After 40 years in practice, I have yet to meet the doctor who intentionally sets out to commit malpractice. In fact, it’s quite the reverse—we try to do our best to take care of our patients and practice to the best of our ability.
Unfortunately, the reality is that we all make mistakes. But, we can absolutely minimize our risk exposure and better serve our patients, ourselves and our practices by following some basic precautionary steps.
Here are some of the most common do’s and don’ts that we may encounter in daily practice. (One thing we should be sure to do: “Always write it down!”)
Don’t simply record “no changes.” Your patient is always a new patient, even if you have been seeing him or her for years. It’s so easy to simply state “no changes” in the record, whether it’s history, pharmacological agents, patient health or even visual exam findings.
But don’t assume that the information obtained in the electronic record is complete or sufficient. Don’t clone your records (either paper or EHR). You need to identify and show that you have reviewed each element in the record.
• Do: Ask every question every time and perform every pertinent or relevant test every time. You have a duty to use your knowledge and assimilate additional information through testing and questioning when appropriate.
Don’t ask, ‘Everything OK?’ If you only record changes that the patient reports, or you ask if everything is still the same, you may not get an informative answer. When you’re not specific in your questioning, patients forget or automatically answer in the affirmative.
Never assume that you know your patient so well that you don’t have to question them. Not only does technology change, so do your patients needs, lifestyle, hobbies and environment. This year they may benefit from a bifocal contact lens, refractive surgery, sports protection, cataract removal, updated sun protection, a computer prescription or a supplemental pair of reading glasses. If you don’t ask, patients are less likely to mention these things or even know they could benefit. Furthermore, you may be the one person who diagnoses their diabetes, their life- or sight-threatening tumor, macular degeneration or other concern.
• Do: Ask, investigate and document. Never forget that you are charged to care for the entire patient. You have a duty to investigate and to prescribe or refer appropriately.
Also, if you fail to document what you’ve done, it’s as if you didn’t even do that component.
Don’t give a patient short shrift. Sometimes we’re so rushed that we occasionally forget to perform a test, ask for follow-up, record our findings and a million other details. When you are busy, it’s easy to overlook a needle in a haystack, unless you look very carefully. Similarly, if you omit essential testing, then a serious error can occur when following up with the patient.
An omission is more likely to occur with patients seen on a regular basis, like contact lens fits, glaucoma or diabetic patient visits. Because these patients may require more visits, it’s easy to overlook the need to perform the patient’s annual wellness or medical visual examination. Just because he or she is your regular contact lens patient doesn’t allow you the luxury of skipping or forgetting the routine or regular examination procedures. Although it can be tempting to curtail or even omit pertinent charting information, it is critical to note some findings and questions every time you see your patient.
• Do: Give every patient 100% of your time and knowledge. Neglecting to pay attention to detail or to compare examination findings on repeated visits can easily result in missed information or misdiagnosis, or even patient injury. Pre-appoint patients to maintain more effective control over their visual health and minimize the potential for overlooking their other visual needs and requirements. If this isn’t part of your protocol, start to make it your standard of care.
Don’t rest on your laurels. As a practitioner, you have a legal ‘Duty of Due Care’ that you must meet. That duty entails maintaining your education, improving your professional knowledge, updating obsolete equipment and even expanding your treatment as your scope of practice changes.
As professional opportunities increase and technology improves, make certain you keep pace. Weigh the benefits of new purchases and patient care. If you haven’t changed the way you practice in 10 years, you’re probably playing Russian roulette with your license. If your equipment is out of date or obsolete, it’s time to consider upgrading.
• Do: Take stock of the way you practice, the licensure level in your state and your equipment purchases to make certain you’re practicing at an appropriate level of care. Remember that different instruments purporting to test the same thing are not necessarily comparable, so do your homework prior to purchasing.
Take care in extolling your expertise. You may consider yourself a specialist, but along with that designation comes increased responsibility and risk. Depending on your state law, you may be limited to how you advertise your expertise. For instance, you may be a corneal and contact lens specialist, or limit your practice to contact lenses, or have an emphasis on contact lenses. How you phrase it depends on your state laws. If in doubt, check with your state board. If you elect to restrict your practice to a specific area, you may be held to the higher standard of an expert.
