Substance Abuse and the Physician at Risk

By Byron H. Demorest, MD

Argus, January, 1994

Substance abuse exposes physicians to an alarming risk of malpractice claims. One $52 million claim in 1988 resulted from the death of a patient while under the supervision of an addicted anesthesiologist. Other judgments have been awarded in cases precipitated by poor diagnosis, unnecessary surgery, and improper treatment by physicians who abused drugs or alcohol.

Physician impairment from addiction is a serious problem. If you are faced with the need to help a fellow ophthalmologist who is drug or alcohol impaired, you should follow certain guidelines. Most medical communities have support systems in place either through the local medical society or hospital staff. Most states have statutes requiring physicians to report colleagues who require or are undergoing treatment for substance abuse.

The Problem

It is estimated that about 10% of the general population, and possibly an even greater percentage of the physician population, suffers from drug or alcohol abuse. The reasons for addiction are many. First, the condition truly is a disease. The fact that some individuals crave a substance while others can take it or leave it encourages us to recognize that there are certain genetic and physical aspects to drug abuse. Second, physicians generally have easy access to drugs and, in prescribing medications for their patients, may become nonchalant about drug use. Add to this the stress of practicing medicine and some physicians may feel the need to use substances to relax, sleep or, conversely, to stay awake and maintain concentration.

Physician drug use is not new. Twenty years ago, with alcohol abuse a major problem, the AMA belatedly recognized the need to establish guidelines for physicians assisting alcoholic colleagues in its report, “The Sick Physician.” In recent years, “designer” drugs, particularly fentanyl, have caused many physicians (primarily anesthesiologists and surgeons) to become addicted. What starts out as experimental or recreational drug use can easily become an addiction.

As the problem of substance abuse among physicians received more attention, some states passed “whistle blowing” laws to encourage and, in some instances, require the reporting of addicted and impaired physicians. However, most practitioners were reluctant to report their colleagues due to the punitive nature of the legal system. As a result, many states amended their laws to suspend the reporting of physicians already enrolled in treatment programs. Hospitals and medical societies established physician well-being committees to encourage early intervention for “sick doctors.”

What To Do

The substance abuse problems of a colleague can easily become our own. Without realizing it, we may become “co-dependents.” The first rule is, do not cover up. Do not make up alibis or excuses, or cover for the problems arising from a colleague’s drug or alcohol use.

Second, enlist the help of an expert in the drug abuse field for what is called an intervention. The physician should not be confronted one-on-one; several people should be involved including someone trained to deal with addicted physicians, as well as friends and family of the physician who are aware of the problem and want to help.

Third, do not abandon the physician after this intervention. Have someone stay with the person until he or she is safely enrolled in a treatment program. If your state requires you to report your colleague, you must do so, but voluntary admission by the addicted physician into a treatment program before a report is made is likely to work in his or her favor.

Finally, encourage the addicted physician to participate in ongoing counseling or a recovery program. Recidivism is less likely and recovery is more likely if the impaired ophthalmologist continues to be surrounded by a caring and supportive environment.

Risk Management Is Not Just for Physicians; All Personnel Should Know Their Limits and Duties

By Pamela Schremp, RN, MSN, CRNO

Argus, March, 1994

When registered nurses and ophthalmic medical personnel are added to an ophthalmologist’s staff, their scope of work must be incorporated into the practice’s risk management plan. Proper delegation of duties is important. Each staff member should know the limit and extent of his or her duties. The ophthalmologist is responsible for final informed consent and must be involved when critical medical decisions are made.

A physician’s responsibility for a patient begins with the first phone call. A clear, well communicated telephone triage system instructs front office staff on which questions to ask, what information or advice may be given over the phone, which patient problems require immediate notification of the nurse or physician and which require same day scheduling and, finally, how to document this process. Many offices provide staff with special message cards or pads for recording patient telephone conversations, which may be placed directly in the patient’s chart to create a permanent record of the call and the information provided. Patient care phone call record pads can be purchased from OMIC.

