No-Shows and Other Acts of Noncompliance

By Paul Weber, JD

Mr. Weber is OMIC’s vice president of risk management

OMIC wishes to thank John B. Howe, MD, of Harlingen, TX, for providing the general content of the sample Letter to Noncompliant Patient.

Digest, Winter, 2003

No-shows. Every ophthalmic practice has been vexed by patients who fail to show up for appointments without canceling or who repeatedly cancel and reschedule appointments. Often, these are the same patients who don’t follow prescribed treatment plans, setting themselves up for a poor outcome and their ophthalmologist for a lawsuit. It may be tempting when dealing with such patients to presume that the consequences of noncompliance are theirs alone. A jury might not see it that way, however, and may determine that while the patient is ultimately responsible for not following the physician’s advice, the physician is responsible for not informing the patient of the consequences of that behavior.

There is no one “right” risk management approach to patient noncompliance that will work in all situations and in all practices but, in general, physicians are considered to have a limited but essential duty to follow up with patients who fail to follow advice or return for recommended appointments. The following case study from OMIC’s closed claim files illustrates how an ophthalmologist’s duty to follow up on missed appointments can become a compelling issue during litigation.

A 29-year-old male patient with pressures of OD 37 and OS 31 and extensive cupping of the optic nerve was referred by his optometrist to the insured, a general ophthalmologist. At the patient’s first visit to the insured in January, visual fields showed peripheral vision loss of OD 50% and OS 5%-7%. IOP was OD 35 and OS 28. Corrected visual acuity was OD 20/20 and OS 20/20. The insured diagnosed bilateral open angle glaucoma and prescribed Betagan drops twice daily. When the patient returned nine days later for a second exam, IOP had dropped to OD 19 and OS 18. The patient was scheduled to return in four months in May but failed to show until the end of December, at which time his pressures were again elevated to OD 38 and OS 36. The insured again started the patient on Betagan and this time added Pilocarpine. He also referred the patient to a university glaucoma specialist who saw the patient a week later with pressures of OD 42 and OS 38. No nerve tissue remained in the right eye and 99% of the nerve tissue in the left eye was gone. Trabeculectomies were performed and pressures decreased over a period of several months. However, two years later, central and peripheral vision in the right eye had deteriorated to the point of legal blindness. Corrected visual acuity in the left eye was 20/25 with impaired central and peripheral vision. The patient filed a lawsuit against the insured ophthalmologist.

Testimony of the Parties

The plaintiff’s lawsuit centered on the issue of compliance and the insured’s duty to remind patients to return for office visits. At his deposition, the plaintiff testified that the insured never explained the seriousness of his condition, including the possibility of blindness, and never gave him a patient education pamphlet about glaucoma. Nor did he allegedly discuss the side effects of glaucoma or the need to return for a follow-up appointment in four months. The plaintiff claimed that this lack of discussion on the part of the insured prevented him from adequately understanding the seriousness of his condition. He denied receiving a reminder letter for his four-month appointment, but he produced a “super bill” from his first visit with the insured which indicated that he should return in four months. The plaintiff also denied that he was noncompliant about taking the prescribed eye drops.

The insured’s office manager testified that prior to leaving the office, patients routinely are given the option of scheduling a follow-up appointment up to twelve months in advance. Patients who choose not to schedule a follow-up appointment at that time are put into a recall system. One month before the recommended follow-up, a letter is sent out reminding the patient to call and schedule an appointment. No notation is made in the charts of patients who fail to come back for a recommended appointment. The practice had about 40,000 patients in its database at the time of the plaintiff’s treatment; approximately 500 to 700 reminder letters were being sent out each month.

The insured ophthalmologist testified that it is not normally documented if a patient is given a pamphlet explaining the risks associated with glaucoma; however, his entries in the patient’s chart made during the first two visits in January were extensive and stated that he’d had a discussion with the patient about glaucoma risks. The insured also testified unequivocally that the standard of care does not require a physician to follow up with a patient who does not return as instructed. He stated that his office protocol to send reminder letters was “above the standard of care” and that there was no reason for him to believe a reminder letter had not been sent to this patient.

Testimony of the Experts

The plaintiff’s expert witness was a board certified general ophthalmologist who had testified on behalf of plaintiffs in 75 cases and on behalf of defendants in only two cases. It was his expert opinion that four months was too long to wait to have a young patient with newly diagnosed glaucoma come back for a return visit. In his opinion, the patient should have been recalled in four to six weeks to monitor the effectiveness of the drops.

Further, the plaintiff expert opined that the defendant did not have an adequate recall system because the defense could not reproduce a copy of the reminder letter it claimed to have sent to the patient. When reminded that the patient had a piece of paper (the super bill) instructing him to return in four months, the plaintiff expert conceded that the patient was partly at fault for failing to return as instructed. However, the expert testified that ophthalmologists are on notice that patients “are notoriously noncompliant with appointments and taking medications for a variety of reasons” and, therefore, the standard of care is to have recall protocols in place to mitigate patients’ well known lack of compliance and understanding.

