Lack of documentation most common reason for malpractice suits
NEW ORLEANS – Sixty percent of malpractice claims result from poor documentation, according to presenters here at SECO 2022.
“It’s not that we did anything wrong; we just didn’t document what we did,” Katie Gilbert Spear, OD, JD, MPH, said.
“Most commonly, a ‘failure to timely diagnose’ was not the result of lack of clinical judgment or expertise,” co-presenter April Jasper, OD, FAAO, said. “It was the result of the failure to follow up on a test result, missed appointment or telephone message.”
Think about who is answering your practice’s phone, Spear said.
“Are they asking the right questions?” she said.
If patients miss an appointment, do not just delete it; document that they failed to show.
“You will see lawsuits where the doctor was sued because the patient failed to follow up,” Spear said. “Often the patient claimed the doctor did not tell them they really needed to come in, or they would go blind if they didn’t come in for treatment.”
Jasper said she was sued for “failure to warn of the seriousness of the disease of glaucoma” by a patient she never saw.
“The case lasted 6 months,” she said. “It was more than traumatic.”
It was finally determined that she had no liability.
Spear noted that laws differ from state to state, but optometry has one of the lowest incidences of malpractice cases among health care providers.
Jasper advised attendees to implement a process in their practice to protect themselves.
“If anyone calls and says something is wrong with their eyeball or they have decreased vision, get them in today,” she said. “I’ve heard doctors say not to book any more patients today because they’re too busy. The staff needs to know to get emergency patients in. If a patient says they won’t come in, the staff needs to tell them they’re at risk and then needs to document the conversation in the record. We review this once a month.”
Spear noted the importance of informed consent for procedures such as dilation.
“I dilate every patient that will let me,” she said, “but on my dilation consent form I warn them that there are risks (falling, driving). It’s going to be a third paper people need to sign, but every doctor’s office I go into, I have papers to sign.”
Verbal consent documented in the chart is good, Jasper said, but a signed form is better.
Standard of care varies with locality, the speakers said. However, in April 2021 the World Council of Optometry passed a resolution calling for standard of care for myopia management, saying myopia control should be standard of care.
“Will you be held liable for myopia progression if you’re not doing this?” Spear asked.
“If the patient ends up having a retinal detachment or tear, will they come back to you?” Jasper said. “And we’re talking about children. The monetary amount will be larger.”
added.
They also cautioned about giving casual medical advice.
“If someone comes to you in the grocery store and asks you to look at their eye and you give them advice, you’ve created a relationship,” Spear said.
The speakers said to handle terminating a relationship with a patient carefully; perhaps they will not follow your advice, or their insurance changes.
“If you are no longer a provider [on their insurance plan], what is your responsibility to the patient?” Jasper said. “Are you off the hook? No.”
Spear said when her practice no longer accepted a certain insurance, she sent patients a certified letter saying she would take care of them at no charge for at least 3 months until she could help them find another provider. Her letter included three other provider suggestions.
If a patient changes insurance companies, she attempts to contact them by phone and documents the conversation. Otherwise, she sends a certified letter.
Spear noted that patients can sue only if they suffered damages.
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Jasper A, Gilbert Spear K. Don’t get sued. Presented at: SECO; New Orleans; March 9-13.
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