Medical Information and the Internet

 By Byron H. Demorest, MD

Digest, Winter 1997

Patients now have a convenient and complete bibliography at their fingertips with access to a remarkable medical library on the Internet. Software stores sell directories of web sites featuring information on specific medical problems. Because of this, patients may ask us more educated questions and have a better knowledge of their diagnosis or treatment. Conversely, they may misinterpret or misunderstand some of the medical literature they read on the Internet, leading to doubts or confusion.

Since Cobbs v. Grant, 8 Cal. 3d 229 (1972), it has been a legal requirement that physicians provide sufficient information to their patients to allow them to give consent for surgery or medical therapy. This education of the patient is essential and should be as complete as possible. Physicians use a vast array of patient information materials, including brochures, videotapes, and personal conversation. For some patients, physicians may suggest that additional information is available on the Internet. 

Patients Cruise Internet for Medical Information

The development of the Internet allows patients who used to rely solely on physicians for information about their illness or treatment to turn on their computer and dial into a vast collection of knowledge – some of which may be reassuring and some of which may be worrisome to them. Without the benefit of a physician to translate the medical language, patients who cruise the Internet to verify information their doctor has given them may find it to be a frustrating or negative exercise. It has been said that seeking reliable information from the Internet is akin to sitting between two informants. The Nobel prize winner on your right may give an opposite opinion to the huckster on your left. If you are a naive inquisitor, you won’t know which person to believe.

Consider this case history. A 45-year-old female schoolteacher sought correction of 40 prism diopters of left extropia due to the fact that her students often made fun of her appearance and complained that they could not tell when she was looking at them. A recess-resect operation on the deviating eye was recommended, and a careful discussion followed of the risks of both local and general anesthesia as well as the risks of surgery. Corrective surgery was approved by the patient’s medical insurance company in spite of her age, and surgery was scheduled.

One week before the scheduled operation, the patient called the ophthalmologist with “some questions.” A lengthy phone call resulted, as the patient outlined in detail the major complications of retrobulbar anesthesia as well as the number of deaths and near deaths following general anesthesia. She quoted several journal articles she had read on the Internet that local anesthesia may cause ocular muscle fibrosis. Aware that retrobulbar anesthetic needles sometimes perforate the eye, the patient was now convinced that both types of anesthetic would be unacceptable to her. Although she still wanted to have her eye straightened, she no longer was willing to face the risks of surgery. The surgeon reminded her that the operation was elective and that the risks had been mentioned to her prior to her Internet exposure. He wondered if there was anything that could be done to relieve her anxiety.

Internet Phenomenon May Fuel Patients’ Fears

All physicians have had patients who were fearful of surgery, but now some of these patients have access to a technical Internet library that may confuse them and increase their fears by providing them with an incomplete education regarding their risks. It may come down to whether patients are going to trust their doctor’s expertise or a negative article they’ve read. In the new medical practice climate, physicians often don’t have as much time for lengthy conversations with their patients and it may be that patients will trust what they read rather than what they hear from their ophthalmologist.

There is no easy answer to helping patients with exaggerated fears about surgery; elective surgery on such patients probably should be deferred. However, physicians should be aware of the “Internet phenomenon.” Depending upon their perceptions, exposure to the medical literature may confuse patients rather than enlighten them. Physicians should provide complete and accurate information to all patients. Additionally, physicians need to understand their patients’ concerns and accept the challenge to counsel better informed patients, some of whom may be receiving outside input through medical libraries on their Internet connection.

Preventing and Managing Surgical Fires

Anne M. Menke, RN, PhD, OMIC Risk Manager

Digest, Summer 2006

As the Closed Claim Study in this issue illustrates, there is much ophthalmologists, anesthesiologists, nurses, and surgical facilities can do to avert these rare but devastating occurrences. Accordingly, many professional organizations have issued guidance, most of it based upon the research of ECRI’s Accident and Forensic Investigation Services. Moreover, accrediting organizations have made minimizing OR fires a compliance issue for many ophthalmologists who own or operate accredited office-based surgery suites or ambulatory surgery centers. The Joint Commission on Accreditation of Healthcare Organizations included surgical fire prevention in its 2005 and 2006 National Patient Safety Goals, and the Centers for Medicare and Medicaid regards this risk management effort as a condition of participation. This Hotline article will present actions ophthalmologists can take to protect themselves, their patients, and the entire surgical staff.