The defense retained a board certified glaucoma specialist. He testified that the insured’s evaluation, diagnosis, treatment, and recall of the patient in four months were all within the standard of care. He disagreed with the plaintiff expert that there is an assumption in the medical community that patients are noncompliant as a rule. He maintained that after providing patients with pertinent information about their condition, physicians have no way of determining and are not required to evaluate whether a particular patient comprehends the information and will comply with treatment. Finally, he testified that a physician has no duty to track down a patient by phone call or letter if the patient fails to return.

The Jury Trial

This case was evenly balanced on both sides. Besides the question of the standard time frame in which to recall a newly diagnosed glaucoma patient (six weeks versus four months), the jury was confronted with two plausible but diametrically opposed standards regarding a physician’s duty to recall and follow up with a noncompliant patient as well as conflicting testimony about whether the patient ever received an appointment reminder letter from the insured. There was sufficient evidence to support either side’s argument about how well (or how poorly) the practice informed the patient of the risks of glaucoma and how much (or how little) information was provided during the two office visits in January. All jury trials are a contest of impressions and this one was no different. The issue of credibility can be impacted by a small piece of evidence.

At the patient’s first appointment in January, the insured had given him a prescription for a six to eight month supply of Betagan drops. During the trial, the plaintiff testified that he had the prescription refilled six times and that each bottle lasted approximately 60 days. The pharmacist who filled the prescription was called and testified that if the patient had used the drops as instructed, each bottle would have lasted 35 to 40 days and the first refill would have been needed in early April. In fact, the pharmacist’s records showed that the patient’s first prescription refill was not until August.

This fairly conclusive evidence that he was not taking the drops as prescribed hurt the patient’s credibility and convinced the jury that he was noncompliant. The jury found for the defendant ophthalmologist.

Risk Management Strategy

While it may be the patient’s responsibility to keep appointments, juries will look more favorably upon a physician who has demonstrated an effort to find out why appointments were missed. All practices should have a written office policy for follow-up of missed appointments whereby all “no-shows” (as defined in the policy) are brought to the physician’s attention. The extent of the ophthalmologist’s response to missed appointments should be determined by the answer to two questions: (1) How severe is the patient’s illness/problem? The sicker the patient, the more timely and intensive the effort should be to address the problem. (2) Is there a good reason not to contact the patient? Most important, in terms of liability protection, all follow-up efforts should be documented in the patient’s medical record.

Vexing situations arise when patient noncompliance becomes a burden on the ophthalmologist’s staff. Some ophthalmologists are now sending what is in effect a “final notice” letter to patients who fail to reschedule missed or canceled appointments or who have canceled or no-showed multiple times and presumably will not be returning to the office. OMIC has developed a sample letter that may be adapted and used by ophthalmologists to make noncompliant patients aware of the risk of visual loss or blindness and the need to contact the practice within a specified period of time or be deemed to have terminated the relationship with the practice (see sample Letter to Noncompliant Patient). OMIC encourages insureds to call the Risk Management Department for guidance in setting up a recall protocol and dealing with noncompliant patients.

Letter to Noncompliant Patient

(Date)

Dear (Patient):

You have canceled your follow-up appointment on (date) without rescheduling. We have tried multiple times to reschedule your missed appointment. To date, you have not responded to our efforts. It is our understanding that you may have terminated your care with our office.

Continued care is essential to the health of your eyes. You have an eye condition which will worsen without proper care. Permanent damage may occur, resulting in visual loss or blindness. Kindly realize this letter is not meant to alarm you. We only wish to inform you of the seriousness of your condition, as it was also explained during office visits, and encourage you to seek proper care.

If we have not heard from you within three weeks, we will assume that you have transferred your care to another physician and have terminated your relationship with this office. We will transfer a copy of your medical records to your new physician upon receipt of a signed authorization to do so.

With best regards,

(Physician’s Signature & Name)

SEND VIA CERTIFIED MAIL RETURN RECEIPT

Forensic Consulting: From Immunity to Liability

By Kimberly Wittchow, JD

OMIC Staff Attorney

Digest, Summer 2003

As reimbursements continue to diminish, ophthalmologists are turning to forensic consulting work to bolster their bottom line and add variety to their practice. The Physician Insurers Association of America recently reviewed approximately 18,000 medical malpractice cases and found that the average cost of hiring a defense expert is $5,486. Providing expert services in just five cases a year could boost a physician’s annual income by more than $25,000. With the added income, however, physicians are assuming new responsibilities and additional liability risks. This article tracks the evolution of forensic consulting legal liability and possible disciplinary action by professional associations for violation of their ethical guidelines governing expert witness testimony.

