclusively to Academy members. If you have comments or questions, write or call OMIC, 655 Beach St., San Francisco, CA, 94109 or (800) 562-6642.
Jury Education Averts Potentially Large LASIK Verdict
By Richard Isom
OMIC Claims Associate
Digest, Winter 2003
ALLEGATION Negligent LASIK from decentration and resulting in multiple images.
DISPOSITION Plaintiff verdict refunding cost of surgery.
Case Summary
A 46-year-old female was interested in having LASIK surgery. She presented to the insured with complaints of cloudy and blurry vision, particularly in the right eye. VA with correction was 20/30+2 OD and 20/25-2 OS. The patient returned a week later to complete the surgical workup, including preoperative studies and informed consent. Three weeks later, she underwent LASIK on the right eye. On the first postop day, the patient complained of cloudy and blurry vision. On the second postop day, she reported seeing triple images. Her vision was less cloudy but continued to be blurry. Uncorrected VA OD was 20/200. The patient was seen frequently by the insured over the next week. On the twelfth postop day, when there still was no improvement in vision, the insured sent the patient for a second opinion. Corneal topography later that same day determined that the ablation zone was decentered temporally.
The patient returned to the insured for surgical enhancement. Prior to the enhancement, VA was 20/60. Six weeks following the initial LASIK, the patient underwent surgical enhancement by the insured. In the immediate postoperative period, VA was 20/80 with triple images. One month later, VA was 20/60 with multiple images. Last reported VA was 20/30, but the patient continued to complain of multiple images.
Analysis
The patient eventually filed suit against the insured, alleging negligent LASIK from decentration and resulting in multiple images. Experts for the plaintiff alleged that the insured lacked the expertise to perform the procedure and most likely misaligned the beam causing decentration. They were critical of the insured for inadequate charting.
The defense countered that the decentration was most likely caused by the patient’s failure to fixate properly because even very subtle eye movement, undetectable by the physician, can cause decentration. Further, the defense argued that decentration is a known complication of LASIK, that it can occur in the absence of negligence, and that it was more likely to occur given the technology available at the time of the plaintiff’s surgery. The jury was advised that every procedure has risks, that there is no guarantee of success as stated in the informed consent, and that recent advancements in technology are now able to track a patient’s eye movements and help reduce the likelihood of this particular risk.
Risk Management Principles
LASIK surgery continues to undergo frequent advancements in technology and technique. Available technology at the time of this surgery did not allow for detection of subtle patient eye movement, whereas current technology has made it possible to detect minor eye movements and avoid most alignment problems. Additionally, new technology has made correction of unsatisfactory results a possibility, thus potentially reducing the damages a plaintiff is likely to be awarded.
At trial, experts, witnesses, and attorneys on both sides were prepared and well received by the jury. A battle of the experts might have ensued had the defense not presented a timeline charting available LASIK technology and potential complications at the time of and subsequent to the surgery in question. This refuted the plaintiff’s claim that the insured ophthalmologist was negligent in not detecting the eye movement that caused misalignment of the beam and resulted in decentration. As a result, and because of the education they had received during trial about the potential risks and benefits of LASIK and available enhancements to correct poor results, the jury was disinclined to award a large verdict and decided the plaintiff was entitled only to the cost of surgery.
That LASIK is now perceived by the general public to be a relatively benign procedure was apparent in a local newspaper article about the trial. The article reported that 70% of LASIK procedures are completely successful and that less than 5% of LASIK patients suffer negative side effects. Given the number of successful procedures and the advancing technology, the average juror may no longer view LASIK as the frightening and dangerous procedure it once was thought to be.
Codefendant Ophthalmologist Testifies Against OMIC Insured at Trial
by Ryan Busci, OMIC Senior Claims Associate
Digest, Winter 2005
ALLEGATION Negligent cataract surgery and displaced intraocular lens, resulting in endophthalmitis and enucleation.
DISPOSTION Defense verdict for OMIC insured. Codefendant settled with an indemnity payment.
Case Summary
An OMIC insured ophthalmologist performed a cataract procedure on a 73-year-old male patient. During the procedure, there was a posterior capsule rupture with some corneal edema. The insured performed a Weck cell vitrectomy, an “open sky” procedure that uses a cellulose sponge to hold the vitreous as it is cut with scissors. The following day, he noted that the patient still had blood in the eye and visual acuity of hand motion. Seven days postoperatively, the insured concluded that there was still blood in the eye but no sign of infection. Visual acuity had improved to count fingers.
Approximately two weeks later, another ophthalmologist saw the patient in the emergency room. This ophthalmologist diagnosed a dislocated intraocular lens. He admitted the patient to the hospital and removed the intraocular lens; no antibiotics were administered during this procedure. He discharged the patient on the second postoperative day despite examination evidence of increased inflammation, which was left untreated.
