Interpreters for Deaf Patients
Anne M. Menke, RN, PhD, OMIC Risk Manager
For our risk management recommendations on interpreters for deaf patients, please click here. For advice on limited English proficiency patients, click here.
Digest, Winter 2006
Physicians are well aware of the central role clear communication plays in the physician-patient relationship. Patients who are deaf present special challenges to effective interactions. Ophthalmologists often have questions about how to obtain and reimburse interpreters and whether family members can fulfill this role.
Q My deaf patient insists that I provide a translator. Am I required to do so?
A Although the law has been interpreted “by some as creating a requirement that the physician provide and pay for the cost of hearing interpreters for their patients who are hearing disabled,” the American Medical Association has noted that there is “no hard and fast requirement for the provision of such services” and that the Americans with Disabilities Act (ADA) “does not mandate the use of interpreters in every instance.” The Supreme Court ruled in an education suit, for example, that American Sign Language (ASL) interpreters are not required when lip reading or other accommodations are sufficient. In the medical arena, physicians often rely upon note pads to communicate with deaf patients. At times, such as before major surgery, or when initiating a treatment plan for a complex condition, an interpreter may be necessary.
Q Does the ADA even apply to my practice?
A Yes. Intended to stop discrimination on the basis of disability, the ADA requires those who own, lease, or operate a place of public accommodation, such as a physician’s office, to make reasonable accommodations to meet the needs of patients with disabilities, unless “an undue burden or a fundamental alteration would result.” Actions, standards, and policies that either intentionally discriminate or have the effect of discrimination against persons with disabilities are prohibited. Moreover, failure to take steps that may be necessary to ensure access, such as providing auxiliary aids and services, could be seen as discriminatory.
Q What steps must my group take to meet the needs of patients with disabilities?
A First, conduct and document an analysis of your overall obligations. Decide what particular aid or service will be provided, based in part upon an analysis of the length and/or complexity of the medical service, treatment, or procedure. A patient’s request for a sign language interpreter should be a significant factor in the decision. Determine whether providing such a service would result in an undue burden on the overall practice. Second, assess the patient’s needs before providing a particular auxiliary aid or service. Ask the referring physician how he or she usually communicates with the patient. Consult with the patient about his or her needs when the appointment is scheduled and document the discussion. If a patient requests an interpreter, ask staff to acknowledge the request and gather more information about the patient’s concerns/expectations for the visit so the physician can determine the best way to meet them. Document the decision and the assistance provided. For many routine office visits, a notepad may be sufficient to ensure good communication. Office visits before major surgery or for a new, complex treatment plan may require an interpreter. If the physician and patient disagree, reconsider the decision. Finally, maintain a list of qualified sign language and oral interpreters.
Q Can I charge the patient for the cost of the interpreter?
A No, the cost of aids cannot be passed onto the patient. However, the patient’s employer, health plan, Medicare, or a local hospital may be able to help provide or pay for an ASL interpreter.
1. AMA Legal Issues: Americans with Disabilities Act and Hearing Interpreters, accessed 11/21/2005.
2. American with Disabilities Act (ADA), 42 U.S.C.§ 12101, et seq. ADA Title III Tecnical Assistance Manual, http://www.usdoj.gov/crt/ada/taman3.html, accessed 1/10/2006.
Older Patients Need Additional Informed Consent Consideration
By Anne M. Menke, RN, PhD
OMIC Risk Manager
Digest, Fall 2010
To view the tables referred to, go to http://www.omic.com/new/digest/DigestFall_20110107.pdf
Older patients make up a significant portion of the patient population of most ophthalmologists, and their numbers will grow as life expectancy increases. At the recent American Academy of Ophthalmology meeting in Chicago, an ethics symposium addressed the challenges of obtaining informed consent from older patients. The panelists have agreed to allow OMIC to present some of their comments and suggestions here, particularly those related to aging, decision-making capacity, surrogate decision makers, and cognitive impairment.