Forensic consulting covers a variety of services, from performing case reviews to conducting independent medical exams (IMEs). Providing expert witness testi- mony, in particular, is becoming increasingly popular. Both federal and state jurisdictions allow qualified expert witnesses to testify if their specialized knowledge will help the trier of fact understand the evidence presented. The use of experts in the U.S. judicial system is extremely common and their influence on the outcome of trials is well accepted.

Not long ago, expert witnesses were considered friends of the court. The purpose of their testimony was to clarify and objectively explain complicated matters to the fact finder, not to assist one party in winning the case. Like lay witnesses, experts had absolute immunity from civil liability for anything they said on the witness stand. This immunity developed in English common law to encourage witnesses to provide complete and unfettered testimony in court without fear of retaliatory lawsuits by parties who were disadvantaged by their testimony. In particular, the courts wanted to shield witnesses from defamation suits filed against them by parties on the opposing side. Sanctions, such as perjury and contempt, were thought to be enough of a deterrent against incompetent, untruthful testimony.

A Tradition of Immunity

American courts followed the English tradition (although some American decisions required a showing that the expert witness statements in question were relevant to the judicial proceeding). Even perjured testimony made in the course of a judicial proceeding could not serve as the basis for a suit in tort. It did not matter if the expert witness was not appointed by the court and received compensation by a party to the action, immunity still applied. Nor was immunity limited to defamation claims. Expert witnesses could not be sued for malpractice, fraud, or libel, either. The cause of action was irrelevant to the application of the privilege. Over time, however, absolute immunity has been replaced in some jurisdictions by qualified immunity, which only protects expert witnesses from defamation claims brought by opponents of the expert’s statements. This may not prove to be much help since defamation actions brought by adverse parties are rare. Instead, parties are increasingly suing their own experts, sometimes called “friendly hired witnesses,” on professional negligence or “expert witness malpractice” theories. Even when the witnesses are court appointed, some courts are now allowing cases to proceed against them.

Customarily, courts have found that the public policy of protecting expert witnesses and allowing them to give open and honest testimony without retaliation is so important that even negligence on the part of the expert will not trump his or her immunity from suit. However, the arguments for liability are mounting. Given the significant additional income a physician can earn by offering expert testimony, unscrupulous physicians may be tempted to distort the truth to benefit the party that retained them. The perception is that many experts are not impartial aids to fact finding, but biased advocates for their clients. The threat of liability, it is argued, will encourage experts to be more careful in providing accurate, reliable testimony.

Furthermore, some courts have opined that the safeguards of cross-examination and the threat of perjury prosecution are ineffective at deterring dishonest or negligent testimony because experts today are so experienced at deflecting attacks on their testimony and because it is nearly impossible to convict experts for their faulty reasoning.

The Argument for Liability

Proponents of expert witness liability argue that professional experts (doctors, lawyers, accountants, engineers) should be held accountable for negligence in litigation-related services just as they are in their primary work. Because these experts can choose whom they work for, and charge accordingly, clients should expect that their experts owe them a duty of care. Granting immunity, it can be argued, is contrary to the intent of tort law, which is to compensate an injured party when the cause of the loss can be attributed to someone else and to prevent such future misconduct. The standard of care applied in other professional negligence cases is applicable to that of expert witnesses: Did the expert exercise the care, skill, and proficiency ordinarily exercised by reasonably prudent experts under similar circumstances?

While much of the focus has been on expert witness testimony, because of the continued availability of immunity in some jurisdictions, actual liability may more likely stem from other forensic consulting services. Allegations of misconduct in the forensic exam, review of claims, filing of reports or other extrajudicial practices may allow plaintiffs to get around the immunity protection afforded experts who take the stand.

Furthermore, negligence actions are not the only liability risk for forensic consultants. Unfair competition or fraudulent representation of expertise may be alleged if, for example, the forensic consultant claims to possess degrees or licensure that he or she does not have.

Breach of confidentiality claims against forensic consultants also may stick. For example, a California court found that, in an IME scenario, an evaluator was performing a professional service and thus had a physician-patient relationship with and duty to the evaluatee. As such, it was inappropriate to disclose certain information to the party who arranged and paid for the IME since the disclosure violated state confidentiality laws.

Ethical Guidelines

In addition to legal liability, forensic consultants may be subject to disciplinary action by their professional association ethics board for rendering false reports or giving dishonest testimony, which may result in their suspension or dismissal from the association, or public censure. The American Academy of Ophthalmology may join several other medical specialty organizations in adopting ethical codes or promulgating guidelines for expert witness testimony in medical malpractice litigation. The Academy’s Board of Trustees has approved an Ethics Committee request to have the Academy membership vote to add the following new rule addressing expert witness testimony to the Academy Code of Ethics. If adopted, this rule will go into effect November 2004:

Expert testimony should be provided in an objective manner using medical knowledge to form expert medical opinions. Nonmedical factors (such as solicitation of business from attorneys, competition with other physicians, and personal bias unrelated to professional expertise) should not bias testimony. It is unethical for a physician to accept compensation that is contingent upon the outcome of litigation. False, deceptive or misleading expert testimony is unethical.

