Risk Management

Close Door On Liability

 By Dean C. Brick, MD

Argus, September, 1995

Increasingly, ophthalmologists are being asked to practice more efficiently to remain competitive in the new health care arena. Many time-saving strategies allow physicians to provide quality care. However, using pre-dictated operative report forms to save time carries potential liability risks.

The importance of complete and accurate medical records cannot be overemphasized. A poor surgical result linked with an incomplete operative note may lead to liability regardless of the standard of care practiced. Because jurors often are evaluating an incident from two to 10 years after it occurred, they must rely heavily on the medical record. A complete and accurate record becomes indispensable for the defense since the ophthalmologist probably has little independent memory of the surgery.

Standard Forms Help Defend and Define Level of Care

Admittedly, using a standard pre-dictated form saves considerable time over dictating a new report for each procedure. For routine procedures such as a cataract operation, it may seem reasonable to use a pre-dictated report because most operations are very similar. The ophthalmologist can take the time to include on the form all the subtle nuances of the procedure employed, establishing a record that may actually help defend and define the appropriate surgical skill and level of care. When dictating individual reports, a surgeon may be too hurried to pay attention to these details.

If the case proceeded exactly as in the pre-dictated report, this is an acceptable and defensible method. However, if it is discovered that the surgery varied in any way, the surgeon may appear sloppy, careless, and rushed when the operative report is later presented in court and found to be exactly the same as all of the physician’s other cataract surgery reports.

Customize Reports for Each Patient

If an ophthalmologist encounters problems during a procedure, the medical record should reflect the clinical complexity of the case and indicate that the physician provided the proper professional attention. The appearance that careful attention was not given can be devastating if a surgery the ophthalmologist thought went well ends up in court because of an unexpected postoperative complication.

Ophthalmologists who use standard operative reports may want to customize each one by adding notes specific to the patient. For example, document that a specific viscoelastic was used to protect the endothelium in a patient with an endothelial dystrophy or that a procedure was changed in a particular manner because of the density of the nucleus. A reviewer may doubt the veracity of the entire report if it does not mention that a peripheral iridectomy was performed when one obviously was present postoperatively. The surgeon’s recognition of and response to any type of complication needs to be included in the report. If the procedure varied in any way, dictate the report individually or add a section to the pre-dictated form noting the change. Any dictation or writing regarding the operation should be done immediately following the procedure. Beware, however, that it can appear self-serving and defensive if the ophthalmologist drafts an excessively detailed report after recognizing a complication, stating that the patient was informed preoperatively of the possibility of that specific complication.

Proceed With Caution

While it may be tempting to use pre-dictated operative notes, the few minutes saved may result in much more time spent in court trying to defend an incomplete record that all too obviously resembles the other patient reports dictated by the ophthalmologist.

If an accepted complication is associated with a poor outcome and a malpractice action results, the surgeon may lose an otherwise defensible case if the plaintiff’s attorney convinces the jury of a “cover-up.” To be safe, pre-dictated reports should provide for a narrative of any problems encountered. Do not depend solely on a “stock” pre-dictated report.