Legal tips to avoid a lawsuit from knocking on your door

Take-home message: Having a detailed paper-trail of your patient cases not only protects you should a lawsuit arise, but it may prevent also prevent a lawsuit in the first place.

San Francisco-Insurance is one of those necessary evils-you have to have it, and you hope you never need it.

Professional insurance is no different, and luckily for ophthalmologists, most will never need to use their insurance. However, that does not mean there are no medico-legal risks involved with the specialty.

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The average ophthalmologist will have “maybe two or three claims opened against them over a 35-year career,” said Paul Weber, JD, vice president of risk management/legal, Ophthalmic Mutual Insurance Co. (OMIC), San Francisco. “Most of the time, those claims are dismissed without a payment.”

In the case of surgical error cases, “OMIC is very good at defending that the error was a known complication of a procedure,” he said.

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According to OMIC statistics, about 20% of the claims opened every year are closed with an indemnity payment-meaning one of every five claims will result in a payment to the plaintiff (patient). Most are dismissed without a payment, and in OMIC’s experience, only about 8% of the cases will go to a jury trial, Weber said.

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The average indemnity payment is about $164,000, he added, but the median is much less at about $82,500.

Most difficult legal cases

The difficult cases, however, typically involve either diagnostic errors or pediatric cases. Over the past 25 years or so, OMIC has settled 11 cases with payments of more than $1 million-and eight of those involved pediatric cases, mostly retinopathy of prematurity cases.

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The largest case OMIC settled was for $3.375 million-but other cases that have gone to a jury trial have had verdicts significantly higher and one for more than $38 million.

In 2014, there were 246 closed claims by treatment with OMIC policyholders, Weber said. The vast majority (34%) of these claims were in cataract, followed by medical evaluations (15%), oculoplastic (13%), and retina (12%). Cornea, glaucoma, and refractive surgery were all around 4%, and strabismus was 1%.

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In 2014, there were a total of 44 claims paid by treatment, with a total indemnity of $9.94 million, Weber said.

By subspecialty, general ophthalmologists had the most closed claims (42%), followed by the entity (meaning the practice itself) at 22%.

Medical retina and oculoplastic specialists each were responsible for 8% of the closed claims.

The remaining subspecialties accounted for less than 5% of all closed claims.

Document, document, document

Document, document, document

For most of the claims opened-regardless of subspecialty-“the issue is often going to be one regarding documentation,” Weber said.

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A physician should have documentation showing what he/she was thinking, what tests given, what time care was provided, “and show that they were communicating with their patient about important issues like follow-up and referrals and informed consent,” Weber said.

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“It shows that the doctor took the time to show his thought process, demonstrate his thought process, considered certain issues, did certain examinations and was thinking about a particular issue during the time that they were seeing the patient.”

That alone will deter most plaintiff attorneys from pursuing the matter.

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If the claim alleges a surgical error, documentation becomes critical, Weber said. “Document anything that’s amiss during the surgical procedure, include it in the postop report. Ensure that not only is the patient referred if necessary, but that it’s documented and noted the patient was called back into the office in a timely manner, and the complication was fully explained to the patient.”

Improper performance surgery claims account for almost 51% of allegations against OMIC insureds, Weber said. Treatment/procedure error accounted for 19.2%, and diagnostic errors for 13.6%.

Informed consent

Informed consent

Documentation overlaps with informed consent. “Documenting the informed consent process becomes an important issue that is sometimes overlooked,” Weber said.

Practices also must provide information to the patient that the patient can understand. “Not all patients are capable of understanding the medical issues involved with their diagnosis,” he said. “Elderly patients may not have full cognitive ability or parents of pediatric patients may be too scared to fully understand what they’re hearing.”

OMIC recommends that practices provide procedure-specific patient education and informed consent forms and go over the forms verbally with the patients.

“Document when the practice provides the patient education and reviews the informed consent,” he said. “In short, document, document, document.”

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Paul Weber, JD

E: pweber@omic.com

Weber is vice president of risk management/legal with Ophthalmic Mutual Insurance Co. (OMIC), San Francisco.