Risk Management

Shield Yourself From Malpractice Claims

By E. Randy Craven, MDReview of Ophthalmology, January 1998
Most glaucoma patients are not litigious individuals. But when they do sue, the payments that result are among the highest in ophthalmology. To avoid becoming a target, it pays to employ risk management in both the diagnosis and treatment of the disease. Some lawsuits are simply unavoidable, but as the old saw goes, “an ounce of prevention is worth a pound of cure.” You can substantially reduce the risk of a lawsuit by following these steps:

Stay Vigilant

A recent analysis of the database of the Physician Insurers Association of America reveals that one of the most common claims in glaucoma is failure to diagnose. This accounts for nearly 22 percent of claims, with plaintiffs receiving judgments about half the time. The average judgment amounts to more than $145,000.

The simple lesson here is that ophthalmologists must always remain vigilant for glaucoma. Whenever you see a new patient with any risk factors, perform gonioscopy and a visual field exam in addition to tonometry and evaluation of the optic nerve, and thoroughly document your findings.

Simplify Your Management

By far the highest number of claims relates to patient mismanagement. Almost 40 percent of claims result from problems characterized as “errors in diagnosis,” “errors in medications” or “failure to monitor.” (See Tables 1 and 2.) In my opinion, the best way to avoid this kind of lawsuit is to standardize your management system. Well-organized protocols and patient records will help you avoid mismanagement claims.

First of all, use a standardized method for initially and subsequently evaluating glaucoma patients. The Academy’s Preferred Practice Pattern for open-angle glaucoma is a good place to start. Create a treatment plan for every single patient, and document it. In the plan, indicate the target IOP, the desired frequency of follow-up visits, and the frequency of visual field tests. If visual progression occurs, then your treatment plan needs to be reassessed.

Consider organizing glaucoma patient charts differently than you do other charts. Set the record up so that you can immediately see the diagnosis, the pressure and field history, and any medication allergies. I use a one-page flow chart that allows me to record the elements of a glaucoma exam for more than 10 visits on the same page, allowing me to detect any changes quickly. This chart is available through OMIC’s Risk Management Department.

I also recommend keeping the visual field printouts loose in the patient’s folder, separated for right and left eye in reverse chronological order. The largest indemnity payment OMIC ever made involved a case in which the fields were stapled into the chart. This prevented the physician from pulling the fields out and comparing them. As a result, he missed a defect in a glaucoma patient that turned out to represent a tumor.

Keep your patients fully up to date on the stage of the disease and the prognosis. If the disease is progressing, make certain the patient knows about it and take appropriate action. If Mrs. Jones’ visual field looks a little worse this year, tell her that you need to temporarily step up the frequency of visual field testing until you get the disease back under control. If it’s her choice not to do a visual field test for another year, that’s fine provided it’s well documented in her chart. (A sample refusal of treatment form to be signed by the patient in these situations can be found in the Appendix.)

Double- and triple-check that your patients are following instructions regarding their medications. Determine at every visit whether there are any new systemic medications which may interact with the topical glaucoma medications. Make sure that there are no new symptoms which might indicate a side effect to a drug.

Manage Surgical Expectations

About a third of all glaucoma claims are related to surgical procedures. Slightly more than 19 percent of cases involve an allegation of an error in the procedure, and another 3 percent of claims are based on failure to recognize a complication following a procedure. These statistics show why it’s critical to make sure the patient has reasonable expectations about the outcome. Many patients expect that glaucoma surgery will improve their vision, and are disappointed when they see no change or even a worsening in their acuity.

Make sure it is understood that filtration involves many different complications, including failed filters and hypotony, which can actually result in worse vision. If a patient begins developing hypotony following the procedure, begin discussing with him or her the possibility that his vision may become blurry, and make sure he knows to contact you immediately if this takes place. Make sure the patient understands that the vision may not come back.

Be sure to discuss the possibility of vitreous loss during cataract surgery for patients with existing filters, since there may be as high as a 15 percent to 20 percent chance that this can occur during surgery. The risk increases in eyes with pseudoexfoliation, with weakened zonules and in cases in which the glaucoma is secondary to trauma. If vitreous loss does occur, I recommend being completely forthright. I tell patients that I had to remove some of the “jelly” in the back of the eye, and then explain whether I think this poses a problem or not. Remember, surprises frequently lead to lawsuits.

Finally, and this should go without saying, obtain an exhaustive informed consent prior to surgery. OMIC has consent forms for all types of glaucoma surgery. (These forms can be found in the Appendix.)

Refer Promptly

Lawsuits alleging failure to refer or a delay in referral are fairly rare, accounting for just 3 percent of cases. However, these cases settle for an average of $245,000. Also, this type of claim may be on the rise due to managed care and the pressure to reduce utilization. The lesson here should be obvious: It is our fiduciary responsibility to refer patients when their disease falls outside the realm of our own expertise. This is the case regardless of the patient’s insurance plan or our financial incentives.

Follow Up

The claim of abandonment is very rare in glaucoma cases, accounting for just 1 percent of all lawsuits. But they can also result in high payouts. A good example of this type of claim is a case I reviewed. It involved an older ophthalmologist who was nearing retirement and a glaucoma patient he had treated for 20 years. For many years, this doctor had treated the patient with medication and had him come back regularly for pressure checks and manual visual field exams. Over the course of several visits, the patient complained that he was not seeing as well, he then failed to return for an appointment for 18 months. The patient went to see a new ophthalmologist, and that MD discovered significant field loss and significant nerve damage. The patient subsequently called his old ophthalmologist and left a message with a technician. Unfortunately, the tech never relayed the message and the patient just assumed that the MD didn’t care. The angry patient sued the MD, claiming that it was the physician’s responsibility to call him and bring him back in for regular visits! Even though the ophthalmologist was using good clinical judgment and doing all the things he should have done, the plaintiff won a sizable settlement.

This case illustrates two important points:

Do your best to avoid losing glaucoma patients to follow-up. It’s amazing but true: If a patient becomes non-compliant, difficult to treat or misses appointments, you can be held liable for patient abandonment. If a patient does miss appointments or presents other problems, be sure to carefully document it.

Do not make patients mad. If the patient described above hadn’t been angered by what he perceived as his doctor’s uncaring attitude, he probably never would have sued.

Here are two final recommendations:

Use up-to-date equipment and testing techniques. If you’re still using Schiotz rather than Goldmann tonometry and a tangent screen rather than an automated perimeter, it may weaken your defense if you are targeted with a lawsuit.

Constantly educate patients about the disease. Many ophthalmologists give patients a brochure on glaucoma, have them watch a video on the disease, and do no more education. I recommend a more balanced approach. Glaucoma is a long-term disease, and most patients forget the details over time. Constant reinforcement helps patients understand the importance of compliance and results in better success overall.

Ultimately, you bear the full responsibility for a glaucoma patient’s care. Know that if a patient gets worse under your watch, your treatment may be called into question, and you may be sued and lose even if you provided state of the art care. The only sure protection against becoming a malpractice statistic is to follow sound risk management guidelines and carefully document all decisions.

Portions of this article previously appeared in “Risk Management Issues in Glaucoma: Diagnosis and Treatment,” Survey of Ophthalmology 1996:40;459.

Table 1: Comparison of Medical vs. Surgical Claims
Total Claims Closed Claims Closed w/Payment Average Payment
All Glaucoma Procedures 194 169 50% $142,088
Medical Procedures 132 122 54% $142,076
Surgical Procedures 58 43 44% $142,148
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