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Are Your Patient Education Tools Putting You at Risk for Malpractice?
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When Jo Dewhirst came to the first ophthalmologist’s office in need of cataract removal and lens implant, she was immediately impressed by the thoroughness of the explanations he and his staff gave her. “I was given detailed instruction on how to prepare myself prior to surgery, the necessary arrangements that needed to be made and what I would need to have on hand at home after surgery,” Dewhirst says. “He also covered ‘what I should expect’ from the surgery and what expectations might be unrealistic.” If she had any additional questions, a surgery coordinator was able to fill in the gaps. While nervous, she felt totally mentally prepared for surgery; in fact, the education she received prior to the procedure was so detailed, she almost felt as if she had already gone through the process before the operation even began.

Once Dewhirst arrived at the outpatient surgery center, she was calm and prepared. She was especially comforted by the comments of the surgical staff, who kept telling her how fortunate she was to have such a fine doctor.

This positive experience carried through to post-op as well, Dewhirst says. “The little ‘take home bag’ from the surgery center had all the necessary instructions, medicine and gadgets I never would have otherwise had — such as wraparound pitch-black sunglasses.”  

To Dewhirst, all this added up to a very positive impression of her first ophthalmologist and a sense that he was “caring.” It was also very good risk management.

What is Risk Management?
According to Douglas Hubbard, in his book The Failure of Risk Management: Why It's Broken and How to Fix It (John Wiley & Sons, 2009), risk management is defined as “the identification, assessment and prioritization of risks followed by coordinated and economical application of resources to minimize, monitor and control the probability and/or impact of unfortunate events.”

Richard Abbott, MD, chairman of the board for OMIC, the Ophthalmic Mutual Insurance Company, says, “Risk management means identifying potential risk in your practice and doing the appropriate thing or things to minimize that risk.” According to Dr. Abbott, the key to reducing your risk is to spend time with your patients so they know what they are choosing and what they can expect. “If you put the patients first and do the right thing at the right time, not only does the concept of risk management and legal medical risk go down, but you also provide good, quality patient care,” Dr. Abbott says.

From Dr. Abbott’s point of view, there are eight pearls that can help you reduce your risk. They are:
  1. Solidify your informed consent process. Make sure you have documentation within your records. This documentation should include the informed consent form signed by the patient, as well as information indicating that the physician is well-trained in the procedure being performed and that every opportunity has been taken to learn a new procedure.
  2. Make sure you are up-to-date with both knowledge and expertise.
  3. Do well on behalf of your patient.
  4. Know your limits.
  5. Refer appropriately when you don’t have the necessary expertise.
  6. Practice good judgment.
  7. Communicate effectively and clearly.
  8. If the patient has a problem or is unhappy, spend time with them to resolve the issue.
These points are critical. “Problems occur,” Dr. Abbott says. “Hopefully not often, but they do. In the event there is an unexpected outcome, if the patient has a good rapport with the physician, the problem can usually be fixed. However, if the patient does not feel confident in his or her physician, they often get angry and upset. This is when they are the most likely to bring a lawsuit.”

Dewhirst’s experience with her second ophthalmologist illustrates this. Given her positive first experience, she scheduled surgery to tighten droopy eyelids with another doctor in the same ophthalmology department; the two doctors even used the same surgical centers. But the similarities ended there. The day prior to surgery, she sat for 90 minutes in the examining room when someone forgot to put her chart on the door and no one realized there was a patient waiting. There were further delays the day of surgery.

Worst of all was the post-op. When Dewhirst came out of surgery, she was surprised by her inability to open her eyes. Upon questioning the surgical staff, she was told her eyes would “eventually open.” Worse yet, when she asked the surgical staff if there were specific instructions about what she should do that evening (as she wasn’t given instruction prior to surgery), she was told that the instructions were written on the paper in front of her and that she should read them when she got home. When she pointed out that she couldn’t read anything because her eyes were still “glued” from surgery, Dewhirst says the response was exasperated: “You mean you want me to read these instructions to you?” Clearly, the conversation was over. The next day, when she was able to read the instructions, she found them sketchy at best. When she called the clinic for clarification, no one ever returned her call.

Now, you may be wondering, where was her ophthalmologist during this time? Good question. Dewhirst says he was not very present during the pre- and post-op discussions and that, when they met for her first post-op visit, he seemed bothered that she was less than thrilled with the surgery.

She says that when she expressed some concerned about the black and blueness over both eyes and the very noticeable swelling and wondered when it would subside, he simply answered, “I don’t like to make any projections of what to expect.” While this type of hedged answer may be “safe,” it is not very helpful to the patient.