One day after discharge, the patient presented to this ophthalmologist’s office with additional signs and symptoms consistent with an infection. The ophthalmologist administered topical antibiotics but took a “wait and see” approach and had the patient return in 24 hours. When the patient returned the following day, he was diagnosed with endophthalmitis.
The patient underwent a vitreous tap and injection of antibiotics by a third ophthalmologist but ended up with no light perception in the operated eye. Eventually, the patient required an enucleation and later developed orbital cellulitis, which required removal of the implant.
Analysis
Taking a case to trial, much like performing a surgical procedure, has its risks and potential for complications. In this case, OMIC had what it believed to be a unified defense for its insured going into trial but recognized the difficulties facing the codefendant ophthalmologist’s case.
During the first day of trial, the codefendant ophthalmologist settled with the plaintiff. He then testified that the insured’s Weck cell vitrectomy had created areas and grooves, which had allowed bacteria to land and grow, thus providing a tissue environment for the subsequent infection. This was new information that the codefendant had not offered in his deposition. Had OMIC and defense counsel known that the codefendant was going to be critical of the insured’s care, this may very well have changed the pre-trial evaluation of the defensibility of this case.
However, upon cross examination, OMIC counsel was able to get the codefendant to admit that it was not below the standard of care for the insured to have had the complication of the broken capsule or to have used the Weck cell for the vitrectomy in the initial cataract surgery. In fact, there were absolutely no signs of infection during the insured’s treatment of the patient and no signs of infection detected until after the codefendant’s removal of the intraocular lens.
The plaintiff and codefendant could not dispute these medical facts or OMIC’s strong expert witness support for the insured. The jury agreed and rendered a defense verdict on behalf of the OMIC insured.
Risk Management Principles
Statements criticizing the care of another treating physician are often the root cause of malpractice claims and lawsuits. It is imperative to exercise great caution when commenting on another physician’s care in front of a patient. Concerns about the care of a treating physician are more appropriately discussed with the physician, not with the patient.
Going into trial with a unified defense is extremely helpful to the overall defense of a case. Finger pointing among defendants is usually not well received by a jury. When codefendants criticize one another, they are essentially testifying for the plaintiff. Shifting blame or criticizing someone else does not guarantee that you will not also be named in the lawsuit nor will it necessarily help you at trial.
Fear and Loathing of Malpractice Litigation
By Paul Weber, JD
Mr. Weber is Vice President of OMIC’s Risk Management/ Legal Department.
Digest, Fall 2003
To the view the tables referenced in this article, go to http://www.omic.com/new/digest/DigestFall_03.pdf
Media coverage of the impact of malpractice litigation typically focuses on multimillion dollar jury awards, skyrocketing insurance premiums,and physicians who decide to relocate or retire early because an unfavorable malpractice climate has made it too expensive to continue practicing in their state. Regrettably, scant coverage is given to the pervasive negative impact that fear of litigation has on the decision making of physicians and the delivery of health care services.
In March 2002, a Harris poll was conducted by phone and online of more than 300 physicians to provide insight into the impact that fear of litigation has on the practice of medicine and the delivery of medical care. (The results of the Harris poll, as well as other polls relating to the medical liability crisis, can be found on the Common Good web site at http://www.commongood.org/blog/c/health-care)
OMIC interspersed many of the Harris poll questions throughout its recent Mock Litigation interactive presentation before more than 230 ophthalmologists in Anaheim. The results of OMIC’s informal “poll” are strikingly similar to the Harris poll. Both polls indicate that fear of litigation influences all aspects of health care decision making, from ordering tests, prescribing medications, and making referrals to a reluctance to discuss adverse events with colleagues.
That many medical professionals’ behavior is clearly influenced by their fear of litigation can perhaps be explained by the finding that the overwhelming majority of physicians (85% in the OMIC poll and 83% in the Harris poll) do not believe they can trust the current system of justice to achieve a reasonable result if they are sued. This widespread mistrust contributes to feelings of apprehension of possible lawsuits and encourages the practice of defensive medicine rather than care based on medical need.
The Harris and OMIC polls asked the following question concerning three areas of medical care: “Based on your experience, have you noticed fear of malpractice liability causing physicians to (1) order more tests; (2) prescribe more medications; and (3) make more referrals than they would based on professional judgment of what is medically needed?”
As Figure 1 shows, both polls overwhelmingly demonstrate that the omnipresent fear of having to deal with litigation results in excessive treatment. Not surprisingly, physicians were nearly in unanimous agreement in both polls (99% of OMIC respondents; 94% of Harris respondents) that these extra tests, medications, and referrals contribute in a significant way to health care costs. The fact is that every time a test is ordered or a treatment is rendered that is not medically necessary, health care funds are diverted away from a patient who really needs the care, while the patient undergoing the test or receiving the treatment is exposed to an unnecessary risk.
