Teleophthalmology Across the Miles

By Rosa A. Tang, MD, MPH, and Joan Hearst, ARM

Dr. Tang is a neuro-ophthalmologist in Houston, TX. She has been practicing teleophthalmology since the mid-1990s.

Ms. Hearst is a risk management consultant in Pasadena, CA.

 This is the second of a two-part article on risk exposures and risk management strategies related to teleophthalmology. Part I focused on the Internet and email and can be found on OMIC’s Web site, www.omic.com. Part II reviews teleophthalmology applications and emerging risk management issues.

Digest, Fall, 1991

Separated by 210 miles of Pacific Ocean, an orbital specialist on the island of Oahu successfully guides a general ophthalmologist on the island of Hawaii in the removal of a lateral orbital tumor from the eye of a 15-year-old patient. It is the first time telemedicine technology is used to support real-time surgical telementoring to remove an orbital tumor, and it opens the door to further use and development of telementoring technology to disseminate surgical skills to distant sites (Camara et al, Ophthalmology, 2000, v. 107, 1468-1471).

Increasingly, ophthalmologists are using electronic communications to direct patient care and share patient information with health care providers at different locations. A 1998 annual program survey by Telemedicine Today indicated that 9.6% of interactive video and store and forward teleconsultations (images that are stored on disk or film for later review) were being performed by ophthalmologists. Ophthalmologists who incorporate telemedicine into their practice are joining medical disciplines such as teleradiology, which have been practicing telemedicine for years.

Telemedicine has many applications in ophthalmology: imaging technology for diabetic retinopathy examinations, interpretation of fluorescein angiograms, fundus photographs, visual fields, and CT scans; slit-lamp exams performed via videoconferencing; and real-time telemonitoring of complex ophthalmic procedures such as the above example. Telemedicine has a place in all stages of patient care (diagnosis, therapy, follow-up, and/or education) and may involve the transfer between distant sites of patient medical records, medical images, output data from medical devices, and sound and video files.

The most promising benefit of telemedicine is improved access to medical care, particularly for patients in remote locations. A patient can remain in his or her local physician’s office while the physician obtains test results and consults from healthcare practitioners in major hospitals and research centers hundreds or thousands of miles away. Other benefits include more efficient medical evaluation and management of patient care. As with any system, however, mismanagement can occur when roles and responsibilities for follow-up care and communication with other providers are not clearly delineated. The following case study illustrates this point.

 Case Study: Patient Management

A 72-year-old man underwent an uncomplicated cataract extraction of his right eye at a rural community outpatient clinic by a visiting surgeon from a city eye hospital 100 miles away. Postoperative care was provided via telemedicine with the help of an ophthalmic nurse at the clinic who had been personally trained by the ophthalmologist. Using a Zeiss video slit lamp, the nurse captured images of the patient’s eye and transmitted these images to the surgeon who viewed them during a live teleconsultation with the patient. The rural clinic was electronically linked to the city hospital by three integrated service digital lines with a transmission of 30 frames per second video.

On the first post-op day, the patient’s vision was 20/50 with pinhole. The video slit image sent to the surgeon by the nurse was interpreted by the surgeon as “expected mild inflammation.” During the live videoconference, the patient complained of mild foggy vision and some pain in the operated eye. Steroids and antibiotic drops were prescribed and the patient was given a one-week follow up telemedicine visit. Over the next two days, the patient called the clinic because of increasing pain and spoke to the nurse on duty (not the ophthalmic nurse), who told him to increase the drops he had been prescribed. On the fourth post-op day, because of no pain relief, the patient traveled to the city to be seen by the surgeon at the hospital. The surgeon found severe iritis and secondary glaucoma. Fortunately, the iritis was treated successfully and the glaucoma resolved. The patient’s final vision was 20/20. The patient sued the clinic and the surgeon for pain and suffering and misdiagnosis of his condition. He claimed his problem existed at the first post-op visit and would have been diagnosed had the ophthalmologist seen him face-to-face. The case was settled prior to trial with a payment to the patient.

