Informing Patients About Your Surgical Experience

By Anne M. Menke, RN, PhD OMIC Risk Manager

Digest, Spring 2004

More than many specialties, ophthalmology evolves rapidly through the development of new procedures, techniques, and devices. While each innovation holds the promise of improved outcomes for the patient, it also introduces new areas of risk as ophthalmologists and their staff learn to incorporate the changes into their practice. OMIC policyholders often call the Risk Management Department to ask if and how they should talk to their patients about their training and experience.

Q  The ambulatory surgery center (ASC) where I perform cataract surgery switched phacoemulsification machines over the objections of many ophthalmologists. While I have completed the training course offered by the manufacturer, I have not yet used the new machine on my own patients. Do I have a legal duty to tell my patients?

A  Ophthalmologists are aware of their legal and ethical duty to obtain the patient’s informed consent for surgery. The surgeon discharges this duty by personally discussing the indications, risks, benefits, alternatives, and known complications with the patient, who orally agrees to proceed with the planned procedure. The discussion and agreement are then documented by noting the discussion in the medical record and by asking the patient to sign a consent form.

As we state in OMIC’s new online course, Informed Consent for Ophthal- mologists, there is a small body of emerging case law governing situations where a surgeon isn’t truthful about his or her training and experience, particularly as it relates to board certification and/or experience per- forming a particular procedure. If a patient is injured as a result of a surgical procedure, some courts have effectively “thrown out” the consent form if it is later proved that the surgeon, when asked, knowingly misstated his or her skill, training, certification, and/or experience. Thus, the ethical considerations of lying to the patient during the consent process could conceivably pose serious legal consequences. There is no clear consensus, from a legal standpoint, about whether or not the physician has a duty to offer this information.

Q  What are the consequences of not telling the patient about my experience?

A  Learning about a surgeon’s lim- ited experience after a poor outcome or complication could seriously compromise the physician-patient relationship. The ensuing lack of trust in the physician could also hinder the provision of care needed to treat the complication. Patients may feel betrayed or worry that the physi-cian was experimenting on them. The resultant anger could well prompt a lawsuit for malpractice and lack of informed consent. The patient would likely allege that the surgeon’s level of expertise would have made a difference in the decision to undergo surgery, and his or her attorney would argue that a “reasonable person” would have considered this information “a material fact” that should have been disclosed.

Q  I believe I have an ethical duty to disclose my training and experience, but I am not sure how to proceed. What do you recommend?

A  Simply provide the facts about your training and experience as they relate to the particular procedure. In the example given here, while explaining the role of the phacoemulsification machine in the lens extraction, inform the patient that the ASC has recently changed machines. Disclose your overall experience with cataract surgery as well as your recent training on this machine. If certain complications are more likely to occur with the new machine or during your learning curve, tell the patient what they are and how you will manage them if they do. If the patient is not comfortable proceeding, help him or her find alternative sources of care. Regardless of how you feel about the ASC’s decision, do not share your criticisms with the patient. Instead, address your concerns to the appropriate leader on the medical staff.

Q  Should I tell a patient that I am using a newly approved IOL such as the Crystalens?

A  It would be prudent to do so. As part of your discussion of the risks, benefits, and alternatives to this IOL, explain why in your professional judgment it is the best one for this particular patient. If you are relatively inexperienced in inserting it, consider explaining that as described above. Patients appreciate knowing the financial implications of your choices, so inform them of any known health insurance or payment issues. As with any new device or procedure, be sure to inform the patient if long-term outcomes are not yet known and explain that there may be unforeseen complications. If you are using the device in an off-label manner, the patient should be so informed.

For more information about informed consent, see OMIC’s online course or the following online articles, “Practicing Beyond One’s Expertise: The Road to a Lawsuit” and “New Surgical Advances Come with Liability Risks.”

Group Policies

By Kimberly Wittchow, JD

OMIC Staff Attorney

Digest, Summer 2005

Whether you are new to a group practice or leaving a group to work for yourself or with others, you should be aware of how an OMIC group policy works and what to do if your practice situation changes.

A group that has OMIC professional liability insurance is usually issued one policy. The Declarations Page, which accompanies the policy, lists the ophthalmologists, CRNAs, optometrists, and any entities that are covered under the group’s policy. Under INSURED AND MAILING ADDRESS on the Declarations Page, the group name, or “policyholder,” is listed. This policyholder controls the group policy and is the main party with whom OMIC communicates about the policy.

Notice

Communications are often handled on behalf of the insureds of a group by the policyholder’s administrator or representative. OMIC assumes that, as a member of the group, the insured has given this representative the right to speak on the insured’s behalf regarding routine underwriting issues. While the administrator may initiate or facilitate a change in coverage, OMIC will seek the insured’s consent before changing the insured’s coverage limits, provisions, or classifications. Whenever possible, OMIC will communicate directly with an insured regarding any sensitive issues, such as licensure actions, substance abuse problems, or medical or psychiatric treatment.