• Do: Make certain you comply with your state board rules and regulations regarding how you advertise your practice and your level of competency.
Don’t be inconsistent with care. Even if you are current in your profession, you may not be practicing at the level you should. Industry standards are constantly in a state of flux, but may not be in sync with instrumentation capabilities. For example, if dilation is the standard, the fact is that not every patient requires dilation nor may they require dilation at every visit. Professional judgment is critical when assessing tests that need to be performed and how frequently. You may have a non-mydriatic camera that works very well for most patients, allowing you to selectively dilate patients. You may elect to schedule dilations on follow-up medical examinations rather than at initial wellness visits.
• Do: Make certain that you have a standard of care for your patients in place, including when further testing is needed.
Don’t get mired in referral follow-up. We all know that we have an obligation to follow up with our patients for consultations, for referrals to fellow health care practitioners or colleagues, for comanagement of patients and to make certain that other practitioners (including primary care physicians and school nurses) are kept informed about our findings. (Not to be overlooked is the necessity of maintaining an effective patient recall system.)
While the patient may be under no obligation to return to you for care, or to actually see a fellow health care practitioner that you have referred him or her to, you have an obligation to care for your patient in a professional manner. Yet, this can be particularly frustrating when the practitioner you’ve referred your patient to refuses to keep you in the loop, return your patient to your care, disparages you or, even worse, refers your patient to another practitioner for care that you could easily and legally provide because you are not “in their network.”
When possible, make the appointment for your patient. If that’s not possible, and the patient must see their primary doctor for the referral, then empower the patient with this responsibility and to relay information to you after they’ve seen the specialist. Rather than faxing, e-mailing or snail-mailing a report or referral information to another practitioner, why not entrust that report to the patient to hand carry it to their primary care physician and the specialist you may actually want the patient to see (making certain to document what you are doing)?
Be sure to ask the patient to call you after the appointment and give you an update and report, which now should become part of the patient’s record. It’s easy to do and allows the patient to become an active part of the team.
• Do: Encourage your patients to become active in their care, even when you’re confident that you’ll receive a report back from other health care practitioners. Consider pre-appointing patients to ensure ongoing and continuation of both medical and wellness vision care in your office, making certain that you explain why you want to see that patient at the designated time.
Don’t neglect proper coding and billing procedures. Billing and coding is a dreadful yet necessary and changing part of our practice that needs updating on an annual basis. If you aren’t up to snuff on the latest information, it’s time to get current. When patients come into your office, be sure that you (or your staff) obtain all information on both their vision care and medical insurance. Doing so will help aid your coding, billing and referral practices.
• Do: Review and update your knowledge of billing and coding related to your practice and your area of emphasis.
Don’t be abrupt, rude or uncommunicative. Avoiding malpractice starts with the initial patient contact. So, the first time you see a patient, establish the rapport that you want to be part of a lasting relationship. Introduce yourself, find out what the patient wants to be called and how to pronounce their name, explain what you are doing and what you are finding, recap what has happened and what your recommendations are, and don't forget to ask your patient if they have any questions that you haven’t answered.
• Do: Treat patients the way you’d want to be treated. In general, people don’t sue people they like. When patients feel that you care about them, they tend to be more open with you, more forthcoming with information, and less likely to initiate litigation. If you make a mistake, admit it—and do your best to remedy it.
Don’t hide behind your staff. Remember that your staff is an extension of you—so any act that they perform (or refrain from performing) within the scope of their job can and will be imputed to you under the theory of respondeat superior (which is Latin for “let the master answer” and legalese for “the buck stops with the boss”). So, continue to educate your staff as well as yourself in the “care and feeding” of your patients.
• Do: Educate yourself, your staff and your patients, and don’t forget to document what you have done.
Although it’s discouraging to have to think about the medicolegal pitfalls of practice, it truly is important to at least re-visit these issues and potential areas of concern on a regular basis. And, when you have a specialty, like cornea and contact lenses, it is particularly important to remember to return to the basics to protect your practice and yourself, while fulfilling your daily commitment to caring for your patients.
Last but not least: Remember that if you don’t document it, then the question, education, test or procedure essentially never happened.
Dr. Miller is in private practice in Highland, Calif., and works as a practice management consultant and expert witness. She lectures and publishes extensively and has
written seven books.