All staff should appreciate the importance of patient confidentiality and avoid discussing confidential patient information in the presence of other patients who are in waiting areas or exam rooms. If a staff member must take an urgent patient call in front of another patient, he or she should not reveal the caller’s name or telephone number.

Confidentiality of patient information extends to the medical records. Store patient records in a secure location. If records are placed outside exam rooms, patient names should not be visible. Avoid noting information about the person’s medical condition on the outside of the record. The outside jacket of one record included the following alert; “Becomes S.O.B. easily.” This comment could be easily misinterpreted by another patient as something other than shortness of breath. All staff should be familiar with the legal requirements on releasing medical records. Before releasing a medical record, obtain the patient’s consent. When possible, determine the reason for the requested release. When an attorney requests a patient record, it should be reviewed by the ophthalmologist prior to release. Assuring confidentiality of medical record information, including the results of diagnostic tests, is vital.

Although the patient must give consent when information is being disclosed to anyone outside the ophthalmologist’s practice, consent is not required when information is being shared or faxed to a satellite office of the same practice. However, any fax containing patient information should include a statement indicating its confidential nature and prohibiting its re-disclosure.

Front office and billing staff should be well versed in state laws governing disclosure of HIV-related information. In many states, patient consent is required to release this information to insurance companies and third-party payers. Staff members must know which accounts to bring to the attention of the ophthalmologist or the practice administrator before releasing them for collection.

Develop tracking systems and establish clear policies for processing diagnostic tests and results. Staff need to understand that no test result should be filed in the medical record until reviewed by the ophthalmologist, who should initial the lab result before it is filed.

Similar systems should be developed for tracking patient appointments and consultations. When a patient fails to show for an appointment, staff should try to determine the reason and document all communication with the patient, including making a note of the missed appointment in the patient’s record. The ophthalmologist should review all no-shows and the purpose of the missed appointment. When patients are referred to another physician, the referral letter should include a request to notify the referring ophthalmologist if the patient fails to keep the appointment.

In addition to handling ophthalmic emergencies, all staff, including the ophthalmologist, should be well versed in handling common medical emergencies such as hypoglycemia or vaso-vagal responses. Staff should also receive training in nonmedical emergencies, and a fire and evacuation plan should be developed for the office. Review office emergency plans annually and test emergency medical equipment regularly.

Clear communication and collaboration are the keys to successful risk reduction. By collaborating with professional, support and office staff, the ophthalmologist can better identify areas of potential risk and create strategies for promoting quality patient outcomes.

Collegial Criticism and the Courtroom

By Amy B. Angert, Esq.

Argus, Nov-Dec., 1994

Physicians and defense attorneys have no control over certain factors in a medical malpractice lawsuit, such as how a case proceeds and its overall strengths and weaknesses. Many crucial facts of a case are established before the first legal document is ever filed.

One area physicians can control, yet often unwittingly do not, is collegial criticism. The way a health care professional comments on a colleague’s actions can severely impact the course of a case. Collegial criticism involves comments or communication by one health care provider about another professional’s care made to the patient, to other health care professionals, or placed in the medical chart, as well as communication made at depositions or trials regarding a colleague’s course of action. These comments may even trigger a lawsuit.

Before giving sworn testimony, defendant physicians, expert witnesses and fact witnesses often have the chance to confer with defense counsel about sensitive issues and how to communicate these issues. However, long before an attorney is involved in a case, a physician may be in a position to render commentary about a colleague. This is the time to practice defensive medicine and to be sensitive about how your statements may sound later, if taken out of context.

In today’s practice environment, it is not unusual for one doctor or health care provider to render treatment in conjunction with or subsequent to another provider. Patients often will ask about the care rendered by a prior physician. The response can dramatically determine whether or not they file a lawsuit.