This case points to a potentially fertile area of teleophthalmic liability; namely, follow-up care and continuity of patient management. Geographic distance between a patient and surgeon can complicate aspects of care coordination, particularly when multiple providers (nurse, surgeon, optometrist, etc.) are involved. Before this case, there had been 80 successful postoperative teleconsultations between the rural community clinic and the city eye hospital; however, there was a weak link in the arrangement.

The clinic did not have a full-time ophthalmic nurse on staff so when post-op patients called with questions or concerns, they spoke to the nurse on duty, who did not always consult with the local ophthalmic nurse or the surgeon at the hospital. After this incident, the clinic established protocols for documenting and referring patient calls to the ophthalmic nurse or surgeon.

Teleophthalmology protocols should address patient confidentiality issues, including judicious handling of medical information. Breaches in confidentiality may occur when patient information can be easily viewed or accessed on a computer screen by anyone walking by. Computer medical records should be protected by encryption and precautions taken to ensure that patient data is not forwarded to an inappropriate party. Since patients may not be in visual contact with providers and others at distant teleconsultation locations, privacy issues can arise unexpectedly. The following case study demonstrates the importance of maintaining patient confidentiality.

Case Study: Patient Confidentiality

A 45-year-old woman with a recurrent brain tumor following surgery and radiation therapy was scheduled to be flown overseas for gamma knife treatment. Before undertaking the trip, a third opinion was requested and a teleophthalmology consult was set up with a neuro-ophthalmologist. A neuroradiologist and neurosurgeon also were present at the consultant site, along with technical personnel and two medical students. The patient was not able to see who was in the consultant room as the cameras were directed only on the person speaking and on the materials being reviewed (medical records, visual fields, Xrays). Present at the patient’s site were the treating physicians and technical personnel as well as the patient and her family.

From a technical and medical standpoint, the consultation was successful. It was determined that the patient had brain radionecrosis from the radiation therapy, not a tumor recurrence, and did not need to travel abroad for gamma knife therapy. This opinion was later corroborated by the gamma knife surgeon when he reviewed the patient’s neuro-imaging.  During the teleconsultation, a medical student asked the patient a question. The patient and her family were surprised to learn other people were present in the room at the consultant’s site. They felt their privacy had not been respected since they had not been informed of nor consented to having medical students present.

Following this incident, the hospital ethics committee agreed that patients should know who would be attending the teleconference at the consultant end and who potentially might have access to the patient’s medical information and records. Henceforth, everyone present in the consultant room would be introduced to the patient to ensure patient consent.

 Informed Consent

In addition to patient management issues, informed consent was a contributing factor in the decision to settle the first case involving the cataract patient at the rural clinic. Although the patient did sign a consent form prior to surgery agreeing to have post-op care provided by telemedicine, a nurse had noted in the medical record that the patient was “anxious” about being involved in a teleconsultation.

Some states have enacted legislation requiring the attending physician to obtain verbal and written consent prior to delivery of healthcare via telemedicine. Not only is it legally required in some states, but having patients sign a specific Informed Consent for Telemedicine Services presents an opportunity to discuss protocols and allay concerns about the telemedicine process. If you provide a teleophthalmologic consult, obtain a copy of the patient’s signed informed consent for telemedicine from the referring physician before the consult and place it in the patient’s medical record. A sample consent form for telemedicine services can be found here.

New technology always has the potential to increase liability exposures, and telemedicine may prove to be a fertile ground for plaintiffs’ attorneys by offering more “targets” (referring physician, teleconsultant, or both) and the opportunity to “venue shop” for the trial location with the patient-friendly juries, higher limits on damages, or less effective tort reform, depending on where the referring physician, teleconsultant, or patient is based. There is little legal precedent to adequately assess telemedical liability exposures related to medical licensure, patient/physician relationships, national versus local standards of care, or venue for lawsuits; therefore, it is prudent to contact your malpractice insurance carrier or OMIC before providing telemedical services to ensure coverage in the jurisdiction(s) in which you will provide this service.

