Theories of Liability

Question 1

Most common claims against optometrists (4)

Answer 1

malpractice, products liability, informed consent, intentional offenses are rare

Question 2

another name for malpractice

Answer 2

Medical Negligence

Question 3

T/F. Medical Negligence is a Tort Law

Answer 3

True. Medical negligence is a civil wrong for which a court will provide a remedy in the form of an action of damages. Tort law- duty to not act negliently, recklessly, intentionally wrongfully

Question 4

What is the most common tort involved in liability claims against optometrists?

Answer 4

Negligence

Question 5

Medical Negligence is a conduct

Answer 5

conduct that falls belowa standard established for the protection of others against unreasonable risk of harm

Question 6

What is the the key error in medical negligence?

Answer 6

failure to act reasonably

Question 7

Courts have defined negligence as

Answer 7

forgetting to do something or doing something in an inappropiate manner or failure to use his best judgement, law holds him liable for injury

Question 8

in order for a patient to prove negligence, what 4 elements must be proven?

Answer 8

1. Doctor-patient relationship 2. Breach of the standard of care 3. Injury 4. Proximate cause

Question 9

who is the plantiff in medical negligence case?

Answer 9

the patient (the person who is bringing the lawsuit)

Question 10

What must the patient show in proving negligence in a court case?

Answer 10

preponderance of the evidence (more believe testimony), This means that the jury will need to be convinced, based on all of the evidence, that there is a greater than 50% chance that defendant caused the harm alleged in the lawsuit.

Question 11

The second element of proving negligence is Doctor-PT relationship.

Answer 11

True. This obligates the doctor to act reasonably

Question 12

Define reasonably.

Answer 12

conform to the conduct expected of a doctor under the circumstances

Question 13

to act Reasonably is often referred to as

Answer 13

often referred to as the “Standard of Care”

Question 14

What is required to establish what a reasonable doctor would have done under the same or similar circumstance

Answer 14

an expert testimony

Question 15

T/F Psychological damage is enough for proving medical negiglence

Answer 15

False. Psychological damage is not enough. There must be actual physical injury suffered by the patient.

Question 16

T/F The fact that you as the optometrist made a mistake or breached the standard of care means you will be guilty of malpractice.

Answer 16

F. The pt must have suffered actual physical injury…like loss of acuity or field of vision

Question 17

the 4th element in proving medical negligence is ____.

Answer 17

proximate cause

Question 18

Think ____&_____ for proximate cause.

Answer 18

cause and effect

Question 19

Proximate Cause says there must be

Answer 19

a legal link (“proximate cause”) between what the doctor did (or didn’t do) and the injury–often called “causation”

Question 20

What is required to establish cause and effect between conduct and injury?

Answer 20

Expert testimony

Question 21

What is the most frequent claim against Ods?

Answer 21

failure to diagnose glaucoma

Question 22

what is the most expensive liability claim against Ods?

Answer 22

failure to diagnose tumor

Question 23

Pediatric claims are about what percentage of liability claims?

Answer 23

20%

Question 24

what are the leading causes of liability claims against Ods?

Answer 24

failure to diagnose posterior segment disease, failure to diagnose anterior segment disease, injuries to spectacles or contact lens

Question 25

Some of the liability claims involving contact lens are ?

Answer 25

complications of corneal abrasions, misdiagnosis of intraocular disease, failure to obtain informed consent (monovision)

Question 26

Some of the liability claims involving spectacles are ?

Answer 26

failure to Rx polycarb lenses, defective sport frame design

Question 27

What are the top two misdiagnosis of Intra-Ocular Disease?

Answer 27

Glaucoma and retinal detachment

Question 28

Other misdiagnosis of Intra-ocular diseases are

Answer 28

tumors (brain tumors and intraocular tumors), diabetic retinopathy, termporal arteritis, histoplasmosis, toxoplasmosis

Question 29

Misdiagnosis of Anterior Seg

Answer 29

claims involving corneal diseases, ocular foregin bodies, conjunctivial malignant melanoma iritis, co-management with surgeries, injuries from ophthalmic drugs such as adverse effects of diagnostic drugs (angle closure), misalignments of binocular vision anomalies.

Question 30

Most common claims against OD practices

Answer 30

poor record keeping, forgetting informed consent documentation, lack of pupil dilation, misdiagnosis and improper client termination/referral.

Question 31

the most important way to protect yourself is

Answer 31

documentation

Question 32

What should all charts contain

Answer 32

visual acuities, warnings, findings, recall and referrals,

Question 33

T/F it’s important to look at your documentation objectively

Answer 33

true .

Question 34

t/f you are responsible for anything they do or say

Answer 34

true . You are only as good as your weakest employee. Take an active role in training staff and periodically check and double check what they are doing and re-train

Question 35

T/F. Your glaucoma pt, doesn’t show for their f/u appoinment. This means you are off the hook because you made the appointment .

