There are several precautionary steps you can take to protect yourself from malpractice suits.
(1) Assume a likable chairside manner: Some of us are blessed with this natural demeanor, but some are not. Although personality is largely immutable, you can work on traits and habits conducive to communicating warmth and compassion. In one study, resident physicians received empathy training modules, after which patients rated a significantly improved physician empathy.9 Patient surveys can offer valuable feedback in guiding you. A strong patient-doctor relationship is protective against malpractice claims. “Patients don’t like suing doctors that they like,” says Michael G. Harris, OD, JD, MS, clinical professor emeritus at the UC Berkeley School of Optometry and attorney at law.
(2) Carefully document and ensure good communication: If your exam records don’t document a diagnostic test, it’s assumed that it was not done. Your duty as a practitioner is to maintain an accurate and complete record, which can be challenging in the age of electronic health records (EHR). It’s also important to communicate your diagnosis clearly to the patient, especially if there is potential for vision loss. For inconsequential findings, such as a benign iris nevus, it’s a judgment call whether to mention it. “It is important to document your advice and instructions regarding follow-up care,” Dr. Harris adds.
(3) Determine the cause of any reduced BSCVA, abnormal findings or worsening symptoms: For example, if you have a patient who presents with intraocular pressure (IOP) of 28mm Hg OD and 17mm Hg OS, then has IOP of 15mm Hg OU the next day, it is not acceptable to let the patient return in 12 months—you need to find out why there was an abnormal IOP to avoid missing a crucial diagnosis. In many instances, retinal imaging alone is not sufficient to rule out retinal pathology, as the dilated examination is the standard.10
(4) Routinely administer automated screening visual fields, tonometry and dilated eye examination: A disproportionate number of conditions practitioners allegedly failed to diagnose could have been detected with these three measures. Liberal use of pupil dilation is perhaps the single most important action an optometrist can do to reduce the likelihood of a misdiagnosis that results in malpractice claim.6
(5) Err on the side of over-referring: If your patient’s diagnosis is out of your expertise or comfort level, document the reason for referral and the name of the practitioner (if known) or type of specialist, and explain the rationale for the referral to your patient. It’s always a good idea to provide the doctor with a referral letter or a copy of your exam findings and diagnosis. Especially with high-risk conditions, such as a macula-on retinal detachment or paracentral microbial keratitis, make sure you or your staff confirm the appointment was made and document the appointment time in your records. According to Dr. Miller, “When there is no consultation report received after the patient is referred, it is always a good idea to follow up with the patient and the physician.”
(6) Administer informed consent and document when patients decline dilation when medically indicated: Dilation is crucial to confirm myriad diagnoses. If the patient recognizes the increased risk and makes an informed decision to decline dilation, thereby hindering your ability to provide a definitive diagnosis, this should be memorialized by the patient’s signature with a date. “In some cases, you may want to use a specific informed consent document and have it signed by the patient and witnessed,” says Dr. Harris. Of course, the patient must be legally able to give consent; in the event, the patient is a minor or impaired, the parent or guardian should sign the form.
(7) Stay up-to-date: Clinicians should remain current with continuing education and certifications, as diagnostics evolve with new technology, clinical practice guidelines, and court precedents. For example, the availability of anti-VEGF injections for treating wet age-related macular degeneration now opens up the possibility of increased malpractice exposure for ODs who fail to diagnose this in a timely fashion.11
(8) Have adequate professional liability insurance: Most practitioners should have at least a $2 million occurrence limit and a $4 million aggregate limit. A personal umbrella policy will not cover excess liability beyond your professional liability insurance. When you end or switch your professional liability insurance, it is wise to obtain or confirm the existence of “tail coverage,” which extends the time after you drop the policy when you can still report claims brought against you. “If you retire, make certain you are still covered for any actions that may arise out of the time you actually saw patients,” says Dr. Miller. “Beware of the statute of limitations, especially with respect to minors you saw during your practice years.”
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