Services Provided as an Independent Medical Examiner or Expert Witness
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Spring 2008
Forensic consulting can provide physicians with welcome revenue, but it raises many questions for our policyholders when they are asked to serve as an expert witness or to perform an independent medical examination.
Q Is it true that the American Academy of Ophthalmology has issued an opinion about expert witness testimony?
A Yes. The AAO added Rule 16 to its Code of Ethics in order to address concerns raised by its members about the truthfulness and accuracy of expert witness testimony. The Rule clarifies that testimony should be objective, based upon medical knowl- edge, and free from the influence of nonmedical factors such as solicitation of business, competition, and personal bias. Compensation should reflect the actual time and effort involved, and not be contingent upon the outcome. Physicians are often asked to disclose compensation during their deposition or testimony.[1]
Q Do I establish a physician-patient relationship by providing expert witness testimony or by performing an independent medical exam?
A As an EW, if you do not examine or treat the patient, there is no physician-patient relationship and thus no duty owed to the patient. The situation of an IME is less clear. While some courts have ruled that you do not create a relationship, the American Medical Association recognizes what it terms a “limited” physician-patient relationship.[2] Acknowledging that the patient has not necessarily asked for the evaluation and does not pay for it, and that the examiner will not treat the patient, the AMA nonetheless asserts that professional and ethical standards continue to govern the physician’s role in the encounter.
Q What liability risks do I face in an IME?
A Malpractice lawsuits related to independent medical examinations are rare; allegations covered by OMIC’s policy include failure to diagnose eye conditions, failure to diagnose and disclose incidental findings, and harm caused by the examination itself (see Policy Issues). For a discussion of other theories of liability pertaining to EW and IME, see “Forensic Consulting: From Immunity to Liability,” OMIC Digest, Summer 2003, Vol. 13, No. 3, at www.omic.com.
Q What duties do I owe the person I examine?
A The AMA explains the duties in its Code of Ethics and opinions. At the start of the visit, address what may be perceived as a conflict of interest by informing the patient who has hired you and will pay your fee. Clarify that your role is limited to conducting an examination and producing a report. State clearly that you will not treat or follow the person and will not discuss the pros and cons of treatment options. Stress that the usual privacy and confidentiality rights are restricted in that your findings will be shared with the company or attorney who hired you. Finally, inform the examinee of what the AMA terms “important health information or abnormalities” that you discover during your examination (for your own protection, document these disclosures and incidental findings). To the extent possible, ensure that the person understands the problem or diagnosis.
Q The person I evaluated during an IME signed a form acknowledging that he would not receive a copy of the report. He now, however, wants a copy of his “medical record.” Should I create and provide one?
A The party that requests the IME usually instructs the ophthalmologist to have the patient acknowledge in writing that both the party paying for the examination, and often the opposing party, will receive a copy of the IME report. Interestingly, in some circumstances and jurisdictions, while the patient still controls which other third parties may have access to the report, he or she may not see or receive a copy of it. In response to Hotline calls, OMIC researched whether the patient is nonetheless entitled to a copy of the medical record. While it seems logical that the examinee would need a copy in order to seek care for any incidental findings, we could not find a clear answer to this question.
For that reason, be sure to clarify before agreeing to do an IME whether or not the examinee is entitled to receive a written copy of your findings. Ask if you may provide the patient with a document containing only the “important health information or abnormalities” that the AMA feels you have a duty to disclose. Inform the patient of what you may provide before beginning the exam. Please contact the OMIC Risk Management Hotline if you need further assistance on this issue by calling (800) 562-6642, option 4.
1. See the AAO web site at http://www.aao.org/about/ethics/code_ethics.cfm for more information about the entire Code and Rule 16; accessed on 6/11/08.
2. American Medical Association, Opinion E-10.03.Physician-Patient Relationship in the Context of Work-Related and Independent Medical Examinations here; accessed on 6/11/08.
