Article

How to avoid a medical malpractice claim

An ounce of prevention is worth hours saved on trial.

Ophthalmology practices run the risk of having a claim filed against them when specific actions transpire, or when safeguards to inform patients are not taken. Claims can also materialize when practices fail to understand the medical record’s importance, from the vantage points of patient safety and legal protection.

In addition to a discussion on these risk exposures, I offer tips to reduce malpractice claims.

MONEY MATTERS

Patients, frustrated with high deductibles and copays, out-of-pocket costs and lack of medical coverage, are showing this frustration by raising their expectations when seeking ophthalmic care. When a physician does not meet these high expectations, patients want their fees reduced, either through refunds, waived fees or for the practice to pay for additional care. If these upset patients do not have their complaints resolved, their dissatisfaction could lead to an allegation of negligent care, a type of malpractice claim.

Here are two common scenarios. The first patient, Mr. Jones, underwent cataract surgery and selected a premium lens implant. Unsatisfied with his postop vision, he demanded his money back. The second patient, Ms. Smith, underwent a bilateral upper and lower blepharoplasty. Postoperatively, she experienced dry eyes and one eye appeared smaller to her than the other eye. The surgeon told the patient that he would address her dry eye condition first, followed by her concerns with the size of her eye. The patient, dissatisfied with the care, never returned. Instead, she went to another ophthalmologist who treated her. The patient later asked the first ophthalmologist for her money back, claiming she had to see a second surgeon in order to receive the treatment she wanted.

In such cases, without any admission of negligence, physicians may wish to extend a gesture of goodwill, including: refunding or waiving fees or paying for additional care. Contact your medical malpractice carrier to discuss the matter and ensure proper reporting of the incident. With their guidance, greater than 50% of incidents can be resolved without a formal claim.

Some advice on preventing these requests for money:

  1. Establish a strong physician-patient relationship.
  2. Manage a patient’s expectations of the surgical outcome, thereby eliminating the first step toward filing a claim.
  3. Ensure the patient understands that all surgeries are serious; do not describe a procedure as “routine” or “quick and easy.”
  4. Explain the differences between a complication and an adverse event. While complications are known potential problems that arise from surgery, adverse events are unexpected problems or outcomes related to the surgical event — and the latter is a potential negligent event.

STICK TO WEATHER-TOPIC CHATS

It’s important to remember that a conversation can lead to a claim. For example, if a patient’s attorney contacts you and wants to discuss care that you or an associate provided, how should you respond? Always keep in mind that these requests may coincide with a malpractice claim or other legal matter. Ask an attorney to send all requests in writing, and do not discuss the matter due to HIPAA privacy regulations; this way, you avoid inadvertently involving yourself in a legal matter. After you receive the written request, contact your medical malpractice insurance company before responding.

Here is another example: A physician’s friend, whose daughter is away at college, calls for advice on what to give her for an eye irritation that has lasted two weeks. The physician prescribes polymyxin B sulfate/trimethoprim solution and mentions that she should see a doctor if she does not improve. Three weeks later, the father reports to the physician that his daughter was diagnosed with a fusarium corneal ulcer and will have permanent corneal scarring.

Individuals who ask questions use the advice to treat the patient, even if they have no direct relationship to the patient. This makes it important to document all consults and clinical calls. When consulting with other eye-care providers, frame responses in general terms and consider using disclaimer statements to emphasize that you do not have a formal consulting relationship. If the person presses you for specific guidance, suggest a comprehensive evaluation with a physician or formal consult.

Keep in mind that physicians who seek an informal consult most likely document that they sought and followed the advice of an “expert” regarding treatment. If a patient sues the treating physician, the consultant may be drawn into the claim. Without a record of the advice given, the consultant is defenseless.

INFORMED CONSENT

Operating on a patient without informed consent or consent from the patient’s parent/guardian can be considered a form of battery and can lead to a claim. Therefore, it is critical that all potential risks, benefits, complications and alternatives of a procedure be discussed and accepted by the patient before the procedure takes place. Contact your medical malpractice insurance to learn how to conduct a thorough informed-consent process and ensure that you use any state-specific consent forms (for cataract surgery in Florida, for example).

Make the distinction between “general consent” and “procedure-specific” consent. A registration desk staff and the anesthesia provider at a surgical facility obtains “general consent” for surgery and discusses general risks of surgery and anesthesia with the patient, who then accepts those risks. On the other hand, the patient gives procedure-specific consent to the physician who performs the procedure.

To maintain the independent status of a surgical facility and the physician practice, the surgical facility handles “general consent” and the physician handles “procedure-specific” consent. Failure to do so can open up both entities to liability damages for which they are not responsible and expose the limits of liability of their respective insurance coverage. Keep those duties separate, even if the physician and surgical facility have common ownership.

COMANAGEMENT AND SHARED CARE

When several providers manage a patient, the potential for delayed or missed care increases, especially when providers hand off or refer patients. Patients can become frustrated and confused about their care doing these times, leading to dissatisfaction. Failure to manage these considerations can result in patient harm and a potential claim. How do you mitigate this risk?

First, establish a care plan between providers. Is comanagement or shared care best for the patient? If you decide to proceed with comanagement or shared care, lower-skilled providers will need clearly written instructions on when a patient needs to be referred back to the surgeon. All providers should sign off on the care plan.

Second, the patient must agree or consent to comanagement or shared care. Contact your malpractice insurance company for guidance on the comanagement consent process, including consent forms, and check whether your state has state-specific consent forms.