Take the Impact of Aging Into Account
OMIC Director, Harry A. Zink, MD, speaking from the perspective of an ophthalmologist, pointed out that certain aspects of the physical condition of older patients impact the care and consent process. These include declining vision, hearing, and memory, as well as cognitive disorders such as dementia. Providing for the needs of these patients comes when many practices are already struggling with time constraints, so ophthalmologists will need to come up with a smarter process of care. Dr. Zink suggests enlisting staff and family members, repeating information and instructions, and providing them in writing, using large print whenever possible. Focus on a few main points and confirm understanding by asking the patient to repeat these main points. Ask a family member to be present during consent discussions, and ensure that decisions made by surrogate decision makers truly reflect the patient’s wishes.
Evaluate the Patient’s Decision-Making Capacity
Representing OMIC, I presented the medicolegal aspects of consent. Physicians know they have a legal obligation to inform patients of their condition, as well as the risks, benefits, and alternatives of the proposed treatment, including no treatment. If patients do not feel that surgeons have fulfilled this duty, they—as plaintiffs—may sue for “lack of informed consent.” To succeed, they must prove that the ophthalmologist did not inform them of the risks, benefits, and alternatives, AND that they would have refused treatment if advised of the risks. Plaintiff attorneys have alleged lack of informed consent on the basis that patients did not have adequate time to make an informed decision or the information on which to base it. Additionally, they have claimed that patients were under the influence of mind-altering medications that impacted their judgment. Attorneys representing older patients may challenge the patient’s ability to make an informed choice. Consider this scenario reported to OMIC by an oculofacial plastic surgeon.
A 70-year-old patient, accompanied by a man she identified as her boyfriend, requested a facelift. Her ophthalmologist determined that she was an appropriate candidate, clarified her goals, and obtained her informed consent. By the time the preoperative nurse called her to review the physician’s orders, the patient could not recall that she was having surgery. The nurse determined that the problem was not simply a matter of forgetfulness. Before the nurse could contact the surgeon, the boyfriend called her to assure her that the patient remembered the surgery and still wanted to proceed. After hearing from the nurse, the ophthalmologist contacted OMIC’s Risk Management Hotline.
While judges determine a person’s competency, physicians use their clinical skills to decide if a patient has “decision-making capacity” or DMC. Adult patients are presumed to have DMC if they understand their condition and the risks associated with the recommended procedure and are able to communicate their wishes. The oculofacial surgeon andI discussed the need to re-examine the patient to determine if she had decision-making capacity and whether there were signs of elder abuse. If the patient’s confusion persisted, the surgery would need to be cancelled.
Surrogate Decision Makers
If a patient lacks DMC, a surrogate decision maker must be found to make the informed consent decision before surgery is allowed to proceed. States recognize that some patients may temporarily or permanently lose their ability to make decisions on their own behalf and have developed mechanisms for determining who may decide in the patient’s stead (see this issue’s Hotline column).
Distinguish the Effects of Aging from Dementia
Patients who lack DMC, especially if they previously demonstrated it, need further evaluation. If you think the cause of the cognitive impairment is Alzheimer’s, you would be right about 60% of the time, according to Chicago gerontologist Dr. Shellie Williams. As the proportion of the u.S. population age 65 and older increases, the prevalence of dementia (the general term for a decline in cognitive functioning) will also increase. In 2009, there were approximately 5.3 million patients with Alzheimer’s, with a new diagnosis rendered every 70 seconds. Researchers estimate that Alzheimer’s disease (AD) and other dementias affect approximately 5% of individuals age 65 and older and as many as 30% to 40% of individuals age 85 and older. In the absence of effective treatment to prevent AD, 8.5 million Americans may have this disorder by 2030.1
Far from a routine part of growing older, dementia is a progressive, terminal disease of the brain that destroys brain cells. (See WHAT’S THE DIFFERENCE?2) Dr. Williams explained that many diseases cause dementia, including Alzheimer’s, Parkinson’s, Lewy Body, and vascular disorders. Dementia increases the morbidity and mortality of other diseases and the risk of adverse events, and limits the patient’s ability to follow medical directions and consent to care. The disease burden is significant: despite care totaling $148 billion, and the unpaid assistance of some 9.9 million caregivers, Alzheimer’s is the sixth leading cause of death, Dr. Williams reported. Dementia is present when memory issues are accompanied by a decline in at least one other area, such as language, motor skills, recognition, or executive function (performance of complex tasks or judgment/reasoning). The combined impairment degrades the patient’s baseline cognition and functioning and leads to a decreased ability to care for oneself and live independently.
