malpractice in optometryupdated (2).pdf

Malpractice in Optometry Damaris Pagan Torres OD, MPH, FAAO IAUPR- EPH0 Objectives 1 At the end of this lecture, students will learn the definitions of negligence, duty, breach, malpractice, competency, standard of care, and informed consent. 2 The student will recognize the most common causes o...

Malpractice in Optometry Damaris Pagan Torres OD, MPH, FAAO IAUPR- EPH0 Objectives 1 At the end of this lecture, students will learn the definitions of negligence, duty, breach, malpractice, competency, standard of care, and informed consent. 2 The student will recognize the most common causes of malpractice claims in optometry and ophthalmology. 3 Review examples of malpractice claims in optometry based in evidence cases. 4 Understand what do you need to know as optometrist to keep you and your patients safe. Introduction + Optometry's scope of practice has radically changed over the last 2 decades, and we’re more exposed to public's eye now more than ever as the primary providers of eye care. That’s why we need to be aware of our responsibility diagnosing patients properly and not missing life/sightthreatening conditions + Chris Mazzolini from Medical Economics Journal: “half of the physician will face a malpractice suit at some point in their career” Introduction + It is very important to recognize what is the standard of care in optometry to avoid common mistakes and prevent malpractice lawsuit from occurring during our professional career. Malpractice +Medical malpractice is defined as any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient. White GE. Tort Law in America: An Intellectual History. New York, NY: Oxford U Press; 2003 . Many malpractice cases are linked to misdiagnosis and failure to refer. Duty to refer & Misdiagnosis Misdiagnosis- failure to diagnose accurately pt’s condition. Diagnose something that the pt does not have. Constitute a public health problem and a leading cause of death in USA Medical errors The failure to complete the intended plan of action or implementing the wrong plan to achieve an aim. An unintended act or one that fails to achieve the intended outcome. Deviations from the process of care, which may or may not result in harm. Rodziewicz TL, Houseman B, Hipskind JE. Medical Error Reduction and Prevention. [Updated 2021 Jan 4]. In: StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing; 2021 Jan-. Available from: https://www.ncbi.nlm.nih.gov/books/NBK499956/ Medical errors there are 2 types 1. Errors of omission occur as a result of actions not taken. Examples are not strapping a patient into a wheelchair or not stabilizing a gurney prior to patient transfer. 2. Errors of the commission occur as a result of the wrong action taken. Examples include administering a medication to which a patient has a known allergy or not labeling a laboratory specimen that is subsequently ascribed to the wrong patient. Some definitions…. + Negligence- is defined as a circumstance in which an optometrist fails to exercise the standard of care that a reasonable optometrist would have exercised in the same or similar situation. It is an unintentional careless wrongdoing, (Eap, 2012) Some definitions…. + Duty- is defined as an obligation an optometrist has towards a patient to provide car adhering to the standard of care. (Eap, 2012) + Breach- is the failure to conform to the standard of care. The standard of care is based on a reasonable optometrist with a minimum competency. + Competency consists of knowledge and ability of the optometrist. Some definitions…. + Standard of care- is usually defined by state laws, by regulations promulgates by state boards of optometry, or by courts of various jurisdictions established in case law. (Eap, 2012) 2 ways that causation can be found under negligence: + 1. Direct causation- occurs when the O.D. action or inaction directly harms the patient. But for the optometrist’s action or inaction, the harm would not have occurred. An intervening act is enough to override a direct causation. (i.e. trauma) Pt. is suffering a gradual vision loss due to the negligence of the optometrist not performing all necessary tests to detect glaucoma. However, the pt losses his eyesight completely in the glaucomatous eye after an injury to that eye while playing racquetball. Due to intervening act of the eye injury while playing racquetball, the optometrist would not be found liable for the patient’s vision loss due to the optometrist’s negligence under the direct causation. BUT…. An example: direct causation The optometrist may still be found liable under negligence through a legal or indirect causation. Under this causation, the optometrist is liable for the foreseeable consequences of his/her action or inaction. In order to find the optometrist liable, the patient’s injury must be proximately related to doctor’s action or inaction to find the optometrist indirectly caused the patient’s injury. Usually, the element of causation is proved or disproved by the testimony of expert witnesses. Indirect causation DAMAGE + Damage- is an injury to the patient compensable by money. + Economic damage (medical costs, lost wages) + Noneconomic damage (pain, suffering, loss of consortium). + This actions lead to monetary remedy for injured patients in civil courts. Criminal negligence + Action or inaction of an optometrist that is conscious, voluntary and reckless and of the consequences to another party. + Examples include insurance fraud, HIPAA violations, and sexual assault. + If the optometrist