Uveitis – Specific History Form

UVEITIS – SPECIFIC HISTORY FORM

This questionnaire is to obtain facts pertinent to your past and present health.  Please ANSWER ALL QUESTIONS, DO NOT LEAVE ANY BLANK.  If you are not sure, guess.

Directions:   Please answer each question by circling the appropriate answer either Yes or No.

Family History

(Including maternal and paternal grandparents, uncles, aunts, first cousins, mother, father, sisters and brothers.)

These questions refer to your family, NOT YOU. Questions about your own health will appear in a later section.

Has anyone in your family (not including you) had:

Tuberculosis                                                                                         Yes         No

Arthritis                                                                                                  Yes         No

Severe anemia                                                                                     Yes         No

High blood pressure                                                                            Yes         No

Sugar diabetes                                                                                      Yes         No

Allergies                                                                                                 Yes         No

Hay fever                                                                                              Yes         No

Asthma                                                                                                  Yes         No

Hives                                                                                                      Yes         No

Gout                                                                                                       Yes         No

Syphilis                                                                                                  Yes         No

Has anyone your family had medical troubles of the:

Eyes                                                                                                       Yes         No

Skin                                                                                                        Yes         No

Kidneys                                                                                                 Yes         No

Lungs                                                                                                     Yes         No

Intestines                                                                                               Yes         No

Brain                                                                                                      Yes         No

Any glands                                                                                            Yes         No

Credits: The Uveitis-Specific History Form is based on a form developed by the Francis I. Proctor Foundation.

Social History

In what states have you lived? (Please list ages and the number of years in each different state)

Have you ever lived out of the United States?                              Yes         No

Do you take any drugs regularly?                                                    Yes         No

Do you smoke?                                                                                    Yes         No

Do you or have you ever taken Birth Control Pills?                     Yes         No

Have you ever eaten raw meats or hamburgers?                          Yes         No

Have you ever had a puppy (less than 3 yrs. of age)?                 Yes         No

If so, was it de-wormed?                                                                    Yes         No

Have you ever had a kitten (less than 3 yrs. of age)?                  Yes         No

If so, was it de-wormed?                                                                    Yes         No

As a child did you play in sandboxes frequented

by kittens or puppies?                                                                         Yes         No

Your Past History

Have you enjoyed good health previously?                                  Yes         No

Do you suffer from chronic disease?                                               Yes         No

Have you ever had any of the following conditions:

Cold sores                                                                             Yes         No

Tuberculosis                                                                         Yes         No

Pneumonia                                                                           Yes         No

Rheumatism                                                                         Yes         No

Arthritis                                                                                  Yes         No

Hay fever                                                                              Yes         No

Asthma                                                                                  Yes         No

Hives                                                                                      Yes         No

Severe tonsillitis                                                                   Yes         No

Streptococcal infection                                                      Yes         No

Severe persistent diarrhea                                                  Yes         No

Severe influenza                                                                  Yes         No

Sugar diabetes                                                                      Yes         No

Scarlet fever                                                                         Yes         No

Skin rashes                                                                            Yes         No

Pleurisy                                                                                  Yes         No

Parasitic infection                                                                Yes         No

Other severe illness                                                              Yes         No

Have you ever had rheumatic fever? If so, did you

Have any heart or kidney complications?                                     Yes         No

Have you ever had persistent unexplained fever?                        Yes         No

Were you ever treated for severe anemia?                                     Yes         No

have you ever had, or were you ever treated for syphilis?          Yes         No

Did a doctor ever treat you for a tumor or cancer?                      Yes         No

Have you had gonorrhea?                                                                 Yes         No

Has your strength been up to par for the last 5 years?                 Yes         No

Have you had bleeding from your mouth?                                    Yes         No

from your nose?                                                                          Yes         No

from your lungs?                                                                         Yes         No

from your stomach?                                                                   Yes         No

from your bowel or rectum?                                                      Yes         No

Do you bruise easily?                                                                          Yes         No

Have you been treated with X-rays?                                               Yes         No

Have you ever had any serious injuries?                                        Yes         No

Have you had any surgical operations?                                         Yes         No

If yes, please list them in order of occurrence:

Type of Operation                                                                               Date

