Issues Associated with Therapeutic Optometry
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Summer 2010
According to the American Academy of Ophthalmology, about half of all ophthalmology practices now include an optometrist and nearly all see patients referred by optometrists (ODs). Traditionally, the practice of optometry was “medicine-free.” Nationwide, between 1971 and 1989, optometrists (ODs) lobbied for, and were granted, the legal authority to use topical medications for diagnostic purposes. A second wave of legislative efforts from 1976 to the present resulted in limited prescriptive authority for optometrists in some states, and the development of “therapeutic optometry.”
Q My group wants to hire an optometrist. How do I determine what care he or she can provide?
A Patient situations handled by ODs fall into three categories. The first category includes those types of care that the legal scope of practice allows optometrists to provide independently (e.g., refraction and prescribing glasses and contact lenses). In the second category, optometrists with additional types of training and certification may diagnose and treat patients with more complex eye conditions. Depending upon state law, they may be required to consult with an ophthalmologist in certain situations. Finally, there are patients who need to be referred to an ophthalmologist for diagnosis or management (e.g., patients with cataracts or retinal detachments). Your state’s optometric practice act defines the legal scope of practice. It also details the education, training, and certification required for optometrists to diagnose and treat ocular conditions, and usually includes a list of the therapeutic agents they may prescribe and procedures they may perform. Ask the optometrist to provide you with a copy of his or her license, certification, and optometric practice act and verify the licensure/certification directly with the optometric board. You may also wish to contact your state ophthalmology society to obtain a copy of the current regulations and any guidance papers. Contact your underwriter if the optometrist is endorsed on your policy and you have questions about coverage for certain procedures.
Q Am I required to supervise the therapeutic optometrist in my practice?
A Not as a general rule. Unlike allied health professionals such as physician assistants and nurse practitioners, optometrists have an independent scope of practice that does not require supervision by a physician. OMIC’s Postoperative Care Exclusion and Refractive Surgery Requirements, however, state that postoperative care that is comanaged with an optometrist must be provided under the surgeon’s supervision (see the lead article, “Comanagement of Surgical Care,” as well as “Coordinating Care with Optometrists,”). Again, these rules do vary between states and there may be state-specific comanagement requirements regarding training, equipment, and communication.
Q Are therapeutic optometrists required to consult with ophthalmologists and other physicians?
A Consultations may be required by law or by the standard of care. As noted above, some state optometric practice acts mandate consultations with ophthalmologists or appropriate physicians/surgeons in certain situations. For example, California requires therapeutic optometrists to consult with an ophthalmologist if a patient younger than 16 has glaucoma, and when patients on topical steroids or those with diseases such as episcleritis, herpes simplex infection, or glaucoma are worsening or not responding to treatment. Texas requires therapeutic ODs to consult with an ophthalmologist after an initial diagnosis of glaucoma, and on any patient whose glaucoma is not responding appropriately to treatment. Texas law also requires ODs to refer patients to a physician before prescribing beta blockers if the patient has not had a physical examination within 180 days.
Q If our state law is does not provide guidance, how can we decide on the need for consultation?
A Consider situations that could lead to patient harm or liability. Just as with ophthalmologists, the standard of care requires optometrists to seek a consultation or referral when the patient’s condition requires diagnostic or therapeutic skills beyond one’s scope of practice, competency, certification, or training. Consideration might be given to conditions that could lead to severe, imminent vision loss or death, eye conditions associated with a systemic condition (e.g., giant cell arteritis, rheumatoid arthritis, multiple sclerosis, and patients with neurological abnormalities), patients who are not improving or worsening, and cases where there is unexplained vision loss or no clear-cut diagnosis.
Q The new optometrist in my practice seems uncomfortable asking questions and I worry that he won’t come to us for advice.
A The best protocol in the world will be ineffective if the practice does not nurture an environment where all members of the health care team feel safe enough to ask questions and seek advice. It may be helpful to hold regular meetings where all have the opportunity to address difficult or interesting patient situations and seek input from others. Modeling an open discussion might encourage your new colleague to be more forthcoming.
LLCs and Entity Liability
Paul Weber, JD, OMIC Risk Manager
Digest, Summer 1998
Lately, a significant number of OMIC insureds have been forming Limited Liability Corporations (LLCs). An LLC is a relatively new form of business entity offering certain income distribution and tax advantages. Some insureds assume that after forming an LLC there is no need to purchase entity coverage for the LLC (entity) since there is “”limited liability.” The following questions address the professional liability exposures and coverage issues of LLCs and why it is still advisable to purchase entity coverage for them.
