Documentation Issues in Paper & Electronic Records
Anne M. Menke, RN, PhD, OMIC Risk Manager
When lawsuits against policyholders are resolved and the claim is closed, OMIC asks insured ophthalmologists about 1) risk management issues that were brought to their attention by the claim and 2) the steps they have since taken to reduce exposure to this type of claim in the future. In our most recent surveys covering the latter half of 2013, fully half of the answers to the first question and a third of the responses to the second were about documentation problems that had impacted the claim. To better understand the precise type of documentation issues that influenced the outcome of recent cases, I reviewed OMIC lawsuits that closed in 2012 and 2013. This article will address the most common deficiencies, in decreasing order of frequency.
Operative report
Not surprising for a surgical specialty, operative reports are carefully scrutinized in ophthalmic surgery lawsuits. In many claims, the operative report failed to mention complications that led to poorer than anticipated outcomes and unhappy patients. The majority of OMIC claims relate to cataract surgery, and the main documentation deficiency in the cataract claims reviewed for this article was the absence of discussion of capsule rupture. This is a known complication and if it is documented, disclosed to the patient, and managed well, the defense attorney would argue that the outcome was a maloccurrence rather than malpractice.
In one such case, a patient alleged persistent glare, halos, corneal edema, and extreme light sensitivity caused by an irregular iris following cataract surgery. The defense expert reviewing the case explained that he could not determine if the standard of care was met or not based upon the operative report as it did not mention that the surgeon had performed an anterior vitrectomy, removed the entire capsular bag, and somehow injured the iris. The defense expert surmised that the ophthalmologist encountered floppy iris syndrome but noted that the only action documented in the medical record to address it was to administer Atropine. The insured ophthalmologist consented to settle and OMIC paid $200,000.
Other operative note deficiencies include failing to document an adverse event (see Closed Claim Study); operative notes that were pre-dictated but not amended to address complications; lack of any operative note at all (a LASIK surgeon explained that if the surgery had no complications, he did not dictate a report; see the discussion of this case under “Telephone care”); and two operative notes, dictated one day apart, offering different accounts of the surgery (the plaintiff dismissed the case before the reason for the two forms could be explored; defense counsel felt they would have posed problems for a successful defense).
Preoperative decision-making
Complications arising from surgical care would not have happened if the surgery had never taken place. Attorneys representing patients thus review the preoperative decision-making process carefully to determine if the surgery was indicated. In one case, a patient who experienced irregular astigmatism after implantation of a premium toric intraocular lens filed a claim. The defense expert felt that the surgery was indicated and had no concerns about the intra- or postoperative care, but questioned why the preoperative evaluation did not include keratometry, topography, or refractions from the patient’s recent preoperative visits, which would have helped assess the amount and type of astigmatism prior to surgery. The patient did not pursue the claim and it closed without payment.
In another case, a patient sued after developing diplopia and excessive scarring when a lid lesion was removed. One defense expert felt that the scarring could not have been anticipated and that the patient had experienced a rare, idiosyncratic immune response. Another defense expert, who sees many patients with the same type of benign lesion, questioned the need to remove it. He also criticized the lack of documentation about why the surgeon decided to excise it, as the record did not contain any patient complaints about problems the lesion was causing. With the consent of the insured ophthalmologist, the case settled for $95,000.
Informed consent
The adequacy of the informed consent discussion is often challenged in lawsuits. It is more difficult to obtain informed consent when the patient has limited English proficiency. In one of the cases reviewed, a Spanish-speaking patient had cataract surgery complicated by posterior capsule rupture and anterior vitrectomy. He sued after losing all vision following a postoperative retinal detachment. The only consent form found in his medical record was for a clinical trial in which he was not a subject, and there was no documentation about the use of a translator during the informed consent discussion with the non-Spanish-speaking surgeon. While there was support for the care, the poor outcome and lack of evidence of consent convinced the ophthalmologist to settle the case, for which OMIC paid $200,000. Documentation of consent for limited-English-proficiency patients should include the language in which the discussion took place and the name and relationship of any translators. OMIC has recommendations on the use of interpreters for both limited-English-speaking and deaf patients on our website.
