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Errors = malpractice? Please …

FROM THE CHIEF MEDICAL EDITOR

This month’s focus is new for OM: medical-legal. Six articles, including malpractice claims, employment contracts and discharging patients, are dedicated to how ophthalmologists can avoid and manage legal travails. If you’re wondering about who among us could oversee such an issue, our guest editor, Bryan S. Lee, MD, holds a JD from Harvard.

If you want my advice: take their advice. OMIC’s Hans K. Bruhn, MHS, and Neil H. Ekblom, Esq. in separate articles all but plead that you document everything but the ambient temperature during an exam.

About 20 years ago, I was sued. I examined a patient three separate times for floaters, and each time I dilated her and carefully documented that the peripheral retina showed no breaks.  Soon after, this patient went to another ophthalmologist with worsening symptoms. He documented a retinal detachment and said to her, “This retinal break must have been there for a long time.” She used his words to sue; my documentation stopped the suit from advancing.

I’ve also served as an expert witness a few times. This is what I’ve learned. (Believe it or not, I learned well: turn to articles on pages 24 and 28 to learn even more.)

The term “malpractice” implies a failure to exercise the care a doctor in the same field would use in a similar situation. It often raises the concept of violating the “standard of care,” a nebulous term at best. While the Academy and other organizations have devised preferred practice patterns that can help in one’s defense, no official mandatory set of “standards” exists. That void allows for “experts” to step in, who testify on said standards on a case-by-case basis.

Which brings me to my main point: A doctor who makes a mistake has not necessarily violated the standard of care. I am not implying that any of us is or should be reckless in our patient care, but the fact is that we make mistakes all the time — as do all other professionals, including lawyers! It’s important to recognize that fact, especially if you ever play the role of expert. While Monday morning quarterbacking is tempting, keep in mind the chasm-sized difference between callous disregard for a patient’s welfare and the episode in which, when using hindsight, we all recognize as an error.

Just because you tore that posterior capsule during cataract surgery, for example, doesn’t mean you committed malpractice. You could have made a mistake, maybe should have been more careful and, given the opportunity, wouldn’t do it again. But, with most studies showing rates of capsular tear and vitreous loss between 1% and 4%, it’s horrific to call those complications “malpractice.”

Yet that’s what often happens. Someone momentarily looks away, or the mind wanders. Malpractice should be limited to blatant disregard for patient safety, not innocent mistakes. Standard of care and reality aren’t the same. Doctors will never be perfect. To paraphrase an old saying, “Vit happens.” OM