The growing trend among medical specialty societies to address the problem of biased and irresponsible testimony by their members has not gone unchallenged. In one well publicized case, a neurosurgeon sued the American Association of Neurological Surgeons (AANS) claiming it unfairly suspended him for testifying against a fellow association member in a malpractice lawsuit. The suspension came after an AANS hearing panel determined that the surgeon had provided “unprofessional testimony” at the trial because the testimony did not have a “convincing basis in either literature or logic.”

In his lawsuit, the neurosurgeon argued that the AANS violated state law because it suspended him in revenge for having testified as an expert witness against another AANS member in a medical malpractice suit. He claimed the AANS action deprived him of his due process rights and violated the legal rights afforded members of volun- tary associations. He argued that the AANS acted in bad faith because it never disciplines members who testify on behalf of malpractice defendants and that it is against public policy for a professional association to discipline a member on the basis of trial testimony unless the testimony is intentionally false.

The district court dismissed his suit – and the 7th Circuit Court of Appeals upheld the lower court’s decision – because the neurosurgeon was unable to prove that the association’s action substantially impaired an “important economic interest” of his. He continued to practice as a neurosurgeon and still made 35% of his pre-suspension expert witness testimony income. While this was enough to prevent his suit from proceeding, the appellate court also pointed out that, even though all complaints entertained by the AANS had been against plaintiff’s experts, this was not evidence of bad faith because, in the course of a malpractice suit, it is generally plaintiff’s experts who are going to be critical of another member’s care and cause the maligned member to complain.

Professional Self-Regulation or Member Intimidation? The plaintiff’s bar is concerned that medical specialty society codes pertaining to expert witness testimony are an attempt to intimidate members who testify against fellow members. The court in this case disagreed. Because membership in the prestigious society boosts an expert witness’ credibility, “the Association had an interest – the community at large had an interest – in (the neurosurgeon’s) not being able to use his membership to dazzle judges and juries and deflect the close and skeptical scrutiny that shoddy testimony deserves.” Thus, the court opined that professional self-regulation furthers rather than impedes the cause of justice.

An even greater threat to forensic consultants than voluntary association censure is disciplinary action, including loss of licensure, by the consultant’s state licensing board, where witness immunity may not be available to protect the physician.

In order to limit their liability, it is imperative that forensic consultants understand the proper procedures and relevant legal issues and requirements before undertaking such work. Even with the best practices, forensic consultants are never completely immune to liability and should carry insurance that will adequately cover all aspects of their work. The OMIC professional liability insurance policy covers claims based on forensic consultants’ professional services for or on behalf of a formal accreditation, utilization review, or similar professional board or committee of a state licensed health care facility, clinic, or professional society. However, if the insured is hired as an independent consultant or expert witness, the policy only covers claims where an actual (physical) injury is alleged. This would exclude claims by the hiring party in a private lawsuit against the forensic consultant for professional negligence.

To best cover the various risks and liabilities of the full forensic consulting practice, experts in the field suggest that forensic consultants also acquire errors and omissions coverage from a reputable company specializing in this unique exposure.

Telephone Screening as a Risk-Reduction Tool

Anne M. Menke, RN, PhD

OMIC Risk Manager

Digest, Winter 2004

Each day, countless patients call ophthalmologists to report problems and seek advice. During these telephone conversations, the health care team does not have access to the wealth of information obtained from face-to-face communication and physical examination of the patient. After hours, the patient may be unknown to the ophthalmologist and the chart unavailable. OMIC claims experience confirms that making medical decisions on the basis of the limited information obtained over the telephone is a risky – albeit necessary – aspect of ophthalmic practice.

To promote both the continuity and defensibility of telephone care, OMIC has developed sample telephone contact forms and screening guidelines, which are available online at www.omic.com or by calling (800) 562-6642, ext. 652. This article provides risk management recommendations on how to develop and implement a screening protocol based on using these contact forms and guidelines.

First and foremost is to exercise the same care when treating a patient over the telephone as you would during an office visit: (1) gather the information necessary to assess the situation and determine the treatment plan; (2) communicate the assessment and treatment plan to the patient; and (3) document the encounter and decision-making process in the medical record. To safely enlist your staff’s assistance in gathering information, develop and implement written protocols for telephone screening and treatment that are specific to your patient population, subspecialty, and staff. Supervise staff members who screen calls. In addition to developing and approving written protocols, effective supervision includes: (1) training and verification of competency; (2) willingly accepting questions from staff members unsure of how to handle specific calls; (3) daily review of telephone calls; and (4) periodic review of the screening protocols themselves.

