Week 4 - Negligence Part 2 PDF

OPTM 3072-Semester 1, 2024-2025 Week 4 – Negligence Part 2 Negligence and Risk Management Lecturer: Ms. Sparkle Kirk Selman sparkle@ki...

OPTM 3072-Semester 1, 2024-2025 Week 4 – Negligence Part 2 Negligence and Risk Management Lecturer: Ms. Sparkle Kirk Selman [email protected] [email protected] Learning Objective: At the end of this lesson, you should be able to: 1. State the specific standards of care expected of an Optometrist. 2. Explain the circumstances where an Optometrist may be liable for the negligence of others. 3. Explain how an Optometrist should effectively manage the risk of action in negligence. Introduction As already established previously, as a medical professional, an optometrist should always be acutely mindful of the potential for negligence during every interaction with a patient. Accordingly, risk identification, prevention, and management should be recognised and appreciated as an essential aspect of your practice for avoiding and mitigating negligent circumstances. Standard of Care As we have established, there are three (3) elements to a claim of negligence, and for a 1|Page person to be successful in a negligence claim, they must prove or satisfy each of the following three conditions: 1. The accused owed the claimant a duty of care; 2. The accused breached that duty of care; 3. The breach of duty caused the damage claimed. As it relates specifically to the breach of a duty of care, a person who owes a duty of care to another will violate that duty if they fail to exercise the standard of care required in the circumstances. Therefore, a medical professional’s satisfaction with the required standard of care is the most crucial element to avoiding negligent circumstances. More particularly, although causation will ultimately determine whether or not a medical professional was legally negligent, all medical professionals should ideally strive to provide their respective services at or beyond the appropriate standard of care so that there can be no questions of breach of duty, causation or negligence. Specific Standards of Care Consider the adequacy and accuracy of the following pieces of advice offered to satisfy the standard of care in the given circumstances. Ophthalmic Infections 1. Check visual acuity in both eyes. 2. Perform a slit-lamp examination, including fluorescein staining. 3. Perform a dilated fundus examination as necessary. 2|Page 4. Treat and manage patients with ophthalmic infections as allowed by legislation. 5. Refer patients with ophthalmic infections to an ophthalmologist if the optometrist needs a second opinion on the diagnosis, cannot treat the conditions, or chooses not to treat and manage the patients. Ocular Tumours 1. Perform a careful case history by documenting the patient's health problems and the treatment being rendered for them. 2. Discuss with and inform the patient of the benefits and risks associated with all tests and procedures. 3. Perform an ocular health examination on all patients, including a dilated fundus examination (white and red-free illumination). 4. Perform biomicroscopy to detect external tumours and to detect an iris tumour, a ciliary body tumour, and a retinal tumour with the help of a slit lamp lens through dilated pupils. 5. Perform a transillumination test through dilated pupils to view a reflex (a dark shadow for a pigmented tumour). 6. Perform a threshold visual fields test looking for an underlying tumour such as a pituitary adenoma. 7. In suspicious cases of a nevus, perform fundus photography, a B-scan ultrasound with a superimposed A-scan, an optical coherence tomography (OCT), a fundus auto-fluorescence (FAF) and angiography if the optometrist elects to follow the patient instead of referring the patient to an ophthalmologist. 8. Refer the patient to an ophthalmologist once an ocular tumour is diagnosed. 3|Page  Glaucoma 1. Take a thorough patient history to assist in making a diagnosis and provide appropriate therapy. 2. Discuss with and inform the patient of the benefits and risks associated with all tests and procedures. 3. Perform an ocular health examination, including: a. Visual acuity b. Pupillary assessment for a relative afferent pupillary defect c. Slit lamp examination d. Applanation tonometry e. Gonioscopy f. Dilated fundus examination (if the angles are open with particular attention to the optic nerves) 4. Document the optic nerves: a. Stereoscopic disc photos b. Red-free photographs c. Computerised image analysis, or d. Meticulous drawings 5. Formal visual fields test (e.g. Humphrey), even without elevated intraocular pressure or significant visual complaints. Goldmann visual field tests may be helpful for patients who cannot take the automated tests adequately. 6. Colour vision test 7. Pachymetry to measure central corneal thickness 8. In complex or ambiguous cases, recall the patient for further testing to rule out or confirm glaucoma. a. Serial intraocular pressure measurement b. Formal visual fields test 9. Discuss the findings and all treatment options with the patient. 10. Stabilise if possible and immediately refer the patient suffering from an 4|Page acute attack of angle-closure glaucoma to an ophthalmologist unless you are allowed to treat and manage angle-closure glaucoma. 5|Page  11. If the optometrist decides to monitor a glaucoma suspect or start treatment on a patient who has suffered some determinable visual field loss, no matter how slight, informed consent must be obtained from the patient. Vicarious Liability Vicarious liability refers to a situation where D2 is liable to P for damage caused to P by the negligence of D1. It is not necessary that D2 should have participated in the tort or have been in any way at fault. D2 is liable simply because he stands in a particular relationship with D1. That relationship usually is one of an “employee-employer” relationship. Generally speaking, vicarious liability refers to a situation in which one person is held responsible for the negligent acts or omissions of another. In the context of an optometry practice, an optometrist who is an employer can be liable for the acts or omissions of his/her employees (e.g. opticians, technicians, administrative staff, receptionists) once it can be shown that the negligent acts or omissions took place in the course of the employee’s duties. An employee is someone employed under a contract of service. A person employed under a contract for services is an independent contractor. The organization test: Under a contract of services, a man is employed as part of a business, and his work is done as an integral part of the business; whereas under a contract for services, his work, although done for the business, is not integrated into it