Risk Management



Nonmedical Issues in Claims Against Ophthalmologists

By Jerome W. Bettman Sr., MD, and Monica L. Monica, MD, PhD

 Digest, Winter, 1994

An analysis of 83,510 closed malpractice claims and lawsuits tallied by the Physician Insurers Association of America (PIAA) shows that three-fourths of all claims (62,633) brought against physicians allege a “medical misadventure” (a principal departure from accepted practice). The remaining 25% (20,877 claims) allege nonmedical issues as the basis for the claim against the physician.

It has been the experience of OMIC and other physician-owned insurance companies that nonmedical issues often prompt meritless claims and frequently exacerbate claims that otherwise would present only a minimal loss. This article examines common nonmedical reasons why patients sue physicians for malpractice and suggests steps to be taken by ophthalmologists to reduce their risk and minimize losses arising from these types of malpractice claims.

Lack of Informed Consent

Not surprisingly, topping the list of nonmedical factors prompting lawsuits is the allegation by a patient of lack of informed consent. Lack of informed consent accounts for more than one-third (7,000) of the PIAA claims involving a nonmedical issue as the basis for the claim. The following non-OMIC case study highlights how lack of informed consent can catalyze a claim and introduces two other nonmedical issues that aggravated this claim.

Dr. Jackson was a highly respected board-certified ophthalmologist who had received special training in oculoplastics. Mrs. Adams presented to Dr. Jackson’s office with ptosis and a cicatricial entropion of the right upper eyelid. She had sustained trauma to the right eye during an automobile accident 25 years earlier and had undergone plastic reconstructive surgery of the upper eyelid. Initially, the result was good, but with time the eyelid had begun to droop and later showed signs of entropion development. Mrs. Adams was bothered by the scratchy sensation, tearing and overall appearance of her right eye and sought Dr. Jackson’s help. Dr. Jackson told Mrs. Adams that the lashes were rubbing against the cornea of the eye and could cause damage, and that a blepharotomy could correct the problem. Mrs. Adams consented to the procedure.

After surgery, Mrs. Adams developed eversion of the right upper eyelid. Dr. Jackson told Mrs. Adams that this could be repaired by another surgery, which he performed. The second surgery left Mrs. Adams with ptosis and a recurrence of the entropion problem. Dr. Jackson referred Mrs. Adams to a local ophthalmic plastic surgeon. Three additional operations were performed by the plastic surgeon, including one involving skin grafting, after which Mrs. Adams’ right upper eyelid appeared normal in height and contour without the entropion problem.

Mrs. Adams sued Dr. Jackson for lack of informed consent, alleging she had no idea that multiple procedures and skin grafting would be necessary to successfully repair her upper eyelid condition. She maintained that Dr. Jackson had emphasized the simplicity of the procedure and her return to normal activities within two weeks. Instead, she spent the next five months undergoing a total of five surgical procedures.

The written informed consent form signed by Mrs. Adams listed such possible complications as hemorrhage, infection, exposure and dryness of the cornea, and even blindness. However, there was no indication in the patient record or in the signed consent form that multiple procedures might be necessary to correct the problem. Mrs. Adams’ claim against Dr. Jackson is typical of lack of informed consent claims. The patient alleges that the doctor only emphasized the benefits of the procedure. When these benefits fail to occur, as in this case, the patient is unpleasantly surprised and becomes angry. Often, it is this anger that causes the patient to seek the advice of an attorney and not necessarily the medical complication itself.

Informed consent should be thought of as a continuous process beginning with the first patient encounter and continuing throughout the patient’s care. It is necessary to document the actions taken by the ophthalmologist and office staff to inform the patient of the risks, benefits and alternatives regarding the proposed surgical procedure. This educational process can begin with patient information materials such as those available through the American Academy of Ophthalmology. A note in the chart stating that the patient received a brochure or saw a video regarding the proposed procedure shows that the patient was given a general overview of the procedure. However, the ophthalmologist must personally conduct an informed consent discussion with the patient that includes the possibility of multiple surgical procedures, especially when the problem involves retinal, strabismus or plastic procedures.

Poor Record Keeping

Mrs. Adams’ case was further strengthened by Dr. Jackson’s poor record keeping. On more than one occasion, the wrong date had been entered into the medical record. The file included only a few before and after photographs of the patient. Jurors and others reviewing a claim three to five years after the procedure rely heavily on the medical record when making an evaluation of the plaintiff’s claim and the doctor’s defense. If a case ends up in a jury trial, incomplete, inaccurate and illegible records can persuade jurors that the doctor did not care enough about this patient to take a few extra minutes to properly document the patient’s course of treatment. The admiration and respect that the average juror has for physicians is seriously diminished when a physician testifies that he or she was “too busy” to take the time to write legibly and/or completely. Perhaps, the plaintiff’s attorney will argue, the doctor also was “too busy” to adequately care for the patient.

Aggressive Billing Procedures

Another nonmedical issue complicating the case against Dr. Jackson involved a billing procedure. During testimony, Mrs. Adams commented that Dr. Jackson had demanded a deposit before the second surgery, a fact that later angered her. Juries tend to give enormous rewards if medical care has been compromised in any way because of monetary considerations. Unfortunately, OMIC experienced this fact firsthand in a case in which a patient accused an OMIC insured of demanding payment prior to performing retinal detachment surgery. A jury awarded the plaintiff in that case more than half a million dollars despite the fact that the patient achieved a good surgical result. Apparently, jurors were inflamed by what they perceived as a surgeon who cared more about the fee than the health of the patient.