A list of source references used in preparing this article can be found here.

For further information on telemedicine, contact the American Telemedicine Association (ATA) or the International Consortium for Ocular Telehealth (ICOT) at http://www.americantelemed.org/i4a/pages/index.cfm?pageid=1   

Protocols for Teleophthalmology

 A comprehensive policy will define the scope of teleophthalmology in your practice and ensure that patients receive the maximum benefit. Update your policy annually and distribute it to staff and patients.

Clarify the physician-patient relationship, and define the limits of a teleconsultation.

Identify and outline the responsibilities of everyone in your practice who is involved in teleophthalmologic interactions to ensure seamless patient management. Include protocols for supervision of staff and equipment.

Verify the credentials and insurance coverage of all licensed practitioners involved in teleophthalmologic applications. Failure to verify the credentials of a consulting specialist could lead to claims of negligent referral if there is an adverse outcome.

Identify the accepted “standard of care” for telemedicine in your field of expertise, if one exists. If you are providing teleophthalmologic services across state lines, check the licensing and credentialing requirements for each affected state. Request approval from licensing boards and professional associations for your teleophthalmology programs; this will demonstrate that you sought guidance from your peers.

Before a teleconsultation, verify that you are using the same medical record information as distant practitioners.

Outline the process for assuring confidentiality of patient information including: security and retention protections for electronic communication; protocols for identifying persons at distant locations; confidentiality agreements for third-party vendors; compliance with confidentiality requirements in each state to which information may be transmitted; and patient informed consent.

Determine payment requirements for Medicare, Medicaid, and/or private insurance carriers in teleophthalmologic interactions, and advise patients of these requirements.

Outline standards for image acquisition, resolution bandwidth, transmission, storage resolution, method and time, retrieval, and manipulation. Have backup procedures in place in case of equipment failure, weather interference, or other emergency.

Citations for Telemedicine Article Part II

Abke, Ann, RN, ARM and Mouse-Young, Donna, Telemedicine: New Technology = New Questions = New Exposures, Journal of Healthcare Risk Management, Fall, 1997, p 3-6.

Allen A, and Grigsby B (Oct 1998) 5th Annual Program Survey – Part 2: Consultation activity in 35 specialties. Telemedicine Today 6(5) : 18-9

Bekker, Mary Coupe, Exploring Telemedicine, Ophthalmology Management, Sept, 1998, P44-51.

Heneghan, Conor, PhD, Ophthalmology Rides Wave of Telemedicine, Tech Talk, Ophthalmology Times, May, 1997, p9-10.

C. Heneghan, Telemedicine Today: Legal and Financial Challenges, http://www.nyee.edu/teleinf/telemed.htm

Kvedar, Joseph C, MD, Menn, Eric R, Developing Standards of Care Specific to Telemedicine, Forum, Risk Management Foundation, Sept, 1998.v

Lattimore, Jr, Col Morris R., OD, PhD, A Store-Forward Ophthalmic Telemedicine Case Report from Deployed US Army Forces in Kuwait, Telemedicine Journal, 1999, 3:309-313.

Li, Helen K, MD, Telemedicine and Ophthalmology, Surv Ophthalmol 44 (1) Jul-Aug 1999, p 61-72.

Li, Helen K., MD, Tang, Rosa A., MD, MPH, Oschner, Katherine, MD, Koplos, Chris, OD, Grady, James, Dr.PH., and Crump, William J, MD, Telemedicine Screening of Glaucoma, Telemedicine Journal, 1999, 5:283- 290.

Maheu, Marlene M, PhD, Risk Management in the Re-tooling of Healthcare, Behavioral Information Tomorrow Conference, Mar 18-21, 1999, San Jose, CA

Murdoch I, Bainbridge J, Taylor P, Smith L, Burns J, and Rendall J (2000) Postoperative evaluation of patients following ophthalmic surgery. Journal of Telemedicine and Telecare 6(Suppl 1) : S1:84-S1:86.