Q  What causes surgical fires?

A  Three elements are needed: oxygen, fuel, and a spark, and all are present wherever surgery is performed.Oxygen is abundant in the operative setting; heavier than air, it pools under drapes. The list of fuels is extensive, and includes prep solutions, ointments, cotton balls, drapes, sponges, endotracheal tubes, masks and tubing, and the patient’s hair, especially the fine hair on the face. The spark is provided by electrosurgical units, electrocautery units, and lasers.

Q  What precautions need to be taken before the surgery begins? As the surgeon, am I responsible for these?

A  The entire surgical team must cooperate to prevent fires, and as the surgeon, you can take a leadership role. If flammable preps such as alcohol are used, allow them to fully evaporate and dry before draping the patient, and check for pooling or wicking.[1] Arrange the drapes to fullyexpose the face; this helps minimize oxygen and nitrous oxide buildup underneath. Place suction under the drapes to scavenge oxygen and further reduce the concentration of pooled oxygen. Use a properly applied incise drape, if possible, to help isolate head and neck incisions from oxygen-enriched atmospheres and from flammable vapors under drapes. As a general policy, use air or ≤ 30% oxygen for open delivery during procedures. Coat facial hair near the surgical site with water soluble surgical lubricating jelly to make it nonflammable. Moisten sponges, gauze, and pledgets (and their strings) to make them resistant to ignition; keep a water sponge on the Mayo stand for this purpose.

Q  Are there steps I should take when using electrosurgery, electrocautery, or laser surgery?

A  Yes. Communicate with anesthesia personnel about the need for oxygen and inform them of planned use of equipment that could cause sparks, such as cautery units and laser. Ask the anesthesia provider to stop using supplemental oxygen (if > 30%) at least one minute prior to and during the use of the unit if possible. Use clear methods to communicate the use of oxygen, i.e., “Oxygen on!” and “Oxygen off!” Activate the unit only when the active tip is in view, and deactivate the unit before the tip leaves the surgical site. Place electrosurgical electrodes in a holster or another location off the patient when not in active use. Place lasers in standby when not in active use. Do not place rubber catheter sleeves over electrosurgical electrodes; instead, use manufactured insulated electrodes. Keep the endoscope light away from drapes to prevent heat from igniting the drapes.

Q  What should I do if I notice a surgical fire?

A  First, the fire needs to be extinguished. If it is small, pat out or smother it, or remove the burning material from the patient.[2] For large fires on the patient, stop the flow of breathing gases to the patient, and remove the burning material from the patient. At times, a fire extinguisher may be needed. Next, care for the patient by resuming ventilation, controlling bleeding, evacuating from the room if there is ongoing danger from smoke or fire, examining the patient for injuries, and treating as needed. If the fire cannot quickly be controlled, notify other operating room staff and the fire department. Save all involved materials and devices for later investigation. Contact the risk manager of the facility, as well as OMIC’s Risk Management Department, for assistance in discussing the fire with the patient and in determining reporting obligations.

1. Recommendations are from “Only You Can Prevent Surgical Fires: Surgical Team Communication is Essential.” ECRI. This free poster is available at ecri.org.

To order in color or to obtain more information about surgical fires, contact ECRI at 1-(610) 825-6000.