THE IMPORTANCE OF THE MEDICAL RECORD

A flag that a potential claim is on the way: Someone asks for a copy of the medical record. This one action can set in motion a great deal of anxiety for a physician. The condition of the medical record — its accuracy and completeness, for starters — is critical if a malpractice claim is filed. Keep in mind:

  • The medical record serves as a legal business record. It assists lawyers of both parties as well as juries to decide on the standard of care rendered to a patient.
  • It helps support or refute the credibility of a witness in a case.
  • There is presumed liability in a medical malpractice case, created at the time care is rendered, that a provider will document what was done. Therefore, if the care is documented, it is presumed care was given. If it is not documented, the presumption is that care was not provided.
  • The medical record is critical to a physician’s defense. In fact, many cases become indefensible due to incomplete or inaccurate documentation. Poor documentation can make good care look bad.

What makes a medical record credible from the defense’s standpoint? What doesn’t?

  • Legible handwriting. EHRs have helped eliminate the illegibility issue.
  • Organized, easy to find information and data. But, if an EHR is complicated to navigate, it’s possible that the report appearing on the screen is different than reports provided to others.
  • Accurate information. The consent form shows, for example, the correct lens selection and eye. Or, does it contain errors?
  • Complete information. No blank spaces for where data belongs or missing signatures showing that consent has been given.
  • Timely documentation. All entries are made in a timely manner. The longer the gap between the care being rendered and when documentation is made can create an incomplete record of care, harming the patient and creating the perception that documentation was a defensive action in the event of a claim.
  • Consistent changes made in documentation, including dates of correction noted.

DOCUMENTATION WOES

Avoid these documentation problems in medical records:

  • Lack of documentation. A 66-year-old male returned to his ophthalmologist for a follow-up evaluation concerning his glaucoma and diabetes. The patient complained of glare and had difficulties with his vision, but the physician did not note these complaints in the record. The physician noted that the patient was 20/25 in both eyes but did not record the glare testing. IOP was within normal limits. The patient was scheduled for cataract surgery. The patient gave consent and underwent surgery without complications. Patient follow-up occurred on the same day. On postop day four, the patient contacted the physician and complained of vision loss and pain. The physician directed him to the ER, where he was diagnosed with endophthalmitis. After he was treated, his final vision was noted as 20/70. The patient filed a claim for lack of proper postoperative follow-up. Expert review of the case did not find any deviation from standard of care (SOC), but also no documentation of pre-operative glare, glare testing or postoperative medications prescribed to treat the endophthalmitis. Due to the documentation deficiencies, the case was ultimately settled for $142,000.
  • Alteration of records. A 76-year-old female complained of blurriness and distorted vision in her right eye after cataract surgery. Her VA was 20/30-, 20/25. FA and fundus photography confirmed a macular pucker OD>OS. The physician informed the patient that she needed a vitrectomy to remove the pucker. A notation in the file indicated that the patient was told about the risks and benefits of a vitrectomy OD. After an uneventful vitrectomy, the patient complained of a horizontal bar obstructing her vision in the right eye. Vision continued to decrease to 20/400, and the physician determined that a small vascular accident occurred perioperatively. The patient filed a claim. Even though the care was within SOC, review showed a lack of informed consent and specifically a lack of a procedure-specific consent form in the medical record. The patient and spouse testified that the physician said the procedure was the only option and “routine.” On the day of surgery, the physician made a notation that he discussed the risk, benefits and alternatives (RBAs) of surgery with the patient. He wrote this on the hospital’s informed consent form; however, the plaintiff’s expert testified that the record showed no notation that the physician discussed RBAs with the patient. The physician then admitted to making that entry on the hospital consent form after the claim was filed. The physician did not realize the medical record had already been copied when he altered the record. The case was settled for $50,000 due to the alteration of records.
  • EHR-related claims. The parents of a child contacted their ophthalmologist indicating their child was having vision problems. They were directed to take their child to the ER. The ER physician’s documentation noted the child had a dilated, nonreactive pupil and a shallow laceration in the lower lid conjunctiva. The ER physician diagnosed the child with a traumatic hyphema. The ER doctor reported his findings to the child’s ophthalmologist and was told to have the child return to his office the next day. The parents did so. The EHR indicated normal findings (reactive pupil, no afferent pupillary defect, white and quiet conjunctiva with no hyphema). No IOP measurement was noted in the documentation. The ophthalmologist diagnosed the child with traumatic iritis and set up another follow-up appointment. However, before the next appointment, the child’s parents called another ophthalmologist, who diagnosed the child with sickle cell anemia. Examination by the second ophthalmologist found the child to have a fixed, dilated pupil, an IOP of 46 mm Hg, 4+APD and hyphema. The family filed a malpractice claim when the problematic eye ended up with no light perception. Issues with the EHR found, namely, the normal finding noted on the first visit. The child also vomited at the first visit but this was not documented in the medical record. The physician testified that he meant to finish the documentation to correct the normal findings’ default of the EHR, but the clinic got busy and he forgot. Also, the ophthalmologist did not sign the record. Due to documentation issues (as well as not seeing the child in the office initially), the case was settled for $380,000.

CONCLUSION

Patients have a right to a proper explanation of care so they can make an informed decision before that care is provided. This includes letting the patients know if, and which, other providers will be involved in their care.

The most effective defense against a medical malpractice claim is understanding that the medical record not only documents the care provided to a patient, but it also provides a credible defense when a patient files a claim. OM

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