Who Can I Talk To?

By Kimberly Wittchow, JD, OMIC Staff Attorney

Sometimes it can be confusing, even with a small personalized insurance company, to know whom to call when you have questions. Your policy provides various benefits and imposes certain duties all requiring some type of notification. This article is designed to lead you easily to the right contact person or department to meet your needs.

Coverage Questions

Underwriting is the department that issues OMIC’s policies. Underwriters are the experts to notify when you have a change in business practices or procedures performed or if you have questions regarding the scope of your coverage. They can guide you in modifying your coverage when you add or remove a partner or employee, and when you leave practice, they can discuss your options for continued coverage for not-yet-reported claims and how and when to terminate your policy. If you have an incident that affects your ability to practice or may impact your licensure, such as a disabling injury or illness or loss of privileges at a licensed health care facility, you will need to let your underwriter know. (Your policy provides that practice changes and personal incidents must be reported within 30 days of their occurrence.) Underwriters and their assistants are assigned to specific territories. Therefore, you will want to discuss your issues with your personal underwriter or assistant.

Insureds sometimes sign agreements that contain provisions requiring them to carry insurance at certain limits with certain provisions. Other contracts may indemnify the insured or require the insured to indemnify the other party. While your personal attorney should advise you on any agreements you enter into, you may also want to ask your underwriter how such a provision could affect your coverage. He or she will review that section of the contract with OMIC’s in-house legal staff and give you their input.

Certificates of Insurance and Claims Reports insureds often need to supply proof of their coverage to hospitals where they have privileges. They also may need to present evidence of their claims experience. OMIC employs underwriting clerks to handle these requests. Requests can be made via OMIC’s web site, fax, email or telephone.

Confidential Risk Management

The Risk Management hotline is available for any insured to call and discuss issues of concern in a confidential forum. A specialist is on call each day during OMIC’s business hours to attend to physicians in need of advice. The queries can be general in nature, about, for example, best practices in documentation, telephone screening, or ROP screening. They can also be specific to an incident that has just occurred. For instance, an insured may have experienced a maloccurrence and want advice on the best way to discuss the outcome with the patient. The risk manager will discuss ideas and options with the insured but will not communicate this occurrence to OMIC’s underwriting or claims departments.

Reporting Incidents and Claims

However, when an incident has occurred that the insured believes is likely to result in a claim, he or she must report the occurrence to the claims department in order to trigger coverage. Indications of a potential claim include threats or statements from the patient about suing the doctor. Records requests that follow maloccurrences may also indicate a potential claim. Actual claims, in the form of requests for indemnity made by the patient or his or her attorney or lawsuits filed, must be reported immediately. In addition to claims coverage, insureds also have an additional benefit providing $25,000 for the legal defense of any investigation or proceeding by a medical board arising from a patient complaint about the insured’s direct patient treatment. This should also be reported to the insured’s claims representative for prompt action. Because every jurisdiction has different laws and administrative requirements, claims representatives, like underwriters, are each responsible for different territories. Therefore, you will want to speak to your assigned claims representative about your potential or actual claim.

Payment Questions

Occasionally insureds have questions about their bills. They might need a breakdown of how the premium has been calculated or to inquire if a bill they paid has been received. If you have specific questions regarding your premium calculation, for instance, whether certain discounts have been applied, they should be directed to your underwriter. For more general information regarding your account, such as when your payment is due or the amount owed, OMIC’s accounting department can assist you.

Risk Management Courses

One of OMIC’s most valuable member benefit is its ophthalmic-specific risk management program. More than 2,400 insureds per year participate in an online, live, or CD course. OMIC’s risk management coordinator is happy to assist you in learning more or signing up for a current course offering. For inquiries about risk management discounts as applied to your account, contact your underwriter.

To reach any of these departments, please call OMIC toll free at (800) 562-6642 and follow the prompts or press 0 for the operator.

Coverage for Optometrists

By Kimberly Wynkoop

OMIC Legal Counsel

Digest, Summer 2010

OMIC’s mission and value commitment are to meet the specific insurance needs of the changing ophthalmic practice of members of the American Academy of Ophthalmology. Academy members often employ optometrists in their practices. Therefore, in order to provide comprehensive medical professional liability insurance for these practices, OMIC offers coverage to employed optometrists.

