1. Prevention of Medical Errors EyeMed 2019
Brian P. Den Beste
O.D., F.A.A.O.

2. Purpose
In response to Institute of Medicine report, November which reported “hidden epidemic in the US”
May 8th 2002… rule was added to statutes to reduce risk and increase public safety
64B (8) mandates a 2 hr. course for licensure and renewal of licensure.

3. Today’s To Do List Statistics Root cause analysis
Review ways to minimize errors
Discuss the legal process of medical malpractice.
Cases and Optometry

4. Medical Error : defined
“A preventable adverse event”
System deficiencies the complexity of medicine, vulnerable defense and human fallibility.

5. New England JOM January 2017
Hospital medical errors are the 3rd leading cause of death in the US, behind Cardiovascular disease and Cancer
700 deaths per day
9% of Surgeons believe they have made a major medical error in the previous 3 months…. 1.5% felt that it resulted in fatality
Article reiterated issues regarding MD depression self treatment.

6. Medical errors happen….JAMA
106,000 pts. die each yr. from neg. effects of meds.
80,000 pts. die each yr. from infections incurred in hospital
Total of 225,000 deaths each yr. due to medical negligence of some nature.

7. 20 Tips to Prevent Medical Errors.
Agency for Health Care, Research and Quality (AHRQ) …..August, 2018
Make sure your Drs. know all your meds and allergies
Can you read their writing on your RX
Anyone that is about to examine you…ask them if they have washed their hands. Pretty daring I would say.

8. Types of Medical Errors
Diagnostic
Treatment/ Medication
Performance ( wrong-site surgery)
Communication

9. Factors that play a role in medical errors
Fatigue
Alcohol and drugs
Distractions: patient, babies, cellphones
New to the office….”fill in Drs”
EMR….not sure how to record findings or instructions.
Subjecting medical errors to root cause analysis is an inherent risk management practice

10. More Factors that Contribute
Highly complicated technologies
Time pressured environment
Communication barriers between staff, and or patients.

11. Root Cause Analysis (RCA)
The “whys technique”: A great tool to use in practice to determine why an error in patient care was made.
What happened, Why did it happen and what do you do to prevent it from happening again.
In a hospital setting it will involve multiple disciplines and has a strict requirement of impartiality

12. Reporting of errors
For fear of punishment, and loss of licensure, reporting of incidents is definitely less than it should be
National Practitioner Data Bank contains a lot of info on Drs. and mal practice. But the mal practice data….now called Medical professional liability (MPL) is only listed on claims paid.

13. Consumer Reports.
May 2016

14. Consumer Reports
Entire article emphasized how hard it is for consumers to find out if their Dr. had been reprimanded , is on probation, or had been sued.
AMA lobbies to keep this info closed as “ inherently flawed”

15. National Practitioner Data Bank
1.25 million doctors have practiced in US since 1990 (start of the bank )
192,000 (15%) have had at least one Malpractice Payout.
50,000 reprimanded by their state boards.
Consumer reports mag May 2016

16. National Data Bank
Less than 2% of the Drs. Accounted for 50% of the malpractice payouts since 1990
$85, 064, 857, 850 paid out since 1990
85 Billion dollars in 25 yrs billion per year !!!
Despite those numbers, the take home from the article = hard to stop bad Drs. From practicing.

17. Medscape Mal Practice Report 2015
4,000 MDs were surveyed
OB- Gyns, Most likely to be sued
Psychiatrists and pediatricians least likely
Males 2 ½ times more likely to be sued than Females
85% of OBs, 83% general surgeons, 79% orthopods admit to being sued.

18. 2 ½ times more likely

19. Medscape 2015 &2017
70% said they were surprised when they received their letter of being sued.
Only 20 % of those surveyed went to trial
40% said their lawsuit was dismissed
32% reached a settlement
50% of cases no award, 20% under 100K 29% over 100K 7.6% over a million.
mean claim 350K
Polle 4000 drs in to get this data they all reiterated be prepared for the trial and depo

20. 17 Yr. Malpractice Data 9/1990 - 3/ 2008 MD 232,727 DO 14,733
9/ / 2008
MD 232,727
DO 14,733
Dentists 40,261
Podiatrists 6,618
OD 580

21. Malpractice payments by ODs: an Analysis of the Natl
Malpractice payments by ODs: an Analysis of the Natl. Provider Data Bank. Optometry:Jan/2011
Article by Duszak and Duszak
18 yrs. Of malpractice data from National Provider Data Bank (NPDB)
Analysis of payouts by insurance companies for settlements or judgments