Examinations and tests
A number of lawsuits would have been defensible if key exam elements had been documented. The most frequent problem stemmed from failure to document dilated retinal exams in patients who were later diagnosed with retinal detachments. In one such case, the ophthalmologist recalled dilating the eye but worried that the jury might not believe him, as he lived in an area where juries tended to side with the plaintiff. He decided to settle and OMIC paid $100,000.
Another surgeon also reported performing a dilated retinal exam. At his deposition, he was questioned because his documentation was in two different colors. He testified that the documentation about the dilated exam might have been added after he learned that another ophthalmologist had diagnosed a retinal detachment. His case settled for $320,000.
Another case involved a physician who was asked to quickly examine a patient for a colleague. She confirmed that the patient had a retinal detachment in the periphery and accordingly advised the patient to return to his retinal surgeon for the necessary operation. The physician considered this to be a “curbside consultation” and so did not document the encounter. The lack of documentation presented problems when she was later named as one of the defendants in a lawsuit. Regardless of her limited involvement with the patient, by examining him, she had established a physician-patient relationship for which a record was required. Fortunately for this physician, the plaintiff agreed to dismiss her from the lawsuit.
Telephone care
Ophthalmologists take after-hours calls from their own patients and those of their call partners as well as from emergency rooms when they are on-call. OMIC has regularly had to settle cases when the call has not been documented by the ophthalmologist, and his or her recall differs from the patient’s account or what the emergency room physician documented. In one case, a patient called her ophthalmologist after LASIK surgery to report red, irritated eyes and was told to continue to take the drops prescribed to alleviate dryness. She called again while out of town to report worsening vision. She testified that the only advice she was given was to continue taking her drops. The physician recalls urging her to go the local emergency room but did not document either call. The patient developed an infection and corneal ulcer that left her with halos and night driving problems. The defense was complicated by the absence of documentation of the two phone calls as well as the lack of an operative note. As mentioned under “Operative report,” this surgeon felt there was no need for an operative report for uncomplicated refractive surgery. The case settled for $50,000. Our website has contact forms for after-hours calls.
Contradictory records
Before the advent of electronic health records (EHRs), documentation deficiencies were predictable, stemming from illegible handwriting, missing pages, untimely entries, and questionable accuracy.1 Problems also routinely surfaced with pre-dictated operative reports that, as noted previously, were not amended to address intraoperative complications. EHRs have successfully addressed the handwriting issues and have been credited with preventing some types of harm, such as medication errors stemming from wrong doses, routes, allergies, or drug-drug interactions. Nonetheless, EHRs have also created unintended consequences, including new sources of error and harm, as two OMIC cases illustrate.
In one case, a child presented to the emergency room, where the ER physician noted a dilated, non-reactive pupil with a shallow laceration in the lower lid conjunctiva. He diagnosed traumatic hyphema and contacted the on-call ophthalmologist, who asked that the patient see him in his office the next day. The ophthalmologist’s EHR record from that outpatient visit indicated essentially normal findings of a round, reactive pupil without afferent pupillary defect (APD), and a white and quiet conjunctiva. The only abnormal finding was cell and flare in the anterior chamber, which led to a diagnosis of traumatic iritis. Before the recommended return visit, the patient lost vision and was seen by a physician covering for the ophthalmologist’s practice. After eliciting a history of sickle cell disease from the mother, the second ophthalmologist asked her to bring the child right in. The vision was NLP, the pupil was fixed and dilated, IOP was 46, and there was a 4+ APD. Despite treatment, the child ended up with HM vision and the parents sued. The ophthalmologist who initially saw the child reviewed his note and realized with dismay that the EHR had populated it with many normal findings. He fully intended to change the note later in the day but forgot to do so when his clinic got busy; indeed, it had never been signed as complete. There was no documented IOP, but the physician clearly remembered that he checked it himself when the staff member needed to leave the room to avoid becoming sick when the child vomited. The documentation problems, combined with criticism of his decision to treat the child over the phone instead of going to the ER, led OMIC to settle the case with his permission for $380,000.