Optometrists applying for coverage with OMIC must fill out the Application For Additional Insured Employed Optometrist. If approved, the optometrist will be named on the policyholder’s declarations page. The OMIC policy provides that coverage applies only to services within the scope of the optometrist’s training, licensure, and employment by the employer. If the optometrist has other employment or provides activities outside of his or her employment by the OMIC insured, he or she must maintain separate coverage for that.

Optometrists are covered by OMIC for their liability due to their own actions as well as those of persons acting under the optometrist’s supervision, direction, or control, so long as that person was acting within the scope of his or licensure, training, and professional liability insurance coverage, if applicable. Likewise, ophthalmologist insureds are covered for their vicarious liability exposure arising out of the actions of any persons, including optometrists (employed or otherwise), under their supervision, direction and control, so long as that person was acting within the scope of his or licensure, training, and professional liability insurance coverage, if applicable. Entity insureds and their owners are also covered for their vicarious liability for the actions of optometrists for whom they are found legally responsible.

Generally, OMIC offers coverage to optometrists at either shared limits with the employer or separate limits. Currently, the premium for shared limits is based on 5% of the ophthalmologist Surgery Class 3 premium. The premium for separate limits is 9% of the Surgery Class 3 premium. For policies effective on or after January 1, 2011, the rates will decrease to 3.5% and 6.5% of the Surgery Class 3 premium, respectively. Part-time discounts may be available for optometrists employed for fewer than 10 hours per week.

Optometrists who are not employed by insured ophthalmologists or entities must secure their own coverage from a provider other than OMIC. Optometrists who are employed by an OMIC insured but choose to obtain coverage elsewhere must maintain liability limits at least equal to the limits carried by the employing ophthalmologist or entity. Non-employed optometrists otherwise affiliated with the policyholder (e.g., via contract) are not required to carry the same limits as the policyholder, but it is recommended.

While OMIC does not require implementation of specific optometrist supervision guidelines as a condition of coverage, OMIC recommends that practices have a written protocol that clarifies conditions and situations that optometrists may manage independently, those requiring consultation with an ophthalmologist, and those that must be referred to an ophthalmologist (see the Hotline in this issue, as well as “Coordinating Care with Optometrists,” available at www.omic.com).

Optometrists who take call must follow written protocols and have appropriate backup. An ophthalmologist must always be available within a reasonable response time to take patient referrals in the event a situation arises that exceeds the optometrist’s scope  of expertise or legal scope of practice. If the optometrist takes call for a hospital or emergency room, coverage is subject to review by members of OMIC’s physician review panel. The optometrist must submit a copy of the hospital’s written call protocol for evaluation (see “Coordinating Care with Optometrists”).

Regarding postoperative care, OMIC’s policy permits optometrists to provide a portion of the outpatient postoperative care if the optometrist is clinically competent and lawfully able to provide the care, the patient has given written informed consent prior to surgery for the planned comanagement, and the delegated care is performed under the operating ophthalmologist’s supervision (see the lead article and “Coordinating Care with Optometrists” for more information).

Although at least one state permits optometrists to perform laser surgery, OMIC does not insure optometrists who perform surgery, whether laser or incisional. OMIC based this decision on the lack of data available on this liability risk and on OMIC’s assessment that it does not have the expertise to properly underwrite, rate, and administer claims arising from surgical procedures performed by optometrists. Due to the related vicarious liability risks, OMIC is not willing to extend coverage to any policyholder that employs optometrists who perform surgery or to any outpatient surgical facility at which optometrists operate. Coverage of optometrists who perform intraocular injections (if permitted by scope of practice laws) requires physician review.

Special rules for coverage of optometrists apply in Kansas, Nebraska, and Pennsylvania due to state patient compensation fund requirements. (See your policy or inquire with your underwriter for more details.)