Screen for Cognitive Impairment
Clues that a patient needs to be screened for dementia include poor control of a previously controlled medical condition as well as many of the attributes of “difficult patients,” i.e., missed appointments, failure to refill a medication, change in behavior, and disheveled appearance. According to Dr. Williams, dementia is routinely unrecognized and undiagnosed despite its growing prevalence. Physicians were unaware of cognitive impairment in more than 40% of their cognitively impaired patients. Only 24% of patients had a documented diagnosis of dementia, even though their screening exam demonstrated moderate to severe dementia.
Family members failed to recognize a problem with memory in 21% of demented seniors. As many of those who did notice a change attributed it to the normal aging process, only 53% of seniors with memory problems were referred to a physician.3
Family members can help the ophthalmologist determine if there is cognitive impairment. Dr. Williams suggests asking them the following questions about the patient: Does your family member repeat questions? Forget words or names? Have poor recall of familiar people and places? Fall often? Have difficulty taking medications? Talk less? Show poor judgment? Wander? Have trouble using tools and appliances? Misplace items? Seem irritated, angry, or aggressive?
In addition to getting input from family members, physicians can use screening tools. Dr. Williams presented two brief screening methods, either of which can be utilized by ophthalmologists in a matter of minutes. The first is called the “Mini- Cog.” Ask the patient to repeat and remember three words: BALL-FLAG- TREE. Next assign the clock-drawing task (CDT). Ask the patient to draw a clock with the hands set for ten after eleven. Once the clock is drawn, ask the patient to recall the three words. The CDT is considered normal if all numbers are present on the clock in the correct sequence and position and the hands readably display the requested time.4 Abnormal clocks will be missing quarters or have bunched, repeated, or missing numbers. Each word the patient remembers is worth a point, and the CDT is scored as either normal or abnormal. (See MINI-COG SCORING ALGORITHM.)
The second possible screening test is called the “Six-Item Screener.”5 Short-term memory deficit is a hallmark of dementia. The authors chose to target disorientation in three of the questions, specifically temporal disorientation (problems recalling the day of the week, month, and year) since it occurs before disorientation to place and is rarely seen in those not experiencing dementia. Three-item recall helps to identify patients with cognitive impairment. Here is the script: “I would like to ask you some questions that ask you to use your memory. I am going to name three objects. Please wait until I say all three words, then repeat them. Remember what they are because I am going to ask you to name them again in a few minutes. Please repeat these words for me: APPLE-TABLE-PENNY.”5 The physician may repeat the names three times if necessary; the repetition is not scored. The script continues: “What year is this? What month is this? What is the day of the week? What were the three objects that I asked you to remember?” Each correct answer is worth a point. A score of ≤ 4 points is considered positive for cognitive impairment.
Arrange Additional Care for Cognitively Impaired Patients
Patients with a positive screening test for cognitive impairment need additional care. Explain to the patient and family member that the screening test indicates the need for a more detailed evaluation from the patient’s primary care physician or a specialist. Patients with cognitive impairment may exhibit denial or feel that treatment would be futile. Explain that there are many conditions that can cause cognitive impairment and that earlier treatment affords the best chance for optimal functioning. In addition to documenting your assessment and discussion, contact the PCP’s office to schedule an appointment for the patient, and send a referral note with the screening results.
Even with cognitive impairment, patients need to continue to treat their eye conditions. Review and simplify the patient’s medication regimen. Provide medication and care instructions both orally and in writing in simple terms. Involve family members and friends in the patient’s home care whenever possible. Evaluate the patient’s ability to drive.6 Alert staff to the patient’s status so additional time can be provided for appointments and education, if needed. Taking these extra steps to obtain consent and screen for cognitive impairment will help patients and their families meet the considerable challenges of aging and dementia.
1. “Alzheimer’s Disease.” http://www.alz.org/ national/documents/topicsheet_alzdisease.pdf. Accessed 12/3/10.
2. Alzheimer’s Association. “Ten Warning Signs of Alzheimer’s.” http://www.alz.org/national/documents/ brochure_10warnsigns.pdf. Accessed 12/3/10.