is found guilty of professional misconduct under criminal negligence, he/she is imprisoned, fined, or both, most likely his/her license would be revoked or suspended by the state board of optometry. Sample case of negligence: + Mr. X had an eye exam by Dr. P + CC was blurry vision at far + Dr. P prescribed lenses for the patient + Mr. X comes a week later to pick up his glasses. + Mr. X complaints of dizziness and blurry vision with glasses. + Without performing any test to determined the cause of Mr X dizziness and blurred vision, Dr. P told the pt to get used to the prescription and that it might take a few days to get rid of his problem. Sample case of negligence: + Mr. X left the office wearing his glasses, he fall off and suffered back and neck injuries. Mr. X is suing Dr. P for his injury. + What do you think were Dr. P duties in this case? Dr. P duties: + 1. recheck Mr. X spectacles’ prescriptionwhen Dr. P said, Mr. X must adapt to the new prescription he breached that duty. + 2. it was foreseeable that if Dr. P did not recheck the prescription, Mr. X would have focusing problems causing his fall. The breach of duty of Dr. P was proximately related to cause Mr. X lesion. + The court probably find Dr. P liable for negligence in causing Mr. X injury and award him with monetary damages. Assault +Intentional placing of a patient by an optometrist in a reasonable apprehension of imminent harmful or offensive touching without the patient consent2. +The optometrist’s act is offensive when it is unpleasing, disgusting insulting or attacking the patient state of mind. Keeton, W.P., Prosser and Keeton on Torts, 5th edition, West Publishing Co., Paul, MN, 1984, 46 Battery +Forcing treatment on an unwilling person is no different from attacking that person with a knife. +A harmful or offensive touching without permission is battery. It is a criminal offense, and it can also be the basis of a civil lawsuit. +The key element of battery is that the touching be unauthorized, not that it be intended to harm the person. +The classic statement of a physician’s duty to get the patient’s consent is Justice Cardozo’s opinion in Schoendorff v. Society of New York Hospital: [Schoendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y. 1914) ] https://biotech.law.lsu.edu/map/batterynoconsent.html Assault and Battery + Tend to occur together, since before offensive or harmful touching (battery) can take effect, the patient will most likely have the fear of imminent harmful or offensive touching (assault) by optometrist beforehand. Required when an invasive procedure or treatment is going to be performed BEFORE the actual procedure can be started. You need to discuss with the patient: Informed consent 1. the nature of the procedure/treatment 2. the risks and benefits of the procedure/treatment 3. the alternatives to the recommended procedure/treatment including no procedure/treatment and their risks and benefits. Professional community rule- the optometrist must provide an informed written consent prior to initiating any procedure or treatment. Rules: Reasonable patient rule- the optometrist provides adequate information such as risks and complications, alternatives and possible consequences of the procedure or treatment in the written consent. If he/she fails to inform patient adequately would be liable under negligence. It may be found liable for assault and battery if the patient’s informed consent is not obtained prior to the procedure even if the procedure is beneficial to the patient. example A 65 y/o AA female was in Dr. T clinic for her annual eye exam. Her fam oc hx is positive for glaucoma in both parents. She had never been diagnosed with glaucoma. All other medical and ocular hx were unremarkable except for the need of bifocals (high hyperope and presbyope). During the exam, Dr. T, noted narrowed anterior chamber angles and shallow chamber. IOPs were borderline high. Dr. T puts dilating drop into the patient’s eyes to perform DFE. This dilation was done without discussing the findings, risks and benefits and alternatives to the procedure with the patient. example + Once the dilation drops went into effect, the patient experienced an acute angle closure attack, ocular pain, blurred vision, halos around lights, frontal headaches, nausea and vomiting. + Dr. T. sent the pt. to a local ophthalmologist for treatment. Unfortunately, the pt. has lost some of her vision in both eyes due to the incident. + What are the reasons the pt. can sue Dr. T? Negligence & Battery Negligence: • Breach the duty of explaining the risks and benefits of a DFE prior to instill the drops. The pt did not gave her consent for the procedure. If the pt had signed the consent before the procedure, the doctor would have a legal defense of assumption of risk. • There is no evidence of doctor providing any informed consent prior to procedure. Battery- pt would have to prove that Dr. T intentionally placed her in a harmful and offensive touching without her consent. Take home message Refer a narrowed angle pt to an ophthalmologist for dilation or obtain an informed consent prior to dilating pt’s eyes. Most instance malpractice insurance covers only negligent misconduct. Vicarious liability +The optometrist is responsible for the negligence or the intentionally wrongful conduct of employees even if the optometrist and the person who negligently or intentionally causes injury to another. +OD not liable for any criminal acts committed by employees unless the OD in some way directed or participated or approved