Lawsuits preventable with quality care, documentation

Issue: October 2008

ByStephanie R. Vasta

To protect themselves from malpractice lawsuits, optometrists should surpass the standard of care and keep complete, accurate records of patient history.

Defining the standard of care

The standard of care is generally considered to be the degree of care a doctor would provide to prevent an unreasonable risk of injury to a patient and the bar by which the conduct of a doctor is measured in malpractice lawsuits against. Diagnostic testing for eye disease can pose a challenge to this standard, says John Classé, OD, JD, when new technology is introduced into clinical use within a profession.

“It’s hard to say that diagnostic instrumentation establishes a ‘standard’ that everyone will be held to if you don’t have fairly significant representation within the profession. There’s not a magic number in terms of percentage, but in my mind it would be fair to say that it would need to be employed by the majority of practitioners,” Dr. Classé said in an interview with Primary Care Optometry News.

Protecting yourself

To protect themselves against malpractice litigation, Jerome Sherman, OD, a member of the PCON Editorial Board who has also testified as an expert witness in a number of malpractice cases, suggests doctors go a step further and consider how they can practice above the acceptable standard.

“Retinal nerve fiber layer measurements with the GDx [Carl Zeiss Meditec, Dublin, Calif.] time domain OCT or any of the seven spectral domain OCTs for glaucoma may not yet be the standard of care, but if a doctor is utilizing this technology, he or she is practicing beyond the standard and dramatically decreasing the risk of litigation,” Dr. Sherman said.

According to the 2007 New Technology Survey, 45% of American Optometric Association members have an OCT or a GDx.

Three most common causes of major lawsuits

The most common reason for malpractice litigation is attributed to failure to diagnose three major conditions: glaucoma, retinal detachment and tumors affercting the visual system. To guard against litigation, Dr. Sherman suggests incorporating retinal nerve fiber layer measurements, dilating the pupil at every comprehensive visit or obtaining panoramic fundus images with the Optomap exam (Optos, Marlborough, Mass).

“Fundus photography is also helpful but cannot image the peripheral retina,” he said. “Performing visual fields in patients with unexplainable reduced visual acuity or symptoms is highly recommended because undetected mass lesions affecting the optic nerve and visual pathway have resulted in blindness and death in several cases. Jury awards in these lawsuits have ranged from $5 to $10 million.”

Glaucoma cases are the most frequent by far, Dr. Sherman said. Because it is not easy to diagnose in its early stages, glaucoma must be tested for thoroughly by several methods. He recommends testing not only for increased IOP, visual field defects and optic nerve head abnormalities, but also measuring the optic nerve by counting the axons.

“Glaucoma can occur without high IOPs, without a visual field defect and without an abnormal cup,” Dr. Sherman said. “Because glaucoma is primarily a disease that affects the optic nerve, by definition, every patient with glaucoma has an optic nerve problem. We can’t — at the present time — measure the optic nerve or ganglion cells, but we can measure the retinal nerve fiber layer in an objective and reproducible fashion using commercially available equipment.”

Failure to diagnose

Diagnostic care can also include clinical laboratory testing. In a recent case involving recurrent iritis due to systemic disease, a doctor was held not to have satisfied the standard of care because initial laboratory testing did not indicate the cause, yet the practitioner did not order further testing or refer the patient for that purpose. As a result, the patient lost vision from subsequent attacks of iritis.

“This is a challenging case, both clinically and legally, but it demonstrates the evolving obligation to detect systemic causes of eye disease,” Dr. Classé said. “If optometrists are not able to order laboratory testing, or do not wish to do so, then referral to another practitioner for appropriate testing is necessary to satisfy the standard of care.”

‘Work not recorded is work not done’

One of the best ways to prevent malpractice litigation is to keep complete, accurate records of all patient visits and what treatment was provided. If you do get sued, a comprehensive record could save your case.

According to Dr. Sherman, the general rule of thumb is the more you record, the better off you are. “If a doctor says, ‘I did this and I did that,’ and it’s not on the record, the judge will tell the jury, ‘Assume work not recorded is work not done.’ So, if you forget to write your findings or if you have nothing or very little written, that can really harm you,” he said.

Improving the record

With ink dating technology considered evidence in all 50 states, changing or adding information to patient records could be a costly mistake. “You don’t want to change the record after the fact,” Dr. Classé said. “It’s best to just grit your teeth and accept the record as it is. If you alter the record and you’re caught — which is not all that hard to do — it’s going to look like you’re guilty and it will make it very hard to defend the case,” he said.

Dr. Sherman agrees. “If you get sued, you’re going to want to look at your records, but you’re going to have to do it without pen or pencil around. Sit on your hands and just read it,” he said.

Obtaining a personal lawyer

Though your insurance carrier will provide a lawyer to defend the case up to the limits of the policy, it might be wise to consider obtaining a personal lawyer as well, to guard your own interests in court.

“If you’re being sued in a substantial case, you may want to get an additional attorney who will be looking out for your personal welfare instead of just trying to settle the case,” Dr. Sherman said. “Many insurance company lawyers do not do justice to the doctor and will recommend settlement in cases that shouldn’t really be settled, because they do not like to step foot in a courtroom.”

Optometrists rarely sued

There is good news: according to the federal government’s National Practitioner Data Bank, a total of only 580 U.S. lawsuits from Sept. 1, 1990, until March 17, 2008, involving optometrists were granted payment. Compared to medical physicians who have had 232,727 lawsuits in which payment was granted over the same period, optometry ranks the lowest malpractice pay-out specialty in medicine.

For more information:

John Classé, OD, JD, is a professor at the School of Optometry of the University of Alabama at Birmingham and a member of the Alabama Bar. He can be reached at jClassé@uab.edu.

Jermone Sherman, OD, can be reached at SUNY College of Optometry, 33 West 42nd St., New York, NY 10306; (212) 938-5862; fax: (212) 780-4980; e-mail: jsherman@sunyopt.edu. Dr. Sherman is a PCON Editorial Board Member, the Distinguished Teaching Professor at the State University of New York, in private practice at the Eye Institute and Laser Center and president of the Optometric Retina Society. He lectures frequently for Optos and Carl Zeiss Meditec.

References:

National Practitioner Data Bank: Healthcare Integrity and Protection Data Bank. Web site: www.npdb-hipdb.com.

American Optometric Association 2007 New Technology Survey. Web site: www.aoa.org.