Similar problems surfaced in another case with EHR in which the plaintiff alleged a delay in diagnosis of a retinal detachment. On several visits, the exam findings contradicted the physician’s assessment. Once, the findings showed cell and flare, yet the ophthalmologist discontinued the steroid drops and gave the patient a long follow-up period. The defendant physician explained he would never have stopped the steroids if the inflammation had continued and attributed the discrepancy in the records to use of the “carry forward” function, which automatically populated the record with the previous exam’s findings. On another key visit, the findings showed normal retina vessels and clear vitreous, yet the assessment was retinal vasculitis, which had prompted the ophthalmologist to refer the patient to a retina specialist. Plaintiff experts and the subsequent treating physician felt that the retinal detachment had been present for some time yet was not detected by the ophthalmologist. Problems with the records helped convince the ophthalmologist to settle for $290,000.
Risk management documentation strategies
In the event of a malpractice claim, the medical record often becomes the most important evidence used to determine whether or not the physician met the standard of care. While ophthalmologists have the opportunity to testify about documentation deficiencies, the plaintiff’s attorney will use the discrepancies to challenge the ophthalmologist’s credibility and diligence. This review of ophthalmic lawsuits shows that ophthalmologists need to pay particular attention to noting in the operative report any complications and how they were managed; the decision-making process when determining a diagnosis and course of treatment; informed consent discussions about risks, benefits, and alternatives of the proposed treatment; key pertinent positive and negative findings; and telephone conversations with the patient and other physicians.
Electronic health records introduce new sources of error and confusion. A growing body of literature warns of the risks that certain features of electronic health records pose to the integrity of the medical record. An Institute of Medicine (IOM) report addressed what it terms “e-Iatrogenesis,” defined as “patient harm caused at least in part by the application of health information technology (HIT).”2 The IOM report, which analyzed events in hospitals, found many problems associated with the implementation of HIT, including inaccurate and missing data, but a low level of harm caused by it. OMIC’s claims experience similarly shows that—so far—EHRs have mostly impacted the defensibility of the care. Please see the Hotline article for advice on how to ensure that EHRs produce accurate, reliable accounts of care.
1. Boyd D. “The Risks of Electronic Medical Records: Defending the Record.” ASHRM Forum. 2013;Q3:4-5.
2. IOM. “Roadmap for Provision of Safer Healthcare Information Systems: Preventing e-Iatrogenesis.”
Referral Form for Patient and Physician
When you refer your patient to another healthcare provider (particularly for urgent or emergent situations or lab work), we suggest that you send a referral request to the provider and give the patient (family member, caregiver etc.) a written document with details regarding the referral. This recommendation is based on several major lawsuits OMIC has litigated where the patient has denied being referred for a consultation, even when there was a clear note in the patient’s chart that such a referral was made. We have been able to successfully defend some of these cases, others we have had to settle. However, regardless of the outcome, it was clear the cases were more difficult to defend because of the lack of evidence the patient received written documentation of their condition and the urgency of the referral.
Download a copy of the referral form to send to the other physician by clicking here: Referral Note to MD.
Download a copy of the referral form by clicking here: Referral Note for Patient
The sample referral note is an example of what OMIC considers important information to provide to the patient. This is simply a recommendation and does not constitute a standard of care. You will want to modify the referral note to best meet your patient’s specific needs.
Abandonment or Noncompliance?
Ryan Bucsi, OMIC Senior Litigation Analyst
Digest, Winter 2013
Allegation
Failure to follow up with patient after a negligent injection of Kenalog.
Disposition
Defense verdict.
