Article Date: 10/1/2009



Remarkable events in D.C.

✉ We read Dr. James Thimons' guest editorial “The Certification Debate Benefits Us All” (OM August 2009) with interest and more than a little surprise. While Dr. Thimons ironically refers to the meeting locale as “the symbol of democracy,” no iota of democracy was evident in the incredibly one-sided American Optometric Association (AOA) House of Delegates proceedings. Polls conducted nationally and at state and local society meetings repeatedly showed overwhelming rejection of the AOA Joint Board Certification Team construct for board certification, yet this professionally denigrating and divisive measure was still passed.

Dr. Thimons states, “what happened in Washington was nothing short of remarkable.” It is remarkable — if not incomprehensible — that an organization purportedly representing doctorial level professionals would enact policies with “national ramifications and career-long implications” against the will of its own membership. It is equally incomprehensible that delegates representing states where the membership was clearly against the measure ignored their members' will and voted for the proposal, in some cases imposing a block-voting mandate to prevent individual delegates from being able to vote against the proposal.

Fueled by the betrayal and outrage felt by many AOA members and non-member optometrists, the American Optometric Society (AOS) was formed to restore honest representation for our profession within the AOA and other professional organizations. Just weeks old, the AOS has already adopted a broad agenda crafted to advance our profession and counts more than 1,300 doctors as members. Addressing the issue of “board certification” is only a start.

We agree with Dr. Thimons' assertion that “what happened in Washington was an important awakening of our national consciousness at just the right time.” This travesty directly led to the creation of the AOS, an organization that will have substantial positive impact on our profession.

Larry Bickford, O.D.,
Tom Cheezum, O.D.,
Dickson Chen, O.D., F.A.A.O.,
Richard Driscoll, O.D.,
Art Epstein, O.D., F.A.A.O.,
Pamela Miller, O.D. F.A.A.O., J.D.,
Michael Rosenblatt, O.D.
The Board of Directors of the American Optometric Society

Let the majority vote

✉ It is only fair if every practicing optometrist is allowed to vote for or against board certification (“AOA Votes 'Yes' on Board Certification,” OM July 2009).

Those who voted on board certification appear to be academics or officers in various associations. They make up approximately 6% of all optometrists, and they are not the typical practicing optometrist. Why should 6% decide what the other 94% are going to have to do?

William Novack, O.D.
Kansas City, Mo.

Malpractice attorneys

✉ I enjoyed reading the excellent and comprehensive article, “In Case of Litigation,” by Drs. Myers and Gurwood (OM August 2009). A friend of mine is a “personal injury” plaintiff attorney. He has discussed many of his cases with me, including some malpractice cases against ophthalmologists. You may find his perspectives, which follow, interesting.

  1. In the mind of the plaintiff's attorney, there is no such thing as a bad outcome from a good doctor. That is, if something bad happened, it is the doctor's fault.
  2. The plaintiff's attorney depends heavily on large amounts of insurance coverage being in place in order to secure huge financial settlements. The plaintiff's attorney may need to spend thousands of dollars (possibly even up to $100,000) for private investigators, several expert doctor witnesses and other office and travel expenses. So without the potential for a big insurance payoff, he may be likely to stay away from the case. For this reason, many doctors have completely dropped their medical malpractice insurance.
  3. Plaintiff attorneys do their homework. My friend does his research and develops an excellent working knowledge of anatomy, surgical techniques and ocular pathology — almost as good as any optometrist or ophthalmologist. He purchases subscriptions to various medical journals and can dig up specific research and/or case reports that may be unfamiliar to most of us. He comes to these depositions prepared and loaded with this sort of ammunition. With this preparation and his knowledge of the legal system, he can easily make most of us appear as though we just got out of school.
  4. I asked my friend if informed consent forms are worthless in the eyes of a plaintiff's attorney. He told me that they are not, but the problem with informed consent is that all the possible outcomes and risks are never fully or properly disclosed to the patient. So, in his opinion, a more comprehensive informed consent form would help the defense, but these are almost never properly constructed.
  5. I've heard that to a plaintiff's attorney, “WNL” (within normal limits) means “we never looked.” But according to the attorney, it does have meaning in that the doctor has documented that the particular anatomy or physiology has been looked at and is normal. Errors of omission on the exam sheet are bad, but it is more likely that what you do write can be held against you. Some examples:
    Ocular siderosis. The patient retained metal fragments in the eye after a car accident. On four follow-up examinations by different ophthalmologists, each doctor noted, “retained metal foreign body” and drew a diagram showing where the fragments were lodged in the cornea. No one thought to remove these. The case did not turn out well for the defense.
    Blindness due to ischemic optic neuropathy from temporal arteritis. A patient saw an optometrist for a routine exam, which was unremarkable. Three weeks later, she developed ischemic optic neuropathy (ION) due to temporal arthritis. Subsequently, while under the care of an ophthalmologist, she went blind in both eyes. The patient didn't tell the optometrist that she was experiencing headaches, and the O.D. had not asked about headaches. The plaintiff's attorney sued the ophthalmologist — and also the optometrist for not asking whether the patient experienced headaches. The argument: Had the O.D. asked about headaches, a quicker diagnosis (and treatment) of the temporal arteritis would have prevented the ION. I don't know the outcome but, I've added a check box for “headaches” on my patient intake sheet.
  6. Most of my friend's cases settle out of court, and he obtains huge settlements from which his law firm takes 33%. If the defendant doesn't want to settle, the plaintiff's attorney is more than happy to present poor blind “Mrs. Jones” in front of a jury and will likely secure an even higher financial outcome. This may be why insurance companies are quick to settle rather than have a jury trial.
    Thanks again for the enlightening article. Keep up the great work.

Mike Silverman, O.D.
Coral Springs, Fla.

The authors reply: While certainly a logical and expected perspective from their point of view, we find the plaintiff attorney's point of view flawed. Bad things do happen to good people and good doctors — despite their best efforts and intentions.

In our case, the dollars signs clearly got in the way of the plaintiff attorney's good judgment and homework. You clearly get the point we made because you and your interviewee remake the point yourselves. In this case, a lawyer, saw an opportunity to make extensive money and probably figured the defense would settle rather than fight. At the behest of a patient who experienced a loss unrelated to anything that was done by good and ethical physicians, a law suit was proffered against the wrong people, based upon advice from an expert who stood to profit personally from the very proceedings for which he was making recommendations. Further, the expert had what was illuminated in court as questionable retinal qualifications and credentials. The collateral aggravation caused by law suits like this is offensive and should be actionable. We acknowledge that wrong is wrong — and even in the absence of malice or aggravated circumstance, individuals who have been wronged deserve the right to full compensation… to be “made whole.” However, procedures like this should not be without balances.

To keep the playing field level, we suggest that injury attorneys and their clients incur significant risk as well. If they lose, let them pay restitution to the defense for the costs and the misery they induce. If this topic must be discussed as a function of dollars, why should the money highway only flow in one direction? After all, fair is fair. OM

Marc D. Myers, O.D., F.A.A.O.
Andy Gurwood, O.D., F.A.A.O.

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Optometric Management, Issue: October 2009