2. Recommendations are from “Surgical Fires,” Operating Room Risk Management, ECRI, 2004.

General OMIC Information

Q. What is OMIC?

A. OMIC, Ophthalmic Mutual Insurance Company, is the only ophthalmologist-owned risk retention group in the country and the only professional liability carrier sponsored by the American Academy of Ophthalmology. Established in October 1987, OMIC is the largest insurer of ophthalmologists in the United States, insuring more than 4,500 Academy members nationwide. The company operates as a mutual insurance company and is governed by a Board of Directors composed of practicing ophthalmologists insured with OMIC.

Q. What is a Risk Retention Group?

A. A Risk Retention Group is a chartered or licensed insurance company formed under the Federal Liability Risk Retention Act of 1986. The Risk Retention Act permits persons who practice in professions with similar liability risks to organize their own liability insurance carrier. A Risk Retention Group is owned by its members, who are also policyholders. Although a Risk Retention Group only needs to be chartered and licensed in one state, it may offer insurance coverage in other states as well. OMIC is licensed in Vermont and offers coverage in all states. (Coverage in Wisconsin is currently limited to eye banks.)

Q. What is the Academy’s role with respect to OMIC?

A. In the mid 1980’s, when ophthalmologists around the country voiced their concern over extremely high rates charged by other insurance carriers, the American Academy of Ophthalmology responded by helping to create an independent insurance carrier, OMIC, to write professional liability coverage exclusively for its members. Although the Academy sponsors OMIC in this role and many of OMIC’s Board members are or have been active in voluntary capacities with the Academy, OMIC operates as a separate and independent company. OMIC, not the Academy, is solely responsible for all insurance and business decisions, including coverage, underwriting, claims, and defense decisions.

Q. Does OMIC offer access to other insurance products

A. Yes. In addition to professional liability insurance covering allegations of medical malpractice, OMIC also coordinates access to other business insurance programs specifically tailored to the unique exposures of an ophthalmology practice. Underwriting and claims services for these additional programs are provided by superior “A-rated” carriers, including The Hartford, NAS Insurance Services and Lloyds of London. Coverage options include employment practices liability insurance for wrongful termination, discrimination, sexual harassment and other similar allegations; broad regulatory protection for actions related to fraud and abuse, HIPAA privacy, EMTALA, and other proceedings; managed care errors and omissions coverage (for alleged errors, omissions, and breach of duties made in managed health care administration), directors and officers liability insurance (which protects directors and officers against liability exposures associated with the operation of ophthalmic corporate entities and partnerships), and employment practices liability insurance; business owners policies including general liability, property, and business operations coverage, and workers’ compensation for employee work-related injuries.

OMIC also provides access to an Academy-sponsored administrator of life, health, and other personal insurance products. Marsh Affinity Group Services consults with OMIC and the Academy to select high quality carriers offering group term life, disability income, short-term disability, office overhead expense, long-term care, excess major medical, Medicare supplement, gateway international accident and medical, and small business group health products.

Academy members are invited to contact Dana Pollard, at NAS Insurance Services (877) 808-6277 (or dpollard@nasinsurance.com) for business products. Please visit AAOInsure.com for more information on all sponsored Life and Health products, or call (888) 424-2308. Academy members may also contact OMIC for limited inquires about these products including contact information by calling (800) 562-6642 or visiting the “Business Coverages” or “Life & Health” pages of our web site.

Q. Does OMIC have a “Best” Rating?

A. Yes. OMIC has maintained a favorable rating (see AM Best Rating Report) from A.M. Best Company since first becoming eligible for a rating.

General Insurance Information

Q. What is a claims made and reported policy?

A.A claims made and reported policy is a form of insurance that provides coverage to an insured only if the policy is in force on the dates the claim is first made against the insured and reported to the carrier.  In addition, the incident on which the claim is based must have occurred on or after the  retroactive date stated in the policy.  OMIC writes only claims made and reported policies for professional liability.

Q. What is an occurrence policy?

A. An occurrence policy is a form of insurance that provides coverage for all claims arising from incidents that occur while the policy is in force, regardless of when the claim is ultimately reported. “Tail” coverage is not needed upon cancellation.

