Shield Yourself From Malpractice Claims
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 |
Traumatic Eye Injuries
Allegations of failure to diagnose are common in medical malpractice lawsuits against ophthalmologists. This document will focus on traumatic eye injuries, and follow a patient who was referred to an ophthalmologist with a history of being struck in the eye with metal when a screwdriver shattered a screw. There was a delay in diagnosing a metallic foreign body. The resulting endophthalmitis could not be successfully treated, and the patient required an enucleation and prosthesis.
See OMIC’s risk management recommendations below.
Traumatic Eye Injuries
EMTALA (Emergency Medical Treatment and Active Labor Act)
This federal law governs how patients are treated in emergency rooms, and imposes duties on ophthalmologists who serve on-call to hospitals.
EMTALA provides information on the basic obligations hospitals and physicians have under EMTALA.
Don’t Defer Emergency Cases When Covering Calls for a Colleague
By Richard A. Deutsche, MD
Argus, August, 1992
Weekend, night and vacation call scheduling presents potential risk management problems if the on-call ophthalmologist does not see emergency cases in a timely manner. A review of ophthalmic claims reveals instances in which the operating surgeon and the on-call ophthalmologist were sued for failing to treat postoperative complications in a timely manner.
One case involved an elderly man who had an uncomplicated extracapsular extraction with a posterior chamber intraocular lens performed on a Thursday. The eye was doing well when the operating surgeon saw the patient the following day. On Saturday, two days postop, the patient developed pain and decreased vision. After failing to reach the surgeon, who had signed out to another ophthalmologist for the weekend, the patient was eventually able to contact the covering ophthalmologist by phone. He relayed his symptoms and was told to take Tylenol.
The next day, still complaining of pain and decreased vision, the patient was referred to another on-call ophthalmologist. When the patient was seen that evening, a diagnosis of enophthalmitis was made. On Monday, the patient was seen by a retinal specialist who did a vitreous tap followed by the appropriate treatment for enophthalmitis. Despite these best efforts, the eye was lost. The patient sued the operating surgeon and both on-call ophthalmologists for abandonment and delay in diagnosis.
Another case involved a middle-aged woman who had an uncomplicated retinal detachment repair with intravitreal gas performed on Friday. That evening, she developed pain and blurred vision. She called the retinal specialist, who had gone out of town, and was referred to the on-call ophthalmologist who prescribed Empirin with codeine No. 4 for pain. The severe pain continued and her vision worsened.
When the on-call ophthalmologist saw the patient the next day, her intraocular pressure was 70. Although the ophthalmologist immediately began appropriate treatment for intravitreal gas and control of the glaucoma, permanent damage to the eye had occurred, presumably from the prolonged elevated intraocular pressure, and the eye was lost. The patient sued the retinal specialist and the on-call ophthalmologist for failure to respond to the emergency.
In both instances, the claims may have had stronger defenses or been avoided altogether if the ophthalmologist on call had seen the patient in a timely manner.
Ophthalmologists are strongly advised to adhere to these risk management principles when arranging or accepting weekend, night or vacation coverage:
- When signing out, be sure to inform the ophthalmologist who is taking your calls of any recent surgical cases or any problem patients.
- When on call, keep your home telephone line open as much as possible so the answering service can reach you.
- If you are taking calls for a colleague, be readily available and willing to see patients regardless of the time of day.
- Keep notes of telephone calls you take while on call, and place these notes in the proper charts when you return to the office.
- Inform your colleague of any patients who contacted you during his or her absence.
- Remember that certain general ophthalmic emergencies such as a chemical splash in the eye, perforating eye injury, recent bulging of the eye, rapid onset of vitreous floaters, curtains or veils across the vision, photopsia and foreign bodies in the eye must be evaluated immediately.
- Postoperative patients who complain of pain, acute complete or partial loss of vision, infectious discharge or increased redness of the eye must be seen by an ophthalmologist as soon as possible. Do not delegate this duty to a non-ophthalmologist.
By following these guidelines, you can provide your patients with optimal ophthalmic care and decrease your exposure to litigation.
Refusal of Recommended Medical or Surgical Treatment
REFUSAL OF RECOMMENDED MEDICAL OR SURGICAL TREATMENT
Patient Name:
Dr. ___________ informed me of the following:
I have the following condition(s):
The doctor recommends:
The recommended treatment consists of:
The purpose of the recommended treatment is:
I should get the recommended treatment within the following time period:
The possible alternative(s) to the recommended treatment:
The consequences of not getting the recommended treatment or the above described alternative(s):
I understand that my failure to accept the recommended treatment may endanger my vision, life, or health; I nonetheless refuse to consent to it.
My reason for refusal is:
Patient (or person authorized to sign for patient) Date
