Ординатура / Офтальмология / Английские материалы / Risk Prevention in Ophthalmology_Kraushar_2008
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Part 3 Personal and Business Considerations
Chapter 23 Physician and Defendant: Living and
Coping with a Double Life . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Sara Charles
Chapter 24 Medical Malpractice Insurance: Selection
of Companies and Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Eric S. Poe
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
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Contributors
Devron H. Char, MD
Clinical Professor of Ophthalmology, Stanford University School of Medicine, Director, The Tumor Foundation, San Francisco, CA, USA
Sara Charles, MD
Professor of Psychiatry, Emerita, University of Illinois School of Medicine, Chicago, IL, USA
David S. Cramp
Judge of the Superior Court, Trenton, NJ, USA
C. Stephen Foster, MD, FACS, FACR
Clinical Professor of Ophthalmology, Harvard Medical School, Cambridge, MA, USA
E. Burke Giblin, Esq.
Certified Civil Trial Attorney, Supreme Court of New Jersey, Morristown, NJ, USA
Lee S. Goldsmith, MD, JD
Goldsmith, Richman & Harz, LLP, Englewood Cliffs, NJ, USA
Stephen A. Kamenetzky, MD
Clinical Professor of Ophthalmology and Visual Sciences, Washington University School of Medicine, St. Louis, MO, USA
Marvin F. Kraushar, MD
Clinical Professor of Ophthalmology, University of Medicine and Dentistry of New Jersey, Newark, NJ; Clinical Associate Professor of Ophthalmology, The Mount Sinai School of Medicine, New York, NY, USA
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Contributors |
Peter R. Laibson, MD
Professor of Ophthalmology, Thomas Jefferson University of Medicine, Philadelphia, PA; Attending Surgeon and Director Emeritus Cornea Service, Wills Eye Hospital, Philadelphia, PA, USA
Simon K. Law, MD, PharmD
Associate Professor of Ophthalmology, Jules Stein Eye Institute, David Geffen School of Medicine, UCLA, Los Angeles, CA, USA
Andrew G. Lee, MD
Professor of Ophthalmology, Neurology and Neurosurgery, University of Iowa Hospitals and Clinics, Iowa City, IA, USA
Paul P. Lee, MD, JD
James P. Gill, III, M.D., and Joy Gillis Professor of Ophthalmology, Department of Ophthalmology, Duke University Eye Center,
Duke University School of Medicine, Durham, NC, USA
Anne M. Menke, RN, PhD
Risk Manager, Ophthalmic Mutual Insurance Company, San Francisco, CA, USA
Peter H. Morse, MD
Clinical Professor of Surgery, Department of Ophthalmology, Sanford School of Medicine, University of South Dakota, Sioux Falls, SD, USA
Tanuj Nakra, MD
Visiting Assistant Professor of Ophthalmology, Division of Orbital and Ophthalmic Plastic Surgery, Jules Stein Eye Institute,
David Geffen School of Medicine, UCLA, Los Angeles, CA, USA
Eric S. Poe, Esq., CPA, JD
Vice President of Marketing & Business Development, New Jersey PURE, Princeton, NJ, USA
Edward L. Raab, MD, JD
Professor of Ophthalmology, Professor of Pediatrics, The Mount Sinai School of Medicine, New York, NY, USA
James J. Salz, MD
Clinical Professor of Ophthalmology, University of Southern California, Los Angeles, CA, USA
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Robert F. Sanke, MD, JD
Clinical Associate Professor of Ophthalmology, University of North Dakota, Trinity Medical Center, Minot, ND, USA
Norman Shorr, MD
Clinical Professor of Ophthalmology, Director, Fellowship in Orbital and Ophthalmic Plastic Surgery, Jules Stein Eye Institute,
David Geffen School of Medicine, UCLA, Los Angeles, CA, USA
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Part 1
General Considerations
Chapter 1
Basic Medical Malpractice Terminology
Marvin F. Kraushar
Introduction
There are several basic terms and phrases that bear on the process of medical malpractice litigation. Familiarization with them will facilitate the understanding of the development and conduct of a lawsuit.
Standard of Care
Physicians are expected to provide care that falls within a certain level of quality. This level is referred to as the standard of care. The standard is defined as that level of care provided by the average physician in the same specialty, in the same community, during the same period of time. This definition can cause a false sense of security for the physician who may mistakenly feel comfortable in being compared to the “average” physician and not to the “best” physician. The phrase “average physician” is a nebulous concept and does not truly refer to the physician in the 50th percentile. In fact, it refers to practically every physician because practically all medical care is within the accepted standard. Generally, the law recognizes that medicine is not an exact science. A poor result may occur even though the physician followed the accepted standard of care. Therefore, whether the doctor was negligent is not determined solely by the outcome but by whether he or she followed the accepted standard of care. By this standard, missing a retinal break in a symptomatic patient may not constitute negligence if the jury concludes that the doctor’s evaluation met the standard of care. Nonetheless, it is essential that the appropriate method for detecting the break, namely, performing a dilated fundus examination, was used and that the physician has the appropriate level of expertise with the instruments in order for the care to be within the “standard.” The community is usually the entire country now that dissemination of knowledge is widespread and basic equipment is readily available.