22. Duszak cont Ave number of payouts per yr. 30-40
34,800 ODs so 1/1000 chance of payment per annum
98 %of payments negotiated out of court….if you go to court you usually win…because the defense usually decides which cases to try or settle.
Mean payout of $190K
Optometry accounted for .14% of all payouts

23. Duszak cont. 11 States accounted for more than half of the cases
Florida number 1 with almost 8% of the total.
Followed by PA,CA, NY , OK, TX, IL, NM, LA and OH.
Florida has some orals but no injectable

24. Duszak
Over 55% of cases were failure to diagnose, delay in diagnosis, or wrong diagnosis.
Not wrong treatment
Despite increased privileges and co-management successful lawsuits against ODs remain infrequent over the past 2 decades
The data does not show dismissed or dropped lawsuits or verdicts in the OD’s favor
Another large study for all of medicine 32% diagnosis.

25. Review of Ophthalmology Medical Professional Liability Claims In US Blue ophth Journal 2018
Data obtained from Physician Insurers Assoc of America (PIAA)
Medical professional liability MPL…new terms for medical mal practice
Great data: as it includes cases that resulted in no payout unlike the data bank
Negative: OMIC , largest Ophth insurer is a member but doesn’t contribute data.

26. 10 yr data PIAA Ophtho: approx 2.5% of claims . #10 on the list
24% of claims resulted in payout
2/3rd of claims were dismissed , withdrawn
Cataract and Cornea related issues most common 50% of cases
Ave payout $250 K
90 % that went to trial won.

27. 10 yr data cont Ophtho ranked 12th OB and gyno #1 Internal med #2
General Surgery #3
Top 3 reasons for Ophth suits= Improper performance (29%), errors in DX, and Failure to recognize a complication of treatment (?DLK ectasia?) .
Cataract, Myopia, Retinal detach and Glauc.

28. How are our odds in the future?

29. States That Ods can Perform Minor SX (8)AK KY LA NE NM OK OR TN

30. States that allow Laser TxOK LA KY

31. States that Allow injectable Drugs for Diag and Tx (8)ID MT NC ND UT VA WV WI

32. Risk Management Defined
IN context of medical profession defined as those measures designed to prevent medical error, reduce adverse events , improve patient safety and avoid medical malpractice claims
IN context of medical malpractice, risk management is managing the risk of litigation.

33. What is Medical Malpractice?
You just experienced a bad result. The corneal ulcer that you had been treating for the past month is now quiet but the patient’s best vision is now 20/40.
The reality is a lot of lawsuits don’t have merit. A lot are due to a bad result, not bad doctoring.

34. Kissimmee gator farm 1926

35. Law 101
You receive a letter from a plaintiff’s attorney saying they are intending to sue you, that means they have received your chart and have gotten another OD to sign a medical affidavit…….. Which means a like physician states that your care fell outside the std of care.
You then call your insurance co. and you are assigned an attorney and you have 90 days to respond

36. Med Mal ( medical professional liability)
The usual cause of action for a suit is Negligence.
The plaintiff has the burden of proof to establish 4 elements for a finding of negligence:

37. The 4 Element of Proving Negligence
1. Legal duty is established
2. Breach of duty or breach of the standard of care.
3. Causation. The breach of duty caused the injury
4. Damages. The injury caused an actual damage.

38. 1. Legal Duty Exists
This is typically established by the physician – Patient relationship. A chart was started.
This may occur even if you have never seen the patient! If you are giving advise to another Dr.’s patient that you are on call for.
A patient that you saw only once when your colleague went on vacation.
Your partner’s patient that you came in the room to see….for a moment
Glaucoma patient that later sues your colleague hegland on call for tube

40. 2. Breach of Duty
Once the legal duty is determined by the court or jury, the plaintiff must prove that a breach of duty has occurred, more commonly referred to as a deviation from the standard of care.

41. Standard of Care
It requires a physician to exercise the degree of knowledge and care ordinarily possessed and exercised by other members of the profession acting under similar conditions and circumstances.
AoA practice guidelines are useful
Could you culture an infectious ulcer at the homeless clinic?

42. Breach of duty The breach may be a failure to diagnose
Delay in diagnosis
Improper treatment
Failure to obtain informed consent
And/or substandard care

43. To prove a breach std of care:
Expert witnesses are used
These are typically in the same specialty .

44. 3. Causation
The plaintiff has to prove that your actions caused a problem…usually loss of vision
Example: You treated someone for an abrasion, but you didn’t dilate the patient, later the patient went on to lose vision from RP. Your lack of dilation didn’t change the patient’s visual course

45. 4. Damages The fourth element the plaintiff must prove
“The corneal ulcer is causing the patient to not see “
Recent case I was involved in included surveillance of the plaintiff….malingering
The measure of damages is the amount that will compensate for the injury
Compensatory damages are divided into economic and non- economic damages.