Inadvertent or deliberate critical comments by one health care provider concerning another are dangerous. These encourage claims by reinforcing in the plaintiff’s or the plaintiff attorney’s mind that someone did something wrong, or that this case will put defendants at odds with one another and almost assuredly will guarantee a hefty settlement or judgment at trial.

Fortunately, there are 10 simple commandments that should govern an ophthalmologist in this area. By employing these tenets religiously in your medical practice, you can eliminate most, if not all, problems associated with collegial criticism.

Thou Shalt Respect Thy Colleague

First and foremost, as a professional, it is your job to instill patient confidence in your colleagues and your profession. You need to be positive, both about yourself and the community in which you practice. It is important to refrain from editorializing about another’s care.

Thou Shalt Not Speak For Another Physician

This is probably the single most important commandment. Unless you were there as a practicing ophthalmologist to observe the care rendered by your colleague, it is inappropriate for you to speculate on another physician’s thought processes. You should encourage a patient who has a question regarding a previous or subsequent provider to talk with that doctor directly. At the very least, you need to get all the facts. Oftentimes, you are hearing a one-sided story without the benefit of the big picture.

Thou Shalt Educate Thy Office Staff

These commandments apply to the staff as well as to the ophthalmologist. You should instruct office staff on how to handle patient complaints and train them not to comment on any other provider’s care. Often, in an effort to comfort or empathize with a patient, staff will comment on the number of times they see another doctor’s mistakes, or they intimate that their doctor can rectify what the other physician has done wrong. Encourage your staff to think before they speak and to consider how their comments may be interpreted out of context or worse, in front of a jury.

Thou Shalt Record Events Factually, Only

Collegial criticism encompasses a multitude of areas, including the patient chart. This commandment mandates that the medical record contain relevant medical information only and not opinion testimony or personal comments. Personal comments or criticisms about the patient, other doctors or the hospital do not belong in the medical chart. While you may have a beef with the patient or with another physician, those issues are more appropriately handled outside the medical record. The record should reflect only the care rendered and issues pertinent to that care. Take time to record the rationale for your intervention, especially if it deviates from the usual course of treatment. This can help ward off criticism of your care by another health care provider or, at the very least, indicate the circumstances that require this treatment modality.

Thou Shalt Communicate With The Other Doctor

This is especially important when you are asked to give a second opinion. Make sure you have all the facts before you render commentary regarding your colleague’s care. If possible, confer with the other provider to find out the rationale and considerations for the care rendered. When giving advice to patients, keep your advice factual and avoid commenting on another’s care.

Thou Shalt Not Covet Others’ Patients

This commandment speaks for itself. Criticizing a colleague to steer patients your way will eventually backfire. It becomes a double-edged sword with repercussions. You will lose respect among your colleagues in the ophthalmic community-and you may open yourself up for a defamation case or worse.

Thou Shalt Recognize That Good Doctors Can Disagree

Medicine is an art as much as a science. There is a respectable minority recognized in medicine, and what works in one ophthalmologist’s practice may not work as well in another’s. Criticizing your colleague’s judgment may imply a warranty or a guarantee that you cannot live up to. In other words, your criticisms may imply that you can do it better or that your care will render a different outcome. Beware.

Thou Shalt Recognize Thine Own Mistakes

Before commenting on a colleague’s actions, remember you may not have all the facts. You could end up eating your words and defending a suit against yourself later. At first blush, you may disagree with a particular physician’s course of action. However, after obtaining the necessary information, tests and history, you may come full circle and agree with your colleague’s course of treatment or action. It is extremely difficult to retract your comments once critical words have left your lips. If your treatment does not provide the results expected by the patient, you may be in worse shape than your colleague.

Thou Shalt Keep The Other Doctors Informed

Whether you have been asked to take on a new patient who is leaving a previous doctor’s care or to offer a second opinion, try to get the patient to agree to allow you to speak with the other health care provider. This not only fosters good community relations and keeps the line of communication open, it also provides you with a source of information and knowledge which may shed light on your care of the patient. This may not always be possible, but you should make every attempt to be sensitive to your colleague’s situation as well as to the patient’s wishes.