What May I Safely Delegate?
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Spring 2009
The “practice of medicine” is defined in each state’s medical practice act and clarified in regulations. Sometimes, even after researching state laws and regulations, you may not be sure of what medical tasks you may delegate to non-physicians. The official curriculum provided at the school where the employee trained is a good indication of normal scope of services or practice of that employee. However, state law may preempt those qualifications or experience if the employee trained out of state. use the training, licensure/certification process, state law, and the principles discussed in this article to develop protocols that will keep you, your patients, and your staff safe, and improve the defensibility of care rendered under your supervision.
Q What distinguishes a cosmetic procedure from a medical procedure?
A Are estheticians (skin care therapists) trained to perform this procedure in esthetician schools? May they perform the procedure in a salon that has no affiliation with a physician? If the answer to both questions is yes, the treatment is probably a cosmetic one with few or minimal patient safety risks. On the other hand, if the device needed to perform the procedure may only be purchased by a medical doctor (MD) or doctor of osteopathy (DO), or if the product is labeled as a drug by the FDA, the treatment is a medical one with risks that must be disclosed, recognized, and mitigated. If not performed by a physician, it must be ordered, delegated, and supervised by a physician.
Q May I delegate prescriptive authority to my staff?
A Each state limits the ability to write prescriptions to certain licensed health care personnel and provides a “sliding scale” of authority. MDs and DOs are at the top of the scale; with the proper Drug Enforcement Agency (DEA) approval for controlled substances, they have unlimited prescriptive authority to order FDA-approved drugs and devices. All other licensed health care providers have restrictions. Others with prescriptive authority and likely to be in an ophthalmology practice include physician assistants and nurse practitioners. They may prescribe only medications normally used by their supervising physician that are also listed in the formulary that comprises part of the standardized protocols directing their actions. If the standardized protocol addresses drugs such as injectables, and the drugs are in the formulary, physician assistants and nurse practitioners may prescribe and administer them, as well as supervise staff who are qualified to administer them. In some states, optometrists with special training and licensure have limited prescriptive authority, but it would not include these drugs and devices. While registered nurses are licensed, they have no prescriptive authority. Like unlicensed ophthalmic personnel, their role is limited to implementing orders or transmitting them to a pharmacy or health care facility. In offices with no physician assistant or nurse practitioner, therefore, only an ophthalmologist may prescribe drugs such as injectables.
Q Who may determine if a patient is a candidate for a medical procedure?
A It takes considerable knowledge and judgment to determine the cause of presenting complaints, what if any treatment is indicated, and whether the findings from the patients’ history or examination signal increased risk or constitute contraindications. In other words, assessing patients to determine treatment is the practice of medicine. Registered nurses are trained in nursing school and then licensed to perform assessments of patient conditions, interpret orders and test results, implement treatment orders, and make ongoing decisions about how to modify procedures as needed based upon the patient’s condition. Nearly all states also have legal mechanisms for registered nurses to perform tasks that are considered the practice of medicine, such as Botox injections and some types of laser surgery. With sufficient training and the appropriate standardized protocols that delineate indications, contraindications, treatments, and consultation requirements, registered nurses may usually elicit the history, perform the initial examination, and discuss a proposed course of treatment with the patient as a prelude to presenting their recommendations to the supervising physician. If the physician approves the patient’s candidacy and orders the treatment or series of treatments, the registered nurse may implement the order.
Q What may I delegate to unlicensed ophthalmic personnel?
A Does the state’s medical practice act define laser procedures as the practice of medicine or surgery? Does performing the procedure require the staff member to assess the patient’s condition or make modifications from one patient to the next? If the answer to either of these questions is yes, the procedure is best performed by a licensed health care staff member. Did the school at which the staff member studied include the procedure in the official curriculum? Is the procedure included in the tasks for which the staff member can receive JCAHCO certification? If yes, then it is probably safe to delegate the task and supervise the unlicensed staff member if you or another ophthalmologist determines candidacy and orders the treatment for the specific patient each time it is administered.