Staff Scope of Practice, Qualifications, Training

Ophthalmologists are fortunate to employ staff members with detailed knowledge about ophthalmology who have undergone extensive training and certification; however, patient safety concerns and the laws governing the practice of medicine place limits on the tasks non- physicians can perform. The role of non-physicians in screening ophthalmic problems consists of gathering information in order to assign an appointment category. They cannot diagnose or treat a condition or provide medical advice; all medical decisions must be made by the ophthalmologist.

Instruct staff members not to minimize patient complaints or provide false reassurance. Handle with care patients who are concerned about their condition and are not satisfied with the type of appointment given. Juries are not sympathetic when a patient with significant vision loss testifies that she begged the receptionist to be seen right away but was told that nothing serious was wrong. Encourage staff to consult with you any time questions arise. Examples include complaints that are not listed in the screening guide, complaints that fall into more than one appointment category, and patients with routine complaints who want to be seen the day they call. In general, err on the side of patient safety when assigning an appointment category.

Take into account the language spoken by the majority of your patients. It might seem obvious, but only authorize staff members with the necessary language and communication skills to screen ophthalmic problems over the phone. Such skills include patience, cheerfulness, compassion, clarity of enunciation, and professionalism, as well as a willingness to abide by the guidelines and seek help whenever needed. Ensure that telephone screening is included as a job responsibility in the employee’s job description. Provide training to staff members who handle patient calls, and evaluate their competency in applying screening guidelines before allowing them to implement the screening protocols.

Customize Protocols to Your Practice

OMIC sample telephone contact forms and call screening guidelines do not cover all possible patient complaints and may not apply to every situation. Customize them for your practice and subspecialty; approve the final, written version; and implement them only after extensive staff training. Review the protocols regularly (annually or when there are practice changes) to assure that they still meet the needs of your patients and practice. Include in the protocol how you want staff to address two common situations that have led to delay in diagnosis claims: same day appointment requests and new patients. Ask your staff members to inform you of a patient’s desire to be seen the same day, and make every effort to accommodate the patient’s wish. If you cannot see the patient when the patient wants to be seen, speak to the patient and carefully screen the call to determine the cause of the patient’s symptoms and concern. Suggest alternative sources of care. Remind patients of their right to seek emergency care at a hospital if they feel they have an emergency medical condition. Keep in mind, however, that many emergency departments may not be equipped to carefully evaluate ophthalmic complaints. Direct the patient to a source of care that is likely to prove beneficial.

Indicate in the protocol whether or not your practice accepts new patients and how to handle calls from new patients if it does not. For example, have staff members first ask callers if they are a current patient. If the answer is no, have staff members inform the caller that the practice does not accept new patients, and offer them the names of ophthalmologists in the area who do. Do not discuss callers’ conditions or complaints if you are not available to accept them as patients. Once adapted to the individual practice and approved by you, post the guidelines by the phones of all staff members who answer calls. When guidelines are updated, note the new revised date and keep a copy of all former versions in case prior care and screening are ever called into question.

Indicate in the protocol whether you want to be notified of emergent appointments, and what to do if the patient asks to speak with you. Address how you will supervise non- physicians who assist in telephone screening.

Screening, Documenting Calls During Office Hours

The OMIC sample telephone contact form (Figure 1) prompts staff members to gather information that will be used to determine the timing of the appointment: emergent, urgent, or routine. On the sample screening guideline (Figure 2), patients with emergent conditions are told to come in or go to the ER immediately. Urgent patients are seen within 24 hours in this guideline, but you may wish to see these patients the same day. Patients assigned a routine category are given the next available routine appointment.

If the patient’s complaints fall into more than one appointment category, assign the quickest category. For example, if the patient complains of discharge that causes the eyelids to stick together (urgent appointment) and mild ocular irritation, itching, and burning (routine), give the patient an urgent appointment. If the patient has any complaint that falls into the emergent category, give an emergent appointment.

Document all patient care-related calls in the patient’s medical record. Some practices may want to use a telephone contact form that prompts staff members to ask questions and documents the answers on the same form (the sample provided is designed for ease and speed of documentation by allowing staff members to circle answers instead of writing them out). Other practices may choose to provide staff with a list of questions to ask (such as the ones on the sample contact form) but chart only the pertinent information, either in the progress notes or on a phone message slip that is taped into the medical record (e.g., “10/1/03 11:15 am. Mary Smith called to report sudden onset of ‘flashing lights’ and ‘floating things’ OD. Had cataract surgery OD on 8/15/03. Given emergent appointment for today at 1 pm. AMP, receptionist”).