Thou Shalt Not Make Unnecessary Enemies

What goes around comes around. During a recent deposition, an ophthalmologist, against his attorney’s advice, vigorously criticized the HMO he had recently left. Although he was only being deposed as a fact witness (treating physician) at the time, the case took a twist and the doctor was added to the lawsuit-not by the plaintiff, but by the HMO.

Faulty A-Scan Readings Present Potential Liability

By Jean Hausheer Ellis, MD

Argus, April, 1994

A-scan Biometry, used to measure axial length in calculating intraocular lens power, presents potential liability hazards for the ophthalmologist. Axial length measurement is one of several important factors influencing the accuracy of intraocular lens power calculation. Myopia or Hyperopia induced because of inaccurate measurements are unpleasant postoperative surprises, unacceptable to patients and ophthalmologists.

Current ultrasound techniques allow better pre-op measurements with a possible accuracy or reproducibility to within 0.1 mm or less in axial length measurement. An error of 0.1 mm in axial length measurement preoperatively has been known to cause a postoperative refractive error of 0.25 diopters. The current standard of care calls for performing preoperative ultrasound and axial biometry rather than using a “standard lens power” based only on the preoperative refractive error.

Thanks to improvements in ultrasound technology and equipment over the years, the trained ophthalmic assistant or the ophthalmologist can more reliably and more predictably perform this test in the office or the hospital. Advancements in intraocular lenses require increased precision in axial length measurements, especially with multifocal intraocular lens designs. As ophthalmologists continue to closely track their postoperative refractive results and compare these to the desired preoperative refraction, they must pay closer attention to techniques, data interpretation, instrumentation and bilaterality of axial length measurements, as well as to which examiner is the most reliable, precise and reproducible tester.

A frequent risk management question is, who should perform the ultrasound and axial length measurements, the ophthalmologist or trained staff? As “captains of the shop,” ophthalmologists are responsible for staying current in their knowledge and understanding of this area. They typically oversee the work of their staff, check for errors (before the wrong lens implant is inserted in the eye), and are proficient at repeating the measurements in difficult eyes or when results are questionable.

It is wise to develop a “check and balance” system for taking and interpreting these measurements so they can be double-checked and rated as to their “ease” or “difficulty.” One suggestion is that the examiner record each individual measurement and rate each as “easy,” “medium” or “difficult” (A, B or C) in the patient record to better assure selection of the best one. In borderline cases, with difficult eyes, or when test results appear unusual, the measurements can be repeated by another individual and the results compared.

Should ultrasound and axial length measurements always be taken bilaterally? The answer is “yes” with only a few exceptions-one-eyed patients and pseudophakic second eyes. In pseudophakes whose previous measurements were taken elsewhere, attempts can be made to obtain previous biometry information and compare preoperative values for the two eyes. While reviewing a patient’s previous axial measurements can be helpful, you should perform your own ultrasound and axial length measurements to ensure reliability and reproducibility. Do not accept someone else’s measurements at face value. Even if you checked these measurements on the same patient several years ago, it is prudent to repeat the test as a quick check of yourself, your staff and your equipment. It is far less costly to retest the patient at no charge and to find that an error was made in the previous measurements than to have an unacceptable postoperative refractive error based on faulty measurements-a result that may lead to a malpractice suit.

If you are thinking about upgrading your equipment, consider a water immersion probe. It will not compress the cornea and, when combined with a standard contact probe, allows more flexibility. Since the ophthalmologist is ultimately responsible for thoroughly reviewing all measurements and ultrasonic data, look for equipment that can photograph test results. This serves as a useful guide and monitor, both pre- and postoperatively. Multiple readings are best, with the ophthalmologist choosing the ultimate test result. Creating a system for double-checking this information as it is entered into the lens implant calculation is well advised, again to reduce the chance for human error.