Rosenblum, James, Telemedicine: Modern Miracle or Liability Landmine?, Reprinted from 18th Annual Conference of the American Society for Healthcare Risk Management, 1996.

Smith, Loren A, Esq, Legal Issues in Telemedicine, Dateline, The Newsletter of the Medical Liability Mutual Insurance Company, Sept, 1998.

Tange-duPré, Katherine, Telemedicine – Opportunities and Issues, Risk Management Monograph, American Society for Healthcare Risk Management, Jul/Aug, 1997.

Telemedicine: A Medical Liability White Paper, Physician Insurers Association of America (PIAA), 1998.

Tuulonen A, Ohinmaa T, Alanko HI, Hyytinen P, Juutinen A, Toppinen E, The application of teleophthalmology in examining patients with glaucoma: a pilot study. J Glaucoma 1999 Dec;8(6):367-73.

Yogesan K, Cuypers M, Barry CJ, Constable IJ, and Jitskaia L (2000) Tele-ophthalmology screening for retinal and anterior segment diseases. Journal of Telemedicine and Telecare 6(Suppl 1) : S1:96-S1:98.

Who’s On Call?

Paul Weber, JD, OMIC Risk Manager

Digest, Summer, 2000

With the proliferation of cell phones, pagers, fax machines, and email, patients have come to expect their ophthalmologist to be available 24/7 whenever they have an urgent question or concern about their vision. This can present problems during weekends, holidays, vacations, or whenever the ophthalmologist is not available to take calls. So who else in the practice can take after hours calls from patients?

Q  Can my office staff be on call?

A  The simple answer is no. Non-physician office staff cannot “take call.” Only physicians can since being “on call,” by definition, means that a physician is ready and legally able to render medical/surgical care to patients on an urgent or emergent basis. This includes being able to see and treat patients in the office or emergency room and admitting them to a hospital if necessary.

Q  Can ophthalmic technicians answer calls from patients after hours?

A  Technicians can, and often do, take after hours calls from patients and answering services forwarding patient calls to them. This duty should only be assigned to staff members who have the knowledge to make critical decisions about the urgency of a patient’s condition and the experience to know when a patient should talk to or be seen by an ophthalmologist. Anytime a technician takes a patient’s call – whether it is at home after hours or in the office during business hours – there is the potential for claims of miscommunication or failure to communicate if the patient suffers an injury. Advise staff to document all conversations with patients and any actions taken (e.g., scheduling or canceling an appointment) and to record it in the patient’s chart. If a new patient calls for whom there is no chart, the message should be placed into a designated message folder. Later, review all calls and messages with staff to determine if any follow-up is required. This will give you an opportunity to monitor how well your staff handles patient calls.

Q  Can an employed optometrist take call for my practice?

A  Laws regarding optometric scope of practice vary from state to state, but because optometrists cannot perform surgery and have only limited scope of practice, they cannot take call. However, their special training and skill allows them to handle more questions and situations than technicians. This increases the potential for claims of misdiagnosis or delay in diagnosis, but the risk is no greater than it is when an employed optometrist examines and diagnoses a patient under the supervision of an ophthalmologist during business hours. An ophthalmologist always should be available to take patient referrals if a situation exceeds an optometrist’s scope of expertise.

Q  Can a non-employed optometrist take call for my practice?

A  Non-employed optometrists present greater liability exposure for an ophthalmic practice than employed optometrists because they do not know your patients and are not under your supervision. If it is possible that a non-employed optometrist will be examining and diagnosing your patients, confirm that the optometrist is properly trained and qualified and carries adequate malpractice insurance.

Q  Can ophthalmology residents take call?

A  Residents are physicians and can be on call if this is within the scope of their residency, but they are not fully trained ophthalmologists so their ophthalmology call is limited and needs to be backed up by a trained ophthalmologist to avoid vicarious liability claims against the practice.

