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Steve Vargo | 4/9/2018
AN OPTOMETRIST'S GUIDE TO NOT GETTING SUED (AND HOW NOT TO LOSE IF YOU DO)

I was named in a lawsuit once. Fortunately, I was the doctor who found the problem – not the one who misdiagnosed it. Nothing really came of this on my end, but I still recall the moments of terror that gripped my body every time a letter showed up from the legal firm handling the case. Fortunately, relative to other medical specialties, optometrists have a low likelihood of being sued. Nonetheless, it’s good to know why doctors get sued and what you can do to prevent it.

The facts

A Medscape Malpractice report published in 2015 found the top 3 reasons for a lawsuit against a medical professional was failure to diagnose, patient suffered an abnormal injury, and failure to treat. Other reasons, albeit with far fewer incidence, were poor documentation of patient instruction and education, errors in medical administration, failure to follow safety procedures and improperly obtaining / lack of informed consent. Interestingly, this report also found that women were less likely to be sued than men (64% of respondents reporting being sued were men as opposed to 49% women) and women were far less likely to be the only named defendant in a suit. Only 20% of lawsuits against physicians who responded to this survey went to trial. 41% of these cases were dismissed, and about a third reached a settlement before trial. The majority of malpractice suits against doctors are won by the doctor, with only 3% of verdicts in the plaintiff’s favor.

How much professional liability insurance should I carry?

This would be a matter to take up with a local insurance agent. For context, the survey mentioned above found that over half the cases resulted in no reward, 20% were under $100,000, and 29% were above this amount. Only 5% of verdicts or settlements exceeded a million dollars. A major study on claim payment by specialty found that the largest average settlements were against pediatricians, neurosurgeons, pathologists and ob/gyns with an average claim payment between $300,000 and $400,000.

Defensive medicine

The risk of a lawsuit often leads to over-testing or over-treatment not wanting to miss anything or be held accountable for not covering all your bases. Doctors perform extra tests or push for extra procedures or office visits because they think they will be at greater risk of being sued without doing this. This has come to be known as practicing defensive medicine, and it’s undoubtedly driven up health care costs in the U.S. health care system. Also noteworthy is that studies don’t support the notion that this extra precaution reduces the risk of a lawsuit.

Will an apology help?

Interestingly, 81% of doctors responded “no” to this question. Many physicians who were sued claimed they did not say I’m sorry because it was not their fault, that it would not have made a difference, or that they were among others named and, in some cases, never even met the plaintiff. Is this a wise approach? Read on.

Lawsuits aren’t random

I once heard a malpractice attorney claim that she had never heard a client say, “I just love my doctor, but I have to sue him/her”. And while doctors in the Medscape study may have overwhelmingly agreed that an apology would not have mattered, what might help doctors avoid getting sued is having better relationships with their patients. Be more empathetic and become a better communicator. Lawsuits aren’t random. One study found that one of the most significant predictors of being sued was being sued in the past. Another study found that doctors sued most often were complained about by patients twice as much as those doctors who were not. Common reasons for complaints were the doctor rushed them, did not explain reasons for tests or ignored them. Is it possible that patients are more likely to sue if, well… they just don’t like you?

Decades old studies have shown that that physicians sued less often are those more likely to spend time educating patients about their care, more likely to use humor when interacting with patients and more likely to try to get their patients to talk and express their opinions. While physicians and patients often disagree on the motives behind a lawsuit, both groups agree that improved communication could reduce future malpractice litigation.

Sometimes doctors screw up!

“Sometimes we simply DID screw up. It is usually failure to diagnose. And if we did, we don’t want to make an admission,” says attorney Craig Steinberg, O.D., J.D. ”If you screw up, or even if it’s just a bad result and you are concerned you might get sued, refer that patient to the best care you can get them to.” Here’s why…

According to Mr. Steinberg, the reason so many cases are dismissed is because it’s often hard to prove one of two key elements of the claim, causation and damages. We always think about standard of care, but the plaintiff also has to show that the outcome would have been different. Even in the case of an RD that was initially missed, if you catch it on a follow-up when the patient is now seeing a veil over their vision, then what are the damages if the OMD is able to treat the RD with a good result? The only “damage” is the delay in treatment. It is very hard to prove that the delay “caused” any damage that would not have been there anyway.

Below is a list summarizing the advice doctors who have been sued offered to other doctors in the Medscape study:

  • Document, document, document
  • Prepare, prepare, prepare
  • Get good legal advice and listen to it
  • Be sure that your actions are well thought out and your defense reasoned
  • Keep your cool and tell the truth
  • Share only what you can remember or document
  • You can never win at a deposition; but you can lose the case
  • Be patient, be likeable
  • If your only concern is the welfare of your patient, it is unlikely you will be sued

References:
https://www.medscape.com/features/slideshow/public/malpractice-report-2015
https://www.nytimes.com/2015/06/02/upshot/to-be-sued-less-doctors-should-talk-to-patients-more.html

Steve Vargo
Practice Management Consultant
Steve Vargo, OD, MBA is a 1998 graduate of Illinois College of Optometry. After working in a clinical optometric practice for several years, Dr. Vargo pursued his passion for practice management by earning his Master of Business Administration (MBA) degree from the University of Phoenix in 2008. A published author and speaker with 15 years of clinical experience, he serves as IDOC’s Optometric Practice Management Consultant and advises members in all areas of practice management and optometric office operations. Steve and his wife Melanie have two sons, Lucas and Ryan. In his spare time, he enjoys running, cycling, sports and music. A native Chicagoan, he is an avid fan of the Cubs, live music and deep-dish pizza.
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