Staff members will understandably be concerned about the time required to screen calls using these suggestions. Not every phone call will require asking every question. Rather, the patient’s complaint will determine the extent of the screening process. For example, as soon as enough information is obtained to categorize the appointment as emergent, no more information needs to be obtained since the patient will be asked to come in immediately. Differentiating urgent from routine problems will take more staff time and effort and may require asking all or nearly all of the questions. The time spent carefully screening calls is time well spent, however, if it preserves a patient’s vision.

Review, date, and initial all calls on a daily basis. This provides a safety net for patients and documents the supervision of your staff. Regardless of the type of appointment, file all telephone contact forms in the patient’s medical record.

Screening, Documenting Calls After Hours

While these guidelines are designed for use during office hours, your after- hours and on-call telephone contacts with patients or other caregivers also need to be carefully screened, handled, and documented. OMIC claims experience includes multiple cases where the ophthalmologist’s only involvement in a patient’s care was an undocumented after-hours contact or prescription refill.

A sample after-hours form is included on the web site that prompts you to ask about recent procedures or surgeries and whether the patient has contacted other health care providers about the same or related problems. Compact Patient Care Phone Call Record pads also can be obtained from OMIC and kept in your car, purse, briefcase, or locker. Once you return to your office, place the contact form in the patient’s medical record. If you provide on-call coverage for a physician in another practice, fax a copy of your contact form and records to the other physician and retain the original in a file designated On-call Coverage Contacts.

Boost Practice Efficiency: Productivity, Liability and the Technician

By Anne M. Menke, RN, Ph.D, OMIC Risk Manager

 EyeNet, October 2007

Incorporating ophthalmic technicians into your practice can help maximize your practice’s productivity and minimize its malpractice risk. As Risk Manager at the Ophthalmic Mutual Insurance Company, I urge technicians to play an active role in promoting patient safety and watching out for liability pitfalls.

Reduce Malpractice Risk

Some patients may find it easier to share their concerns with ophthalmic person- nel than they do with physicians. This provides technicians with an opportunity to improve patient care and, conse- quently, reduce your practice’s malpractice risk.

Technicians are knowledgeable yet approachable. Patients who are too shy to ask questions when speaking with the ophthalmologist are usually comfortable talking to technicians. For example, patients commonly do not take their medications as prescribed. Many of those patients worry that they will alienate the physician if they admit to this, especially if financial problems, lack of understanding of their disease or an inability to read contribute to the nonadherence. Technicians have an important role to play in addressing this problem. When a new patient is given a medication, the technician can instruct the patient by stating, “Many patients have questions or concerns about new drugs, or may not feel they are really needed. Do you have any ques- tions I can answer now? If you don’t have questions now, you may think of some later. In that case, please call me.” At the next visit, the technician can follow up: “I remember that the doctor started you on a new medication on your last visit. Tell me how you are using it.”

The knowledge base of technicians is vital to the process of informed consent. They can begin the task of educating patients about their condition and its treatment options. They also can use their conversations with patients to help identify and resolve misunderstandings. Legally, however, only the surgeon may obtain the patient’s informed consent by discussing the risks, benefits and alternatives of the procedure. Once that oral exchange has taken place, any staff member can review the form and obtain the patient’s signature.

Liability Pitfalls to Avoid

Written protocols play a critical role in minimizing your practice’s malpractice risk. These protocols must be carefully tailored to your practice, patient popu-lation and personnel. You can further reduce your malpractice risk by holding regular staff meetings that address threats to patient safety. Such meetings are an invaluable way of making each staff member a risk manager.

The challenge of telephone screening. This is one of the top three “scope of service” issues in ophthalmology.

However talented, technicians are unlicensed and are thus generally limited to performing tasks that do not require the knowledge and skills of licensed personnel such as nurses, optometrists and ophthalmologists. Indeed, techni- cians and their employers may face mal- practice lawsuits and/or medical board investigations if they perform tasks that are part of a licensed practitioner’s scope of practice.

Telephone care can be very compli- cated: The patient may be a poor histo- rian, may not be able to explain his or her symptoms and may not understand what is important. The health care team member on the other side of the line does not have the benefit of evaluating the patient’s nonverbal language, performing an exam or reviewing records. Unlicensed personnel may screen calls to determine the type of appointment (routine, urgent or emergent), but they need to have written protocols to guide them when they do. They cannot diagnose, treat, prescribe or renew medica- tions, and must instead ask the physician to make these decisions. If ordered to do so, they may communicate treatment recommendations or fax in a prescrip- tion refill.

For information on the screening role that nonphysician staff may play in after-hours calls, please see “Who’s On Call?” by Paul Weber at www.omic.com.