In summary, all ancillary personnel who answer after hours calls from patients must be backed up by an on call ophthalmologist who is taking call. Written protocols should clearly delineate how to handle frequently encountered situations and when to contact an ophthalmologist. Periodically evaluate and update these protocols and distribute them to all staff.

If a patient or other health care provider wants to personally speak with or be seen by the ophthalmologist, the request must be granted. As a matter of course, it is a good idea to instruct staff to ask callers if they feel they need to speak with the doctor. Ancillary personnel should be perceived as aiding, not hindering, the doctor-patient relationship.

Please contact Paul Weber at (800) 562-OMIC (6642), ext. 603 or pweber@omic.com  if you have other questions concerning who can legally take call coverage.

Lessons from the Fraud and Abuse Wars

By William A. Sarraille, JD

Mr. Sarraille is a partner at the Washington, DC, and New York, NY, law firm of Arent, Fox, Kintner, Plotkin & Kahn. He serves as regulatory counsel to OMIC and represents ophthalmologists across the country in regulatory, transactional, and litigation matters.

Digest, Fall, 2000

Seven years after declaring war on health care fraud and abuse, the federal government’s offensive shows no sign of slowing its incredible pace any time soon. Last year, the government reported more than 5,000 pending health care fraud and abuse investigations – a 532% increase since 1993 – and this did not include the many “routine” audits undertaken by Medicare carriers.

If future budgets are any indication of future activities (and they usually are), the Department of Justice, the Federal Bureau of Investigation, and the Office of the Inspector General for the Department of Health and Human Services promise an ever-increasing risk of enforcement action. Under the Health Insurance Portability and Accountability Act of 1996, the fraud and abuse control budget is set to increase at a rate of 15% a year through 2003. If these increases are appropriated as envisioned by the statute, the health care fraud and abuse budget will jump from $110 million in 1997 to $345 million in 2003. Because these planned appropriations will be funded by the fines, penalties, and forfeitures collected by federal law enforcement agents from health care providers, the fear is that those agencies will have a self-interest in the outcome of their investigations and that one investigation will inevitably breed another.

Overutilization continues to be the focus of many fraud and abuse investigations targeting ophthalmologists. Medicare carriers tend to use various utilization screens to identify outliers for audits and other action. Cataract screens sometimes apply a 4% rule, whereby Medicare expects four cataract procedures for every 100 patient visits. YAG procedures, another area of intense overutilization focus by Medicare carriers, carry with them an expectation that there will be a YAG within one year for every four cataract procedures. Although Medicare’s “expectation” for YAGs, then, is 25% of the incidence of cataract procedures, actual claims data shows an average frequency of about 33%.

Unfortunately, many ophthalmology practices forget that Medicare carriers typically require documentation of a patient’s subjective complaint, in addition to objective findings, in order to establish the medical necessity of a surgical service. Defects in recording subjective complaints are one of the most common deficiencies found in compliance reviews of ophthalmic practices. Even when subjective complaints are obtained, they may not be recorded in the medical record as required. The best practice is to use a patient complaint check-off form so the patient personally records the subjective complaint. When such a form is used, it is more difficult for auditors and investigators to challenge the fact that a subjective complaint supported the medical necessity of the service.

Perhaps the single most common and dangerous deficiency in surgical ophthalmic practices is the failure to separately determine and record the objective and subjective criteria establishing the medical necessity of fellow eye procedures. Many practices that do a good job of recording objective and subjective criteria for the first operative eye completely fail to separately assess fellow eyes under these same criteria. This puts the practice at risk, as the government will take the position that there was no medical necessity for the fellow eye procedure.

Physician Profiling

Another important compliance issue is Medicare’s use of eye code and evaluation and management codes to identify practices and physicians for audits and other actions. If your distribution of codes looks substantially different from those in the utilization tables shown here (and you can’t explain why your practice would be different from the “norm”), review a sampling of your office services to determine if the problem lies with how you are assigning these codes.

Don’t assume a problem necessarily exists because your profile does not fit the norm, but use these norms to help identify potential compliance problems that might require further attention. However you come out in relation to Medicare’s “normal” percentages, you should bill for the level of service that was (1) medically necessary, (2) actually provided, and (3) appropriately documented. This is what “correct coding” means in a nutshell.