In Mrs. Adams’s case, where she was surprised by the poor outcome of the first surgery, it would have been appropriate for Dr. Jackson to consider adjusting the fee for the second surgery. In situations where there is a poor result or maloccurrence, it generally is not an admission of guilt for the physician to discount or even to waive a fee if done properly. Rather, it demonstrates the physician’s concern and compassion for the patient. Even if the physician does not feel it necessary to discount the bill for an unanticipated second procedure, simply acknowledging the issue of additional costs and working with the patient to set up a reasonable payment schedule goes a long way to reassure the patient that the physician is more concerned with the patient’s medical problem than with collecting the fee.

Equipment Malfunctions

Often a claim against a doctor will involve allegations of equipment malfunction or utilization problems. In these cases, the physician may be brought into the case as a co-defendant along with or by the manufacturer of the equipment. A physician owes a duty of care to patients to properly select, inspect, maintain and use the medical office equipment and supplies. The manufacturer or the plaintiff will try to prove that the physician breached the standard of care by failing in one of these four duties.

Because it is often difficult to prove what transpired three or five years earlier when the patient’s injury occurred, it is important for the ophthalmologist to have in place a system of selection, inspection, maintenance and use of medical equipment and to document compliance with this system. The “SERUM” approach, which stresses appropriate documentation of the following factors is an effective risk management practice:

  • Selection of equipment, i.e., ensuring that the type of equipment or supplies purchased is appropriate to do the desired clinical task;
  • Education and training of equipment users;
  • Recognition of product hazards and limitations of equipment;
  • Use of equipment in a reasonable manner; and
  • Maintenance and servicing of equipment.

A simple notebook with a page for each piece of equipment briefly setting forth the selection rationale, listing the appropriate users and their training, and setting up a reasonable inspection and maintenance schedule should be all that is needed to document compliance with the system. It is generally wise to have one or two people responsible for ensuring that the SERUM approach is actually implemented. This person does not necessarily have to be the one to maintain and inspect all the equipment, but should have sufficient authority in the office to make sure that the proper people follow through on these items.

Medication Errors

Medication errors account for a significant number of claims against physicians and can be attributed to both medical misadventures and nonmedical problems such as failure to read the medical record. The PIAA data cited at the beginning of this article included 6,646 claims resulting from prescription errors. Payments to plaintiffs were made in 2,195 of these claims, making prescription errors the second most frequent and second most expensive type of claim brought against physicians.

PIAA analyzed 393 medication error claims in which indemnity payments were made. The following nonmedical errors were cited: communication failure between physician and patient (6.7%); inadequate medical history (4.7%); failure to note previously listed allergy (3.7%); communication failure between physician and other provider (3.0%); and error in writing the prescription (2.3%). These five nonmedical factors accounted for approximately 20% of all claims involving a medication error.

The PIAA study indicates several loss prevention initiatives to improve patient care and minimize malpractice losses when prescribing medication. These include the following:

Educate patients about their medications using such resources as the AMA’s Patient Medication Instructions or the United States Pharmacopeia leaflet program.

Obtain and document informed consent for the prescription of medications with potentially significant drug complications and side effects.Obtain specific drug allergy information for antibiotics (penicillin and sulfa), nonsteroidal anti-inflammatories, anti-convulsants and diuretics.

Closely monitor for drug-related side effects.

Read the medical record for contraindications to medications, excessive number of refills and allergies.

Post medication allergies on the chart in a consistent and conspicuous manner. 

Abandonment and Noncompliance

Abandonment and the related issue of the noncompliant patient are two other serious nonmedical issues that can trigger medical malpractice claims. These issues may come together when a doctor who has exhausted all options in dealing with an uncooperative patient believes it best to terminate the relationship. The decision to terminate the patient relationship may have developed over the course of several months or years and may involve a patient who is not only uncooperative, but who has been verbally abusive or overtly hostile toward the doctor and the staff. Sometimes these situations are emotionally charged and present serious liability concerns since there is potential for the doctor or staff to act precipitously in these highly volatile circumstances and to terminate the relationship improperly. Having a system in place to handle such situations as they occur goes a long way toward avoiding charges of abandonment.

Unfortunately, many ophthalmologists lack a system to deal with terminating the doctor-patient relationship. A tabulation of data from 436 ophthalmologists who have participated in OMIC’s office self-assessment survey shows that more than 40% do not have a written procedure for terminating the doctor-patient relationship. OMIC’s risk management department frequently receives calls from insureds or their staff concerning the proper procedure for terminating care of a patient. During the course of these calls, it often becomes apparent that the office does not have a system or checklist in place to make sure the proper steps are carried out, thereby increasing the likelihood that the relationship may be terminated improperly.

The doctor and all office staff who deal with patients should be apprised of the fact that the doctor-patient relationship is not properly concluded until one of the following occurs:

  • It is ended by the parties’ consent.
  • It is revoked by the patient.
  • The doctor’s services are no longer needed.
  • The physician withdraws from the case after reasonable notice to the patient.

All staff should understand that it is usually held to be malpractice for a physician to unilaterally terminate the doctor-patient relationship without reasonable notice, at a time when there is still a need for continuing medical attention. Although the ophthalmologist is the only one in the office who can terminate the patient relationship, other staff members will be involved in helping draft letters, calling the patient and forwarding records, and need to understand the importance of carrying out these responsibilities properly.

Conclusion

As witnessed in the case against Dr. Jackson, nonmedical issues often are a significant factor in prompting and aggravating a malpractice suit. It is important that ophthalmologists and their staff recognize the role that nonmedical issues may play in a patient’s decision to sue. Incorporating the risk management principles suggested in this article into an ophthalmology practice may help reduce the risks and minimize the losses associated with these types of claims.

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