Localized Past History

Head

Do you suffer badly from frequent severe headaches?       Yes         No

Do you often have spells of severe dizziness?                       Yes         No

Do you frequently feel faint?                                                    Yes         No

Do you have constant numbness or tingling in any

part of your body?                                                                      Yes         No

Was any part of your body paralyzed?                                  Yes         No

Have you ever had a fit or convulsion?                                  Yes         No

Have you ever had a head injury?                                          Yes         No

Ears

Do you have any constant noises in either ear?                    Yes         No

Have you ever had mastoid trouble?                                      Yes         No

Have you ever had an ear infection?                                      Yes         No

Nose and Throat

Have you ever had your tonsils or adenoids removed?       Yes         No

Do you have persistent hoarseness?                                        Yes         No

Are you often troubled with bad spells of sneezing?            Yes         No

Is your nose often stuffed up?                                                  Yes         No

Have you at times had bad nosebleeds?                                Yes         No

Do you suffer from a constantly running nose?                    Yes         No

Have you had sinus trouble?                                                    Yes         No

Have X-rays been taken of your sinuses?                              Yes         No

Dental

Have you had your teeth examined in the past year?         Yes         No

Have you had teeth X-rays in the past year?                        Yes         No

Were any teeth found to be abscessed?                                  Yes         No

Skin

Are you often bothered by severe itching?                             Yes         No

Does your skin often break out in a rash?                              Yes         No

Are you often troubled with boils?                                           Yes         No

Respiratory

Do you often catch severe colds?                                            Yes         No

Do you frequently suffer from heavy chest colds?              Yes         No

Are you troubled with constant coughing?                             Yes         No

Have you ever coughed up blood?                                          Yes         No

Do you cough up any materials?                                             Yes         No

Have you had a chronic chest condition?                              Yes         No

Did you ever live with anyone who had T.B.?                       Yes         No

Do you sometimes have severe, soaking sweats at night?  Yes         No

Do you have bouts of chills and fever?                                  Yes         No

Gastrointestinal

Do you suffer from frequent loose bowel movements?      Yes         No

Have you ever had severe bloody diarrhea?                         Yes         No

Biliary System

Have you ever had jaundice (yellow eyes and skin)?          Yes         No

Have you ever had serious liver or gallbladder trouble?      Yes         No

Do you have bilious attacks?                                                    Yes         No

Bones and Joints

Are your joints ever painfully swollen?                                   Yes         No

Have your joints ever been red in color

or hot to the touch?                                                                     Yes         No

Do your muscles and joints constantly feel stiff?                 Yes         No

Are you troubled with a serious bodily disability?                 Yes         No

Do you usually have severe pains in arms or legs?               Yes         No

Do pains in the back make it hard for you to keep

up with your work?                                                                     Yes         No

Do you have a stiff back?                                                         Yes         No

Do you have stiffness of muscle or joints after

inactivity or sleeping?                                                                 Yes         No

Genitourinary

Has a doctor ever said you have kidney

or bladder disease?                                                                      Yes         No

If yes to the above question, please explain:

Do you have to urinate more often than normal?                Yes         No

Have you ever passed blood in the urine?                              Yes         No

Do you have burning or pain when you pass your urine?   Yes         No

Have you ever had a discharge from the penis?                   Yes         No

Neuromuscular

Do you have a stiff back in the morning on awakening?    Yes         No

Do you have shooting or lightning pains?                               Yes         No

Are you constantly too tired and exhausted even to eat?   Yes         No

Are you frequently ill?                                                                Yes         No

Are you frequently confined to bed by illness?                     Yes         No

Are you always in poor health?                                                Yes         No

Present Illness

What is your height?                                                                                   ft.                           in.

What is your usual weight?                                                                        lbs.

Have you lost more than 10 pounds in the last year?          Yes         No

Is this the first time you have had this same type

of eye condition?                                                                         Yes         No

Has anyone else in your family had this same,

or a similar condition?                                                                Yes         No

Have you ever known anyone with a condition

similar to yours?                                                                          Yes         No

X                                                                                                                             X                                                                            

Patient Signature

Medical Record Audit Form

Medical Record Audit

Select 10 active patient charts with at least 3-5 prior visits: the most recent visit should have taken place within the past 6-12 months. If information should be present and is not, place an 0 in the box for that    chart. If information is present, rate the quality of the information with 3 = Superior, 2 = Satisfactory, and    1 = Unacceptable. Use “NA” to score items that do not apply to a given chart (e.g., patient has no allergies).