Q What is the difference between practicing in a limited liability corporation and practicing in a partnership as it relates to malpractice claims?
A Physicians practicing in any form of corporation (LLC, S-corporation, etc.), unlike those in partnerships, have limited liability. Like partnerships, the assets of the corporation are subject to all corporate obligations; however, unlike partnerships, physicians in corporations generally cannot be held personally liable for the malpractice of their fellow shareholders. Please note that physicians cannot insulate themselves from personal liability for their own negligence by incorporating.
Q Are there any “loopholes” (exceptions) to the general rule of limited liability of corporations?
A Yes. There are at least two exceptions. First, a physician supervising the work of another may be at personal risk if the person being supervised commits malpractice as a result of the physician’s failure to provide adequate supervision. In this scenario, the supervising physician could be held jointly and severally liable along with the physician being supervised. Second, based on a number of considerations, a court can disregard the corporate entity (in legal terms, “pierce the corporate veil”) where recognizing the corporate form would open the door to fraud or promote injustice. The courts have developed a long list of relevant factors to look for in such cases. For instance, are corporate assets treated as if they were individually owned by shareholders? Is there commingling of assets or records of purportedly separate entities?
Q Do I need entity coverage for my limited liability corporation?
A Regardless of the form of the business organization, physicians would be well advised to maintain adequate professional and general liability insurance. A corporation (LLC or other) is not a substitute for purchasing a good insurance policy. Entities can be, and frequently are, named in medical malpractice lawsuits. Even though the entity may be ultimately dismissed from a claim, legal expenses can be costly. In addition, entity coverage offers protection to the corporation for its vicarious liability exposure arising from services rendered by physicians and non-physician employees for their direct liability exposure. As with partnerships, the assets of a corporation are subject to all corporate obligations. If there is a serious medical incident resulting in a large judgment against the corporation, it is possible that all assets, including medical equipment and other tangible items, may be attached to pay off or satisfy the judgment.
Q What legal questions might arise when a business entity is sued?
A Legal issues surrounding settlement may arise when a business entity (corporation, partnership, etc.) is sued along with an individual insured. When it is concluded that a case should be settled with a payment to the plaintiff, it may be appropriate that the settlement be made solely on behalf of the corporation and not against the individual insured. Under certain circumstances, a settlement made solely on behalf of the corporation may not need to be reported to the National Practitioner Data Bank (NPDB). A closed OMIC case may serve to illustrate how this works:
A patient sued an insured and his business entity. The individual insured was dismissed from the lawsuit on a motion for summary judgment on the grounds that he had not seen the patient and therefore had no duty to this patient. However, the physician’s business entity (a corporation) was still a defendant in the case because there was evidence that his staff had taken a call from the patient and had delayed scheduling an appointment, which resulted in a loss of vision for the patient. Because a payment was made solely on behalf of the corporation and the doctor was not named in the settlement release, it was not reportable to the NPDB.
Who’s On Call?
Paul Weber, JD, OMIC Risk Manager
Digest, Summer, 2000
With the proliferation of cell phones, pagers, fax machines, and email, patients have come to expect their ophthalmologist to be available 24/7 whenever they have an urgent question or concern about their vision. This can present problems during weekends, holidays, vacations, or whenever the ophthalmologist is not available to take calls. So who else in the practice can take after hours calls from patients?
Q Can my office staff be on call?
A The simple answer is no. Non-physician office staff cannot “take call.” Only physicians can since being “on call,” by definition, means that a physician is ready and legally able to render medical/surgical care to patients on an urgent or emergent basis. This includes being able to see and treat patients in the office or emergency room and admitting them to a hospital if necessary.
Q Can ophthalmic technicians answer calls from patients after hours?
A Technicians can, and often do, take after hours calls from patients and answering services forwarding patient calls to them. This duty should only be assigned to staff members who have the knowledge to make critical decisions about the urgency of a patient’s condition and the experience to know when a patient should talk to or be seen by an ophthalmologist. Anytime a technician takes a patient’s call – whether it is at home after hours or in the office during business hours – there is the potential for claims of miscommunication or failure to communicate if the patient suffers an injury. Advise staff to document all conversations with patients and any actions taken (e.g., scheduling or canceling an appointment) and to record it in the patient’s chart. If a new patient calls for whom there is no chart, the message should be placed into a designated message folder. Later, review all calls and messages with staff to determine if any follow-up is required. This will give you an opportunity to monitor how well your staff handles patient calls.
Q Can an employed optometrist take call for my practice?
