Article Date: 11/1/2007

An Ounce of Prevention …
Illustration by Eric Lindley

An Ounce of Prevention …

Minimize these four common malpractice pitfalls.

PAMELA J. MILLER, O.D., F.A.A.O., J.D., Highland, Calif.

We're all looking for the magic bullet to prevent malpractice lawsuits. The problem is that it just doesn't exist. In fact, it's more like we are playing Russian Roulette on a daily basis with our lives, our fortunes and our practice.

The saddest words a doctor can utter are "If only I had …" The malpractice annals are full of the "if onlys." Courts are jammed with those folks who want to "get even," "teach that person a lesson," or the ever-altruistic motive, "I just want to be sure no one else is injured."

Only two parties come out financially ahead in litigation, and they are both attorneys (yours and theirs). So bottom line: Be as proactive as possible, and try to head off problems that can lead to malpractice litigation before they occur.

Every day we see patients, we make mistakes. Sometimes, our employee, associate, partner or even a temporary office person is at fault. Other times, a patient errs. Regardless of fault, we're the one responsible for the actions or lack thereof that occur during the course of our practice day, under the Theory of Respondeat Superior. This is Latin for "Let the master answer."

No matter how much we educate ourselves, our staff and our patients, things happen. The trick then, is to communicate, educate and document (CED) as much as possible and continually work to upgrade your skills in these areas.

While there is no aspect of practice that you should overlook, four specific hot spots require your attention, bearing in mind that there is a great deal of overlap among them. Let's address each individually, keeping the following key points in mind:

  1. Documentation is the key to any effective defense.
  2. Communication between you, your staff and your patient is essential to preventing misunderstanding, reinforcing appropriate care and follow-up and to patient responsiveness.
  3. An informed patient is both educated and better able to assume some of the burden of his care.
  4. Nothing beats a caring doctor and office team in uncovering potential problem areas, mitigating damages and preventing possible litigation.
  5. Always focus on what is best for your patient, without regard to cost, time on your part, etc.

Now, let's address the key practice hot spots to which you must pay attention.

Dissatisfied refractive/cataract surgery patients

If you're like most optometrists, you comanage refractive surgery and cataract surgery patients. A surprised patient is an unhappy patient. Generally, unexpected results of the surgery upset these patients the most.

Carefully covering possible outcomes, especially those that are negative, help to ameliorate any potential misunderstandings. Essentially, discussing the risks, benefits and possible complications are the keys to positive patient management. Remember: Many patients have spoken with their friends, virtually all of whom have had positive outcomes.

When your patient experiences a less than satisfactory endpoint, you're left holding the bag, not the surgeon. This is because you're the one who has taken the time to talk with the patient about the procedure, not the surgeon. The bottom line: Because you've developed a rapport with the patient, he's going to turn to you. This is even more so when a patient has gone against your professional advice and proceeded with the surgery. Why? Because you know a great deal about his medical history, he knows he can trust you. It certainly does no good to tell the patient "I told you so." They have already figured this out.

The better option is to tell your patient that you will not abandon him and will work with him to achieve the best possible outcome. Again, reviewing possible options is the key to patient satisfaction. Options include possible enhancement surgery, glasses, contacts, etc.

Missed diagnosis

Failure to refer, a missed diagnosis or a breach of the standard of care is the next area to highlight. While you and I may want to know everything, the fact is that we absolutely must depend on our colleagues and basic instinct to help care for the patient. Simply put, patients are never offended by a doctor who says, "I don't know the answer, but I am going to send you to a specialist (or back to your primary-care physician, etc.) for a second opinion."

Carefully covering possible outcomes, especially those that are negative, help to ameliorate any potential misunderstandings.

For instance, an exam may reveal that a patient requires low-vision care. Although you're pretty sure about the type of low-vision therapy this patient requires, you're not positive. As a result, the best course of action is to explain this to the patient and then refer him to a specialist in low-vision therapy. This works in two ways to minimize the chance of a malpractice lawsuit: First, it shows the patient you care enough about him to send him to a clinician who will know the answer, instilling confidence and trust in your care. Second, you've protected yourself, as you haven't attempted to provide the low-vision therapy to the patient — something about which you were not confident.

Even then, you must ensure the specialist receives the patient information. To accomplish this, I give the two copies of the patient's request for consultation letter and any supporting data to the patient to hand-carry. One copy is for his primary-care physician, should his insurance require a referral to the said specialist, and one is for the specialist. I do this for two reasons:

First, I've found that sending this information via fax often gets lost, which means the patient gets lost — something that could lead to further health issues and a malpractice lawsuit.

Second, by giving the patient this information, I've taken an additional step in making him an active member of the team working to provide him with the best health and vision care. This makes the patient feel important and will therefore ensure the appropriate people receive his record and supporting data.

To further make certain the patient sees the specialist, I enforce the fact that he's a member of his healthcare team by telling him, "I want you to call me immediately after your appointment to tell me what the specialist had to say, so you and I can make an informed decision about the next step to take." Surprise! Patients will not only appreciate your concern, they will actually call you and give you that update because they know they're an important team member. This, in turn, minimizes the chance of a malpractice lawsuit, as you've closed the loop. In other words, because I've found that the chances of receiving a report from specialists are slim, this action has enabled me to protect both the patient and myself.

