Avoiding Malpractice Suits

Five basic tips from risk management experts.

JERRY HELZNER, SENIOR EDITOR

While retina specialists face charges of malpractice less often than refractive or cataract surgeons, the Ophthalmic Mutual Insurance Company (OMIC) reports that judgments involving errors in retina care average significantly larger amounts than judgments against general ophthalmologists.

Large judgments would be expected to equate with greater vision loss, but OMIC records show that this is not always the case. Many retina care judgments have been based less on visual outcomes than on pre- and postoperative errors. Other large awards involved general ophthalmologists who performed retina procedures that went beyond their skill and expertise.

Risk management specialists from OMIC and other medical liability insurers emphasize that all practices need to have sound risk management strategies in place. When properly implemented, these relatively simple strategies can significantly reduce the odds of being sued for medical malpractice.

Following are 5 basic policies that risk management specialists from OMIC and other medical liability insurers say can serve as the foundation of a risk management plan.

■ Document all patient interactions. OMIC archives recount the case of a woman who was treated for a large retinal tear on a Thursday. On Friday, she was examined by her physician, who found the retina completely reattached and all pressures within normal limits.

On Saturday, the patient reached her physician on his car phone and reported that her eye felt "different." When asked if she was experiencing stomach upset, nausea, vomiting, or eye pain, the patient said "no."

The doctor was not too concerned and told the patient that if she had any more problems over the weekend she could contact his partner, who would be covering on Sunday. The physician never documented this call.

The patient did call the partner at his home on Sunday, this time saying that she was "seeing black" and feeling some pressure. The partner believed that, considering the medications she was taking, the feeling of pressure 3 days postop was understandable and he did not consider it an urgent problem. He told her to come into the office Monday morning. This call was also not documented.

On Monday, when the patient presented at the office, her IOP was 60, visual acuity was no light perception, and the lens and iris diaphragm had shifted forward, flattening the anterior chamber. She eventually lost the eye and needed an enucleation. The patient filed a lawsuit against both ophthalmologists, alleging that she had complained of "pain" during her telephone conversations with them and that their failure to promptly treat the condition resulted in the loss of her eye.

Though the care given by the 2 retina specialists was not in question, the plaintiff won the case largely because the physicians could not provide any documentation of the patient's weekend calls. Thus, they could not prove that their response was appropriate to the symptoms the patient had reported over the weekend.

Risk specialists caution that the increased use of cell phones, car phones, and pagers has made it somewhat more difficult for physicians to document all of the patient calls that they take. Yet, it is the lack of documentation that puts physicians at risk when patients make claims of malpractice that cannot be adequately refuted.

■ Communicate with patients and colleagues. Clear and complete communication with patients, staff, and colleagues is a must if errors and misunderstandings are to be avoided.

It has been shown that patients are reluctant to sue a doctor who takes the time to explain medical issues and answer all questions. A brusque and abrupt manner may equate with efficiency for some physicians but it does not help build positive relationships with patients.

Some patients expect that any retinal procedure performed by a physician will result in perfect vision. Risk management specialists say that many malpractice claims occur because the expectations of the patient do not coincide with the limits of the outcomes that specific procedures can produce.

Retina specialists should be clear in managing patient expectations and should even consider having patients write down in advance of the procedure what their expectations are in terms of improved vision. If the patient's expectations are too high, the physician needs to correct those expectations to more realistic ones that the patient can accept.

In terms of communicating with staff and colleagues, practices must devise a system that ensures that all messages are received clearly and in a timely manner. One of the great advantages of electronic medical records is the easy accessibility of the patient record from even remote sites and the elimination of errors caused by sloppy or illegible handwriting.

■ When in doubt, get a second opinion. Risk management specialists say that one of the major causes of malpractice litigation is misdiagnosis based on having previously treated "similar" cases.

When patients present with a set of symptoms or complaints that seem to be the same as similar cases treated in the past, it is important that retina specialists avoid getting into the habit of saying "it's probably X" or "it's most likely Y."

Especially with those cases that appear to be more serious and more complicated, risk management experts say that it is wise to practice "defensive medicine" and order additional tests that could reliably confirm or discount any preliminary diagnosis.

If the physician still has doubts when all the ordered tests are in, a second opinion should be sought from a respected colleague who has wider experience in the type of case being evaluated.

■ Do not withhold treatment for financial reasons. Several physicians have lost malpractice cases solely because they withheld treatment until the patient paid them for their services.

The quality of care eventually provided in those cases did not matter. The failure to treat in a timely manner, even if it was a question of a few hours, decided the cases in favor of the plaintiff.

Holding back treatment for financial reasons is a sure way to turn a jury against a physician. It should never happen.

■ Have thorough and specific informed consent documents. Having complete informed consent documents is critically important for retina specialists, who typically and routinely employ a number of drugs and medications that are not specifically approved for ophthalmic use.

For example, when using bevacizumab (Avastin, Genentech) in treating the wet form of age-related macular degeneration (AMD) or another retinal disease, it is not enough to cite the wide use of bevacizumab in treating AMD or the many published reports testifying to its safety and efficacy. The physician must inform patients that there are FDA-approved drugs available as alternatives to bevacizumab.

Before using bevacizumab off-label for retinal disease, physicians should be sure to perform fluorescein angiography and optical coherence technology imaging tests to evaluate the lesion type and check for the presence of subretinal fluid. It is only when the patient is evaluated in this manner that a retina specialist can say that treatment with bevacizumab can be judged to produce a benefit.

After treatment with bevacizumab or any off-label drug it is important that the patient be closely monitored.

Though the 5 policies cited in this article are only part of an overall risk management strategy, implementing them can go a long way to reducing the risk of being sued for malpractice.

Additional examples of the value of risk management policies are available in the resources/risk management segment of the www.omic.com Web site. RP