A Laws regarding optometric scope of practice vary from state to state, but because optometrists cannot perform surgery and have only limited scope of practice, they cannot take call. However, their special training and skill allows them to handle more questions and situations than technicians. This increases the potential for claims of misdiagnosis or delay in diagnosis, but the risk is no greater than it is when an employed optometrist examines and diagnoses a patient under the supervision of an ophthalmologist during business hours. An ophthalmologist always should be available to take patient referrals if a situation exceeds an optometrist’s scope of expertise.
Q Can a non-employed optometrist take call for my practice?
A Non-employed optometrists present greater liability exposure for an ophthalmic practice than employed optometrists because they do not know your patients and are not under your supervision. If it is possible that a non-employed optometrist will be examining and diagnosing your patients, confirm that the optometrist is properly trained and qualified and carries adequate malpractice insurance.
Q Can ophthalmology residents take call?
A Residents are physicians and can be on call if this is within the scope of their residency, but they are not fully trained ophthalmologists so their ophthalmology call is limited and needs to be backed up by a trained ophthalmologist to avoid vicarious liability claims against the practice.
In summary, all ancillary personnel who answer after hours calls from patients must be backed up by an on call ophthalmologist who is taking call. Written protocols should clearly delineate how to handle frequently encountered situations and when to contact an ophthalmologist. Periodically evaluate and update these protocols and distribute them to all staff.
If a patient or other health care provider wants to personally speak with or be seen by the ophthalmologist, the request must be granted. As a matter of course, it is a good idea to instruct staff to ask callers if they feel they need to speak with the doctor. Ancillary personnel should be perceived as aiding, not hindering, the doctor-patient relationship.
Please contact Paul Weber at (800) 562-OMIC (6642), ext. 603 or pweber@omic.com if you have other questions concerning who can legally take call coverage.
When Patients Shouldn’t Drive
Paul Weber, JD, OMIC Risk Manager
Digest, Fall, 2000
Ophthalmologists frequently inquire about their liability if they report a patient whose visual impairment creates a driving hazard. A related issue is whether an ophthalmologist can be held liable to a third party who is injured in an accident caused by a visually impaired patient. Understanding the reporting laws in your state and calling OMIC’s Risk Management Department are important first steps to reducing the potential liability of this complex legal and ethical situation.
Q Do I have a duty to report a patient to the motor vehicles department (agency may vary from state to state) if that patient’s vision is severely impaired?
A Many states require physicians to report patients who have epilepsy or disorders characterized by lapses of consciousness. However, in most states it does not appear that physicians have an affirmative duty to report patients who fall below a certain visual acuity or have limited field of vision. There are exceptions, such as Pennsylvania, where the law states that if a patient has a “visual acuity of less than 20/70 combined vision with best correction,” the physician must report that patient to the Pennsylvania Department of Transportation for further evaluation. Contact your state medical society since most associations will have information regarding diseases and conditions that must be reported to state agencies.
Q If I am not required by state law to report a patient whose visual impairment affects driving ability, but I do so anyway because I believe it is my ethical obligation to protect the public, what are my risks?
A Some ophthalmologists believe that voluntary reporting of patients violates the confidential doctor-patient relationship and adversely impacts their role as patient advocate. Others worry that patients won’t be honest with their healthcare provider if they fear being reported. On the other side are those ophthalmologists who believe that reporting a visually impaired driver could help prevent a death or serious injury. Many states, such as Florida, California, and Illinois, keep such reports confidential and provide immunity from civil or criminal prosecution to those who provide such information. Prior to voluntarily reporting a patient to a state agency, OMIC insureds are advised to contact the Risk Management Department.
Q Should I discuss my concerns with the patient or patient’s family before I report the matter to local authorities?
A You should tell patients first when it is your professional opinion that their vision is so severely impaired that they should not be driving. From a practical standpoint, this may be enough to convince a patient to stop driving. From a legal standpoint, any discussion regarding a visual impairment should be thoroughly documented in the patient’s chart. This documentation will help defend against claims by the patient or others that the patient did not understand the nature or extent of the visual disability.
Discussing the matter with family members is more delicate. Generally, a patient’s medical information cannot be shared with family members without the signed authorization of the patient. However, if a family member is present during the examination, you may simply ask the patient’s permission to discuss the matter in front of the family member(s) and then document that such permission was orally obtained. Although it is a clear breach of confidentiality to discuss such matters with family members without the patient’s permission, you may feel ethically compelled to do so if there is someone who might be able to persuade the patient to stop driving.