3. Chodosh J, Petitti DB, Elliott M, Hays RD, Crooks VC, Reuben DB, Buckwalter JG, Wenger N. “Physician Recognition of Cognitive Impairment: Evaluating the Need for Improvement.” J. Am Geriatr. Soc. 2004; 52(7): 1051-9.
4. Borson S, Scanlan J, Brush B, Vitaliano P, Dokmak A. Int. J. Geriatr. Psychiatry. 2000; 1021-1027.
5. Callahan CM, Unverzagt FW, Jui SL, Perkins AJ, Hendrie HC. Medical Care. 2002; 40: 771-781.
6. See “Visual Requirements for Driving” on the AAO’s web site (www.aao.org). The 2010 edition of the American Medical Association’s Physician’s Guide to Assessing and Counseling Older Drivers includes a 10-minute tool called the “Assessment of Driving-Related Skills,” which screens for problems in cognition, vision, and motor/somatosensory functions that may affect driving (www.ama-assn.org).
Payment Issues: Avoid Delays in Treatment
Hans Bruhn, MHS, OMIC Senior Risk Management Specialist
Digest, Winter 2011
By the time a patient is referred and examined by an ophthalmic specialist, he probably has already been seen by a primary care physician and a general ophthalmologist. Most health insurers require patients to go through a referral process before they can be seen by a specialist. This can be problematic if the patient’s eye condition requires rapid diagnosis and treatment by the specialist. Critical care can also be delayed when patients do not have health insurance and cannot pay out of pocket for these services. When delays in critical care result in less than desired or poor outcomes, some patients will file a claim against the specialist and all referring health care providers, alleging failure to provide timely treatment.
Q Can I withhold care because of a patient’s inability to pay (including co-pays)?
A This is always a tricky situation. Ophthalmologists may be required to collect co-pays or deductibles by third party insurers. If emergent care is needed, we recommend separating payment issues from decisions about care. Proceed with providing as much care as possible and sort out the financial issues after the patient is stable. This will avoid delays in treatment and reduce the risk of a claim. Notify the insurance company of the urgent care situation and the patient’s inability to pay the co- payment. The insurance company may allow you to waive the co-payment; however, waiving fees without first checking with the insurer can jeopardize your provider contract. You should make a reasonable effort to work out a payment plan with the patient; document your efforts and the results.
You may have less control over the situation in a surgical facility or hospital setting that requires payment up front as a condition of admission. But before you send the patient elsewhere, act as the patient’s advocate. Explain to the facility the urgent nature of the required treatment and ask if it will work out a payment plan with the patient. If not, promptly refer the patient to another facility that may be willing to do so. If all attempts fail, it may be necessary to refer the patient to the local emergency room, where federal law mandates that treatment be provided. Throughout this process, keep the patient informed about your efforts on his behalf. This will help reduce the likelihood that you will be perceived by the patient as withholding care. Document carefully.
Q During follow-up, I noted that a patient I first saw in the ER needed surgery. Since I am not part of her HMO, I promptly called her primary care physician to secure a referral to a participating ophthalmologist, but the PCP was out of town. What action should I take?
A Advise the patient about the situation (PCP is not available; surgery is needed and you are not in her insurance provider network). If the patient elects to pay out of pocket, get that in writing and proceed with care. If not, help the patient find another provider to assume care. Contact her HMO directly and request a referral to another ophthalmologist. Once another provider is identified, contact that new physician and facilitate transfer of care along with patient authorization and your recommendation for surgery. Advise the patient of your actions and document accordingly.
Q A patient that I have been treating since June 2008 has developed a serious corneal ulcer (OS), possibly fungal. I prescribed Natamycin drops, but the patient has not gotten the drops and has canceled follow-up appointments because of the cost. The patient is blind in his right eye, and now his left eye is compromised with this serious condition. Am I obligated to continuing seeing him?
A Contact the patient and tell him of your concern. Explain that many patients are having trouble affording care and ask if his financial situation is keeping him from getting the care he needs. Advise him of the seriousness of his eye condition, including the consequences of not using the drops you prescribed and not coming in for exams. Given the urgency of the situation in this functionally monocular patient, encourage him to come in to see you so you can conduct an exam and provide care, including drops, if possible. If the patient is still reluctant to see you, ask if there are any relatives to assist him. Offer to set up a payment plan for incurred medical expenses. As a last resort, advise the patient to go to the nearest emergency room for care. If the patient refuses, document your discussion and send a letter reiterating your recommendations and explaining again the consequences of not getting care. If the patient does not respond to your discussions and letter, consider sending OMIC’s “noncompliance” letter, which gives the patient one last chance to come in for care before the physician-patient relationship is terminated.