Case summary
A 56-year-old male patient with type II diabetes began to complain of decreased vision OD one month following uncomplicated cataract surgery OD. He was referred to an OMIC-insured retinal specialist, who diagnosed diabetic macular edema and proliferative diabetic retinopathy OD. The insured recommended an intravitreal injection of preservative-free triamcinolone acetate (Kenalog), which was performed without complication. The following day, the patient returned to the retinal specialist with hand motion vision, pain, pressure, and photophobia. The insured diagnosed pseudoendophthalmitis and prescribed antibiotics. Three days later, the patient returned to the insured with hand motion vision. The insured diagnosed pseudo versus infectious endophthalmitis and the patient elected to continue with antibiotics and steroid drops versus injection. Ten days later, the patient’s visual acuity improved to 20/100 OD; however, two weeks later, the patient called to report pain and redness OD. The insured asked the patient to come into a satellite office, but the patient declined due to the increased driving distance. The patient was advised of the risk of not being seen and an appointment was scheduled for two days later. On the following day, the patient telephoned the retinal specialist to report pain and increased blurring. The patient was advised to come into the satellite office, but once again refused citing the increased distance. When the patient finally did return to the office, visual acuity was hand motion OD and intraocular pressure was 66. The insured tapped the right eye on two occasions, which only temporarily decreased the pressure. When the patient declined a third tap, the insured referred the patient for a trabeculectomy, but this was delayed as the patient was admitted to the hospital for dehydration. Following this hospitalization, a trabeculectomy was performed which eventually resolved the increased pressure. A second retinal consultation by a non-OMIC insured was performed, which revealed hand motion vision, no detachment, vitreous opacity, and controlled pressure OD. A pars plana vitrectomy and lens removal were eventually performed which resolved the endophthalmitis, but the vision remained at hand motion.
Analysis
Plaintiff alleged that the Kenalog injection caused glaucoma and endophthalmitis resulting in hand motion vision OD. He also alleged that he was not aware of the off-label use of Kenalog and that the insured “abandoned” him. Plaintiff’s expert testified that the insured had a duty to travel to see the patient. The defense argued that the insured met the standard of care for informed consent by advising the patient of the risks and alternatives and that the patient signed a consent form for the Kenalog injection. The defense refuted the abandonment allegation and argued contributory negligence by the patient when he declined to drive to a satellite office, even though it was no more than 27 additional miles from where he was regularly seen. The defense expert testified at trial that the patient’s noncompliance played a definite role in his outcome. The defense also noted that post-injection, steroid-induced glaucoma and endophthalmitis are known side effects of intravitreal Kenalog injections. Although the discussion about the off-label use of Kenalog was not documented in the patient’s chart, during deposition the office technician explained that the insured “always” explained to patients when drugs were used off-label. The plaintiff demanded $750,000 to settle, but the insured and OMIC agreed that the case was defensible. After a three-day trial and 90 minutes of deliberation, the jury returned with a defense verdict.
Risk management principles
To prove abandonment, the plaintiff must show that there was an established physician-patient relationship and that care was withdrawn without adequate warning. OMIC is not aware of any legal duty during this relationship for a physician to go to a patient’s home, nursing home, or, as in this case, another office. Patients have a legal right to refuse care. On the other hand, physicians have a legal duty to explain the consequences of refused care, which the insured did. OMIC recommends that physicians inform patients of off-label use, especially if the treatment consists primarily of an off-label medication, as in this case (see sample consent form at http://www.omic.com/informed-consent-for-off-label-use-of-a-drug-or-device/).
When Patients Won’t Pay for Care
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Winter 2013
Some patients who opt for high-deductible health insurance plans or go without insurance altogether decide to postpone or refuse recommended care. Some of these patients are perfectly willing to receive the care, but not to pay for it. When patients base their healthcare decisions primarily on financial considerations, they put their physicians in a difficult position. OMIC’s risk management team has received a number of calls from policyholders trying to balance their professional liability risk with their practice’s financial well-being. The following discussion assumes that the patient has some financial resources and provides general principles for dealing with this situation. In the case of indigent patients who have no financial resources, ophthalmologists may decide to provide care at little or no cost and/or help the patient find alternative sources of care. OMIC believes this is not only compassionate but also helps minimize the risk of a claim. Please call our confidential risk management hotline at 800.562.6642, option 4, for specific advice.
Q. My patient presented with a macula-on retinal detachment. I recommended that surgical repair take place within several days. When my surgery scheduler informed the patient of the price, the patient said he was not willing to pay and refused to sign a financial agreement form. Do I have to provide the surgery free-of-charge now that I have established a physician-patient relationship?