Duty to Warn Patients Not to Drive
Anne M. Menke, RN, PhD OMIC Risk Manager
The establishment of the physician-patient relationship imposes certain duties upon ophthalmologists. Some—privacy, confidentiality, continuity of care, and reasonable prudence—are well known and much discussed. Other duties, such as reporting and warning obligations, may give physicians pause, especially if they require a breach of confidentiality or disregard for the patient’s express wishes. This Hotline addresses the duty to warn a patient and report to the state if driving ability is impaired.
Q Am I liable for any harm done by my patient while driving?
A Ophthalmologists have been sued by patients and third parties who were involved in motor vehicle accidents. Expert witnesses who evaluate these cases for breaches in the standard of care address two issues. First, did the patient have a condition that should have led a reasonably prudent ophthalmologist to warn the patient not to drive? Second, if the patient had such a condition, did the ophthalmologist warn the patient and document the discussion? In our experience, suits have been dropped if the medical record indicates there was no such condition or, if there was, that the ophthalmologist did warn the patient. Conversely, physicians have been held liable for harm to the patient and injured third parties if no such warning was given.
Q Based upon my examination, I don’t feel it is safe for my patient to drive. Am I obligated to inform and warn the patient not to drive?
A Yes. If the patient has a condition that may prevent safe driving, warn the patient and document the discussion. Reasons to conclude a patient shouldn’t drive include conditions characterized by lapses of consciousness (seizures and epilepsy), dementia, and those that result in certain amounts of uncorrectable decreased visual acuity and reduced visual fields, as well as side effects of medications (tranquilizers and pain medications) and substance abuse.1 Some patients may be able to drive only under certain conditions, such as daylight. Others may need to abstain for only a short period; this is usually the case after dilating drops have been inserted for diagnostic and therapeutic procedures. In addition to reminding patients to wear sunglasses, warn them that dilating drops may adversely affect their ability to drive.
Q My patient says dilating drops do not impact his driving and refuses to have someone else drive him to my office. May I still administer the drops?
A Yes. Many ophthalmic conditions can only be diagnosed and monitored if the pupil is dilated. As long as you have warned the patient, you may administer the drops.
Q I have warned my patient about driving, but she refuses to heed my advice. What else can I do?
A Patients who can no longer drive may fear a loss of independence and worry about imposing upon friends and relatives. It is thus understandable when patients are reluctant to heed a physician’s advice. Repeat the discussion at each visit in the hope of breaking through the patient’s denial. Consider contacting the patient’s primary care physician for help in convincing the patient. You may also discuss your concerns with the patient’s family and friends. The HIPAA web site clarifies that you may speak to family and friends if you have been given permission, if they accompany the patient to visits or are involved in the patient’s care or payment, or if your professional judgment indicates that such a discussion would be in the best interest of the patient.
Q Am I required to report a patient’s inability to drive to my state department of motor vehicles (DMV)?
A The American Medical Association advises physicians that “in situations where clear evidence of substantial driving impairment implies a strong threat to patient and public safety, and where the physician’s advice to discontinue driving privileges is ignored, it is desirable and ethical to notify the Department of Motor Vehicles.”3 Some states require physicians to report, others allow but do not mandate reports, while a few consider a report a breach of confidentiality. There could be liability and penalties if a physician does not act in accordance with state laws on reporting and confidentiality. The safest course is to verify the law. Many states clarify driver’s license laws on the DMV web site or provide a link to email the DMV. If you cannot get an answer from the DMV, contact your state medical board, state medical association, or state ophthalmology organization. If you are required to notify the state, do so only after discussing your evaluation and informing the patient that you will be notifying the state. If you are allowed but not mandated to report, consider that in the event of an accident, a jury may find you did not do all you could have to prevent harm to the patient and others if you do not contact the DMV.
