Ординатура / Офтальмология / Английские материалы / Risk Prevention in Ophthalmology_Kraushar_2008

expectations. For many patients anything less than a perfect result will be an unexpected event. Education of the patient regarding the fact that complications can and do happen will decrease expectations and achieve greater patient satisfaction with the eventual result. Realization of the possibility of a complication makes its occurrence less of a surprise. The patient will be less angry, and the risk of litigation will be reduced.

The Physician–Patient Relationship

Breakdown of the physician–patient relationship is a sine qua non for almost every case of medical malpractice litigation. Patients do not visit the medical office with the intention of suing. Rather, they come with the hope of being cured. There is something that the physician does or fails to do during the course of treatment that makes the patient consider a lawsuit. The establishment and continued nurturing of the physician–patient relationship can overcome almost any problem that arises. The optimal means by which to accomplish this is to establish a feeling of collaboration with the patient through shared decision making.1 Understanding, caring, and compassion for the patient must be evident in the demeanor of everyone in the physician’s office. “A patient who cannot find a physician who will listen can probably find an attorney who will. As the physician–patient relationship falters, the attorney–client grows.”2

It is not rare for a patient consulting an attorney in regard to a possible lawsuit to be so fond of the treating physician whose care may have been negligent that he or she asks that the suit be directed only against anyone else who participated in the care. A classic example of good “bedside manners” is an internist I encountered during my internship who was widely regarded as greatly deficient in medical knowledge and skills. His practice was very large, and his patients revered him. During my emergency room rotation I assisted a resident for 2 hours just after midnight in stabilizing one of this physician’s patients who was on the verge of exsanguination from a ruptured esophageal varix. At 3:00 AM the physician, who had avoided appearing, called the emergency room and was brought up to date by the resident. Fifteen minutes later he entered through the back door, removed his jacket, loosened his tie, and rolled up his shirtsleeves. He went into the writing room and told the family, “We saved her.” I am certain the family never forgot this experience.

Patients tend to be quick to forgive if they feel the physician cares. A superbly qualified ophthalmologist colleague of mine has built a successful practice and has the firm belief that, “Ya gotta make ‘em love ya.” The optimal aim of every patient encounter is to make the patients so pleased with their management that they will refer another patient to you. The means by which to accomplish a good relationship is part of the presentation of every successful practice management consultant. It basically relies on good communication. An excellent example is a study3 in which physicians were divided into two groups and asked to solicit the chief complaint of a new patient. One group was instructed not to interrupt the patient until he or she finished responding. Seventy percent of these patients took less than a minute to complete their statement. Seventy-seven percent of the patients in the other group were

against you in court?” There are countless stories of physicians whose court testimony was impeached by a contradiction in the medical record.

Conversely, an accurate and complete medical record is not only a strong defense strategy, it is also a very powerful risk prevention tool for the physician. The keys to good documentation are legibility, consistency, completeness, accuracy, and timeliness. Medical records tell a lot about the person who produced them. A thorough, organized, neat record indicates that the physician and his or her treatment are also thorough and organized.7 During the prelawsuit activities (see Chapter 6), before an attorney decides whether to accept a case, he or she will go over the written materials and will pay attention to the smallest details. So also will the physician who is selected as the expert witness for the plaintiff. If the attorney or the expert can find anything in the records that appears to be an error, he or she will be encouraged to go pursue the claim. If there is any deviation from an uncomplicated, perfect course and the exculpatory facts have been clearly noted, it will tend to discourage the initiation of a lawsuit. If a diagnosis has been missed and the appropriate facts are clearly present to excuse the mistake, litigation is far less likely to occur. The bottom line is to consider the questions, “Whom am I trying to convince?” and “How will this look to a jury or a plaintiff’s expert?”

A typical example is the allegation of a missed retinal break. Because the standard of care requires only that the physician perform as well as the average physician in his or her circumstance, mistakes are permissible provided that the appropriate means were used to avoid them. Therefore, a retina drawing showing that the ocular fundus was examined is essential to include for support. Evidence that the anterior vitreous was examined for the presence of retinal pigment is also helpful. It is also appropriate to indicate the patient was advised to return if the symptoms worsened. All of the above steps are exculpatory in the event of a missed retinal break, but merely telling a jury you did the examination is usually insufficient. Juries tend to believe, “If it isn’t written in the chart, it wasn’t done.” This also applies to including pertinent negative findings. An example is failing to include denial of symptoms of cranial arteritis by an elderly patient with a central retinal artery obstruction. If the patient actually has the disease and suffers additional problems because of delay or failure to treat, a jury will not be favorably impressed by the physician’s explanation that he or she does not record pertinent negatives.