A. No. OMIC is not aware of any law or regulation related to outpatient, non-emergent care that requires a physician to provide free care. To our knowledge, the only situation in which patients have the legal right to obtain care without payment being an issue is in an emergency room. The law governing this care is the Emergency Medical Treatment and Active Labor Act, or EMTALA, and applies only to care provided in the ER, and only until a physician determines that the patient does not have an emergency medical condition (EMC), or that the emergency medical condition has been stabilized. If no EMC exists, or it has been stabilized, the hospital may then ask about the patient’s insurance status, and may then either provide further care with payment provided by insurance or on a fee-for-service basis. Hospitals provide patients who choose not to pay for non-emergent care information on where such care may be obtained outside the hospital. Ophthalmologists may also choose to refer patients who are not willing to pay for care to other possible sources of care.
Q. If I refuse to provide the care I am recommending unless the patient pays, am I “abandoning” the patient?
A. If you offer to treat the patient, you have not abandoned him. Clarify to the patient that you are available to provide the treatment, but that you expect to be paid for your care. Explain when the care is needed, what the consequences of not getting the care are, and where else the patient may go for care. Document the conversation, and provide the patient with a list of resources as well as a written discussion of the consequences of not getting treatment. Consider discharging the patient (see http://www.omic.com/terminating-the-physician-patient-relationship/ for a sample form).
Q. Should I provide emergent care even if my patient won’t sign a financial agreement?
A. While we are not aware of a law or regulation that requires physicians to provide any care for free except as discussed above in the context of EMTALA, we feel that the risk to the patient and physician alike is too great to refuse to provide emergent care when you have established a physician-patient relationship. Our risk management recommendation, therefore, is to provide the emergent care, and then address the patient’s financial obligations. If the patient continues to refuse to pay for care after the emergent condition has been treated, consider terminating the relationship.
Q. My patient showed up for an appointment for a non-emergent condition, but won’t pay her copay or deductible. May I reschedule the appointment?
A. Yes. As long as you are confident in the screening process your staff use to determine the appointment category, you may ask patients to come back when they are prepared to meet their financial obligations. See “Telephone Screening of Ophthalmic Problems”.
Ophthalmologists should consider developing a “Patient Financial Responsibility” policy and statement that clarifies what options are available for payment, and what consequences the patient might face if he does not meet his financial responsibility. Many sample statements are available on the internet.
The High Cost of Refused Care
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Winter 2013
A patient calls to report symptoms suggestive of endophthalmitis but refuses to drive to a satellite office where the ophthalmologist is working that day. A patient who recently had cataract surgery calls the surgeon to complain of headaches unrelated to the surgery but won’t go see her primary care physician. A glaucoma patient refuses to come in for a follow-up visit to perform visual fields and check the optic nerve but wants the ophthalmologist to keep refilling her prescription. A comprehensive ophthalmologist refers a patient to a glaucoma expert for surgery but the patient won’t go. The parents of a minor patient with retinoblastoma won’t agree to surgery. These narratives are just a few of the many examples of situations where patients of OMIC-insured physicians, or patients’ representatives, have refused care. These patients and parents gambled that they could beat the odds of not only vision-threatening but life-threatening conditions. All patients sustained harm, and all sued their ophthalmologist when they did. In this issue of the Digest, we explore the high cost to patients and physicians alike when care is refused, and we propose ways to reduce this risk.
Who may refuse?
Physicians may be uncomfortable when care is refused, but recognize that adult patients have the legal right to consent to, or refuse, recommended care. Indeed, this right is the premise behind informed consent discussions, where the physician explains the patient’s condition, proposed treatment, and its risks, benefits, and alternatives, including no treatment. In order to make a meaningful choice, however, adult patients must have decision-making capacity (DMC). Adult patients are presumed to have DMC if they appear to understand their condition and the risks associated with the recommended treatment, and are able to communicate their wishes. In the Fall 2010 issue of the Digest, we addressed the need to screen for dementia, especially in older patients. Patients who seem “difficult” and miss appointments or refuse care may actually be suffering from dementia, so the first step in assessing a patient’s refusal of care is to consider cognitive impairment. Such patients should be referred to a primary care physician for evaluation. See “Older Patients Need Additional Informed Consent Consideration” for a discussion of dementia screening tools and surrogate decision-makers.
