Risk Management— How to Decrease the Chance of Malpractice Claims. W. Howard McAlister, O.D., M.P.H. Legal Basis for malpractice Definition. Any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct.
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Risk Management—How to Decrease the Chance of Malpractice Claims
W. Howard McAlister, O.D., M.P.H.
Burden of proof is on the plaintiff except in the case of “Res Ipsa Loquitur” (The Thing Speaks for Itself). In this case all that must be proved is:
Courts have frequently applied this rule to two types of malpractice cases:
Res Ipsa Loquitur doesn’t automatically establish negligence—defendant can argue, for example, that sponge was left in because patient had to be closed quickly to save their life.
Concept of “Respondeat Superior” (Let the Master Answer)—employers liable for the consequences of employee activities within the course of employment for which the employee could be liable.
Statute of Limitation
--depends on state law
Historically, most source of claims against O.D.’s
--failure to detect
Optometry insurance premiums still far below 1% of gross income, one of the best among health professions.
i.e. Don’t dilate a grade 1 angle
Don’t use 10% neosynephrine on hypertensive
Don’t put EW CL’s on brittle diabetic
When to dilate—everybody? If patient refuses, educate and note in record.
—myopes >3D, flashes & floaters, Fm Hx of RD
II. Practical considerations—Legal Realism
Temphchin vs. Sampson in Maryland
Eleven days later she was taken to an ophthalmologist who diagnosed uveitis. He testified if she had been referred early by Dr. Tempchin much less damage would have resulted.
Dr. Tempchin stated when he saw Mrs. Sampson, he told her to seek medical attention and she obviously ignored him. He had not stated so, however, in the record!
The decision was based strictly on who the jury believed.
They believed Mrs. Sampson!
Darling vs. Charblon Community Hospital
Important points from these cases
How to avoid malpractice
Key Points in Avoiding Malpractice
From: Legal Aspects of Optometry, 1st edition, by John G. Classé, O.D., J.D.