Q. Are there benefits to a claims made and reported policy?

A. Yes. First, claims made and reported policies are generally less expensive than occurrence policies because claims made carriers can more accurately predict the frequency and severity of claims that will be reported during the policy period. Occurrence carriers, on the other hand, must predict not only how many claims will arise from services rendered this year and how severe they’ll be, but also when they’ll be reported and whether inflation will increase the cost of such claims. Second, claims made and reported policies are step-rated so there is an additional cost savings during the first few years of claims made and reported coverage. Third, occurrence policies are not always readily available; many carriers that once offered them are now insolvent and many others have discontinued offering occurrence policies. Finally, there is essentially no difference between the kinds of injuries and damages that are covered by occurrence and claims made and reported policies; both offer the same type of protection.

As long as you remain continuously insured under your claims made and reported policy, you will be covered for new claims arising from services rendered since your retroactive date. And, because of the availability of “tail” coverage, you may continue to be insured for them long after you cancel your policy — just like you would under an occurrence policy.

Q. What is a retroactive date?

A.The retroactive date is the date on or after which incidents must first occur to be covered by the policy (subject to the terms and conditions of your policy).

Q. Is the retroactive date the date I join OMIC?

A. Not always. If your policy includes prior acts coverage, the retroactive date will be the date you joined your prior carrier (or the date of your prior acts coverage with that carrier). If you were previously insured under an occurrence policy, purchased “tail” coverage from your previous carrier, or are new to practice, you may not need prior acts coverage. In that case, your retroactive date will be the date you join OMIC.

Q. What is prior acts coverage?

A. Prior acts coverage, also referred to as “nose” coverage, is an extension of coverage in which your new carrier agrees to insure you for new, unreported claims arising from services you rendered while you were insured with your previous claims made carrier. By purchasing prior acts coverage from your new carrier (OMIC), you eliminate the need to purchase an extended reporting period endorsement from your previous carrier. Because all requests for prior acts coverage are subject to underwriting review, you should never decline your option to purchase “tail” coverage from your previous carrier until you have received confirmation that your request for prior acts coverage from your new carrier has been approved.

Q. What is an extended reporting period endorsement (“tail”)?

A. “Tail” coverage, or an extended reporting period endorsement, extends the time period after your termination effective date during which you are allowed to report claims that arise from incidents occurring while the policy was in force.  With OMIC, as with many carriers, the time period may be extended to perpetuity.  (Refer to Section VII, Extended Reporting Period [“Tail”] for more information.)

Q. How do I decide whether to purchase prior acts from OMIC or a “tail” from my present carrier?

A. If your prior coverage was claims made, you have two options when you leave your old company:  you can purchase a tail to preserve the coverage you had with that company or you may be eligible to purchase prior acts coverage from OMIC.  Although, dollar for dollar, tail coverage and prior acts coverage usually cost about the same over a period of time, you will generally benefit by purchasing the prior acts coverage from your new carrier, when available, to avoid the burden of the large, out-of-pocket expense of tail coverage.  In addition, insureds often prefer their current carrier to handle all new clams made against them regardless of when the incident occurred.

Q. What is a step rate?

A. As previously explained, claims made and reported policies insure you only if you’re insured both on the date the claim is first made against you and on the date you report it to your carrier and the incident upon which the claim is based occurs on or after your retroactive date. Usually, there is a delay between when the incident happens and when it is ultimately discovered and reported.  This delay typically is at least one year, sometimes many years.  For this reason, you are at less risk of reporting a claim to a carrier during your early years of coverage with that carrier (if your retroactive date is the same as your policy inception date). This is why your premiums are much lower during that time.  During the first year, you are insured only for those cases that occur and are reported during your first year of coverage.  Since the likelihood of your having such a claim is minimal, your premium is at the lowest level during this first year.  In the second year, your exposure is greater and your premium higher because coverage is for claims reported in the second year for incidents occurring during either the first or second year. This progression continues until you reach the mature rate.