Payment of Premium

Often, the business entity for the group will pay for each of the insured’s premiums under the policy. Nevertheless, each insured under the policy is considered by OMIC to “own” his or her own coverage. (Note, however, that for slot coverage for residents and fellows, the slot position, and not the individual in the slot, is the insured, and therefore the coverage is controlled entirely by the group practice.) This means that the insured is ultimately responsible for payment of his or her coverage under the policy. However, any refund of premium is credited to the policyholder, and it is the policyholder’s responsibility to distribute any refunds to individual insureds as appropriate.

Cancellation and Nonrenewal

Regarding cancellation and nonrenewal, the policyholder may request that OMIC delete an insured from a group policy. OMIC will try to get confirmation from the insured that he or she agrees with this termination of coverage. If OMIC cannot contact the insured, however, OMIC will process the termination, but will continue to attempt to communicate with the insured in order to determine whether he or she would like to remain insured with OMIC under an individual or another group policy.

Prior Acts Coverage

When joining a group, insureds may choose to purchase coverage for claims based on events which occurred before their coverage inception date under the group policy. Some groups do not allow the insured to acquire prior acts coverage under the group’s OMIC policy, while others may permit or require it.

Each insured under the group policy will have his or her own retroactive date which will reflect whether that insured has prior acts coverage. Some insureds will not need prior acts coverage because they are either new to practice or their prior acts are covered under another policy. This occurs when insureds were previously covered under an occurrence policy or bought an extended reporting period (tail) endorsement from their previous carrier. Remember that an insured’s retroactive date is usually not the same as the group entity’s retroactive date, and that the insured’s inception date may also be different from the group’s if the insured joined after the beginning of the group’s policy period.

Tail Coverage

Some groups require physicians to sign contracts when they join the group. Under these contracts, the group might require that, when a physician leaves the practice, he or she maintain coverage for the activities he or she participated in as a member of the group. This might take the form of purchasing a tail upon leaving the group, or proving that he or she maintains prior acts coverage under his or her new insurance policy after being deleted from the group policy. OMIC sends a tail offer directly to the insured upon termination of coverage. While it is ultimately the insured’s responsibility to obtain tail coverage if desired, a group may agree to pay for it. If the insured instead purchases prior acts coverage from his or her new carrier, the group might require that certificates of insurance be sent to the group periodically to ensure that the physician who left is maintaining his or her coverage for acts undertaken while with the group.

Entity Coverage

By Kimberly Wittchow, JD

OMIC Staff Attorney

Digest, Summer 2006

There are numerous ways a practice can be organized and many options for the creation of a legal entity. It is important that OMIC insureds understand both how to secure professional liability coverage for their various business entities and how that coverage works.

OMIC’s policy excludes coverage of individuals for liability arising from their status as members, partners, officers, directors, shareholders, or employees (hereafter referred to as “members”) of any partnership, professional association, or corporation. Because members and entities may be named as defendants in lawsuits, OMIC offers separate coverage to professional entities. Entity coverage insures the entity itself, its members in their capacity as such, and non-physician employees of the entity for their respective acts and omissions. It also covers the entity and its members for their vicarious liability arising from the acts and omissions of others.

Sole Shareholder Corporations

If an insured ophthalmologist has a sole shareholder corporation, it is included as an additional insured under his or her policy. No additional premium is charged to insure the solo corporation at shared limits with the sole shareholder. Separate liability limits are available for an additional premium. In order to obtain this coverage, the sole shareholder corporation must be listed on the ophthalmologist’s application and the applicant must indicate whether shared or separate limits are desired. Coverage is in place only when the sole shareholder corporation is named on the Declarations.

Multi-shareholder Corporations

An insured ophthalmologist may decide to sell or give shares of the sole shareholder corporation to another physician or individual, thus converting the corporation into a multi-shareholder corporation. When this occurs, the corporation must complete an entity application so that OMIC can evaluate the entity’s eligibility for continued coverage. If OMIC determines that the change in ownership violates OMIC’s eligibility requirements or increases the risk of insuring the entity too dramatically, the entity’s coverage may be cancelled mid-term following appropriate advance notice. If new articles of incorporation are filed as a result of the change in ownership, the entity is considered a new entity. Therefore, coverage for the sole shareholder corporation would cease as of the date it is dissolved, and the new entity would not be covered until properly underwritten, paid for, and named on the Declarations. Multi-shareholder corporations, partnerships and outpatient surgical facilities (OSFs) may obtain entity coverage at separate liability limits. (These limits do not serve to increase an individual insured ophthalmologist’s personal limits of liability.) In order to obtain this coverage, the multi-shareholder corporation or partnership must complete an entity application; the OSF, an OSF application. Coverage is in place only when the application has been approved, the required premium has been paid, and the entity or OSF is listed on the Declarations.

Partnerships

Unlike corporations, which can have changes in ownership or name changes without affecting the legal status of the corporation, partnerships, can exist only in their original form. If a new partner is added or a partner leaves, the partnership ceases to exist. Instead, a new partnership is created. Therefore, the retroactive date for the new partnership, if insured, would be the date the new entity was formed, and the former partnership would need to purchase tail coverage in order to remain insured for future claims arising from past services.

