Liability And Malpractice Flashcards
How is liability defined?
That to which a legal obligation is applied
What is tort action?
A legal action pursuant to a wrongful act, damage, or injury done willfully, negligently, or in circumstances of strict liability (civil wrongs not criminal)
On whom is liability imposed?
The one who can bear the loss
What is strict liability?
Concept of law which establishes the existence of an absolute duty, typically involving protection from harm
What is strict liability in the case of professional liability?
To make others safe during the practice of the profession or supply of materials
What are examples of professional liability?
Liability based on the breach of duty adequately to explain an essential component in the decision-making process of patient… informed consent
What are examples of professional liability in optometry?
Foreign body removal, laser procedures, fluorescein angiography, prescribing medication
How is legal duty measured?
The standard of the reasonable person… that is the conduct of the doctor being charged is compared to that of a reasonably prudent doctor under the same or similar circumstances
What cases set precedence for who the reasonable person is?
Harris v Bales DO can testify on action of MD, Fairchild v Brian MD testimony against optometric standard of care (duty to refer), Bates v Gilbert ophthalmologist disallowed in optometry cases
What is often referred to as “the average member of the profession?”
The “established minimum of care”
In the absence of willful harm to an individual, _______ is considered to be the bases for the majority of malpractice allegations
Negligence
What is the definition of negligence?
Harm resulting to an individual based upon a lack of appropriate action OR action without appropriate precaution/skill
Is negligence a state of mind or conduct
Conduct
Negligence is possible through _____ or _______
Omission or commission
What are the four essential elements necessary to establish negligence?
Duty, failure, relationship (proximate cause), loss or damage
What is duty?
Duty exists to hold to a standard to protect others against unreasonable risk
What is failure?
Failure to conform to the standard
What is relationship?
Relationship (proximate cause) between action or inaction and the injury
What is loss or damage?
Actual loss or damage is a result of the negligence
What is proximate cause?
A reasonable connection must be established between the commission (act) or omission of the doctor and the damages suffered (by the patient)
What constitutes an injury?
Damage proven or alleged to an individual as a consequence of another’s action
What are examples of damage/injury?
Physical in nature, temporary, permanent, petty, disabling, hidden, evident
What is non-injury?
Libel (written), slander (spoken), infliction of mental distress
Remember there is a difference with damage and damages
damage is an injury and damages are awarded
What are the two categories of damages?
Compensatory and punitive
What are compensatory damages?
Place them in as good a position as if the injury had never occurred, hospital/doctor bills, lost income, pain and suffering
What are punitive damages?
Intend to punish, set an example, relatively rare in tort law
Who is the plaintiff?
The individual making a claim/initiating the action
With whom does the burden of proof lie?
The plaintiff
Who is the defendant?
The doctor attempting to defend their actions
Why is there increased responsibility to diagnose and manage conditions and diseases?
Because of expansion of scope of practice and technological advances
What three categories do most optometry malpractice allegations fall into?
Retinal detachment, glaucoma, tumors
What are the next two categories for optometry malpractice?
Improper labeling of reduced VAs as amblyopia and failure to diagnose Choroidal neovascularization and proliferative diabetic retinopathy
In general, what are the most important potential triggers of optometric malpractice allegations?
Sight and life threatening conditions (or clinical signs)
What are non-physician extenders?
NPEs are those under you (staff) for which you are responsible… they are you
What reduces your risk of malpractice?
Understanding the most frequent triggers of malpractice allegations and the most commonly overlooked things in caring for patients
How many of us will be named in a law suit?
1/3 but may not be found guilty of negligence if you document
How do you cover your bases?
Never cut corners, never make assumptions, always exercise due diligence, always communicate
What is most useful for mitigating malpractice?
Communication
What does it mean to never cut corners?
Have in-depth history, let your history lead your examination, give every patient as much time as their likely diagnosis needs
What does it mean to never make assumptions?
Confirm history is accurate, data is accurate, realize every patient manifests every sign and symptom ex: amblyopia is a dx of exclusion
What does it mean to exercise due diligence?
Give the time to address the dx, don’t take shortcuts with testing etc, take time to answer all questions
What are optometric examples of always exercising due diligence?
Never treat iritis without a fundus exam, CFE necessary for diabetic patient, trauma/foreign body requires a fundus exam
What does it mean to always communicate?
Effective interview skills, effective instruction, be genuine, express concern, and listen
What does George Lundberg say about avoiding malpractice allegations?
Care deeply about your patients, communicate diligently with your patients, AND if an error occurs, tell the patient and apologize if appropriate
What are two forms of malpractice insurance?
Claims made vs occurrence policies
What are claims made policies?
The most cost effective and common, covers practitioner during a period of time, covers incidents per occurrence for cost of defending the allegations as well as potential damages, expressed in terms of incidents and maximums
What are occurrence policies?
More extensive, optometry doesn’t really need it, cover provider for defined period of time, claim must be filed during that time
What do you do if an incident for which you might get sued occurs?
Call your insurance IMMEDIATELY, get and incident #
What makes something a claim not an incident?
When you get a letter from an attorney
What is tail coverage?
Covers you should you change locations any time you change insurance policy, covers prior work that still falls within the statute of limitations that might be filed later (these types of claims are NOT covered under your new claims-made policy)
What are adverse action reports?
Found in the national provider databank, reports on malpractice payments, exclusion actions, adverse licensure, privileging and membership actions
Why are there adverse action reports?
Because of the healthcare quality improvement act of ‘86
How many adverse actions against optometrists were reported in the last 16 years?
216 for 48K ODs not many!
What percentage of all adverse action reports involved exclusion from Medicare or other government agencies?
92% … 55% defaults on student loans and 39% charges of fraud and abuse
What are the other 8% of adverse action reports?
Unfavorable privileging decisions
____ percent of all reports originated in 12 states
66% (CA, TX, NY)
74% of malpractice reports involved ODs between the ages of ___ and ___
30 and 49
Repeat offenses reported for ____ of sanctioned optometrists
38%
Out of 609 optometric malpractice payments nationally the range was…
$50-$2,050,000
What was the mean and median optometric malpractice payment amounts?
Mean- $246,556 and median- $57,000
T/F alleged errors in diagnosis accounted for 55% of all errors
True
What are malpractice conclusions to consider?
Payments by ODs are relatively rare, fewer than 34 nationally each year, small increase over the last 2 decades as scope of practice expands