Ultimately, the ophthalmologist needs to be fully aware of who is performing these important measurements. Some hospital facilities routinely used trained staff members to perform these tests. While most will be accurate and reliable, your patient is best served when tested by someone who is experienced and not by someone who is new or in-training, without your prior knowledge or consent. Occasionally, the referring optometrist may perform and bill for preoperative ultrasound and axial measurements. Depending on the optometrist’s experience, it may be prudent for the ophthalmologist to repeat these measurements.

Good supervision, attention to detail, and routine checks and balances should be the rule when performing ultrasonic testing and biometry measurements. Periodically review the literature for current medical standards to increase the likelihood of a positive surgical outcome and to minimize or prevent malpractice claims.

In-Office Lasers: You Could Get Burned

By E. Randy Craven, MD

Argus, July, 1994

Portable lasers may provide for convenience, but they also mean added legal obligations. Here’s some of the issues:

General Liability Duties

General liability duties increase with personal ownership of laser equipment. General liability refers to incidents not directly related to the care of the patient, e.g., a patient falls over some furniture in the waiting room. Among the general liability duties associated with laser ownership are properly maintaining and managing the equipment and ensuring that office staff are made aware of the hazards of working around the laser. To understand proper use and maintenance, thoroughly review the user’s manual.

Accidental Exposure to Laser Energy

Ophthalmologists must take precautions to prevent accidental exposure of laser energy to the eye and skin from either direct or diffusely reflected laser beams. When operating the laser, close the treatment room door and post a large sign stating “laser in use.” Place protective eyewear outside the door for personnel to put on before entering the room. Wavelength-specific goggles can be purchased through the manufacturer. Some manufacturers recommend door interlocks to automatically disable the laser when the treatment room door is opened.

Window coverings like hospitals use to cover operating room windows during laser procedures may be needed if the laser is located in a ground floor office near an outdoor public walkway.

Proper Maintenance

For continued reliability, follow the manufacturer’s recommended maintenance guidelines and ensure that a trained technician performs scheduled maintenance. Failure to do so may put the ophthalmologist at risk if a claim arises from a laser malfunction. Fortunately, most laser malfunctions are not likely to lead to a patient injury.

A preoperative check list or “flight plan” for double-checking the laser prior to use will help ensure a smooth procedure. The list should include spot size, power setting, pulse duration, wavelength, and proper alignment and delivery of the energy to a test object. Including this protocol in the office manual provides written documentation that a protocol is followed.

Informed Consent

The extent of potential hazards to the patient depends on the type of laser and its therapeutic application. Inform patients of the specific risks associated with a proposed treatment. For example, a trabeculoplasty carries significantly different risks than a panretinal photocoagulation. Common risks associated with lasers are overexposure, underexposure, reflection of the laser to unintended tissue site and thermal damage. Clearly communicate to the patient that any of these can cause major tissue damage, including vision impairment or blindness. Inform patients that, depending on the type of treatment, complications could occur weeks, months or even years later.

One potential informed consent issue is the need to obtain separate consent for multiple laser procedures. While obtaining informed consent each time the ophthalmologist uses the laser is probably not necessary, if the physician anticipates multiple procedures, inform the patient before treatment begins. As with any procedure, provide the patient with progress reports to avoid an unpleasant surprise or disappointment if laser therapy must be repeated.

Another issue concerns “piggybacking” consents, such as assuming that a cataract surgery consent form covers consent for a YAG laser capsulotomy procedure. A laser capsulotomy is a separate identifiable risk; if it is not specifically identified as part of the cataract surgery consent, it needs to be discussed with the patient prior to the YAG procedure. Document this discussion in the patient’s record.

The fact that the ophthalmologist and the patient discussed the potential risks of laser surgery and that the patient understood these risks should be clearly documented in the medical record and on an informed consent form. To request a model consent form addressing the clinical risks of laser surgery, call OMIC’s Risk Management Department, 1-800-562-6642 option 4.