Contact OMIC’s Risk Management department for assistance or visit our web site, www.omic.com, for our recommendation “Discontinuing Treatment for Financial Reasons and Noncompliance Guidelines.”
Reduce Your Risk of a Refractive Surgery Claim
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Fall 2008
The refractive surgery claims study featured in this Digest points to actions ophthalmologists can take to improve the safety of these procedures and reduce the likelihood of a malpractice claim. Document any actions you take in the patient’s medical record.
Q OMIC’s refractive surgery underwriting requirements state that the “surgeon must perform and document an independent evaluation of the patient’s eligibility for surgery, including performing a slit lamp exam and reviewing topography, pachymetry, pupil size, and discuss monovision option for presbyopic patients” and “personally obtain informed consent.” Is OMIC opposed to comanagement?
A No, but we have learned from our claims experience that comanaged care has risks that must be reduced. experts for the plaintiff regularly scrutinize how much care is delegated to non-ophthalmologists, whether such delegated care is properly supervised, and if the patient freely consented to the arrangement. We recommend that you develop and implement written protocols for comanagement (see “Comanagement of Ophthalmic Patients” at http://www.omic.com). Clarify in the protocol the role of the surgeon in preoperative and postoperative care and consent. Release the patient to the care of the non-surgeon only when deemed stable, and especially continue to see the patient if there have been complications. Request that comanagers send you reports on all visits, and review, date, and sign the reports before they are filed in the medical record. OMIC’s position on the role of the surgeon reflects that of the American Academy of Ophthalmology (AAO) and the American society of Cataract and Refractive surgery (ASCRS). In joint clinical statements, these organizations have clarified that the “ultimate responsibility for obtaining accurate preoperative assessment and the patient’s informed consent to refractive surgery rests with the ophthalmologist who performs the surgery.”[1] Referencing case law, Medicare regulations, actions by the Office of the inspector General, and ethical standards, their analysis notes that the law imposes duties on surgeons who do not provide the postoperative care. Ophthalmologists who do not meet this obligation could be accused of patient abandonment and risk “liability for patient injury, including injury resulting from the acts or omissions of others to whom the provision of postoperative care is inappropriately delegated, or for inadequate patient informed consent, or both.”[2]
Q What has OMIC learned that can help me improve the quality of my preoperative care?
A Patients who present to ophthalmologists have often already decided that they want refractive surgery, and know that they have myopia, hyperopia, and astigmatism, the conditions refractive surgery is designed to treat. Rather than focusing on indications for surgery, therefore, the preoperative assessment aims to ensure that the patient is a good candidate and to fully advise him or her of the expected risks, benefits, and alternatives. First, avoid if possible meeting the patient for the first time on the day of surgery. If you cannot avoid this, obtain and review the patient’s medical record, especially the topography, before the day of surgery. Send the patient a copy of the consent form to review, and ensure that the consent is not signed until after you conduct the informed consent discussion.
During the preoperative evaluation, rule out ocular and medical contraindications to refractive surgery, initially and before each retreatment. In particular, ensure that there are no topographical or clinical signs of forme fruste keratoconus or ectasia. Assess and disclose the impact of ocular and/or medical comorbidities that are not absolute contraindications but that may influence the visual outcome (e.g., glaucoma, diabetes, stable autoimmune disease, dry eyes). Verify refractive stability and the cause of decreased visual acuity (i.e., regression vs. ectasia), especially before performing repeat surgery. Ask the patient to help identify work and leisure activities that could be impacted by the refractive outcome, such as night driving, piloting a plane, working as an accountant, and knitting. Consider providing the patient with the new AAO guide “Is LASIK for Me?” available at www.aao.org. Ascertain the patient’s goal for surgery and ability to handle disappointment (“how will you feel if you still need to wear glasses at work after surgery?”).
Q What actions should I consider at the surgery center?