Clarify why care is refused
Having ruled out cognitive impairment or lack of decision-making capacity in adult patients, the ophthalmologist will next want to ascertain the reason for the patient’s refusal. Ophthalmologists and staff are often quite frustrated when patients refuse recommendations, and just as often make assumptions about the reasons. The healthcare team members may lose important opportunities to intervene if they do not take the time to discern the patient’s motives. A simple, straightforward approach can be very effective: “You’re not willing to have the surgery? That is certainly your choice, but I would like to understand your decision. Can you tell me more about it?” Sometimes, patients disagree with the diagnosis: “I don’t need the surgery because that is not what’s wrong with me!” Keeping an open mind, the physician can ask the patient “What do you think is wrong?” Staff can play an important role by anticipating problems with compliance, and letting patients know that it is acceptable to ask questions.
Educate the patient about the disease process and treatment recommendations, targeting the education to the reason for the refusal. When possible, identify social service resources that may help, such as pharmaceutical companies that may provide free or reduced-cost medications. Have information available about the enrollment criteria and process for obtaining state and federal assistance, and be aware of transportation services for patients. If the care is not authorized by the patient’s insurance, act as an advocate and appeal the decision. If the main reason behind the refusal is an unwillingness to pay for care, a different approach is needed. See the Hotline article for suggestions on how to handle this.
Duty to warn
If the patient persists in declining recommended treatment, the physician must then obtain what is referred to as “informed refusal.” While courts have recognized the patient’s right to refuse treatment, they have consistently ruled that the decision must be an informed one. OMIC’s claims experience has shown that experts and juries alike consider the patient to be “ignorant until proven educated.” To ensure that patients have adequate information on which to base their choice, physicians are thus required to warn patients of the foreseeable consequences of refusing treatment, such as reduced vision or blindness.
Some refused care situations are straightforward, prompting physicians and their staff to warn patients. In the lawsuit featured in this issue’s Closed Claim Study, a postoperative patient with symptoms highly suggestive of endophthalmitis was asked to come in to a satellite office where a physician could see him immediately since the office he usually went to was closed that day; the patient refused to drive to the other office, claiming it was too far away. Staff and the ophthalmologist were concerned and repeatedly warned the patient that a delay in treatment could lead to serious vision loss or blindness in that eye—all to no avail.
Physicians can only warn of consequences they foresee. About eight days after cataract surgery and the implantation of a premium intraocular lens (IOL), a patient reported that she had experienced migraine-like headaches since the procedure and had been awakened at 3 am by one the night before her appointment. When the eye exam was unremarkable and the only finding was a tender area in the right sub-occipital area, the eye surgeon informed the patient that the IOL was not causing her headaches and instructed her to contact her primary care physician (PCP) to explore other causes. The headaches persisted to the point that the patient called the ophthalmologist five days later and asked to have the IOL removed. The physician again advised her to see her PCP or go to the emergency room. She refused to do either, convinced they would only prescribe more pain medication. The patient was worked in to the ophthalmologist’s schedule several hours later and was so ill that she vomited twice while in the waiting room. The eye exam was again normal. Concerned, the ophthalmologist contacted the PCP himself and arranged for the patient to be seen right away. She saw her PCP that day and a CT was performed. The patient collapsed and died the next day right after a return visit to the PCP. The CT showed a large, chronic subdural hematoma, confirming that the cause of the headaches was not related to the cataract surgery. The ophthalmologist was criticized by both plaintiff and defense experts for not examining the optic nerve or ordering a sedimentation rate, since the patient had no history of migraine headaches but did have hypertension. The defense expert acknowledged, however, that the eye surgeon did arrange for the patient to see her PCP and confirmed that her death was unrelated to the eye surgery. The ophthalmologist settled for a nominal amount, and the case continued against the PCP.