The standard of care is not always a firm, black and white concept. It is defined for the jury by the experts for the plaintiff and the defense, and this is often accomplished by the selective presentation of information that is favorable to the side of the presenter.
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Both experts will review the same facts and come to diametrically opposed conclusions. It is commonly this testimony on which the jurors, who typically have no knowledge of their own regarding the facts, will depend during deliberations. The bottom line is that an error by a physician may be excusable provided he or she made a competent attempt to do the right thing.
Tort
A tort is a private or civil wrongful act as opposed to a public or criminal wrongful act. The law seeks to restore the injured party to the status he or she enjoyed prior to the injury. Because the injured or lost body part cannot be completely physically restored, the manner of restitution (making the plaintiff whole) is in the form of compensatory damages (monetary indemnification).
Negligence
Negligence is the tort of an unintentional act or omission. The level of care that “breaches” or falls below the standard of care is judged negligent. Negligence occurs when the physician does or fails to do something that the average physician in the same specialty under the same circumstances would not have done or failed to do and has thus “deviated from,” “breached,” or “fallen below” the standard of care. Negligence in and of itself does not constitute malpractice unless it is the proximate cause of an injury suffered by the patient (see next section).
Proximate Cause
To prevail in a medical malpractice lawsuit, the plaintiff has the burden of proving he or she suffered an injury that was caused by the physician’s negligence. This is the concept of proximate cause. When an ophthalmologist fails to use povidone iodine prior to cataract surgery and endophthalmitis occurs, it is reasonable to assume there was negligence that was a substantial factor in the causation of an injury to the patient. These facts meet the criteria for the determination of medical malpractice. Failure to use povidone iodine is a deviation from the standard of care that increased the risk of infection. Suppose an ophthalmologist fails to use povidone iodine prior to cataract surgery that is uneventful and uncomplicated. Suppose further that endophthalmitis does not develop, but 3 weeks following surgery a rhegmatogenous retinal detachment occurs. The surgeon was negligent in failing to use povidone iodine and there was an injury suffered by the patient, but the negligence was not the proximate cause of the retinal detachment. These facts would not meet the criteria for medical malpractice. A final
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example is that of an ophthalmologist who fails to use povidone iodine prior to cataract surgery that is uncomplicated and no postoperative complication occurs. The ophthalmologist deviated from the standard of care and was thus negligent, but there was no injury suffered by the patient and thus there was no medical malpractice.
Allegations
When a patient initiates a lawsuit, he or she alleges deviations by the physician from the standard of care. The allegations are failure or delay in diagnosis, failure or delay in treatment, negligent treatment, and/or problems relating to informed consent. The plaintiff alleges that one or more of these deviations from the standard of care decreased the chance for a more favorable result. This “doctrine of loss of chance” is the basis of lawsuits in most jurisdictions.
Maloccurrence
Maloccurrence is not a legal term. It is often used by physicians to describe “what went wrong” as bad luck and not the result of malpractice.
Medical Misadventure
Medical misadventure is a nonmedical and nonlegal term used by insurance companies to describe “what went wrong” in the management of a patient.
Respected Minority
The type of treatment rendered to a patient need not be the choice of most physicians in the same specialty in order to be within the standard of care. However, the care rendered must be respected as a reasonable alternative by at least a substantial minority of colleagues.
Vicarious Liability
Physicians can be sued because of responsibility for the acts of someone else. The obvious example is the negligence of a nurse/technician, fellow, and so forth, employed in the physician’s office. Lawsuits have been brought against ophthalmologists who
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caused injuries to patients in the operating room by using improper medications without checking to see whether the nurse gave the physician the correct medication. Retinal toxicity caused by too high a concentration of an intravitreal antibiotic during pars plana vitrectomy for endophthalmitis would be the responsibility of the pharmacist and the hospital for whom he or she works. The surgeon would most likely be named in the lawsuit initially.
The performance of a “covering physician” is of paramount importance. It is essential that whoever sees a physician’s patients in his or her absence is competent and responsible. This applies to those persons over whom we have some control (partners, fellows, etc.) and thus for whose negligence we may have legal responsibility and also to those persons over whom we have little or no control (house staff, colleagues, etc.) and for whose negligence we are not legally responsible. Conversely, we must treat the patients of other physicians as we would treat our own. Make sure to document the facts of phone calls from patients of those physicians for whom you are covering and pass along the appropriate information the next day. Create a separate dedicated file in which you keep this information as well as the documentation that you transmitted it. This will be powerful exculpatory evidence if you are eventually named in a lawsuit.