The bottom line: You can minimize malpractice lawsuits that stem from failure to refer, a missed diagnosis or a breach of the standard of care by referring when necessary, staying on top of the referral process and marrying the patient to his care.

Contact-lens complications

For those of us who fit contact lenses, we know that the list of complications (corneal hypoxia, for example) is almost limitless. We can minimize those problems and therefore minimize the likelihood of a malpractice lawsuit, however, by simply keeping our patients closely supervised. I do this in three ways:

First, I pre-appoint my patients for all care. Annually for most patients, every six months for contact-lens patients, including the annual examination. I'm able to achieve patient compliance here by taking the time to explain to these patients that the reason I want them to adhere to these appointments is so I can revisit the appropriateness of their lenses, new needs, the care and feeding of their existing lenses, etc.

I also emphasize the significance of these appointments by sharing cases in which I was able to discover a change or anomaly as a result of patient compliance with these visits. We send all patients a reminder postcard and call the day prior to the appointment.

Second, I have these patients use a vision-insurance-run online contact-lens ordering system. Unlike some of the well-known online ordering systems, this system includes a built-in date provided by the practitioner that alerts the patient when he must contact his O.D. in order to obtain more lenses. I've been able to get virtually all my patients to utilize this system by educating them that this built-in date is for their safety, and that stockpiling their lenses can actually cost them, should a follow-up appointment indicate a problem with the lens or the need for a prescription change. A lower patient cost, ease of ordering and direct delivery to the patient results in a win-win situation.

Third, I always use "I want," and "I need," when talking with these patients. This is because I've found that these words not only convey my genuine concern for their eye health, but the importance of complying with my directions.

When you do find a change or a problem with a patient's lens, and you will, let him know, as this reinforces why you continue to monitor him regularly. Your concern and communication is essential to good patient control and minimizing malpractice lawsuits.


For many doctors, taking care of children seems to be a really challenging area of practice. I've found this to be the case with many of my colleagues, as they think children are different from adults in terms of their ability to reason. The fact is, most children, regardless of age will respond to the practitioner who treats them respectfully and intelligently. For this reason, it's crucial you take the time to educate these young patients and their parents to minimize the chance of a malpractice lawsuit.

An example: If you feel contact lenses are a possible alternative for your young patient, explain what you require of him prior to fitting, so the patient and his parents can determine whether he can meet these requirements and make the correct decision.

We need to educate our young patients that we look at the prescription, as well as cleanliness, motivation, and attention to the care of their lenses. A good way to handle this last part is to remind your patient that if his parents are constantly telling him to clean his room, do his chores, finish his homework, etc. then maybe he's not quite ready for contacts. After all, no one wants their parents yelling at them, and we don't want to add contact lenses to the mix.

Most children will see the wisdom of this logic and make the choice you advise. If they do not, however, you're less likely to incur a malpractice lawsuit, should the patient become unhappy with his decision. This is because you've practiced informed consent.

Staff issues

Your staff can be the proverbial hangman's noose or the life-saver you need to preserve your practice. As a result, staff education — including on-going communication about how to speak with patients, how to handle an emergency, etc. must be constant. Frequent staff meetings, scripts and a caring staff who listen to the patient help make the difference between litigation and staying out of court.

We can minimize the complications of contact-lens wear and therefore malpractice lawsuits by simply closely supervising our patients.

Something else that helps to minimize a malpractice lawsuit: Your knowledge of what goes on in your practice. To obtain this knowledge, get out of your exam room and/or office, and take time to walk around and observe your staff at least once a day. Never assume your office manager is going to handle everything. Office managers can be great, but they can also torpedo you. The bottom line: There is nothing in your office that you shouldn't know what or how to do. Delegation is great, but you are the boss and the one who has the most to lose, should you be involved in a potential malpractice case.

Preventive care is the best care. It works for our patients, our staff and our office. If a staff person has a problem, they absolutely must feel that you will handle it, without laying of fault, screaming or getting in a rage. Respect is a two way street and must be earned. Once earned, it is crucial to maintain, as it can mean the difference between a thriving practice and one that has sustained major losses due to a malpractice lawsuit.

In the midst of the normal and hectic day-to-day activities of our office, it is of paramount importance that everyone document constantly and consistently. If you need to add on to a record, date and indicate why you added information later. It is the record that litigators will examine in an effort to determine whether malpractice has occurred. It is that same record that can protect you or sink you in a court of law.

Your ability to communicate, educate and document will make you successful, will help keep your patients safe and out of trouble and will help protect you from litigation. An ounce of prevention is certainly worth a pound of cure when it comes to malpractice prevention. Now, that is the "magic bullet" we are searching for. OM

Dr. Miller has a private optometric and consulting practice. She's written seven books, and is a widely known author and lecturer and a Distinguished Member of the National Academies of Practice in Optometry. Dr. Pam's is interested in citrus farming, property management, and she owns Highland International Travel.

Optometric Management, Issue: November 2007