Q Am I liable to a third party if a visually impaired patient causes an accident?
A Generally, no liability will attach to the ophthalmologist in such circumstances. Most courts opine that allowing third parties to sue physicians would disregard the legal principle of “foreseeable risk of harm” and extend liability limitlessly to treating physicians vis-à-vis third party victims.
An exception to this general rule arises when an ophthalmologist “causes or aggravates” the impairing visual condition. In one OMIC case, a third party claimed he was injured by a patient whose driving was impaired after the ophthalmologist dilated the patient’s eyes. No payment was made to the third party; however, the case serves as a reminder of the need to inform patients about visual impairment following certain treatments or examinations. Another exception to the rule was made in a California case in which a physician allegedly failed to warn a patient that his uncontrolled diabetes made it dangerous to drive. The court stated that liability could be imposed if the injured third party could prove that the physician’s failure to provide this warning was a “substantial factor” in causing the claimant’s injuries. This ruling reinforces the importance of documenting that a patient has been informed of impairments that could affect driving.
Cooperation Essential as Physicians Leave a Practice
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Spring 2005
Physicians leave practices for many reasons, including illness, retirement, changes in employment status, and personal or family needs. Both the individual ophthalmologist and the practice need to take steps to promote continuity of care, prevent allegations of abandonment, and ensure that all involved physicians have access to the medical records in the event the care is ever called into question.
A successful transition, therefore, requires the cooperation of all involved parties. Strained relationships put everyone at risk and must be carefully managed to avoid patient harm, business disputes, and malpractice lawsuits. This article will address difficulties with patient notification and record sharing; for a discussion of other related issues, see “When Physicians Leave a Practice” in the Risk Management Recommendations section of the OMIC web site (www.omic.com).
Q I am leaving my current practice arrangement, and the medical director won’t allow me to notify my patients. Am I at risk for an allegation of abandonment?
A Yes, both you and the other physicians in the practice are at risk. Patient abandonment occurs when a physician fails to provide for necessary medical care to a current patient without adequate justification. In general, once a physician-patient relationship is established, a physician has an ongoing responsibility to the patient until the relationship is terminated. In order to terminate the relationship, the physician must notify the patient sufficiently in advance for the patient to secure the services of another physician. Physicians are generally aware of the need to notify patients when they will no longer provide care for them (e.g., when discharging patients from the practice or retiring). Questions arise when a physician leaves to practice elsewhere. Whose patient is it? What if the patient wants to follow the doctor? Or stay with the practice? While some of these issues may be spelled out by the employment agreement, it is nonetheless prudent to notify patients that the ophthalmologist is leaving and give them the choice to continue seeing the physician if he or she plans to remain in the area.
Q Which patients should I notify?
A There is no need to notify every patient in the practice or those patients whom you saw only occasionally while covering for another physician. Rather, inform those for whom you had primary responsibility. Send a letter by certified mail, return receipt requested, to all of your “high-risk” patients, and one by regular post to “active” patients who are not considered “high-risk” (see web document for examples). To notify patients who will not be receiving a letter – or for general notification purposes if you did not have primary responsibility for any patients – place a notice in the local newspaper with the largest circulation, put a sign up in the lobby, or prepare a patient handout. Also remember to provide a script for receptionists of what they should say to your patients who call after your departure and how they can contact you.
Q What should the notice say if I am staying in the area?
A Notify patients that you are leaving the practice but are still avail- able to care for them. Explain that they have the choice of staying with the practice or continuing to see you in your new location. Instruct patients who choose to follow you that, upon written authorization, a copy of their medical record will be forwarded to you. Consider including an authorization form with the letter to expedite the transfer of records. If your practice charges the patient for the cost of photocopying the medical record, inform the patient of this fee.
Q Who gets to keep the chart if I am still treating the patient?
A Any material related to patient care should be considered part of the medical record and provided to the departing physician. Both the practice and the departing physician should keep a copy of the medical records. A written agreement should determine who keeps the original and who pays the cost of copying the records. The departing physician and the practice need to come to a written agreement about who is the custodian of the records, and the conditions under which the departing physician will be granted access to the records of the patients he or she treated. The custodianship agreement should verify whether patient authorization is needed for the departing physician to access his or her former records or to obtain a copy of those records for his or her healthcare operations (such as a medical malpractice allegation). If not specified in the agreement, state law may determine whether patient authorization is needed for the departing physician to access or copy these records. Generally, physicians should be allowed access to the records of patients they treated. The records provided should reflect care up to and including the day of the physician’s departure.