acts. +OD not liable for the unauthorized wrongful conduct of an independent contractor while carrying out the work. Co-management relation OD & OMD +Joint and Several liability- if more than one doctor is found liable for an injury suffered by a pt, each doctor is individually liable for the entire amount of the judgement, such that if one doctor is unable to pay, the other doctor (s) are liable for the entire amount of the judgment. Remember to… Join Perform a competent ophthalmologist all necessary pre and post op evaluation visits Refer the patient back to the ophthalmologist for any complications that are not part of the normal side effects that occur during sx. Recall pts who missed appointments and recorded it in pt’s chart. Maintain your malpractice insurance to cover all partners if any. Most common causes of malpractice claims The main reason why physicians are sued is because a failure to diagnose a condition. Failure to refer failure to recognize pathological disease (glaucoma, cataracts tumors), failure to prescribe or fit proper corrective lenses leading to falls, vehicular collision, corneal damage failure to provide continuing care, failure to dilate pupils failure to prescribe polycarbonate in children or attempting to provide medical diagnoses beyond the optometrist’s scope of practice. Malpractice cases +Tempchin v. Sampson, 277 A.2d 67 (Md. App. 1971) (involving failure to diagnose uveitis leading to blindness); + Steele v. United States, 463 F. Supp. 321 (D. Alaska 1978) (involving delayed referral to ophthalmologist resulting in eye loss). +An optometrist must exercise the degree of skill expected of an optometrist acting under the same or similar circum‐ stances. Morrison v. MacNamara, 407 A.2d 555, 561 (D.C. App. 1979) What you need to know to keep you -- and your patients -- safe. Optometric Management Journal JEROME SHERMAN, O.D., F.A.A.O., New York, N.Y. + The tumor (hemangioblastoma) that was partially surgically removed 1 year after visual acuity was documented as reduced to 20/60. The teenager lost all light perception in both eyes and the jury awarded nearly $10 million to the patient. Helling vs Carey Impact of malpractice cases in the standard of care! Helling vs. Carey 1974 Washington Supreme Court https://youtu.be/xOWhmvzLf94 In this case, a young female contact lens patient sued her ophthalmologist for missing her glaucoma over a 10-year period. The judge instructed the jury to disregard the standard of care if a simple test, readily available to the ophthalmologist, could've prevented blindness. The experts for the defendant ophthalmologist testified that the standard of care is to perform tonometry on patients over the age of 35, but the patient plaintiff was under care between the ages of 23 to 33. The jury, found the ophthalmologist culpable and, in effect, created the new standard requiring tonometry on every patient regardless of age. https://www.optometricmanagement.com/issues/2001/july-2001/toptriggers-for-malpractice-suits Keir vs. the United States. How malpractice cases influence SOC This precedent-setting case involved Karen Keir, age 4, who was evaluated on a military base for a routine exam. Less than a year later, her parents noticed that her pupil had turned white. She was diagnosed with a retinoblastoma. The three-judge federal panel determined that even though Karen didn't have symptoms or reduced VA, her doctor should've performed a dilated fundus examination using binocular indirect ophthalmoscopy. Furthermore, the judges determined that this test should've been performed on the first visit and every periodic re-evaluation. How malpractice cases influence SOC + Keir vs. the United States. As the outcome of this case, an appellate level federal court created a new standard requiring dilation on nearly every patient. This important case is well known by most plaintiffs' attorneys and is often cited whenever a patient suffers vision loss because of a retinal disorder that wasn't detected by an O.D. because he failed to perform a dilated exam. Case: Optometric management journal A 13-year-old girl presented for the first time with a chief complaint of blurred vision in the right eye. The rest of the history was unremarkable, but it was revealed that the patient's aunt had amblyopia. The external exam revealed a small exophoria and normal pupils. The best corrected vision with -0.25 sphere was 20/60 in the right eye and 20/20 in the left eye. Case: Optometric management journal A dilated fundus exam revealed normal discs and macula. Fundus photos were obtained, later reviewed and found to be normal. He told the patient that because of her age, it was too late to treat this condition and glasses wouldn't correct it. The doctor told the patient and her mother that all was okay except for a mild lazy eye. Case: Optometric management journal He suggested a routine follow-up exam in a year. Reassured, the teenager returned to her normal, hectic life and had no additional problems until about 50 weeks later, when she noticed flashing-colored lights. The next morning, the mother brought her back to the doctor for further evaluation. Continuation… VA was now below 20/400 in the right eye and 20/20 in the left eye. The pupils and fundus were still reported as normal. An immediate referral resulted in neuro-imaging, and this test revealed a large brain tumor slightly anterior and superior to the right side of the chiasm. Doctors explained the risks and benefits of immediate neurosurgery to the patient's parents, who then