but is only an accessory to it Liability arises vicariously as the employer/optometrist is ultimately responsible for providing the services, and the employees are merely acting on behalf of the 6|Page employer/optometrist. An optometrist would not be liable, however, if an employee is acting on his/her own accord or acting outside of his/her duties. An act comes within the employee’s employment if: 1. The employer expressly or impliedly authorizes it 2. It is an unauthorized manner of doing something authorized by the employer 3. It is necessarily incidental to something which the employee is employed to do. Thus, D2 may be held vicariously liability arises where: 1. D1 is an employee of D2 2. D1 was negligent 3. D1 was acting in the course of their duty. Accordingly, it is essential to provide employees with the appropriate rules, policies, training, and guidance to prevent circumstances of carelessness or negligence that may leave them open to vicarious liability. Reading: Hutchinson (Alvan) v Imperial Optical Ltd and Hugh Foreman 2005 PRODUCT LIABILITY Faulty products are an example of how a claim can exist for breach of contract and negligence. This will be discussed in further detail when we explore Contract Law. The optometrist is responsible for ensuring that all products or items provided to patients are safe to use and fit for the purpose for which they were provided (implied contract term). Where an optometrist manufactures or sells a faulty product, the optometrist may be liable both under contract and for negligence in providing a patient with a defective 7|Page product. Risk Management The following are a few strategies or initiatives you may employ to mitigate and manage the risk of legal action for negligence: 1. Document all appointments, including missed appointments; 2. Take complete and thorough record of patients’ history; 3. At all times, maintain professionalism; 4. Refer where necessary and in an appropriate and timely manner; 5. Maintain clear, accurate patient records at all times. Always document (and keep copies of): i. any procedure performed; ii. any attempts to follow up; iii. any referral made; iv. any test results obtained; v. any diagnosis made; vi. any treatment plan recommended; vii. any discussion occurred; viii. any warning or instructions given. 6. Keep safe and confidential all patient-related documentation and records; 7. Obtain informed consent before performing any invasive or high-risk procedure or embarking on any long-term treatment; 8. Discuss and make clear to the patient the nature of all procedures to be performed; 9. Follow up where necessary; 8|Page  10. Supervise employees adequately and provide the necessary training (medical, customer relations, OSH, etc.) on an ongoing basis. Delegation of duties should be done carefully; 11. Inspect and routinely maintain any equipment used; 12. Inspect your office environment routinely to ensure no hazards to you, your employees, your patients or even passers-by. Risk management and the employee 1. Optometrists should advise new employees on the “dos” and “don’ts” during employment. 2. Have employees sign a form indicating they have read and understand office policy and procedure. 3. Hold regular meetings with employees to refresh their memory on office policy & procedure, their duties and responsibilities. 4. Optometrists should only delegate duties that employees are qualified to perform. In the unfortunate event of negligence, the following are a few practical steps an optometrist can take to manage the risk of legal action. Professional Indemnity Insurance Professional indemnity insurance is designed to protect an insured optometrist who has incurred a liability to a third party arising out of a negligent act or omission by him/her or vicariously through his/her employees. Indemnity insurance operates so that where the optometrist is guilty of a breach of professional duty that causes financial loss or damage to a third party, the insurer will indemnify the optometrist in respect of that loss or damage, subject of course, 9|Page  to the terms of the insurance policy. Depending on the terms of the policy, indemnity insurance can cover the following: the costs of the optometrist’s legal defence; the third party's legal costs if the optometrist’s defence is unsuccessful; the damages payable to the third party. An insurer can (and more than likely will) exclude insurance coverage for the following circumstances: Fraudulent or dishonest acts by the insured; Punitive damages are awarded following a fraudulent or dishonest act. PRACTICE QUESTIONS: Mr Cole, a sole trader optometrist, prides himself on promoting a family-like atmosphere within his small business optometry practice, ”4 Your Eyez Only”. Accordingly, Mr. Cole, Janet (the Associate Optometrist), Jonathon (the Office Manager), and Samantha (the Dispensing Optometrist) all share a very close and friendly relationship, a business strategy that has so far been very successful for Mr. Cole’s practice. Every weekday, Jonathon, after going to the bank to deposit the money earned from the previous day’s work, stops to get lunch for himself and Samantha, as neither of them likes to cook. Both Janet and Mr Cole usually bring their lunch from home. One day, while returning to 4 Your Eyez Only from the bank, after having already stopped to get lunch for himself and Samantha, Janet called Jonathon to ask him if it was still possible for him to pick up something for her to eat, as she had forgotten her lunch at 10 | P a g e home that day. When Janet called, Jonathon’s cell phone rang loudly, which startled him, as he usually keeps his phone silent. Distracted by the sound of the ringing phone, Jonathon only took his eye off the road for one second, but that was enough to cause Jonathon to carelessly drive his car directly into an oncoming vehicle driven by a gentleman named Mr Lamar. Coincidently, Mr Lamar had only two minutes ago left 4 Your Eyez Only after having his eyes examined by Mr Cole for new eyeglasses, as he did not see clearly in his current pair. The impact of the accident caused Mr. Lamar to suffer head, neck, and back injuries. Mr. Lamar’s car was also significantly damaged. Jonathon was not hurt in the accident; his vehicle only suffered minor damage. Mr. Lamar wants to take legal action in response to the damages and injuries. a. Explain why Jonathon was negligent in the accident between himself and Mr. Lamar. b. Ultimately, who do you think should be legally liable for Jonathon’s negligence: Mr Cole, 4 Your Eyez Only, or Jonathon personally? Explain why. c. Should any contributory negligence be attributed to Mr Lamar, who was not seeing clearly through his eyeglasses at the time of the accident? 11 | P a g e