Credits: The Medical Record Audit form was provided by the American Medical Association/Specialty Society Medical Liability Project.

History and Physical Form

HISTORY AND PHYSICAL FORM (Courtesy of Daniel A. Long, MD, a practicing ophthalmologist in Gretna, LA.)

Patient Name:                                                                         Date:                          Age:              

Chief Complaint:                                                                    Allergy:                                             

Meds:               Beta Bl__________  1/4  1/2  Pilo  1  2  4  Prop  N25  50  D250  500

Illness:             HBP   IDDM   NIDDM   ASCVD   MI   CHF   Asthma   COPD   Poor circ   Thyroid

Eye History:     Cataract    Glaucoma    CL    Surgery     Amblyopia

FH:                  Cataract    Glaucoma    AMD    Strabismus    Amblyopia

VA:                  sc   OD     20/20   25   30   40   50   60   70   80   100   200   400   FC   HM   LP

OS     20/20   25   30   40   50   60   70   80   100   200   400   FC   HM   LP

cc   OD     20/20   25   30   40   50   60   70   80   100   200   400   FC   HM   LP

OS     20/20   25   30   40   50   60   70   80   100   200   400   FC   HM   LP

REFR:              OD                             20/                       Add:                             J

OS                             20/                       Add:                             J

CYCLO:          OD                             20/

OS                             20/

STEREO:         Fly Animals 1  2  3    Dots  1  2  3  4  5  6  7  8  9

COLOR:          Normal         Abn

EXT.                OD       Clear         Hyperemia  1  2  3      Edema  1  2  3        Ptosis  1  2  3 mm

OS       Clear         Hyperemia  1  2  3      Edema  1  2  3        Ptosis  1  2  3 mm

PUPILS:           OD       1  2  3  4  5  6           1+     2+     3+      Aff defect  –  1  2  3

OS       1  2  3  4  5  6           1+     2+     3+      Aff defect  –  1  2  3

EOM:               OD       Full           MB:sc    Ortho    EP   ET   XP    XT            HP   HT   OD   OS   PD

cc   Ortho    EP   ET   XP    XT           HP   HT   OD   OS   PD

SLE:                 OD       LIDS   Clear  Bleph  Ant  Post  Mix  1  2  3  Pap  1  2  3  Foll  1  2  3

CORNEA   Clear   SPK  1  2  3   Abrasion

AC    Clear  C  1  2  3   F1   1  2  3   Hyph    IRIS   Clear   PI   open

LENS   Clear  NS  1  2  3  4  Cort  1  2  3  4   PSC  1  2  3  4   Aphakia

PC   Clear  1  2  3  4

OS       LIDS   Clear  Bleph  Ant  Post  Mix  1  2  3  Pap  1  2  3  Foll  1  2  3

CORNEA   Clear   SPK  1  2  3   Abrasion

AC    Clear  C  1  2  3   F1   1  2  3   Hyph    IRIS   Clear   PI   open

LENS   Clear  NS  1  2  3  4  Cort  1  2  3  4   PSC  1  2  3  4   Aphakia

PC   Clear  1  2  3  4

GONIO:           OD       0  10  20  30  40     Pigm  1  2  3  4    PAS  –  +

OS       0  10  20  30  40     Pigm  1  2  3  4    PAS  –  +

OPHTH:           OD       Clear  C/D  0  .1  .2  .3  .4  .5  .6  .7  .8  .9  Symm Pale

Cup  Shallow  Med  Deep

Macula  NL  Flat  Pigm  Ch  1 2 3  Drus  1 2 3  Hem  Edema

MA  Hem  Hard  ex  CW  NVD  NVE  Periph  NL

OS       Clear  C/D  0  .1  .2  .3  .4  .5  .6  .7  .8  .9  Symm Pale

Cup  Shallow  Med  Deep

Macula  NL  Flat  Pigm  Ch  1 2 3  Drus  1 2 3  Hem  Edema

MA  Hem  Hard  ex  CW  NVD  NVE  Periph  NL

IOP:                 OD       8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  Time