The challenge of knowing one’s limits. Experienced technicians may have the knowledge to determine the cause of the patient’s visual complaints, know exactly what treatment the ophthalmologist will recommend or feel certain that the prescription refill request will be honored. For legal and patient safety reasons, however, they may not share this information with the patient or refill the prescription, unless instructed to do so by the physician.

Withholding known answers may make the technician uncomfortable, especially when the patient asking for information is frightened. The best approach is to validate the patient’s concern and either encourage the patient to discuss it directly with the physician or offer to do so on behalf of the patient: “Mrs. Robson, thank you for letting me know that steroid drops helped you the last time you had this problem. Let me ask the doctor about this and call you right back. May I have your pharmacy’s number just in case?” If asked for a diagnosis, the technician can again reassure the patient and defer to the physician: “You sound very wor- ried about this sudden loss of vision. The doctor will explain what she feels is causing it after she examines you.”

Learn from your practice’s mistakes

Let’s say, for example, that the ophthalmologist discovers that he has implanted the wrong IOL. Suppose that a technician’s errors during the A-scan contributed to that surgical mistake. Many people’s instinct is to reprimand the person responsible. Instead, it would be both more productive and reassuring to everybody in the practice if you schedule a staff meeting and explain: “Today, our topic will be IOLs. I’ve learned that wrong IOLs are the most frequent cause of medical malpractice lawsuits. We recently had such a problem here and we can all learn from it. Leslie, why don’t you start by explaining what happened so we can all see how easy it is for such a mistake to go unnoticed. I’m sure everyone has some suggestions on how to improve our process of care to make it safer.”

Know your state laws. State laws and regulations determine what tasks may be delegated to unlicensed personnel and when a license is required. Some states, such as California, have very explicit and accessible laws. Other states allow the physician to exercise professional judgment or are silent on this issue.

Hidden Costs of Non-Traditional Revenue Sources

By Anne M. Menke, RN, PhD,

OMIC Risk Manager

Digest, Spring 2008

Long before the national presidential debates focused attention on health care, ophthalmologists were experiencing firsthand the many obstacles to quality, affordable medical services. They have watched as increasingly complex health care delivery systems demand more but pay less. Judging by calls to OMIC’s Risk Management Hotline, the poster child for the injustices of this medical pressure cooker is the on-call physician, who at times is forced to provide uncompensated back-up for hospital emergency rooms. Drawing upon the innovative and entrepreneurial spirit that has long characterized ophthalmology, some eye surgeons have responded to financial pressures by offering new health care products, such as diagnostic testing or interpretive centers, cosmetic skin care clinics, and “Medispas.” Others promote their ability to serve as independent medical examiners (IME) and expert physician witnesses (EW) in profes- sional liability, workers compensation, and disability litigation and disputes. These business ventures tend to be characterized by a more limited physician-patient relationship, fee-for-service payment, and delegation of care—and even operations—to non-physician staff. Eyes fixed on the financial prize, some physicians ignore or remain unaware of the risks and duties these relationships entail. Whether provided in the trenches of a crowded emergency room or amid the soothing luxury of a Medispa, ophthalmic care poses medical-legal hazards, professional liability insurance coverage issues, and patient safety pitfalls.

ER Call

One of the most frequent reasons OMIC policyholders call our Hotline is for clarification of their ER-call duties. They wonder about hospitals where they have no privileges, other hospitals in a hospital system, patients in other states, and days when they are not on call. Their next question involves outpatient care of patients with or about whom they have had no contact, but who may show up, call for an appointment, or simply have discharge documents containing the physician’s name. Depending upon the circumstances, your duties range from none to diagnosis, treat- ment, and follow-up. The Table on page 5 and the Closed Claim Study provide brief remarks. See “EMTALA: An Overview” and “EMTALA: On-Call Issues” at http://www.omic.comfor detailed answers.

Forensic Consultations

During the course of litigation and disputes, insurance companies, employers, employees, plaintiffs, and defendants often need an objective opinion of the nature, cause, and prognosis of eye conditions. In this Digest, we will focus on expert witnesses and independent medical examiners in the context of medical malpractice lawsuits. Expert witnesses are hired by either the plaintiff or defense attorney to review medical records and testify under oath whether or not a physician has breached the standard of care. When the opinion of the expert witnesses differ, or the patient has not recently been evaluated, the disputing parties may ask a physician to conduct a single independent examination of the patient as well as a review of medical records; the physician’s written report is submitted to the requesting party and generally made available to the opposing party. For more on acting as an EW or IME, see the Table on page 5 as well as the Hotline. For a discussion of theories of liability, see “Forensic Consulting: From Immunity to Liability,” OMIC Digest, Summer 2003, Vol. 13, No. 3, at www.omic.com.