A number of persistent and avoidable problems seem to subject many ophthalmologists to evaluation and management problems and eye code audits each year, sometimes leading to allegations that the physician violated the Federal False Claims Act. For instance, many practitioners’ office codes are subject to downcoding on audit because they fail to note negatives and to specify or explain abnormal findings. Ophthalmologists who use only eye codes sometimes find themselves inadvertently upcoding simple services like a basic glaucoma check.

Lack of necessary history information is another recurrent problem. Medicare auditors are generally obligated to give credit for information contained in patient-completed questionnaires so long as the questionnaire is incorporated by reference in the chart note for the encounter and the questionnaire was completed or updated within one year of the encounter. This can be an easy way to ensure that necessary history information is recorded.

The government is skeptical of superbills (charge sheets) that list only higher level evaluation and management eye codes or diagnosis codes supporting Medicare reimbursement. It is helpful to state the following on each superbill:

It is the policy of this practice to provide only accurate and complete billing and coding, regardless of the impact on reimbursement. All encounter, procedure, and diagnosis coding must be accurate and complete, including all modifiers selected.

Ancillary Testing Services

Ancillary services are another major source of compliance problems for ophthalmologists who, like other physicians, fall into the “inference trap.” Although Medicare rules require auditors to make reasonable inferences from encounter documentation regarding why an ancillary service was ordered, the reality is that the inferences made by an ophthalmologist and a Medicare auditor may be vastly different since the auditor may very well have no clinical training. When in doubt, note in a concise way why an ancillary service has been ordered.

Special testing services offered by ophthalmologists (including endothelial cell counts, visual fields, fluorescein angiographies, and fundus photography) require an interpretation and report, according to CPT descriptors. Although neither the American Medical Association nor the Health Care Financing Administration has defined what that means, Medicare auditors have been increasing audits in this area and demanding the return of payments for special testing services because there is no interpretation and report in the record. One retina group practice was hit with a demand for almost $1 million on this theory, although the demand was reduced to a few hundred dollars after we challenged the audit.

To reduce exposure in this area, ophthalmology practices are advised to develop a policy for special testing services requiring documentation of the following three items: (1) test results, (2) test findings and implications on the status of the illness, and (3) the impact of this information on the plan of care. A form to prompt documentation of these items is available by calling OMIC’s Risk Management Department at (800) 562-6642, ext. 4 or by visiting OMIC’s web site at www.omic.com.

Medical necessity is as much an issue with ancillary services as documentation. Allegations of excessive orders of visual fields, endothelial cell counts, and other ancillary services have prompted audits, False Claims Act cases, and even criminal investigations. The test to determine if an ancillary service is medically necessary is an easy one. Just ask yourself this basic question: Is this test likely to affect the diagnosis I make or my plan of care? If you can’t answer yes to that question (perhaps because you are ordering the service as an act of defensive medicine or for some other reason), the service is not medically necessary. Don’t charge Medicare for a service that is not medically necessary.

The Chief Complaint

There are still more issues being pursued by Medicare. Billing of routine screening eye examinations as though they were “sick” services is a priority for the government. Often, the problem is a technician or screener who is unable to elicit a complaint from a patient too frightened or anxious to voice the complaint. Although practitioners should not put words into the mouths of their patients, they should be careful to determine the real reason why a reticent patient has presented. Another problem is coding patients who return for follow-up of established problems, such as glaucoma, as presenting for an “annual examination,” a phrase that suggests a non-covered preventive health service to a Medicare auditor.

Remember that the chief complaint is the single most important piece of documentation for an encounter. If you get nothing else right, get this entry correct. The chief complaint either establishes or fails to establish the medical necessity of the encounter. The practical reality is that a Medicare auditor will apply the documentation guidelines more flexibly if convinced that the service was medically necessary.