OS       8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  Time

IMPRESSION:

PLAN:

Wrongful Death Claims: Tragic, Complex, and Expensive

Paul Weber, JD, OMIC Vice President of Risk Management/Legal

Digest, Summer 2012

Wrongful death claims are some of the most tragic, complex, and expensive malpractice litigation that OMIC handles. They are tragic because a grieving spouse or, perhaps, a bereft parent, claims the insured’s negligence actually caused the death of their loved one. These lawsuits are legally complex because they usually involve multiple plaintiffs (family members) suing multiple defendants who are alleged to have caused or contributed to the death of the loved one. In wrongful death cases against physicians, the plaintiff must still prove all the elements of a medical negligence case, i.e., duty, breach, causation, and damages. These cases can become very expensive, very quickly, as numerous expert witnesses are retained by both sides to prove or disprove whose negligence, if any, caused the patient’s death.

Lending to the complexity of these lawsuits, almost all states have statutes that actually provide for two types of legal actions, often combined in one lawsuit, that may be brought against a physician who allegedly has caused the death of a patient. One action is a claim for wrongful death and the other is a survivor or survival action. The wrongful death action is brought by close family members (e.g., spouse, parent, child) to recover damages for loss of value of the decedent’s future earnings/contributions and personal services, loss of the decedent’s society and companionship, and pain and suffering arising from the death of the patient. A survival action (somewhat misnamed, since it is only available after someone has died) is pursued by the estate of the deceased patient to recover damages sustained by the decedent prior to death, such as medical expenses, loss of earnings, and pain and suffering. As stated above, the two actions are often combined into what will be referred to in this article as a “wrongful death” claim.

Wrongful death claims are relatively rare against ophthalmologists. They account for only 2.4% of all claims against OMIC insureds and 2.6% of claims against ophthalmologists in the Physician Insurers Association of America Data Sharing Project1 database. This relatively small percentage is quite notable because over 24% of claims against all specialties combined in the PIAA database involved the death of the patient. The vast majority of death-related claims in the PIAA database arise from pregnancy, malignant neoplasms of the female breast, symptoms involving the abdomen/pelvis, and acute myocardial infarct—conditions that seldom involve ophthalmologists.

There is little difference, however, in the average indemnity payment in wrongful death cases. According to the PIAA data, the average is $236,000 for ophthalmologists and $243,000 for all specialties combined. OMIC’s average indemnity for a wrongful death claim is somewhat higher than PIAA’s at $295,000 and is nearly twice the $156,000 average for OMIC’s non-death-related claims.

The two most frequent—and expensive—allegations against ophthalmologists in wrongful death lawsuits are improper performance of treatment or procedure and failure to diagnose (see Frequency and Severity chart below). This issue’s Closed Claim Study and Risk Management Hotline provide helpful risk management suggestions to minimize liability risk related to improper performance of surgery/procedure and related emergencies that occur in the hospital, ASC, or office procedure area. Wrongful death cases related to diagnostic error are quite different and frequently involve many providers, often over an extended period of time. In diagnostic-related cases, good documentation and communication among providers is often the best risk management practice to minimize adverse outcomes and the best defense if a lawsuit arises.

Case Study 1—Failure to Diagnose

One OMIC wrongful death lawsuit alleging diagnostic error involved an insured who saw the patient for complaints of swelling OU on January 2, 1995. The differential diagnosis was post-herpetic neuralgia versus sinusitis. The insured ordered a CT scan, which showed probable orbital lymphoma, and consulted with an oncologist and ENT specialist. Upon review of the CT scan, there was a discussion between the oncologist and ENT specialist about whether to get a biopsy. The patient was referred to a radiation oncologist, who began treatment of the left orbit and paranasal sinuses for presumed lymphoma without taking a biopsy. Although the insured testified that he was not involved in the decision to treat the mass or take a biopsy, the records and testimony of the ENT specialist and radiation oncologist indicated they had such conversations with him. The first oncologist had no specific recollection of any conversation with the insured regarding taking a biopsy.