Disclosure of Risks, Complications, and Adverse Outcomes

By Anne M. Menke, RN, PhD

OMIC Risk Manager

Digest, Summer 2003

ALLEGATION Loss of vision following cataract surgery.

DISPOSTION Defense verdict on behalf of insured ophthalmologist.

Case Study

A77-year-old female presented to the insured ophthalmologist with complaints of being unable to read, drive, or watch television and vision in the left eye of light and dark sensation only. Visual acuity was 20/25 OD and 20/80 with refraction OS. Past ocular history included peripheral iridectomies OU for intermittent angle closure glaucoma and pseudophakia OD. Medical history was significant for atrial fibrillation treated with aspirin, COPD, and hypertension. The patient had a dense cataract, grade 3-4+. The ophthalmologist recommended phacoemulsification with IOL placement under topical anesthesia and a clear corneal incision. After removing the extremely dense cataract, the insured detected a large rent in the posterior capsule and performed an anterior vitrectomy with removal of the remaining cortex. He attempted to place the IOL in the sulcus but resorted to anterior chamber placement due to instability. No bleeding was noted.

The patient’s postoperative course was complicated by the development of a full eightball hyphema with loss of vision on day 3; treatment consisted of bed rest in a recliner at 30 degrees and 1% ophthalmic Atropine. The ophthalmologist later testified that he recommended but the patient refused hospitalization; he did not document this or any pre or postop discussions regarding the possible effects of the patient’s aspirin therapy. IOP, slightly elevated at 28 on postop day 1 and treated with topical agents, rose to 62 on day 4 when the patient experienced a rebleed, prompting an anterior chamber paracentesis and hospitalization. An anterior chamber washout was needed the next day to control the pressures. Blood staining of the cornea and IOP of 30 was noted on day 13. The retina specialist to whom the patient was referred performed another anterior chamber paracentesis and found no posterior bleeding on B scan. The patient requested a second opinion; the consultant explained the treatment options but told the patient there was little chance for visual improvement.

Analysis

The plaintiff’s expert was critical of the insured on several accounts. First, the insured should have considered the impact of aspirin therapy on the development of the hyphema or rebleed and advised the patient to discontinue taking aspirin once bleeding developed. Second, the insured did not recognize the early readings as falsely low in the face of edema and hyphema. Third, had systemic agents been used to control the patient’s elevated pressure, optic nerve damage and the resulting loss of vision might have been prevented. Fourth, the hyphema should have been washed out earlier with care taken to remove the clot.

While noting the insured’s lack of documentation regarding aspirin and recommended hospitalization, defense experts supported the accuracy of the IOP measurement and felt he had appropriately recognized and managed the intraoperative and postoperative complications. The jury returned a verdict in favor of the insured ophthalmologist.

Risk Management Principles

The ophthalmologist disclosed the potential complications to the patient and responded each time to the patient’s complaints by promptly examining her, even on Christmas. This responsive care no doubt contributed to the jury’s defense verdict. Like many patients, the plaintiff was angry about experiencing two rare complications and about learning the permanent nature of her vision loss from a consultant she herself had asked to see. Had the ophthalmologist explained that she had two risk factors that might lead to rupture of the posterior capsule (the dense cataract and the fragile condition of the capsule), the patient might have been better prepared to deal with her poor outcome.

When anticoagulants are medically necessary for surgical patients, the surgeon should explain the need and risks to the patient and choose the most appropriate anesthesia and operative technique. Instructions to stop medications, especially anticoagulants, and recommendations for hospitalization must be documented. When there is significant loss of vision, the patient should be kept informed of treatment options and prognosis for recovery. If a poor outcome is final, the patient should be assisted in adapting to a low vision status.

Risks and Benefits of Writing Off a Patient’s Bill

By Ryan Bucsi, OMIC Senior Litigation Analyst

Digest, Spring 2007

ALLEGATION Performance of unnecessary cataract surgery and failure to diagnose and treat glaucoma.

DISPOSITION Case dismissed by plaintiff just prior to trial.