Fortunately, all of Dewhirst’s surgeries were successful. However, the lack of communication and support from her second ophthalmologist and his staff didn’t instill any type of confidence in the ability or caring of the physician. That’s where good communication and quality patient education materials could have made a difference, while at the same time reducing the practice’s risk of a lawsuit, had things gone poorly.

How Clear is Your Informed Consent?
Something as simple as the informed consent form is a crucial element to reducing risk. According to Andrew G. Iwach, MD, the Academy’s secretary for communications, many ophthalmologists are not aware that, if a malpractice suit is filed, informed consent is one of the first things checked.

“The lawyers want to make sure the form has been read and signed,” Dr. Iwach says. “They want to know if the patient understood the risks, but, more importantly, they want to know how you know they understood them.” In Dewhirst’s situation, it is unlikely that Dr. Y could have adequately answered these questions.

You also have the issue of the consent form itself. Is it clear? Does it cover all of your legal bases, so to speak? If you aren’t sure, never fear. You can download a variety of consent forms for several different procedures from the OMIC Web site. Some are even translated into Spanish for you. Best of all, you can access these forms even if you aren’t insured by OMIC.

Patient Education Minimizes Your Risk
In addition to the consent form, offering high-quality patient education materials is one of the easiest ways you can manage your risk. Dr. Abbott says, “It is critical to have patient education materials that are current, up-to-date, readable and available in multiple languages so the patient has ample opportunity to know and understand what they are choosing and have time to ask questions.”

Fortunately, the Academy provides this exact type of information for you to offer your patients. Not only are all Academy patient education materials well-written, but they are also reviewed, carefully vetted and, if needed, revised every year to ensure they reflect the most current research and thinking.

Kierstan Boyd, the Academy’s director of patient education, says that it’s all about managing expectations. “If you talk to patients about their conditions, treatment options and the type of care they can expect, then you have already gone a long way to minimize risk,” says Boyd. “Lawyers look at what the doctor told or gave the patient about their condition or procedure. If that information is non-biased, trustworthy, current and relevant, then you are better protected. While nothing can replace the doctor-patient interaction, patient education materials are an easy way to seal off the gaps of information.”

In fact, the materials in your waiting and exams rooms can actually be brought into a lawsuit. As Dr. Iwach explains, this can be a double-edged sword. “If the materials are outdated, then you may be in trouble. But if they are appropriate, up-to-date and readily available, then it serves you well.”

“Contact time with patients can get squeezed,” Dr. Iwach says. “Anything you can do to improve the patient’s experience and education helps. In my office, this information may be found in a booklet, pamphlet or even DVD. And I always make sure it is current — current is critical.”

To make sure his office materials are up-to-date, Dr. Iwach has someone in his office regularly review all materials. “We usually do it every September,” says Dr. Iwach. “I highly recommend that all ophthalmologists adopt the same practice. Not only does it reduce your risk, but it’s also good medicine and good for your patients.”

To protect yourself from a lawsuit, Dr. Iwach offers three keys for reducing risk:
  1. Remember that surgery begins in the exam room. Thoroughly explain the procedure to the patient and what he/she can expect.
  2. Make sure the informed consent form itself is clear and explains the risks and complexities of the procedure.
  3. Provide up-to-date materials to supplement your conversation and make sure the information in the materials is vetted and current.
“Ultimately, it is up to the physician to establish and maintain a relationship with the patient,” says Dr. Iwach. “The consent form and patient education materials are just additional protection. And as they say, an ounce of prevention is worth a pound of cure. Or in this case, 50 or 100 pounds.”

Minimize Your Risk Today
The Academy offers a variety of materials that can help to offset your risk. And now is the perfect time to check and, if needed, replace your patient education materials!

During the first week of December, the Academy and OMIC are teaming up for Patient Education Check-Up Week. “We are encouraging docs to do an audit of their patient education and informed consent documents,” Boyd says.

To make it easy for physicians, the Academy and OMIC have created a downloadable checklist of all current patient education materials. Simply compare the office product number on the back of your brochures or eye fact sheets to the online checklist. If the numbers are different, then you know that you have outdated materials that need to be replaced.

Special Discount for YOs! To help you update your materials without breaking the bank, the Academy is offering YO Info readers a 10 percent discount on all patient education products, if you use the order form provided and enter code PE4YOS1. Discount terms:
  • Good Dec. 1 to Dec. 21.
  • Cannot be used in conjunction with the patient education/OMIC check-up week discount.
  • Applies to all patient education products, but not to other Academy products.

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About the author: Kimberly Day is a freelance health writer and medical editor and a frequent contributor to YO Info. She is the co-author of Hormone Revolution and ghost writer of Eat Papayas Naked.

Academy members: login to read or make comments on this article.