Answer 35

False. Making an appointment is not enough! For no shows, you must follow up. You must call or send a letter, just because they didn’t show doesn’t free you from liability

Question 36

Are there any defenses against claims?

Answer 36

yes, there are several defenses to a malpractice claim that can be asserted by a doctor.

Question 37

The most important defenses against a claim are:

Answer 37

Statutes of limitation (over 60 days?), contributory/comparative negligence

Question 38

Explain statutes of limitation

Answer 38

state statutes of limitation establishs the period of time within which a case must be brought

Question 39

What is the limit for a negligence claim?

Answer 39

1 or 2 years from the event (IMPORTANT) but may be different for wrongful death actions or for claims brought by minors

Question 40

what can stop the running of the statute of limitation?

Answer 40

fraud by the doctor

Question 41

Define contributory negligence

Answer 41

when the patient himself is responsible for the problem. It is a complete defense to an action based upon negligence.

Question 42

T/F. If a contibutory negligence is proven, it can bar the liabilty claim completely.

Answer 42

TRUE

Question 43

Explain Comparative Negligence

Answer 43

a defense claim that allows a jurt to apportion fault, so that the concurrent negligence commited bu the pt is used to reduce the size of the award to the patient. This defense does NOT bar it all together. Its a law in almost all states.

Question 44

Sudden emergency

Answer 44

Under that doctrine, a person faced with a sudden emergency calling for quick action is not held to the same correctness of judgment and action that would apply if there was time and for full thought and preparation. in order to be applicable . the sudden emergency must not be the fult of the one seeking to invoke the doctrine.
quick action is not held to the same correctness of judgment and action that
would apply if he had the time and opportunity to consider fully and choose
the best means of escaping peril or preventing injury. For the sudden
emergency doctrine to be applicable, there must be a sudden emergency and
the sudden emergency must not be the fault of the one seeking to invoke the
doctrine.

Question 45

Examples of Tort claims

Answer 45

medical neglience, wantonnes, intention or willful conduct, negligent hiring and retention

Question 46

Explain Wantonnes

Answer 46

Wantonness has been defined by the courts as the conscious doing of
some act or the omission of some duty, while knowing of the
existing conditions and being conscious that, from doing or
omitting to do an act, injury will likely or probably result.

Question 47

t/F . To prove wantonness it is essential to prove that the defendant intendded to injure the plantiff

Answer 47

False.

Question 48

T/F.Evidence that someone forgot to do something will not support a wantonness claim.

Answer 48

TRUE

Question 49

Explain when intentional or willful conduct is committed

Answer 49

person commits willful or intentional injury if he has a knowledge of the
danger accompanied by a design or purpose to inflict injury, whether the
act be one of commission or omission.malice implies an evil intent.

Question 50

Neglent Hiring and retention

Answer 50

the doctor is held responsible for his employess incompetency when notice or knowledge whther actual or presumed, of such unfitness has been brought to him.

Question 51

Product liability claims involve

Answer 51

optometrists who sell defective products

Question 52

Viscarious liability

Answer 52

claims are brought to hold an
optometrist liable for the negligence of a partner
or employee. A type of product liability.

Question 53

When is product liability imposed ?

Answer 53

imposed if a consumer is using a
product in a reasonably foreseeable and intended
manner and is injured by the product, if it can be
shown that: product was defective, seller is engaged in the business of selling the product, products reaches the consumer w/out substantial change in the condition in which it was sold.

Question 54

Why are optomtrists named as defandants in product liability cases?

Answer 54

because they are the “sellers” of

ophthalmic products.

Question 55

the most likely opthalmic products to result in a product liability claim are

Answer 55

phthalmic lenses,
safety eyewear, athletic frames, and ophthalmic
drugs

Question 56

Vicarious liability can make you legally responsible for the acts of another because

Answer 56

because you are in a legal
relationship with the actual wrongdoer. The two
most important legal relationships in this regard are:
• principal and agent (partnership)
• master and servant (employer and employee)

Question 57

Key issue in employer-employee claims is often whether when employee was acting in the

Answer 57

line and scope of the employee’s duties” at the

time the injury occurred.

Question 58

The most significant issue in business-related

vicarious liability claims is

Answer 58

the type of business organization. In a general partnership, the partners are liable
for one another. In a limited liability company
(LLC) or professional association or corporation
(PA or PC), they are not.

Question 59

Post-surgical care by an optometrist in lieu of the
surgeon results in a “joint venture”, in which the
surgeon may be held liable for negligence
committed by the optometrist.

Answer 59

true

Question 60

Professional liability insurance may be purchased to manage the risk of malpractice claims.

Answer 60

True. It will cover lawyer fees, costs of litigation, settlement, up to the policy limits, judgements.

Question 61

The best professional liability insurance policies require the doctor’s

Answer 61

approval before a claim can be settled.