Case Summary

An OMIC insured performed uncomplicated cataract surgeries one week apart. Following surgery, the patient had uncorrected visual acuities of 20/25+2 OD and 20/25 OS, with increased intraocular pressures of 27 and 28. The insured prescribed Ocuflox in the left eye and Lotemax in both eyes. During subsequent visits, the patient complained of a foreign body sensation, tiredness, and irritation in both eyes; a throbbing pain and seeing a yellow ring behind the left eye; and glare and light sensitivity. Suspecting migraines, the insured advised the patient to have an MRI, which was normal.

The patient did not return to the insured’s office for three months, against the insured’s advice, but did seek treatment from another ophthalmologist, who documented 20/20 vision without correction bilaterally and diagnosed a posterior vitreous detachment in the right eye. The patient eventually returned to the insured complaining of dry eyes, sharp pain, light sensitivity, and headaches. The insured’s impression was a neuralgic pain problem, and he referred the patient to a corneal specialist. The corneal specialist could not find a treatable diagnosis based upon his examinations. A third ophthalmologist treated the patient with punctal plugs and diagnosed chronic open angle glaucoma.

Analysis

The patient did not allege any malpractice against the OMIC insured until a dispute arose over payment of the cataract surgeries. The patient then claimed that she had been informed by the insured’s staff that her health insurance plan would cover all costs of the surgeries; post surgery, however, she learned that only 70% of the costs would be covered. The insured and his staff disputed the patient’s claim but agreed to write off 10% of the costs, leaving the patient responsible for paying 20%. The patient refused to pay and when the insured pursued these costs through litigation, the patient filed a counter suit alleging medical malpractice. Specifically, she alleged that the OMIC insured performed unnecessary cataract surgery on the left eye and failed to diagnose and treat glaucoma.

OMIC retained an attorney on behalf of the insured and had the case reviewed by both cataract and glaucoma experts. Another expert was retained to opine on whether any of the patient’s other health conditions, fibromyalgia, irritable bowel syndrome, or skin cancer, could have caused her ocular complaints. A summary jury trial was held prior to the actual trial during which jurors heard an abbreviated version of the defendant’s and plaintiff’s arguments and then issued a mock ruling on the case. The jury ruled 6-0 in favor of the defense. When interviewed by the attorneys, the jurors were so overwhelmingly in favor of the OMIC insured that the plaintiff decided to dismiss the case just prior to the start of the actual trial.

Risk Management Principles

When there is an unanticipated outcome followed by a dispute over billing, OMIC insureds are strongly advised to contact OMIC for advice on how to proceed. OMIC staff can help the insured weigh various options, such as setting up a payment plan, waiving or reducing fees, facilitating a second opinion, and offering the patient additional emotional support. In this situation, the patient faced multiple illnesses and hearing that doctors could find no objective reason for her eye complaints may have been more than she could bear. Rather than address the toll that her condition was taking on her, both she and the surgeon focused on the billing issue, which led to an impasse. OMIC certainly supports a physician’s right to be paid for care provided and works vigorously to defend insureds who meet the standard of care, as we did for this ophthalmologist. Our ultimate goal, however, is to avoid litigation entirely because this is generally in the best interests of all parties. Lawsuits are time consuming and stressful and take time away from one’s practice. Some insureds decide fairly readily to waive their fees when it seems a prudent strategy to avoid litigation. Some do so as a compassionate gesture to the patient or to engender or sustain good will in their community. Whatever decision the insured ultimately makes, OMIC wants it to be a well-informed one.

Delayed Consultation Referral of Managed Care Patient with Endogenous Endophthalmitis

Digest, Spring, 1996

ALLEGATION  Failure to respond in a timely manner to a referral request, resulting in delayed diagnosis and treatment of endogenous endophthalmitis.

DISPOSITION  Case settled on behalf of all codefendants.

Case Summary

The patient, a 75-year-old male with a medical history of recurrent urinary tract infections, had been receiving ophthalmic care from the insured for several years. On May 4, the patient called the insured’s office complaining of discomfort, blurred vision, and floaters OS. An appointment was scheduled for May 6; in the meantime, however, the patient was admitted to the hospital by his primary care physician for inpatient treatment of bacteremia and urosepsis after a blood culture revealed the presence of E. Coli. Family members called to cancel the appointment with the ophthalmologist.