Competency Reviews and Discussions
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Spring 2010
Physicians in group practices and those who are owners of ambulatory surgery centers are often interested in monitoring outcomes as part of credentialing processes. Here are some questions our policyholders have posed.
Q My group would like to begin tracking outcomes. How do we begin?
A There are guiding principles that may help to allay concerns and ensure a sense of fairness. First, it is best to discuss the planned review process with all stakeholders. Sufficient time needs to be allotted to achieve consensus on what objective criteria will be used. Clinical material from the American Academy of Ophthalmology, such as Preferred Practice Patterns, will be helpful. Ask the medical staff office at the hospital where you have privileges what criteria it uses and how it conducts and documents evaluations. Medical staff bylaws contain a fair hearing process that is usually based upon state law, vetted by the hospital’s general counsel, and indicates if any reports must be made to the state medical board. Obtaining these policies and procedures saves time and money, but you will still want to determine if the laws pertaining to groups or surgery centers are the same as those governing hospitals. Ensure that the same evaluation process is applied to all physicians. Develop clearly stated, written objectives geared toward patient safety and continuous quality improvement. use multiple tools, such as a chart audit based upon a checklist form, patient complaints, feedback from staff and colleagues (see the lead article for signs of issues), and outcome data. If the group is small or there are obvious conflicts, enlist an outside ophthalmologist’s assistance.
Q We have been tracking performance in our surgery center and have concerns about a colleague. How do we prepare to talk to him?
A Assess your motives, check for any possible conflict of interest, and develop a plan to disclose and manage any conflicts that are present. Determine who is the best person to lead the discussion. Factors to consider include personality issues and who has the best access to information, rapport with the physician, and communication skills. Plan on a face- to-face meeting, in a neutral location, as close in time as possible to when the problem or complaint surfaces. Schedule the meeting for a time free of patient care and other obligations.
Q I dread having this conversation. What can I do to make it as painless as possible for both of us?
A Remind yourself that physicians have a right and a need to know if there are concerns about their care, and that your goal is patient safety. Think of how you would like to be approached if a colleague had questions about your competency. Begin by expressing your respect and explain that the conversation may be difficult: “Joe, I need to talk to you and am a little nervous about having this conversation. I’ve enjoyed having you as my colleague and have learned a lot from you. Because I respect you, I want to share some concerns I have.” Or, “As you know, I am in charge of reporting back to physicians when there is a complaint. This might be awkward but you deserve to know the feedback we have gotten about your care.” Arrange comfortable seating, and maintain a relaxed posture. Emphasize the physician’s value to the ASC and the patients, and that you want to help. Provide the objective data. Allow the physician time to respond and explain.
Q I am a subspecialist. Often, I have concerns about physicians who refer patients to me. What feedback can I give?
A If your concerns center on the diagnosis, explain your own diagnostic process in detail in your consultation report, or consider sending an article on the topic along with the report. It may be worthwhile to explain when and why you like to be contacted if you feel the ophthalmologist has waited too long to refer. Focus on how an earlier referral will benefit the patient. If you feel the referring physician is attempting to treat conditions beyond his expertise, ask about his or her skill set: “Most comprehensive ophthalmologists who refer to me don’t provide this treatment. Tell me about your experience in this technique.” Determine if the patient was reticent to see another physician or if there are logistical or payment barriers.
Q My patient needs subspecialty care. The last few patients I have referred to this ophthalmologist have suffered serious complications that seem to be due to negligence. Could I be liable if I continue to refer patients to this physician?
A Yes. under a legal theory known as “negligent referral,” you may be held liable for substandard care provided by a physician who you knew, or should have known, was incompetent. Addressing quality of care concerns at the earliest opportunity reduces your own possible liability exposure in addition to promoting patient safety.
