Our great PCO professor Harry Kaplan, OD once said, “If you aren’t getting sued, you aren’t seeing enough patients.”  

Talk about food for thought! I’ve never known a colleague whose sphincters didn’t tighten at the notion of being sued. I’ve been through it myself, and it took as much courage as I could muster. Perhaps we can review some approaches to avoid being sued, and to make it easier when we are? We’re aiming to share some thoughts, and not provide a comprehensive review.

Dr. Kaplan’s great quote refers to the successful OD who is busy and taking on serious cases. As with any other healthcare professional, not all optometrists’ patients will be happy or remedied by all treatments. Patient behavior and attitude is another story. They may be embarrassed, hostile, or even looking to settle a score. From there, patients have very little ability to distinguish a malpractice event from a maloccurence, where everything was done according to accepted standards, but the patient did not do well.

First, be the nice doctor. People are less likely to sue doctors that they like and admire. Listen and respond to all patient concerns. It works.

Practice to the standards of care in our field. Defining “standard of care” is a challenge, but if you are not doing diagnostic and therapeutic procedures that 51% of your colleagues would do, give this a hard look. Can you manage glaucoma without some form of advanced imaging, like OCT? You can, but you should not.

Dilate regularly, and yearly with diabetes and other pathologies as indicated. Seniors tend to have a much higher incidence of pathology and should dilated at each full exam visit.  

You can turn purple arguing that patients don’t like it, or that your “wide-field imaging” is better, but none of it holds water.  

The legal consultant hired by the plaintiff, i.e. your patient, will collect a large honorarium to tell the court that 51% of your colleagues would have dilated THAT patient in that case. It will be a university professor, and you will lose the argument. The “Keir vs. United States” case of many years ago is the cornerstone for pupillary dilation, and there is no indication that the tide has changed.

If you’ve dilated, you can make the legitimate argument that “the condition in question did not exist when I examined this patient.” At very least, damages will be less if you’ve adhered to the standard of care.  

To the contrary, some ODs argue that they would assert in court that there is a “new standard of care” and that their electronica does a better job than the standard dilated exam. Valid or not, it would be a fool’s venture to try to blaze this trail in open court.  

Refer to the comment above regarding the legal consultant with the large honorarium.   

Embrace the concept of recording “significant negatives.”

We all know the significant findings in a host of disease processes. We know, but does the unfriendly observer know that we know? The plaintiff’s attorney and consultant would tend to salivate at the prospect that the doctor has missed significant pathology. Much of this can be avoided by enacting the time-honored tradition of recording significant negatives.  

There is no mystery on most of these. Think of some of the most obvious pathologic developments and severe outcomes that could arise in the diseases that we see. For example, we mark all diabetic patients’ charts with “no diabetic retinopathy” when it’s appropriate. “No cells and flare” is a good note in general, but it’s critical in cases of red-eye presentations and other inflammatory pathology. Thyroid patients? How about “no proptosis” if they are symptomatic.  

Keratitis with potential ulceration calls for precise documentation of the significant negatives.  

Karpecki and others have written about clinical features that suggest microbial keratitis versus inflammatory conditions. (Footnote 1) If you are not going to culture, it is most helpful to note “no cells and flare,” “no lid edema,” “no infiltrate,” and “no severe pain,” for example. In the rare case that blows up, you must document why you didn’t culture or start an aggressive antibiotic therapy.

Try to be aware of case law and expert assertions. For example, the ophthalmology literature often emphasizes scleral depression in evaluating a posterior vitreous detachment. (Footnote 2) Might this come up as a question regarding your patient care in a malpractice deposition? It might! “Best practice” guidelines are available from both the American Academy of Ophthalmology and the American Optometric Association.

Finally, if you are sued, remember that it’s not the end of the world.  

It’s possible that you’ve made a terrible mistake, or that you are completely innocent. Either way, the law requires that you have a strong malpractice carrier behind you. They are your best resource, as their interests are similar to yours. The carrier has a legal team who will guide you through.  This is a time to NOT be an expert, and to take the guidance of your team.  I’ve made it a point to learn and grow from the experience, and so should you.

Footnote 1  https://www.reviewofoptometry.com/CMSDocuments/2011/11/Nov2011_algorithms.pdf, See especially table on Page 7

Footnote 2  https://www.reviewofophthalmology.com/article/evaluation-and-management-of-pvd