46. Economic Damages Loss of wages… present and future
Medical expenses….past , present and future

47. Non-Economic Damages Very subjective: Pain Physical impairment
Mental suffering, inconvenience
Loss of companionship, humiliation
Limited in California to 250K

48. June 2017
Florida Supreme Court on Thursday ruled that a law limiting pain-and-suffering damages in medical malpractice cases is unconstitutional, rejecting a controversial change that the Legislature and then-Gov. Jeb Bush approved in 2003. .

49. Deposition Be prepared Have legal representation
Short answers, the plaintiff attorney, loves a conversation
Do not educate the plaintiff ( they may not know what to ask)
Do not argue
What is said in depo is what is used in court, you have a chance to read and revise.

50. Affirmative Defenses
1. Statute of limitations. Failure by the plaintiff to commence with action within the time limits set by the jurisdiction where the case is being brought. 2 yrs. in Fl.
2. Contributory or Comparative negligence: conduct by the plaintiff that falls below the std expected of a person for self- protection.

52. Communication is the Key Risk Management Tool
Poor communication leads to : Diagnostic error Noncompliance Poor medical outcome And the increased likely hood of being sued Good communication prevents the erosion in the Patient –DR . relationship
Small pupil on oxycontin, did cat sx. Hisitory was of long standing loss of visiion.

53. Chair side manner
Coral Gables MD…. More complications than anyone but glib tongue and his patients thought he walked on water.
The skilled DR. with no charisma is more likely to be sued.
The patient that cries wolf often is annoying but can still have a new problem…. I have pain, I have floaters , I can’t see….

54. Best Advise Aaron Carroll report in NY Times. June 1 , 2015.
To be sued less, Doctors should consider talking to patients more. Patients do not liked to be rushed or talked down to.
Make good notes, if you change a chart, date and note
Don’t let ego get in your way of making a referral

55. Risk Management Plan- incident report
A written plan helps everyone…especially new employees be aware of your goal of excellence in eye care.
A template makes it easy to record exactly what occurred in case litigation ensues.
These reports do not go in patients file
Are used by healthcare providers and legal council
Not to be copied
Not to be mentioned in patients record.
To be kept by risk manager…typically you.

56. Types of incidents to consider
Errors in patient care. Wrong medication, wrong dose. A patient given Diamox and allergic to sulfa. Patient given Cefazolin with a known penicillin allergy.
Patient complaints
Development of unexpected complications. Treating POAG and gonio 2 yrs later reveal PAS or chronic angle closure. Following a cataract and 3-4 yrs later noting extreme optic n. cupping.
Equipment failure. ? Alger brush and fainting fellow that hits his head requiring referral for suture.

57. Rash Over Entire Body
Doxycycline 50 mg….. And I really loved the stuff my face looked amazing.

58. Damage Control See patient regularly
Explain what happened. You have a rash because the medicine is a relative to the one you are allergic to.
Avoid terms like mistake, error , apology
Better to express concern show compassion and do not hurry the individual.
Return phone calls to patient and guardian promptly
If lawyer contacts you or patient leaves your practice avoid speaking to the parties involved…your lawyer or mal-practice carrier then takes over.

59. Medical Malpractice Exposure Assessment
After hour instructions for contacting me are available by calling my office number
I meet regularly with my front desk reminding them of conditions that need to be seen that same day
Before sending a patient to collections for an outstanding balance, I review the patient’s chart
I am informed if a patient complains about their bill or requests a refund…or expresses unhappiness with my treatment

60. Exposure check list
Have a protocol for handling all requests for records
Medication. Prescriptions are not renewed without my approval
Patient examinations are chaperoned.
Patient phone calls are promptly returned

61. Most common Mal Practice
The vast majority of optometric malpractice lawsuits, often stemming from a failure to diagnose, fall into one of these five categories: 1. Glaucoma #1 in terms of frequency 2. Retinal detachment (most common triage
issue) Tumors ( more intracranial than intra-eye) Anterior segment…CL 25% Diabetic retinopathy
children tumor .. Amblyopia .largest payouts

62. Number 3 tumors, largest payouts
Vision not corrected to 20/20….Is this amblyopia? Vision shouldn’t worsen.
Have a reason for amblyopia…strab , aniso, injury
Pupils, may have to bring pt. back
Visual fields- attempt even if child or Haitian.
Confrontations are better than 0