A couple of final suggestions might be helpful. Invest some time and resources to make your practice more compliant, preferably in the form of an organized compliance program. Make fraud and abuse risk avoidance an ongoing part of your practice. When you have managed the risks as best you can given your resources and other limitations, put this stuff out of your mind and concentrate on the practice of medicine. After all, that’s why you became a physician in the first place.

See Policy Issues for information on OMIC’s Fraud & Abuse insurance for ophthalmologists.

Notes:

OMIC and the author would like to thank the healthcare consulting firm of Rose & Associates for the design of the documentation aids for special testing services. This data was furnished by Kevin Corcoran of Corcoran Consulting Group and was derived from Medicare utilization data for 1998. Certain eye code and evaluation and management services have been combined for purposes of these tables.

When Patients Shouldn’t Drive

Paul Weber, JD, OMIC Risk Manager

Digest, Fall, 2000

Ophthalmologists frequently inquire about their liability if they report a patient whose visual impairment creates a driving hazard. A related issue is whether an ophthalmologist can be held liable to a third party who is injured in an accident caused by a visually impaired patient. Understanding the reporting laws in your state and calling OMIC’s Risk Management Department are important first steps to reducing the potential liability of this complex legal and ethical situation.

Q  Do I have a duty to report a patient to the motor vehicles department (agency may vary from state to state) if that patient’s vision is severely impaired?

A  Many states require physicians to report patients who have epilepsy or disorders characterized by lapses of consciousness. However, in most states it does not appear that physicians have an affirmative duty to report patients who fall below a certain visual acuity or have limited field of vision. There are exceptions, such as Pennsylvania, where the law states that if a patient has a “visual acuity of less than 20/70 combined vision with best correction,” the physician must report that patient to the Pennsylvania Department of Transportation for further evaluation. Contact your state medical society since most associations will have information regarding diseases and conditions that must be reported to state agencies.

Q  If I am not required by state law to report a patient whose visual impairment affects driving ability, but I do so anyway because I believe it is my ethical obligation to protect the public, what are my risks?

A  Some ophthalmologists believe that voluntary reporting of patients violates the confidential doctor-patient relationship and adversely impacts their role as patient advocate. Others worry that patients won’t be honest with their healthcare provider if they fear being reported. On the other side are those ophthalmologists who believe that reporting a visually impaired driver could help prevent a death or serious injury. Many states, such as Florida, California, and Illinois, keep such reports confidential and provide immunity from civil or criminal prosecution to those who provide such information. Prior to voluntarily reporting a patient to a state agency, OMIC insureds are advised to contact the Risk Management Department.

Q  Should I discuss my concerns with the patient or patient’s family before I report the matter to local authorities?

A  You should tell patients first when it is your professional opinion that their vision is so severely impaired that they should not be driving. From a practical standpoint, this may be enough to convince a patient to stop driving. From a legal standpoint, any discussion regarding a visual impairment should be thoroughly documented in the patient’s chart. This documentation will help defend against claims by the patient or others that the patient did not understand the nature or extent of the visual disability.

Discussing the matter with family members is more delicate. Generally, a patient’s medical information cannot be shared with family members without the signed authorization of the patient. However, if a family member is present during the examination, you may simply ask the patient’s permission to discuss the matter in front of the family member(s) and then document that such permission was orally obtained. Although it is a clear breach of confidentiality to discuss such matters with family members without the patient’s permission, you may feel ethically compelled to do so if there is someone who might be able to persuade the patient to stop driving.

Q  Am I liable to a third party if a visually impaired patient causes an accident?

A  Generally, no liability will attach to the ophthalmologist in such circumstances. Most courts opine that allowing third parties to sue physicians would disregard the legal principle of “foreseeable risk of harm” and extend liability limitlessly to treating physicians vis-à-vis third party victims.