Q. What is meant by a “mature” rate?

A. At some point in time, all potential claims arising from services rendered during the first year of coverage should (theoretically) be reported already.  This point in time is referred to as the mature year.  Because the exposure levels off, premiums level off as well.   OMIC policies reach maturity in five years.  (Note that premiums may also increase or decrease due to OMIC’s overall loss experience.)

Q. Will I start out at a first year step the first year I join OMIC?

A.Not necessarily.  Your step rate is determined by your retroactive date.  If you are beginning practice for the first time, transferring from an occurrence policy, or purchasing a tail from your prior carrier, you will join OMIC at a first year step.  However, if you obtain prior acts coverage from OMIC, your policy will be rated at whatever step you would be at had you been insured with us all along. If you have been insured under a claims made policy for more than four years and purchase prior acts coverage from OMIC, you will most likely be rated at the “mature” (fifth year) rate.

Q. What is the difference between a rate increase and a step increase?

A. A rate increase is an increase in the base premium needed to offset increases in the frequency or severity of loss trends. (Similarly, decreases in the frequency or severity of loss trends may result in rate decreases.) It is OMIC’s objective to maintain rate stability over the long term and to implement increases only when necessary.

Step increases, as explained earlier, are increases in premium due to the accumulation of exposures to loss over a given time period and are a natural progression of the claims made and reported policy. Step increases are based on the normal reporting patterns of claims and occur regardless of the severity or frequency of claims. It is possible that you may experience a rate increase or decrease in the same year that you experience a step increase.

Q. What is meant by “liability limits”?

A.Liability limits are the maximum dollar amount of damages (“indemnity”) an insurance carrier will pay on your behalf.  Limits are broken down into two categories: the per claim limit and the aggregate limit.  For each claim, the carrier will pay for all damages up to a maximum of the amount listed as your “per claim” limit.  The “aggregate” limit applies to all claims reported during the policy year or extended reporting period.  For example, if your limits are $1,000,000 per claim/$3,000,000 aggregate, your carrier will pay up to $1,000,000 in settlement or award for each professional liability claim and up to $3,000,000 for all claims reported that year.  With OMIC, as with most carriers, reasonable defense costs are paid in full and are not included within the liability limits.

Q. What should I consider in deciding the limits I should carry?

A. To help you determine which limits are most appropriate for your practice, OMIC account representatives can provide you with statistics regarding the limits of liability carried by most insureds, OMIC’s average indemnity payment, OMIC’s highest indemnity payment, and your state’s risk relativity in relation to other states. The most commonly carried professional liability limit is $1,000,000 per claim/$3,000,000 aggregate, but OMIC offers an array of limits, from $500,000 per claim/$1,500,000 aggregate to $5,000,000 per claim/$10,000,000 aggregate.  Lower limits of $100,000/$300,000, $200,000/$600,000, $250,000/$750,000, and $500,000/$1,000,000 are available to physicians who participate in their state’s patient compensation or excess liability funds (Louisiana; Kansas and South Carolina; Indiana; and  Nebraska, respectively).

You may generally request an increase or decrease in your limits of liability at any time during the policy period.  All requests for limit changes are subject to underwriting review and approval.

Q. If I practice in New York, will I qualify for free excess coverage?

A. Licensed New York physicians may qualify for a free million-dollar excess policy from the hospital of their primary affiliation via the New York State Hospital Excess Liability Pool, but only if they are insured through carriers that are licensed and admitted in New York. Although Risk Retention Groups are authorized by the Federal Risk Retention Act to do business in New York, the Excess Liability Pool does not recognize Risk Retention Groups as valid primary carriers for the excess liability program. While OMIC insureds are ineligible to participate in the New York State Hospital Excess Liability pool, they may purchase limits of up to $5,000,000 directly from OMIC.

When a Claim Is Filed: Good Documentation Is Your Best Defense

By Jerome W. Bettman Sr., MD

Argus, October, 1992

The best prophylactic against a malpractice claim is good rapport. The best defense, once a claim is filed, is good documentation.