During the hospital admission, the patient continued to complain of pain, redness, and blurred vision in the left eye, prompting the primary care physician (a non-ophthalmologist) to leave orders with the hospital nursing staff to request an ophthalmology consult from the insured. Unfortunately, when the hospital nurse called the insured’s office on May 7, she was told that the ophthalmologist would be out of town until May 10 and that the ophthalmologist on call during his absence was not a participating physician of the patient’s managed care plan. This fact was documented in the hospital chart. The primary care physician gave no additional orders for another ophthalmologist to be contacted until May 10 when family members complained to the nursing staff that the patient still had not been evaluated by an ophthalmologist. After examining the patient, the primary care physician documented his impression as “conjunctivitis, rule out other causes.” He ordered Tobradex eye drops every three hours and an eye patch. He also left orders for the nursing staff to again contact the insured’s office for a consultation, which they did.

The following afternoon, the primary care physician saw the patient again and, concerned about the persistent nature of the swelling and redness of the left eye, ordered a culture and sensitivity of drainage from the patient’s eye. Although he was aware the patient still had not been seen by the ophthalmologist, he took no other action regarding the consultation request until May 12 when he left orders for the nursing staff to again contact the insured and request that he see the patient that day. A nurse called the insured’s office for the third time on May 12 and communicated that the patient was to be seen for conjunctivitis. Based on this diagnosis, the insured believed an emergency examination was unnecessary. He told the nurse he would be in to see the patient the next day.

Due to a lack of ophthalmic equipment at the hospital, the insured had the patient brought to his office for an examination on May 13. He noted a red painful eye with an IOP of 53 and visual acuity of light perception. An ultrasound revealed endophthalmitis. The insured then personally called a retinal specialist to make an emergency referral. The retinal specialist diagnosed endogenous endophthalmitis secondary to E. Coli sepsis. The patient underwent a vitrectomy and IV antibiotics regime. Unfortunately, he went on to develop a retinal detachment and never recovered vision in his left eye.

Analysis

Failure to communicate to the ophthalmologist the urgency of the referral delayed the diagnosis and treatment of this patient. The prognosis for this condition is poor even when an early diagnosis is made; however, in the minds of jurors, causation arguments often pale in comparison to a plaintiff’s allegations of careless communication and neglect. In this era of managed care, the public frequently perceives medical care as an impersonal, numbers-oriented proposition, and that perception can engender great sympathy for a plaintiff who appears to have “fallen through the cracks.”

That family members went to hospital staff on several occasions to voice their concern about the patient’s vision problems and their dissatifaction that the patient had not been seen by an ophthalmologist led medical experts, defense attorneys, and claims professionals who evaluated this case to agree that the plaintiff could successfully portray himself and his family as pleading for treatment that came too late. It also became clear during depositions that despite their best efforts to avoid finger pointing, the codefendants each blamed the other for the miscommunication and delays. Both situations can be disastrous during a trial.

After assessing the defensibility problems involved in this case, the parties pursued mediation, a form of alternative dispute resolution that resolved the case earlier and at lower cost that would have been likely had this been tried

Risk Management Principles and Commentary

In a managed care environment, referral issues can become a major area of risk exposure. If the on call physician covering for the insured had been a provider under the patient’s plan, the consultation process probably would have proceeded without delay. One of the reasons the primary care physician said he decided to wait for the insured to return was because he was familiar with the insured and not with the other ophthalmologists in the plan. Establishing reciprocal on call relationships with other ophthalmologists who participate in the same managed care plans may help avoid scenarios like this one.

Some of the miscommunication in this case also could have been avoided had the insured ophthalmologist insisted on more information concerning the patient’s condition and the urgency of the referral. At no point in this case did the referring physician and the consultant ophthalmologist communicate directly; instead they relied on a hospital nurse to relay messages. More direct communication between the physicians in this case would have clarified how concerned the primary care physician actually was about the patient’s eye and probably would have resulted in the patient being seen earlier by the ophthalmologist.