Issues Associated with Therapeutic Optometry
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Summer 2010
According to the American Academy of Ophthalmology, about half of all ophthalmology practices now include an optometrist and nearly all see patients referred by optometrists (ODs). Traditionally, the practice of optometry was “medicine-free.” Nationwide, between 1971 and 1989, optometrists (ODs) lobbied for, and were granted, the legal authority to use topical medications for diagnostic purposes. A second wave of legislative efforts from 1976 to the present resulted in limited prescriptive authority for optometrists in some states, and the development of “therapeutic optometry.”
Q My group wants to hire an optometrist. How do I determine what care he or she can provide?
A Patient situations handled by ODs fall into three categories. The first category includes those types of care that the legal scope of practice allows optometrists to provide independently (e.g., refraction and prescribing glasses and contact lenses). In the second category, optometrists with additional types of training and certification may diagnose and treat patients with more complex eye conditions. Depending upon state law, they may be required to consult with an ophthalmologist in certain situations. Finally, there are patients who need to be referred to an ophthalmologist for diagnosis or management (e.g., patients with cataracts or retinal detachments). Your state’s optometric practice act defines the legal scope of practice. It also details the education, training, and certification required for optometrists to diagnose and treat ocular conditions, and usually includes a list of the therapeutic agents they may prescribe and procedures they may perform. Ask the optometrist to provide you with a copy of his or her license, certification, and optometric practice act and verify the licensure/certification directly with the optometric board. You may also wish to contact your state ophthalmology society to obtain a copy of the current regulations and any guidance papers. Contact your underwriter if the optometrist is endorsed on your policy and you have questions about coverage for certain procedures.
Q Am I required to supervise the therapeutic optometrist in my practice?
A Not as a general rule. Unlike allied health professionals such as physician assistants and nurse practitioners, optometrists have an independent scope of practice that does not require supervision by a physician. OMIC’s Postoperative Care Exclusion and Refractive Surgery Requirements, however, state that postoperative care that is comanaged with an optometrist must be provided under the surgeon’s supervision (see the lead article, “Comanagement of Surgical Care,” as well as “Coordinating Care with Optometrists,”). Again, these rules do vary between states and there may be state-specific comanagement requirements regarding training, equipment, and communication.
Q Are therapeutic optometrists required to consult with ophthalmologists and other physicians?
A Consultations may be required by law or by the standard of care. As noted above, some state optometric practice acts mandate consultations with ophthalmologists or appropriate physicians/surgeons in certain situations. For example, California requires therapeutic optometrists to consult with an ophthalmologist if a patient younger than 16 has glaucoma, and when patients on topical steroids or those with diseases such as episcleritis, herpes simplex infection, or glaucoma are worsening or not responding to treatment. Texas requires therapeutic ODs to consult with an ophthalmologist after an initial diagnosis of glaucoma, and on any patient whose glaucoma is not responding appropriately to treatment. Texas law also requires ODs to refer patients to a physician before prescribing beta blockers if the patient has not had a physical examination within 180 days.
Q If our state law is does not provide guidance, how can we decide on the need for consultation?
A Consider situations that could lead to patient harm or liability. Just as with ophthalmologists, the standard of care requires optometrists to seek a consultation or referral when the patient’s condition requires diagnostic or therapeutic skills beyond one’s scope of practice, competency, certification, or training. Consideration might be given to conditions that could lead to severe, imminent vision loss or death, eye conditions associated with a systemic condition (e.g., giant cell arteritis, rheumatoid arthritis, multiple sclerosis, and patients with neurological abnormalities), patients who are not improving or worsening, and cases where there is unexplained vision loss or no clear-cut diagnosis.
Q The new optometrist in my practice seems uncomfortable asking questions and I worry that he won’t come to us for advice.
A The best protocol in the world will be ineffective if the practice does not nurture an environment where all members of the health care team feel safe enough to ask questions and seek advice. It may be helpful to hold regular meetings where all have the opportunity to address difficult or interesting patient situations and seek input from others. Modeling an open discussion might encourage your new colleague to be more forthcoming.
