Risk Management

Ophthalmologists Learn Why Patients Sue

By Linda Radigan

Digest, Fall, 1991

Communicate! That was the message to ophthalmologists who participated in OMIC’s risk management seminar Professional Liability Issues in Ophthalmology in Anaheim, CA, on October 12, 1991.

Unexpected Outcomes Prompt Lawsuits

“Patients sue when they have an unexpected outcome,” said Byron H. Demorest, MD, chairman of OMIC’s Risk Management Committee.

In fact, according to James F. Holzer, JD, OMIC’s chief operating officer, the equation for medical malpractice might be summarized as: bad outcome + bad feelings = a malpractice suit.

Nevertheless, a poor result is not malpractice, nor is doing something different from the way someone else would do it malpractice, said Margaret Holm, Esq., an OMIC defense attorney with the firm of Bonne, Jones, Bridges, Mueller and O’Keefe in Santa Ana, CA, who spoke at the Anaheim seminar.

Ms. Holm pointed out that the concept of negligence is very strict under the law. “The vast majority of lawsuits filed are totally without merit under the laws involved. They are the sum of a poor result and poor rapport. Very few really add up to malpractice that someone should pay for.”

Even when someone does pay, it doesn’t mean malpractice was involved. Settlements are not an admission of guilt on the part of the insured ophthalmologist, Ms. Holm explained. They represent a compromise, a resolution, of the disputed claim, she said.

More often than not though, malpractice suits are closed without an indemnity payment. Richard A. Deutsche, MD, a member of the Risk Management Committee, reported that payments were made on only 15 (9%) of the 168 cases closed by OMIC between October, 1987 and September, 1990. (See Digest, Vol. 1, No. 1)

Patient Records Often at the Heart of a Claim

Faulty documentation is often the reason why malpractice cases that should have been won are lost, said Mr. Holzer, who offered the following caveats regarding patient records:

• Don’t wait to chart – avoid relying on recall.
• Don’t chart only conclusions. Document intermediate steps, i.e., your rationale for treatment.
• Avoid making personal remarks about the patient in the chart.
• Don’t chart sloppy notes.
• Be thorough – what you don’t document is just as significant as what you do.

And above all, don’t ever alter or obliterate an entry and don’t make any corrections in the record after it has been subpoenaed. “Once a plaintiff’s attorney can show that you improperly altered a record, it doesn’t matter who’s right or wrong, you’re sunk,” said Dr. Demorest. He advised physicians to be very careful when changing or adding to records any time during treatment of a patient. The correct way to change a patient record is to draw a single line through the incorrect entry, date it and initial it. Do not use correction fluid or cross out the original entry so that it cannot be read through the strike out.

Informed consent is also an area of great concern. The consent form should not be confused with the process of informed consent. The process takes place the moment the patient walks into the physician’s office and a dialogue begins; the form is the written memorialization of that process, explained Mr. Holzer. Rapport is an essential component of informed consent, and consent should represent shared decision making between the patient and his or her physician, he said.

Shared decision making sometimes puts the physician and patient at odds. “The patient has the right to make an ill-advised decision, but as their physician you have the right – and obligation – to explain the implications of that decision,” commented Jerome W. Bettman, Sr., MD, a consulting member of the Risk Management Committee and a guest speaker at the Anaheim seminar. If done properly, informed consent is probably the greatest preventer of claims, said Dr. Bettman, who referenced findings from his research of 775 claims in ophthalmology throughout the seminar.