Diagnostic Services

Comprehensive ophthalmologists, primary care providers, and optometrists may lack the expertise or (latest) equipment to provide their own patients with visual field testing, fundus photography, IOL (intraocular lens) calculations, OCT (optical coherence tomography), fluorescein angiography, or corneal topography. Rather than request a formal consultation, which involves an examination, testing, interpretation, and treatment recommendations and may result in a transfer of care, these health care providers sometimes prefer to exercise greater control over their patients and send them for “testing only.” Our policyholders report being asked to either provide specialized tests or interpret them. At times, these requests come not directly from health care providers but instead from companies that serve as an intermediary between patients and experts. Requests tend to vaunt the benefits for the ophthalmologist. In the case of testing only, the requesting party points out that such tests can be carried out by technical staff, may be billed to the patient’s insurance company, and relieve the physician of the risk of misinterpreting the results. Mindful of the cost of the latest version of his or her notoriously expensive ophthalmic equipment and the talent and skill of staff, the physician may feel inclined to say yes. Companies that provide interpretation of tests emphasize this as a way to increase income, and note that the physician can access and report on the tests at his or her convenience using the internet. What is rarely mentioned is that risks persist that must be mitigated. Moreover, whether providing or interpreting diagnostic tests, ophthalmologists have duties to the patients who undergo them.

The physician who offers tests may be liable for delays in diagnosis caused by malfunctioning equipment and has vicarious liability for training and supervising employed staff. Insurance companies may withhold or challenge payment if the physician is not present in the office during the exam or bills for interpretive services. And patients who are not advised of the limited role the physician plays in the testing may sue the physician for direct liability. To reduce your risks, give patients and referring physicians a copy of the results and a document explaining that: 1) the physician who owns the equipment has an indepen- dent practice; 2) the patient is being referred only for a test; 3) the test will be conducted by non-physician staff; and 4) the physician who owns the equipment will not review records, examine or treat the patient, interpret results, or provide recommendations.

Providing a diagnostic interpretation of a test performed elsewhere can be considered a form of telemedicine, since the images and data are usually sent electronically. Radiologists and pathologists have long furnished this type of medical expertise, and retina specialists may be familiar with centers that read fundus photographs of diabetic patients. More recently, some ophthalmologists have begun remote screening of retinopathy of prematurity. Special underwriting requirements apply to ROP, so contact OMIC immediately if you have not yet had a review of your ROP care. For other kinds of diagnostic interpretation services, conduct a due diligence evaluation of the entity requesting it to determine if its medical directors have the requisite knowledge and experience, and how they are obtaining patient referrals. Ask for a copy of the policies, procedures, and protocols to see if the following issues are addressed there: clinical information provided along with the image, image quality, technical issues, turnaround time, and scope of report (e.g., interpretation only, interpretation plus recommendations for additional tests and treatment, etc.). Check state law to determine if you need a license in the state(s) where the images are taken.

Cosmetic Skin Care Clinics Within an Ophthalmology Practice

As the specialty that pioneered Botox for therapeutic purposes, it is hardly surprising that ophthalmology has also championed cosmetic uses of this medication. Oculofacial plastic surgeons frequently offer many such non-therapeutic services to their patients, ranging from skin care products to laser resurfacing procedures, and we receive calls on our Risk Management Hotline from comprehensive ophthalmologists and other subspecialists who are considering adding cosmetic skin care services. OMIC policyholders need to understand their liability risks and contact us for assistance as needed when assessing these. State medical practice acts do not limit the scope of practice for physicians, so in the event of a malpractice claim, expert witnesses will focus on the standard of care and whether the ophthalmologist has the training, experience, and current competency to provide specific care.

Sometimes, policyholders themselves do not have this expertise but want to hire non-physicians who do; this raises several concerns. First, prescribing a medication and ordering treatment such as laser skin resurfacing almost always falls within a state’s definition of medical practice. If non-physician staff provide Botox, collagen fillers, or laser treatment before a patient is evaluated by a physician and/or without a physician order, they may face allegations of practicing without a license, and the physician may face disciplinary action for aiding and abetting the unlicensed practice of medicine. Many states allow only registered nurses to administer Botox and fillers, and perform laser skin treatment. It goes without saying that malpractice lawsuits arising from such care may be difficult to defend. To reduce liability exposure, contact your state medical and nursing boards to determine what is required of you and who can implement your treatment orders. Ensure that you are competent to supervise all care provided by your staff. If registered nurses manage your skin care clinic, review their evaluation of the patient, confirm patient candidacy, order the treatment, and be available to assist if complications occur.

Medispas Not Associated with a Physician’s Practice

Although the name evokes images of comfort and pleasure, serving as medical director of a Medispa could lead to headaches, uninsured legal risks, and licensure action. Regardless of the site of service, medical care is governed by the state’s medical practice act and scope of practice and pharmacy laws. Call for assistance before getting involved in a Medispa.