Defense attorneys complain that if they can’t defend the records, they can’t defend the doctor. On the other hand, plaintiff attorneys, when confronted with good documentation, probably will not pursue the case.

Good records are important for several reasons:

• The physician wrote the records and juries usually believe that what was written was done.
• The trial may occur years after the fact. Neither the doctor nor the patient remembers much, but the records were written at the time.
• Jurors may sit through weeks of benumbing testimony which often they don’t remember or understand, but the records may be taken into the jury room with them.
• Patients tend not to recall that portion of the consent information which addresses the possibility of complications or adverse outcomes. For this reason, proper documentation is essential.

Three studies demonstrated this failure of patients to recall complications stated in the informed consent. These references may constitute an important defense should a patient deny that such information was shared with them:

What Patients Recall of the Preoperative Discussion After Retinal Detachment Surgery (Priluck I, et al. Am J Ophthal. 1979; 87:620);

Informed Consent Recall by Patients Tested Postoperatively (Robinson G and Merav A. Bull Am Coll Surgeons. 1977; 62:7);

Observations on the Myth of Informed Consent (Leeb D, et al. Plastic and Reconstructive Surgery. 1976; 58:280).

What Is the Best Method to Document the Informed Consent Process?

A brief note written in the ophthalmologist’s own hand which says that “the procedure, alternatives, complications and risks, including the anesthesia risks, were explained to the patient and the patient appeared to understand” may be adequate for minor office procedures.For major procedures, however, it is probably wise to also use a pre-established consent form, although one cannot be certain how dependable these will be in court.

This is well illustrated by two nearly identical RK cases brought against the same surgeon. The consent form used by the surgeon in both cases was identical and was deemed adequate.In one case, it was determined that the patient must have been properly informed because he signed the concluding statement that he had read and understood the form. The defense won.In the other case, the plaintiff won, partially because it was held that the patient felt he had to sign the form but he had not truly understood the information.

A third method of documentation may be helpful in those unusual cases in which the patient has good vision preoperatively and will have poorer vision postoperatively. This may occur in a patient who has 20/20 preoperative vision with a neovascular membrane encroaching upon the fovea. If a laser is not used, central acuity will be lost; if it is used, the vision will almost certainly be less than 20/20. After informing the patient and asking for feedback to be certain the patient understands, the ophthalmologist can ask the patient to write in his or her own chart what he or she understands. This is documentation the patient cannot deny since it is written in the patient’s own hand.

What Constitutes Good Record Keeping?

The record should document everything that is meaningful to the patient’s illness, including unusual occurrences, complications, the patient’s or family’s worries, discharge instructions and follow-up information. These should be written into the record at the time they occur. Do not rely on recall.

The record should be consistent. If an ophthalmologist records the appearance of the optic disc on a number of visits and omits it on a few, it could be inferred that he or she did not look at the disc on the visits in which its appearance is omitted.

The record is the only evidence of the ophthalmologist’s thought processes at the time. They should be recorded in a few carefully chosen words without editorializing, rationalizing or making excuses. Personal remarks about the patient or the patient’s family do not belong in the record, nor does criticism of other doctors.

Good documentation neither begins nor ends with the patient record. It usually starts with the receptionist who must be trained to permanently record missed appointments, cancellations, phone calls and patients’ unusual concerns. Nurses’ notes in the hospital record are another form of documentation and should not be overlooked. Failure to record the doctor’s visit may be significant to a plaintiff’s attorney.Do not sign the chart unless satisfied that it is accurate.

In some cases, a form of documentation may occur before any contact is made with the office. Television appearances by a surgeon are considered a form of documentation. If the physician makes unreasonable claims for surgical success, the plaintiff’s attorney may obtain a copy of the tape and use it effectively in the courtroom.

To Whom Does the Record Belong?

It belongs to the physician, but the patient and, with the patient’s permission, his or her attorney are entitled to the information in it.