Insureds must remember that entity coverage is not applied automatically. The ophthalmologist application gives several areas to provide information about the applicant’s professional entities. It asks for the name under which the applicant does business, inquires about how the practice is organized, and provides space to give the name of the legal entity(ies). Only those entities approved for coverage that have paid the required premium, if any, and are listed on the Declarations or an endorsement to the policy are covered.

Remember that coverage for a claim against an entity, its members, or its non-physician employees is only available if the entity is already listed on the Declarations or an endorsement to the policy at the time the claim is reported. In addition, the incident upon which the claim is based must have occurred on or after the retroactive date applicable to the entity. To prevent an uninsured risk, insureds should notify OMIC immediately if they form or acquire a new entity during the policy period so the entity can be properly underwritten and added to the policy, if approved.

Leasing Equipment, Space or Employees

By Kimberly Wittchow, JD, OMIC Staff Attorney, and Betsy Kelley, OMIC VP of Product Management

Digest, Winter 2007

It is important to understand how your policy responds when you lease your office equipment, space, or employees to others.

Leased Equipment or Space

If an OMIC insured enters into a lease agreement with another physician or group, allowing the other use of its equipment or space, the arrangement may be treated either like a landlord-tenant relationship or an outpatient surgical facility, depending on the facts of the particular situation.

In general, when an OMIC insured (the lessor) enters into a formal lease agreement to provide space or equipment to other ophthalmologists (the lessee) and the lessor is not providing other health care-related services under the agreement, its liability should, at least theoretically, be limited to that of a landlord or lessor, even though its members are health care providers. This is most clear when leased equipment is used at the lessee’s site or when the lessor leases its office space and equipment for use when the lessor’s physicians are not themselves occupying the space or using the equipment. The lessor’s OMIC policy would not cover any liability arising out of the lessee’s use of the equipment or space as this is a general liability exposure.

However, the lessor may be exposed to additional liability risks if the lessee’s physicians use the space and/or equipment concurrently with the lessor’s physicians or if the lease agreement provides for the lessor to extend services beyond that of a typical landlord/lessor. For instance, the lessor may credential utilizers or operate the equipment on behalf of the lessee. The lessor’s liability exposure will depend upon the services the lessor provides and how the situation is perceived by patients.

If there is no formal lease agreement and the outside utilizers are given open access to the owner’s space and equipment, the situation is more clearcut. OMIC would treat the arrangement as an “outpatient surgical facility” (OSF). Subject to underwriting review, compliance with OMIC’s OSF requirements, and payment of any applicable premium, coverage may be extended to the OSF for its vicarious liability arising from the professional services rendered at the facility.

An OSF is defined as an ambulatory surgery center, laser refractive center, or surgical facility (including an in-office surgical suite or in-office laser equipment) utilized by physicians other than the owners and their employees. OSFs encounter the same type of increased liability that hospitals do for credentialing the physicians who use the OSF and for conducting peer review. In laser centers in particular, the OSF must properly maintain and calibrate equipment and train users in the operation of the equipment. In addition, employees of the OSF may provide professional support and assistance to the outside utilizers. For these reasons, when a leasing agreement does not exist, or when the agreement calls for the lessor to perform tasks outside of the landlord/lessor realm, liability is increased and the arrangement must be treated like an OSF in order for the group to be properly underwritten and protected.

Leased Employees

Ideally, when lessees use equipment leased from an OMIC-insured group, they should provide their own qualified staff to assist them. However, if the lessees do not have anyone qualified to assist and they need the lessor to provide staff trained and skilled in performing procedures on the equipment, then the lessor should formally lease the employee as well as the equipment to the lessee in order for the lessee’s policy to respond (assuming the lessee is OMIC insured or has similar policy coverage). In this case, the lessee’s policy would extend coverage to the leased employee while that person was rendering services on behalf of the lessee. The lessor’s policy would not cover the leased employee for the work he or she did for the outside utilizer. The policy covers non-physician employees only while they are acting within the scope of their employment by and for the direct benefit of the insured.

Similarly, if an OMIC insured leases his or her employees to work in another ophthalmologist’s office, the employee is not covered under the OMIC insured lessor’s policy for such activities. Although it might be part of the employee’s job description, he or she will not be working for the direct benefit of the employer. Instead, the employee will be working for the direct benefit of the lessee and may be covered under the lessee’s policy as a leased employee. If the employee is not formally leased to the other ophthalmologist, but instead is simply “loaned,” the work by the employee again is not for the direct benefit of the employer and therefore is not covered under the employer’s policy. And, under OMIC’s policy, since the borrower has not formally leased the employee, the employee might not have coverage under the borrower’s policy. Employees, therefore, should ensure that they are covered under a lessee’s or borrowing ophthalmologist’s policy before agreeing to work for them. If not, the employee should obtain his or her own policy with an appropriate carrier.

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.