A paradox can be observed here. Even though physicians are increasingly using tests and referrals to avoid malpractice litigation, claims and lawsuits continue to rise. As Figure 2 shows, OMIC claims frequency has been rising steadily and substantially since 1998.
Apparently for OMIC insureds, more treatment does not result in fewer claims. Indeed, as Figure 3 demonstrates, some of the OMIC claims that have resulted in the largest payouts to patients are in fact related to allegations of failure to order a test leading to failure or delay in diagnosis or allegations of failure to make a timely referral leading to delayed treatment. The number of large payout cases ($500K and above) has increased severely since 1998. From the company’s inception in 1987 to 1998, there were only five large losses; there have been ten large losses in the ensuing five years.
The increase in frequency and severity of OMIC claims is not due to a decline in the quality of ophthalmic care. It remains constant that year after year, the vast majority of OMIC claims (over 78%) are disposed of without an indemnity payment to the patient. It is commonly accepted that most claims and lawsuits are attributable to a combination of unmet patient expectations regarding a procedure or course of treatment and poor doctor-patient communication. Throw the following technological and societal dynamics into the mix and you have a recipe for claims:
- Improved outcomes leading to unrealistic patient expectations.
- A large population of lawyers practicing in a litigious society.
- HMOs and other managed care entities contributing to real and perceived perceptions of problems with access to health care.
As a result of the current dysfunctional litigation system, there is an unfortunate sense of futility among physicians that there is little they can do to avoid being named in a malpractice suit. This sentiment is often expressed by OMIC insureds in surveys conducted by the Claims Department after a claim or lawsuit has been closed. One of the comments most frequently heard by insureds is that the claim was frivolous and there was nothing they could have done to avoid it. The following comment by one insured sums up the frustration felt by many with a tort system that seems unjust. “It appears that plaintiffs have unlimited rights and the accused have no rights. In the eyes of Medicare, state licensing boards, and hospital boards, doctors are presumed guilty and must prove their innocence. Reports of staggering malpractice jury awards add to the fear that regardless of the facts, regardless of guilt or innocence, doctors are at risk of losing everything they own with any lawsuit brought against them. These outrageous awards also encourage a ‘win the lottery’type of mentality on the part of plaintiffs and a feeding frenzy for lawyers hungry for cases. The current liability system is terribly unfair to doctors and in no way helps us take better care of our patients, which should be our primary goal as physicians.”
Physicians in both the OMIC and Harris polls agree that 95% of malpractice claims arise as a result of adverse results rather than actual error. However, in a litigious society, the priority is to find “fault” and not to be unduly concerned with whether it was an “adverse result” or an “error.” An emerging patient safety movement is critical of the current system of health care delivery for being overly complex,ineffective, and intrinsically hazardous. It proposes shifting the focus of malpractice litigation from finding fault to scientific and analytical review of medical errors with the goal of preventing such errors in the future.
The patient safety movement understands that as medical care becomes increasingly complex, there are many opportunities to improve quality and safety and reduce costs. Failures of the system occur as a result of a combination of multiple small failures, each individually insufficient to cause an accident but when combined, capable of leading to catastrophic injuries. Since fault is not the focus of the patient safety movement, it fosters among health care providers an open and ongoing analysis of the latent and active errors that contribute to incidents and near misses. There already exists in medicine a collaborative inclination to openly discuss and consider ways to reduce errors. Both polls found that physicians strongly agree that open communication and analysis of incidents, adverse events, and errors helps them avoid similar mistakes. However, a significant barrier to information sharing among physicians is the fear that this information will somehow be used to prepare a lawsuit against them.
There is no one quick fix to remedy the negative impact and detrimental effects that fear of litigation has wrought on health care providers and, consequently, on patient care. Reversing this trend will require a strong, sustained effort to raise awareness among patients and providers of the seriousness of the situation and the efforts being made in health care to improve patient safety.
Figure 3
State Indemnity Year Allegation
RI $500K 2003 Failure to diagnose brain tumor
CT $500K 2003 Failure to diagnose retinal melanoma (patient died)
IL $1M 2002 Steroid mismanagement (joint degeneration)
TX $850K 2002 Failure to diagnose lung cancer
TX $500K 2002 Negligent retrobulbar to treat pain
TX $500K 2002 Numbness OS post retrobulbar to treat pain
AZ $1.8M 2001 Failure to diagnose/treat pediatric glaucoma
IL $1M 1999 Failure to treat pediatric corneal ulcer in the ER
MA $1M 1999 Stroke post strabismus surgery
AZ $740K 1999 Negligent administration of marcaine via catheter (patient died)
GA $575K 1996 ROP lost to follow up
TX $735K 1995 Failure to diagnose endophthalmitis post cataract surgery
FL $656K 1995 Corneal perforation during blepharoplasty
FL $500K 1995 Garamycin toxicity causing blindness
FL $790K 1993 Failure to diagnose pituitary tumor (patient died)