On January 18, one week after radiation treatment started, the patient complained of swelling OU and was treated with prednisone and Tylenol. These symptoms were believed to be due to the radiation treatments. At a visit with the insured one month later on February 15, swelling was down, the eyes were quiet, and visually acuity was 20/20 OS. On February 28, when the patient was seen again by the insured, visual acuity in the left eye had decreased to 20/50 OS. The insured consulted with the oncologist; based on the CT scan, it appeared the lymphoma had regressed from the radiation. The patient was continued on steroids and warm compresses. On March 16, when the patient was seen again, swelling on the left side had increased, IOP was 38, and visual acuity was 20/80 OS. Again, the insured consulted the oncologist and adjusted the oral steroid dose. Two days later, swelling had decreased and IOP was 12 OS.

On April 1, the patient returned to the insured with reduced vision to light perception only OS. The left pupil was 4 mm and fixed. On April 2, a biopsy was taken using the transethmoidal approach and the patient was diagnosed with a fungal (Aspergillus) infection. The insured removed the patient’s left eye to help with treatment of the fungal infection. The patient died on May 21. An autopsy was conducted and the cause of death was listed as an Aspergillus infection. The fungus infection had caused the hematoma in the left frontal lobe, leading to cerebral edema and uncal herniation. There was no evidence of lymphoma at autopsy. The pathologist estimated the Aspergillus had been present in the cranial cavity anywhere from days to weeks.

The plaintiffs in this case were the widow of the patient and two adult children. They brought a wrongful death lawsuit against the insured, the oncologist, the radiation oncologist, and the ENT specialist. The plaintiffs’ theory was that the Aspergillus infection was present in January or February and should have been diagnosed via biopsy and treated at that time. The plaintiff experts testified that had a correct and timely diagnosis been made, the patient would have survived the Aspergillus infection. The plaintiff retained eight expert witnesses. The defendants hired a similar number of experts.

The key expert witness for the insured was a nationally recognized oculoplastics surgeon. He believed the clinical symptoms encountered were consistent with orbital lymphoma, as opposed to a fungal type infection. He felt the patient would have developed a fever in January if a fungus infection had been present at that time. The oral steroid treatment in March caused the periorbital edema to subside, but the steroids would have made the infection worse if it was present at that time. Therefore, it seemed probable to the defense expert that the patient did not develop the fungal infection until sometime in April.

There were some problems facing the insured’s defense. The differing recollections regarding the January decision not to do a biopsy and the insured’s lack of documentation regarding his exact role in treatment of the lymphoma weakened his case by linking him more closely to the plaintiffs’ main liability theory that a biopsy should have been done. Another weak point in the defense was that the insured had the most contact with the plaintiff from January through April. The plaintiff expert argued that the insured continued to treat the patient despite getting poor results rather than refer him to another specialist. The defense thought this was a specious argument as the insured had consulted with the oncologist but believed it might be persuasive to a jury. Moreover, because the case would be tried in a very “plaintiff-friendly” venue, defense counsel put the plaintiffs’ chances of prevailing at trial at 50% and estimated that a plaintiff verdict would range from $1,000,000 to $2,500,000. Other defense attorneys suggested it could go as high as $8,000,000.

OMIC had spent over $180,000 working up the case for trial and had a very experienced defense attorney with an excellent understanding of the clinical issues in the case. However, the consensus of the insured, defense counsel, and OMIC staff was that the clinical issues in this particular case were quite complex, and it was too risky to rely on a jury to understand the roles and duties of the multiple providers. It was felt that they would all be tarred with the same brush. With the insured’s consent, OMIC paid $250,000 to settle the case. The total combined payment from all defendants was $1,300,000.

Case Study 2—Failure to Diagnose

The most frequent type of treatment/procedure arising in a wrongful death claim is the “medical evaluation” and the most frequent type of practice focus is “comprehensive ophthalmologist.” One diagnostic error case against a comprehensive ophthalmologist performing a medical evaluation involved a 42-year-old man first seen by the insured in May 1997 for vision problems. He had been examined in November 1996 by another ophthalmologist, who performed a visual field test that was diagnostic for glaucoma. The patient was placed on medication. In May 1997, the patient’s primary care physician referred him to the insured, who diagnosed bilateral pterygia. The insured also performed a visual field test in July 1997 but made no notations regarding his impressions or any differences between his fields and those taken by the earlier ophthalmologist, despite having those records available to him. In October 1997, the insured removed the pterygia. Two and a half months after this surgery, the patient returned to his PCP complaining of severe headaches. His PCP felt the headaches were migraine-related, but shortly thereafter, the patient presented to the emergency room with excruciating headache pain. He was discharged without a conclusive diagnosis. The next morning, he was found unconscious and taken to the hospital where he expired the following day. An autopsy revealed that death was due to a pituitary tumor hemorrhage. The widow and three minor children sued the insured, the earlier ophthalmologist, the PCP, two emergency room physicians, and the hospital.