One of the first documents the expert will read if there is a surgical problem is the operative report, which is the bottom line as far as evidence is concerned in a lawsuit involving surgery. The operative report should be dictated within 24 hours, because, if it is dictated a significant time after the operation, it may give the appearance of being contrived. When dictating the report the physician must anticipate it will be read by an expert in the same specialty. Therefore, it is essential that if a complication occurs the operative report must include information to show that the appropriate steps were taken to avoid the complication, the complication was diagnosed in a timely manner, and the complication was managed appropriately. This information can be essential in preventing or defending a lawsuit.

Documentation that is also contemporaneous is a very strong defense. An ophthalmologist does an intravenous fluorescein angiogram on a patient at 2 PM. That

evening the patient’s wife calls while the doctor is at the arena watching a basketball game and reports that her husband has chest pain, shortness of breath, and pain radiating to the left arm and asks whether it is related to the angiogram. The ophthalmologist says it sounds like a heart attack and tells the wife to call the emergency squad as soon as possible. The doctor forgets about the call and makes no note of the conversation in the office record the next day. The patient actually refused to call the emergency squad, remained at home, and died 12 hours later. A lawsuit for wrongful death followed in which the patient’s wife claimed the ophthalmologist had never suggested the possibility of a heart condition and said it was probably a transient reaction to the angiogram. The ophthalmologist eventually settled the claim. A note in the medical record entered the morning after the phone call would have been difficult to refute. Similar precautions should be taken when the ophthalmologist is on call for other physicians.

I have encountered the following scenario on several occasions. An ophthalmologist performs uneventful cataract surgery and sees the patient on the first postoperative day. The corrected vision is 20/30, and everything looks fine. Two nights later, the patient calls after office hours with vague symptoms of mild discomfort and an itching feeling around the eye. The cataract surgeon (or a covering on-call ophthalmologist) decides it is not endophthalmitis and tells the patient to go to the office the first thing in the morning. On examination the next morning there is clearly endophthalmitis, and after appropriate treatment the best corrected vision is hand motions. Several weeks later the ophthalmologist (surgeon or covering ophthalmologist) writes a long note describing the questions he asked the patient during the evening phone call along with the patient’s responses, which he now adds to the chart as exculpatory evidence. This document, written long after the event, will certainly make a different impression on a jury than if it had been written in the record during or immediately after the examination the morning following the phone conversation.

In my experience, the above scenario occurs more frequently in lawsuits involving the covering on-call physician than the operating surgeon. This may be because of unfamiliarity with the patient or the fact that we may on occasion be less concerned with the patients of others than with our own. When covering the practice of other physicians, it goes without saying that we should be as diligent as we would be with our own patients. To this end it is a good idea to keep a dedicated file of on-call encounters with patients of other physicians wherein information such as disposition of phone call messages and their contents are stored. It is good medical practice to entrust the care of your patients during your absence to only those physicians whom you know to be caring and competent.

Alteration of records can be the most damaging evidence possible to the defense of litigation. Some malpractice insurance policies include a stipulation that alteration of the record may be grounds for the company to revoke responsibility for coverage of the insured. Analysis of ink, paper, watermarks, and so forth can enable an expert in document analysis to detect that part or all of a record was rewritten. If review of the record indicates there is an inaccuracy or omission, the best way to manage it is to draw a line through the problematic part of the chart in such a manner as to maintain

the legibility of the original material and add the changes with the date of the change and the writer’s initials. Corrections of hospital chart entries by house staff, nurses, and other staff should be made as a separate dated note. Adding a change in the margin even though it is signed and dated can appear suspicious.

Even the most minimal alteration of a medical record can cause a problem. A cataract surgeon operated on the eye of a patient with bilateral cornea guttata and brunescent cataracts. The patient was properly informed of the risk of postoperative corneal decompensation. The surgeon dictated the operative note as if everything went perfectly with no problems, when in fact the phacoemulsification time was greatly prolonged. The recovery room record showed the patient did not arrive until 1 hour and 15 minutes after the surgery started. In the anesthesia record one digit of the time when the operation was completed was altered in an obvious manner to indicate the surgery took 15 minutes instead of over an hour. The patient eventually developed bullous keratopathy, and the surgeon wrote in the office record that it was “probably due to the prolonged phaco time.” An eventual corneal transplant was unsuccessful. Approximately 1 year later the patient contacted an attorney to investigate the possibility of negligent surgery. The combination of the “perfect surgical procedure” in the operative note plus the office record note of “prolonged phaco time” in addition to the altered time of the duration of the surgery appeared suspicious to the ophthalmologist who was retained as a plaintiff expert. The statute of limitations was about to expire, so the attorney, after getting a “certificate of merit” from the expert, instituted a lawsuit to protect the patient’s right to sue. After reviewing all the documents and deposition testimony the plaintiff’s expert found no negligence and the claim was dropped. The process cost the physician’s insurance company money for in-office expenses (secretarial, attorney, medical expert, etc.). The claim was added to the physician’s record, and the cost of his subsequent premiums was raised significantly.