63. Glaucoma
Some patients are hard to measure, make sure your techs know that its ok to say “uncle”
Beware of low tension glauc in young patients
Gonio is important
Optic nerve appearance is important
OCT is really std of care

64. Vitreous Detachment High myopes at greater risk
Presence of heme or pigment
3 mirror is useful in sometimes
Dilate both eyes
Consult if you are unsure about your technique, the view, the unruly patient
Speaking of vitreous, should dilate AAU to rule out posterior vitreous

65. Corneal ulcer/ inflammation
Hypopyon: std. is to culture
Central ulcers std. is to culture
Is extended wear worth it?

66. Sudden loss vs. gradual loss?
From a legal / litigious stance which is more problematic?

67. More Difficult? From a litigious status , gradual loss is .
Following patient for cataract and Optic N. cupping gets forgotten or missed.
Following patient for glaucoma and OCT is miss-interpreted.
Open angle becomes chronic angle closure
Clinicians get “Chatty” with long time patients

68. 35 yr. old white female treated for glaucoma
Her vision progressively worsens despite normal IOPs.
She has a difficult time with visual fields and it is blamed on her treated schizophrenia
In light of the worsening vision she is referred by her optometrist to a retinal specialist who routinely sees patients a day
He feels she is malingering
Her vision continues to decline to the count fingers level and she seeks another opinion.

69. 35 yr old Sees another DR. Notes the pale nerves
Does a quick confrontation: bitemporal defect
Ct scan . Large pituitary adenoma
Both OD and MD are sued but OD is found not guilty…because he referred the patient for another opinion.

70. 28 yr. old female with redness, blurred vision and a large ( 2
28 yr. old female with redness, blurred vision and a large ( 2.0 mm) corneal infiltrate Assoc with EW scls , paracentral

71. Not an uncommon scenario
Chart described Peripheral sterile lesion less than a mm in size
Options include stopping the lens and seeing patient back, stopping lens and rxing an antibiotic, stopping lens and rxing a antibiotic/steroid ( most common), stopping lens and rxing a steroid.
All of these could be easily defended …with appropriate followup . The DR. worked at mult offices and would not be back to this office in a wk and that was when she was told to return.
In this case the pain increased and she was seen elsewhere with a true infection, since it was peripheral
No loss of vision or damages…but law suites are a hassle

72. 50 yr old white female followed severe diabetic retinopathy
Seen by several of the DRs in a large practice

73. 50 yr diabetic Dilated by one of the drs and found….
Proliferative DR doesn’t happen over night
Txd and lots of issues but case was dropped
Worse when someone finds a melanoma!

74. 35 yr old female
seen complaints of blurred vision for two days. Patient with normal IOP and increase in myopic correction DR. changes her glasses

75. 35 yr female
A few days later seen at another office for increased pain and blurred vision
She was noted to have angle closure
Lessons: a few days before she was placed on Topamax ….that was not noted in the medical history. Noted to cause myopic shift in refraction and angle closure. IOP was documented as being normal at the initial exam. This case was settled.

76. 70 yr. old male who underwent glaucoma surgery with a Baerveldt tube.
Talked to by the OD on call
Surgery on Monday
Called on Thursday
Bloody tears on Cheek
Offered to see the patient but it was after hrs and not convenient for the patient

77. 70 yr. old male
Lesson: enter info after an after hour conversations. Teach your techs well !!! Any worsening of vision during a postop visit or an increase in pain should be referred back to surgeon or brought in for evaluation

78. 80 yr old Seen postop day one with blurred vision and pain
IOP not recorded….OD said he wouldn’t let her take the pressure
She told him to return in a week.
Seen a few days later by the MD with 20/400 vision and high IOP , APD and peripapillary hemes.

79. 80 yr old High IOP postop that resulted in Ischemic optic neuropathy
Had Tri moxi injection…. Dropless cataract sx
He had macular scar in his fellow eye.
I think the case against the OD was dismissed….”Having taken the IOP wouldn’t have changed the outcome.”

80. Who needs protective lens
20% of OD cases involve patients that have had damage from shattered lenses…and some from shattered frames
Rx polycarbonate or Trivex lens for one eye patients, Police, Athletes, children, at risk corneas: PKP
Dr Classe’ makes a remark that history should ask if patients participates in contact sports.

81. Slip and Fall Need to give patients mydriatic glasses post dilation
Assist anyone who is feeble to their car
Always best to have elderly accompanied by friend or family …insist when they make the appointment

83. Questions