It was difficult to find an expert witness willing to testify on behalf of the insured. The ophthalmologist had consecutive visual fields that showed an evolving bitemporal hemianopsia. Close review of the formal visual fields show combined arcuate glaucomatous changes and bitemporal hemianopsia. Expert witnesses and consultants in the case described the visual fields as showing “classic” signs of a pituitary tumor. One consultant presented the visual fields to a group of ophthalmology residents. They all diagnosed an intracranial lesion. While the insured testified that he reviewed and compared the visual fields, there was no record or documentation to support this. Nor was there any communication to either the patient or the family physician regarding the test results or contemplated follow-up.

The emergency room physicians and hospital were dismissed from the case based upon a strong causation defense that, by the time the patient came to the emergency room, it would have been too late to operate anyway since surgery or radiation therapy are only effective before the lesion hemorrhages. The family practice physician settled for approximately $100,000 and the earlier ophthalmologist settled for about $110,000. With the consent of the insured, OMIC paid $790,000 to settle the case.

These two case studies involving diagnostic errors highlight the importance of careful documentation and communication with colleagues. Review, date, and sign test results before they are filed in the medical record. Discuss them in letters sent to referring physicians, and provide patients with copies of test results. Follow up on missing results and missed appointments. See www.omic.com for recommendations on “Noncompliance” for sample tracking systems and letters to patients.

TABLE 1 – OMIC and PIAA Wrongful Death Statistics

Wrongful Death Claims

OMIC                    PIAA – OPHTHALMOLOGY           PIAA – ALL SPECIALTIES

Percent of all claims                        2.4%                      2.6%                                                      24%

Percent with indemnity                 24%                        24%                                                        30%

Average indemnity                         $295,000              $236,000                                              $243,000

TABLE 2 – Allegations in OMIC Wrongful Death Claims

Allegation                                                                            Number               Number Paid     Total Indemnity

Diagnostic Failure                                                             29                           8                              $3,430,000.00

Surgery – Improper Performance                             24                           4                              $1,100,000.00

Treatment/Procedure – Improper Performance  19                           5                              $988,750.00

Miscellaneous                                                                   10                           2                              $99,999.00

TOTAL                                                                                  82                           19                           $5,618,749.00

TABLE 3 – Treatment/Procedures in OMIC Wrongful Death Claims

Treatment Procedure                                                    Number               Number Paid     Total Indemnity

Medical Evaluation                                                          20                           7                              $2,185,000.00

Retina                                                                                   22                           4                              $1,375,000.00

Miscellaneous                                                                   12                           3                              $908,749.00

Oculoplastic                                                                        12                           2                              $790,000.00

Cataract                                                                               10                           2                              $210,000.00

Glaucoma                                                                            6                              1                              $150,000.00

TOTAL                                                                                   82                           19                           $5,618,749.00

TABLE 4 – Practice Focus of OMIC Insureds involved Wrongful Death Claims

Practice Focus                                                                   Number               Number Paid     Total Indemnity

Comprehensive                                                                32                           7                              $2,308,750.00

Retina                                                                                   18                           5                              $1,750,000.00

Entity                                                                                    17                           5                              $669,999.00

Glaucoma                                                                            3                              1                              $150,000.00

Oculoplastic                                                                        6                              1                              $740,000.00

Other                                                                                    6                              0                              $0.00

TOTAL                                                                                  82                           19                           $5,618,749.00

(Endnotes)

1              The PIAA Data Sharing Project is the largest independent source of professional liability claims loss data in the world. Since 1985, 267,713 closed claims have been reported to the database, including 7,600 reported claims against ophthalmologists. OMIC does not submit data to the PIAA Data Sharing Project.