Identifying and Managing the Litigious Patient

There is no accurate demographic profile of those patients who are likely to sue. One study8 indicated that attorneys are 10 times more likely to sue than the general population. Unfortunately, there is a mythical profile suggesting that patients who are chronic complainers, poorly compliant, and/or cynical or angry are more likely to sue.9 Although these patients can be more of a challenge to manage, studies have shown that they are no more likely to sue. However, according to Bradford,10

[If] a new patient looks like trouble, the best strategy is to tell him that you and he are not a good match and he’d best be served by another physician. Once you embark on a treatment plan it will become much more difficult to terminate him later on even if you do it by the book.

Even the most loyal-appearing patients sue. An example is a young physician’s widow with no insurance who was treated gratis for years and who bought the ophthalmologist a tie every Christmas. After developing a postoperative pseudophakic retinal detachment, she initiated a nonmeritorious lawsuit.

situation is available, it is usually difficult to make a fair judgment of the treatment rendered. The criterion to which an expert witness is held is whether he or she can make a decision “within reasonable medical probability.” In this situation a dispassionate review of the available facts is essential. If it appears likely that the treatment was appropriate, the second ophthalmologist has a unique opportunity for risk prevention. He or she can reinforce the “treating physician–patient relationship” by saying something such as, “I would have done it the same way.” It may be appropriate to repeat all or part of the informed consent discussion as it applies to the treatment rendered. In this manner the patient’s anxiety and resentment toward the treating physician can be resolved and possible litigation avoided.

References

1.Saba GW, Wong ST, Schillinger D, et al. Shared decision making and the experience of partnership in primary care. Ann Fam Med 2006;4:56–62.

2.Kraushar MF. Practical and philosophical considerations of the physician–patient relationship. Ann Ophthalmol 1987;19:83–84.

3.Beckman HB, Frankel RM. The effect of physician behavior in the collection of data. Ann Intern Med 1984;101:692–696.

4.Frankel RM, Morse DS, Suchman A, Bechmen HD. Can I really improve my listening skills with only 15 minutes to see my patients? HMO Pract 1991;5:114–120.

5.Jacobsen HL, Tucker RD. How to defend yourself in an ophthalmic malpractice suit. Arch Ophthalmol 1985;103:1793–1794.

6.Bradford EW. Big mouths cause malpractice suits. Med Econ 1986;3:310–313.

7.Alton WG. Malpractice: A Trial Lawyer’s Advice for Physicians. Boston: Little, Brown & Co.; 1977:60.

8.Kraushar MF. Medical malpractice experiences of vitreoretinal specialists. Retina 2003;23:523–529.

9.Kraushar MF. Recognizing and managing the litigious patient. Surv Ophthalmol 1992;37:54–56.

10.Bradford EW. Can you spot potential plaintiffs? Med Economics December 16, 2005:62–68.

Ordinary Courtesies

To avoid or mollify offense, an apology may be appropriate in many patient encounters. Common examples are apologies for a prolonged waiting time at an appointment, addressing a patient by his or her Christian name rather than surname, failing to allow a patient to complete a statement, and forgetting to fully and clearly explain a diagnosis and treatment plan.

Circumstances become more complicated and threatening when there is patient dissatisfaction or mistrust and the feeling that a mistake in medical or surgical judgment may have been committed. Many physicians have a self-image of invincibility and devotion to perfectionism that renders a suspicion or admission of fallibility difficult or unachievable.1 Furthermore, physicians have an understandable tendency to resist both disclosure and apology because of the fear of potential litigation or of being reported by the patient to the hospital or to the state board of medical examiners.1

Gravity of the Offense

An error in evaluation and treatment must be distinguished from an unfortunate result. Failure of treatment in complicated situations or diseases with a low expectation of improvement or cure is ordinarily not considered an offense requiring an apology.1 An unfavorable outcome often creates a feeling of guilt in the physician; however, consolation rather than an apology is a more appropriate response.

Prevention of Risk

If disclosure to the patient is to be made, it should be done as soon as possible after the occurrence for which it is required. The physician having the greatest rapport with the patient and family should be the spokesperson. Complete information should be provided along with plans for further analysis and treatment.

Additional assurances that plans have been made to prevent recurrence of adverse events are also advisable. Many failures occur because of a defect in systems or processes. The responsible people must attempt to correct errors and if necessary initiate changes in procedures to preclude similar mistakes in the future.

The patient and family should be advised as the situation evolves. Complete honesty is important because the patient’s medical records are available to him or her and to involved attorneys. Statements made to a patient may be discoverable in a lawsuit, and care must be taken that the statements made are objective and factual.