An exception to this general rule arises when an ophthalmologist “causes or aggravates” the impairing visual condition. In one OMIC case, a third party claimed he was injured by a patient whose driving was impaired after the ophthalmologist dilated the patient’s eyes. No payment was made to the third party; however, the case serves as a reminder of the need to inform patients about visual impairment following certain treatments or examinations. Another exception to the rule was made in a California case in which a physician allegedly failed to warn a patient that his uncontrolled diabetes made it dangerous to drive. The court stated that liability could be imposed if the injured third party could prove that the physician’s failure to provide this warning was a “substantial factor” in causing the claimant’s injuries. This ruling reinforces the importance of documenting that a patient has been informed of impairments that could affect driving.

Resident Supervision

By Paul Weber, JD

OMIC’s vice-president of risk management

Digest, Spring, 2002

Many OMIC insureds participate in teaching programs and supervise ophthalmology residents in the clinic, the operating room, and the emergency room. Resident supervision is an integral part of passing on the knowledge and skills of the ophthalmology profession, but it requires a delicate balance between providing adequate supervision and allowing sufficient independence for the resident’s skill to grow. Occasionally, OMIC insureds incur claims related to their supervision of residents, which raises liability issues about the adequacy of the ophthalmologist’s supervision and the resident’s qualifications to diagnose and treat patients.

Q  Can I be held liable for an injury caused by a resident whom I am supervising?

A  If a supervising physician misjudges a resident’s abilities or assigns a task that he or she knows the resident cannot carry out competently, the physician may be held liable for the resident’s actions if they result in an injury to the patient. 

Q  Aren’t residents considered “full-fledged” physicians who are licensed and qualified to provide medical care, including ophthalmic care?

A  Residents are not board certified in a specialty. They may be just weeks into their residency or nearing completion. Some courts apply an intermediate standard to residents somewhere between a general practitioner and a fully trained specialist with that degree of skill, learning, and care possessed by other medical residents under similar circumstances. Other courts have said that the duty owed to the patient does not vary according to the doctor’s individual knowledge or education and that patients have the right to expect the same quality of care found in the general medical community.

Q  Isn’t the hospital or teaching institution primarily responsible for resident supervision?

A  The employer entity may be found vicariously responsible for the actions of residents just as it would for any other employee. However, even though the hospital or teaching institution may have overall responsibility for the resident, a jury may find that the supervising physician shares responsibility for the resident’s actions. At trial, it would be up to the jury to decide how much control was assumed by the supervising physician.

Regulatory agencies provide guidelines to hospitals and universities employing residents. The Joint Commission on Accreditation of Healthcare Organizations requires hospitals participating in professional graduate education programs to establish rules and regulations specifying the “mechanisms by which house staff members are supervised by medical staff members in carrying out patient responsibilities.” The Accreditation Council for Graduate Medical Education has set forth guidelines for program directors and teaching faculty to ensure “proper supervision…and appropriate involvement of supervisory physicians in a manner appropriate for quality patient care and educational programs.”

Q  What are the rules surrounding informed consent of patients treated by residents?

A  It is the attending physician’s duty to inform patients if a resident will be responsible for any part of their care. A patient should never be misled or misinformed about anyone who participates in his or her care. Hospitals and universities that employ residents should include language in their general consent form about the role of residents in the patient’s care and treatment. The same disclosure applies to the informed consent process is a resident provides surgical assistance to a physician’s private practice patients. “Ghost surgery,” in which the physician allows another doctor to perform the surgery unbeknownst to the patient, has attracted much unfavorable attention in the press.

A contingency plan must be in place to handle situations in which a patient refuses to have a resident participate in his or her care. The physician who uses a resident despite the expressed wishes of a patient does so at his or her own risk and may be sued for battery even if there is no negligence.

Q  What can I do to protect myself against a claim of negligent supervision?

A  Apply the guiding principle of graded responsibility, whereby residents are allowed to deliver a particular kind of medical care without direct supervision only when they have achieved competence in providing that type of care as determined by criteria set forth by the training program director in accordance with the guidelines of the relevant specialty board. When your clinical experience tells you there might be a greater liability risks at hand, take a more active role in the case.

The primary resource for this article was ECRI’s Healthcare Risk Control System.