signed an informed consent. After two surgeries, the teenager was left completely blind in both eyes. The only one sued was the optometrist for the care provided on the first visit. Continuation… A jury trial revealed that the patient had normal vision on three previous school screenings. The experts in neuro-surgery testified that the tumor could've been successfully treated a year earlier with gamma knife radiation without surgery and without further vision loss if it had been detected then. The jury finds the optometrist culpable of malpractice and awards the teenager $9.2 million. In this landmark malpractice case, the patient's reduced VA was attributed to amblyopia, but she demonstrated no amblyogenic factors, such as constant unilateral strabismus or significant anisometropia. The teenager and her mother also testified that the blurred vision was of recent onset. Whenever VA isn't correctable to 20/20, the fundus exam is normal and the cause of the problem is unclear, you should perform automated visual fields. Normal confrontation visual fields in this and other cases have lulled clinicians and patients into a false sense of security. Dr. Sherman practices at the Eye Institute and Laser Center in Manhattan and is a distinguished teaching professor at the State University of New York College of Optometry. Experts' testimony + In general, ophthalmologists may not provide standard of care opinion testimony against optometrists. + Bates v. Gilbert, 736 N.W.2d 566, 571 (Mich. 2007) (finding that ophthalmology is not the “same health profession” as optometry) + Evans v. Griswold, 935 P.2d 165, 169 (Idaho 1997) (noting that the ophthalmologist testified he was not familiar with the optometric SOC). Expert’s testimony +Ophthalmologists may testify about causation in optometric malpractice cases. + See Ribeiro v. Rhode Island Eye Institute, (R.I. 2016) (involving delay in reacting to retinal detachment risk). +They may also testify in optometric failure‐to‐refer cases. + Christo‐ pherson v. Lenscrafters, Inc., 2009 N.Y. Slip. Op. 30593 (Sup. Ct. March 13, 2009) (involving ophthalmologist who opined that referral delay did not cause adverse outcome). Payments related to malpractice optometry cases +The aim of this analysis was to describe characteristics and trends of malpractice payments by optometrists since the inception of the National Provider Data Bank (NPDB) as they assumed increasing prescriptive authority. Malpractice payments by optometry: Analysis of National Practitioner Data Bank -18 years period. + The only study found published in 2011, total of 609 optometrist malpractice payments were reported nationally, ranging from $50 to $2,050,000 (median, $57,500; mean, $156,055 ± 246,556), with 603 (99%) less than $1,000,000. + Malpractice payments on behalf of optometrists are relatively infrequent (on average, less than 34 nationally each year) and usually relatively small (almost half less than $50,000). + https://doi.org/10.1016/j.optm.2010.05.009 What are the tests an optometrist should do during the exam to minimize risks? •Perform tonometry on routine basis •Observe the ONH stereoscopically •Document IOP •Use automated VF, OCT, imaging to R/O diseases in suspicious cases. Recommendations for examining cl patients + Document in the record any noncompliance with the provisions of the cl warnings and instructions. + Inspect and make sure all cl parameters are correct as prescribed before fitting + Review office procedures with staff to avoid mistakes + Always supervised who clean, dispense and handle cls + Schedule f/u visits at regular intervals- document no show + Keep a copy of the agreements of cl’s in pt file. CONTACT LENS COMPLIANCE FTC RULE AOA (June 2020) to confirm that a patient received their prescription: signing a separate confirmation statement to acknowledge receipt of the prescription. request patient sign a prescriber-retained copy of the prescription request that provide the patient with a digital copy of the prescription, and retain evidence that it was sent, received, or made accessible, downloadable, and printable. Prescribers must maintain proof that they satisfied the confirmation of prescription release requirement for at least three years. If a patient refuses to sign a confirmation, prescribers must note this and save it to record their compliance. CL CONSENT FORM CL CONSENT Determine the cause of reduced visual acuity Offer polycarbonate material in the following cases- children, monocular patients, consider occupation, hobbies. Tips to avoid malpractice claims Measure IOPs on every patient Perform eye health exam in your contact lens patients Follow co management protocols Keep proper record!! DOCUMENTATION IS ESSENTIAL IT WILL BE YOUR DEFENSE! Take home message + Don’t be afraid to refer to your patient + Follow standards & guidelines of care and document every procedure you performed that will be the evidence of your work. References White, G.E. (2003) Tort Law in America: An Intellectual History. New York, NY: Oxford U Press; Rodziewicz TL, Houseman B, Hipskind JE. Medical Error Reduction and Prevention. [Updated 2021 Jan 4]. In: StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing; 2021 Jan-. Available from: https://www.ncbi.nlm.nih.gov/books/NBK499956/ Keeton, W.P., Prosser and Keeton on Torts, 5th edition, West Publishing Co., Paul, MN, 1984, 46 Schoendorff v. Society of New York Hospital: Schoendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y. 1914) Eap, S., 2012, Optometry Law, Outskirtspress Denver, Colorado.