Ophthalmologists’ Liability for the Actions of CRNAs

Kimberly Wynkoop, OMIC Legal Counsel

Digest, Summer 2012

Sedation or anesthesia for ophthalmic procedures may be administered by anesthesiologists or other qualified anesthesia providers. Ophthalmologists are exposed to legal liability for claims based on the actions of anesthetists, and OMIC’s policy is available to protect ophthalmologists if they do arise.

CRNAs as Employees or Agents

Supervising ophthalmologists may be held vicariously liable for the acts or omissions of the CRNA under various theories of liability. The most common is respondeat superior, Latin for “let the superior respond” or “let the master answer.” Also termed the “master-servant rule,” this doctrine holds an employer or principal liable for the employee’s or agent’s wrongful (or negligent) acts committed within the scope of the employment or agency.

The fact that ophthalmologists are required to supervise nurse anesthetists’ provision of services during a procedure does not, by itself, create an employer-employee relationship, nor does it prevent ophthalmologists from maintaining independent contractor relationships with them (or no formal relationships at all, such as in a hospital setting). The substance of the relationship, not the label, governs the nurse anesthetist’s status as an employee or independent contractor. In order to determine whether a CRNA would be considered an employee, there are several factors to consider.

Does the ophthalmologist have a right to direct and control how the nurse anesthetist does the task for which he or she was hired? An employee is generally subject to the employer’s instructions about when, where, and how to work.

Does the CRNA bill separately for his or her own services? Independent contractors are more likely than employees to have non-reimbursed expenses and to bill separately for their own services. Whether under contract or not, an employee often will receive benefits and his or her compensation is subject to withholdings.

Control Over Independent CRNAs

As a general rule, ophthalmologists are not held liable for the negligent acts or omissions of independent CRNAs, even if—for billing and regulatory purposes—they are deemed to be their “supervisors,” unless the ophthalmologist controls or directs the actions of the anesthesia provider. Courts generally focus on the amount of control the treating physician exercises over the anesthesia provider to determine whether the physician should be liable for the anesthetist’s actions.

To determine if a physician has such control, courts consider who hired, could terminate, and pays the anesthetist, and who has the right to direct the anesthetist in the manner and performance of his or her work. The particular test to determine whether the supervising physician controls the anesthetist’s work varies by state.

In ASC and hospital settings, ophthalmologists are often required, under CMS regulations and/or state law, to supervise nurse anesthetists and sign various anesthesia-related orders, evaluations, and reports. It is OMIC’s understanding that the role of the treating physician, with relation to the provision of anesthesia services, is to (1) determine whether a patient requires the surgery or diagnostic procedure, (2) request that anesthesia be administered, and (3) determine that the patient is an appropriate candidate for the procedure and anesthesia. Therefore, it is not uncommon for the treating physician to be asked to sign perioperative orders for anesthesia, sedation, and anxiolytic drugs and to co-sign the pre-anesthesia evaluation conducted by the nurse anesthetist in addition to signing the record of the operation prepared by the circulating nurse as well as the dictated operative report. The fact that ophthalmologists sign certain anesthesia orders, evaluations, or records could be used by a plaintiff’s attorney to attempt to prove control, but without further evidence, it would probably not be sufficient.

Even if ophthalmologists do not have general control over a CRNA, the “borrowed servant” theory of liability provides that physicians can be held liable if they “borrow” another’s employee and acquire a temporary right of control over the employee that was originally possessed by the lending employer.

Negligent Supervision and Hiring

The supervising ophthalmologist may also be held liable for the CRNA’s actions under the theories of negligent supervision and negligent hiring. Negligent supervision arises from the rationale that physicians conducting professional activities through other professionals such as CRNAs are subject to liability for any injuries caused if the physician is negligent or reckless in supervising such activity. Negligent hiring may be alleged if the ophthalmologist knew or failed to use reasonable care to discover that the CRNA was not competent, fit, licensed, or certified to perform the required duties.

OMIC’s professional liability policy covers ophthalmologists for professional services incidents arising from direct patient treatment provided by “any person acting under the supervision, direction, or control of the insured at the time of the professional services incident, so long as that person was acting within the scope of his or her licensure, training, and professional liability insurance coverage, if applicable.” In other words, OMIC’s policy covers insureds for their liability arising from the supervision of nurse anesthetists, subject to all policy terms, conditions, and exclusions.