Ongoing and repeated noncompliance
OMIC’s claims data shows that ophthalmologists who treat glaucoma patients frequently confront noncompliance and refused care, but often do not adequately warn their patients of how such noncompliance puts them at risk. One patient with chronic primary open-angle glaucoma had homes in both the Northeast and the South. Citing a planned trip to her other home as the reason, she declined to come in for her follow-up examination during which visual field testing was scheduled. She nonetheless asked the ophthalmologist to renew the prescription for her glaucoma medication. The physician agreed to the patient’s request, not just once, but over many months. By doing so, he operated on the assumption that the medication was controlling the patient’s disease and so did not warn her that the medication might not be effective or that, without an examination, her disease could progress despite treatment. Unfortunately for both the patient and the physician, this is exactly what happened. When she suffered visual loss as the result of progressive glaucomatous changes, she sued her ophthalmologist. Defense and plaintiff experts agreed that the patient’s refusal to come for follow-up care was a factor, but felt that it was below the standard of care for the physician to continue to prescribe without examining the patient and warning her of the consequences of refusing to be examined. OMIC settled the case.
Sometimes, the patient provides no reason for refusing to follow treatment recommendations. One such patient changed her appointments at will, coming only when it was convenient for her, as evidenced by several pages in her medical record devoted to the dozens of missed and rescheduled appointments. Despite written instructions and regular documented warnings from her physician about the importance of administering her glaucoma and steroid drops as instructed, she continued to take them as she pleased, leading to sustained increased intraocular pressure over a six-month period during which time she kept missing appointments. It was only when signs of glaucoma progression were noted that the comprehensive ophthalmologist referred her to a glaucoma surgeon. She allegedly refused, but there was no documentation in this instance of the warning. The patient denied that she had refused to see the glaucoma specialist but, since she also denied that she had missed appointments, defense counsel challenged her credibility, and the defense expert pointed to the patient’s noncompliance as a significant cause of her diminished vision. Experts on both sides insisted that regardless of the patient’s behavior, the eye MD had a duty to take more decisive action in the face of this patient’s repeated unwillingness to partner in her care, such as referring the patient much earlier and documenting a warning when she declined the referral. Not surprisingly, the plaintiff did not cooperate any better with her attorney than she had with her ophthalmologist. She “no showed” for her own deposition and eventually decided not to pursue the case. See “Noncompliance: A Frequent Prelude to Malpractice Lawsuits” for detailed recommendations on prescription refill policies, how to manage missed appointments, track tests, and reduce the risk of noncompliance.
Duty to report neglect
Patients who have not reached the age of majority, generally 18 years of age, do not usually have the legal authority to consent to or refuse care (see Policy Issues for more information on minor consent). Eye surgeons often have questions about how to handle a parent or legal guardian’s refusal to give consent for the treatment of a minor. The concern is warranted, for the physician has both a duty to the child to provide needed care, as well as a duty to report suspected child abuse or neglect. State laws generally include in the definition of neglect a situation in which the child’s health may be endangered by the failure to provide medical care, demonstrating that a parent’s right to refuse certain types of care is restricted. For example, an OMIC-insured ophthalmologist diagnosed retinoblastoma, and explained to the distraught parents that surgery was urgently indicated in order to preserve the child’s life. The parents declined. The same advice was given by a series of physicians who were asked by the parents to see the child. Eventually, the parents were reported to the state’s child protective services department, and the child had the surgery after being removed from the parents’ home. The surgery occurred too late to save the child’s life. The parents proceeded to sue each physician who had examined the child; their suit was unsuccessful.
Ophthalmologists who care for minor patients should seek risk management assistance when parents refuse care. Physicians should have a low threshold for reporting refused care as possible child neglect if the minor patient risks significant loss of vision or harm. Consistent with this recommendation, OMIC has amended its sample letters to parents of infants being screened for retinopathy of prematurity, for example, to state that if the parent refuses screening or treatment for ROP, the ophthalmologist will discuss the refusal with the other physicians involved in the infant’s care and with the state’s child protective services.
These case examples demonstrate that physicians put their professional well-being and the patient’s health at risk if they do not manage patients and parents who refuse care. Physicians may improve the likelihood of patients getting the needed care, and reduce their malpractice exposure, by exploring the reasons care is refused, by warning patients of the consequences of refusing care, and by documenting that discussion. When a surrogate decision-maker is refusing care, the physician should consider whether the refusal constitutes neglect and whether there is a duty to report the refusal to adult or child protective services. OMIC policyholders needing assistance with these issues are encouraged to contact our confidential risk management hotline by phone at 800.562.6642, option 4, or by email at riskmanagement@omic.com.