A Verify that equipment is regularly maintained, and check for proper functioning of equipment before procedures. Implement the recommendations of the AAO Prevention of Medical Error Task Force so that the correct patient, procedure, eye, and laser settings are assured. If there is a flap complication, refund the patient’s fees and stay in regular phone contact while the cornea heals.
1. AAO/ASCRS Clinical Statement. “Appropriate Management of the Refractive Surgery Patient” (Issued August 2004, Revised January 2008). Available at www.aao.org.
2. AAO/ASCRS Clinical Statement. “Ophthalmic Postoperative Care (OPC)” February 2000. Available at www.aao.org.
Warn Patients about Side Effects of Dilating Drops
Anne M. Menke, RN, PhD OMIC Risk Manager
Dilating drops are used on countless patients daily during diagnostic examinations and surgical procedures. They are essential in order to obtain an adequate view of the retina and fundus. Indeed, failure to perform a thorough examination of the eye could lead to significant patient harm such as delay in diagnosis or failure to diagnose, as well as surgical complications due to poor visibility. However necessary, drops have also precipitated lawsuits, as discussed in this issue’s Closed Claim Study. These claims are usually based upon the ophthalmologist’s failure to warn of the risks of ambulating and driving following the insertion of dilating drops. While the Closed Claim Study discussed fall prevention, this article will focus on driving issues.
Q Do I need to obtain the patient’s informed consent before administering dilating drops?
A Having been taught that informed consent is not required for simple procedures whose risks are commonly considered to be remote—drawing a blood sample or taking a chest x-ray are the usual examples—an ophthalmologist might conclude that dilating drops fall into this category. It is important to remember, however, that the legal doctrine of informed consent is based not upon what an ophthalmologist feels should be disclosed but rather upon what a “reasonable person” would want to know prior to undergoing a procedure or taking a new medication. A quick review of the ocular and systemic side effects might lead this hypothetical reasonable person to feel informed consent is needed. Dilating drops cause vision to be blurred for a period of 4 to 8 hours and induce photophobia, lack of accommodation, glare, and decreased contrast threshold and high-contrast visual acuity. For elderly patients whose vision and mobility are already compromised, these visual changes can be dangerous. Dilating drops can also provoke allergic reactions, angle closure attacks, and systemic reactions such as increased blood pressure, arrhythmias, tachycardia, dizziness, and increased sweating. A jury might reasonably conclude that informed consent should be obtained.
Q What specifically do I need to tell the patient? Can I delegate this duty to my staff who administer the drops?
A The patient needs to understand that the drops will cause blurry vision for 4 to 8 hours, and that he or she should wear sunglasses and avoid driving and operating machinery until the effects wear off. Staff may be assigned the task of warning patients and offering sunglasses.
Q Do I need to have the patient sign a consent form?
A Not necessarily. Document the offer of sunglasses (or reminder to wear them) and the warning about side effects, especially the possible impact on walking, driving, and operating machinery. It is helpful to advise new patients as they are making their appointment that their eyes will be dilated. The first time patients’ eyes are dilated, ask them to sign a form acknowledging that they have been apprised of the risks (see OMIC’s sample consent form at www.omic.com).
Q Do my staff members need to warn the patient each time?
A Yes. To remind them to do so and to expedite the documentation process, you may want to use a chart stamp (see sample following this article and under risk management recommendations for dilating drops at www.omic.com). Consider placing a sign in your waiting room reminding patients whose eyes are dilated not to drive, to wear sunglasses, and to let the staff know if they need assistance walking while their eyes are dilated.
Q Some of my patients feel safe driving home, even right after their appointment. Others tell me that no one is available to drive them to the office for their regular retina appoint- ments. Should I refuse to dilate the eye if a patient insists on driving?
A Not necessarily. Use your medical judgment, taking into consideration such factors as the patient’s pre-dilation visual acuity and driving ability, driving conditions, the reason for the patient’s visit, and how urgently you need to diagnose and/or treat the presenting condition. Involve the patient in the decision-making process and document the discussion. Patients who need to be dilated but will be driving themselves can be offered morning appointments and encouraged to stay in the waiting room until the effects of the drops have worn off. If in doubt, err on the side of patient safety. In general, lawsuits against physicians have been dismissed if the physician warned the patient and documented the warning.
