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Liability claims involving optometrists occur much less frequently than those involving ophthalmologists. Liability insurance premiums cost about 1% of net income for ODs and 2%-3% of gross income for MDs.The most common claims are those alleging malpractice; products liability, informed consent and intentional offenses are much less likely to be alleged.
The leading causes of liability claims involving optometrists are:Failure to diagnose diseases of the posterior segment (58%).Failure to diagnose or manage diseases of the anterior segment (21%).Injuries from spectacles and contact lenses (21%).
The most frequent cause of claims is failure to diagnose glaucoma; failure to diagnose tumors is the leading cause of large money claims.Posterior segment claims are twice as likely as anterior segment claims.Pediatric cases constitute almost 20% of all claims.Very few claims involve ophthalmic drugs.
Misdiagnosis of Intraocular Disease 67 claimsGlaucomas 25 claims POAG 18 claims Angle closure 3 claims Secondary 4 claimsRetinal detachment 18 claimsTumors 16 claims Intraocular tumors 6 claims Brain tumors 10 claimsDiabetic retinopathy 4 claimsTemporal arteritis 2 claimsHistoplasmosis 1 claimToxoplasmosis 1 claim
Misdiagnosis of Anterior Segment Disease 14 claimsCorneal disease 8 claims Herpes simplex 6 claims Fungal infection 2 claimsOcular foreign bodies 3 claimsTumors of the anterior adnexa 2 claims Basal cell 1 claim Conjunctival malignant melanoma 1 claimIritis 1 claim
Other Anterior Segment Claims 12 claimsComanagement 7 claims Complications of cataract surgery (endophthalmitis) 4 claims Complications of refractive surgery (radial keratotomy) 3 claimsInjuries from Ophthalmic Drugs 3 claims Adverse effects of diagnostic agents (angle closure) 3 claimsAdverse effects of therapeutic agents 0 claimsMismanagement of Binocular Vision Anomalies 2 claims
Injuries from Ophthalmic Materials 21 claimsContact lenses 11 claims Complications of corneal abrasions 9 claims Misdiagnosis of intraocular disease 1 claim Failure to obtain informed consent (monovision) 1 claimSpectacles 10 claims Failure to prescribe polycarbonate plastic lenses 7 claims Defective sports frame design 3 claims
Malpractice is more correctly termed negligence. Negligence is a tort, a legal cause of action which has proven to be difficult to define, but which can be described as:“ a civil wrong, other than a breach of contract, for which a court will provide a remedy in the form of an action for damages”.
Negligence isthe most common tort involved in liability claims against optometrists. Negligence may be defined as “conduct which falls below a standard established for the protection of others against unreasonable risk of harm”. The key error is failure to act reasonably.
Negligence has been defined by the courts, and these descriptions are also helpful:“A physician and surgeon, by taking charge of a case, impliedly represents that he possesses, and the law places upon him the duty of possessing, that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons…and which is ordinarily regarded by those conversant with the employment as necessary to qualify him to engage in the business of practicing medicine and surgery.”
“Upon consenting to treat a patient, it becomes his duty to use reasonable care and diligence in the exercise of his skill, and the application of his learning to accomplish the purpose for which he was employed. He is under the further obligation to use his best judgment in exercising his skill and applying his knowledge.” “The law holds him liable for an injury to his patient resulting from want of the requisite skill and knowledge or the omission to exercise reasonable care or the failure to use his best judgment.”
Proof of negligence in a liability case can be difficult to establish,because the plaintiff (patient) has the burden of proof and must show—by the preponderance of the evidence (more believable testimony)—4 elements: • Doctor-patient relationship • Breach of the standard of care • Injury • Proximate cause
The doctor-patient relationship, once established, obligates the doctor to act reasonably.To act reasonably means the doctor must conform to the conduct expected of a doctor under the circumstances, often referred to as the “standard of care”; expert testimony is required to establish “what a reasonable doctor would have done under the same or similar circumstances”
A physical injury (loss of acuity or field of vision) must be suffered, because psychological injury by itself is rarely compensable; expert testimony is required to establish visual impairment.There must be a legal link (called “proximate cause”) between what the doctor did (or didn’t do) and the injury; expert testimony is required to establish the cause and effect between conduct and injury.
To reduce the risk of acting negligently, a practitioner must understand how each of these elements contributes to the determination of liability.Hypothetical clinical situations are helpful in illustrating how negligence may be imposed.
Two young boys, Peter and Paul, are engaged in a favorite pastime of children, throwing rocks at one another. Unfortunately, a rock thrown by Paul hits Peter in the eye, and he runs home crying. His mother, concerned about the injury, takes Peter next door to the house of her neighbor, Dr. Lenz, who is an optometrist. Dr. Lenz gently opens Peter's eye, takes a look at it, and then places a cold cloth over it to reduce the swelling. He tells the mother that there is no obvious injury. He asks for no compensation and none is offered. The mother takes Peter back home and continues to apply cold compresses to reduce the swelling. Three days later Peter's complaints cause her to take him to an ophthalmologist for examination. A retinal detachment is found, which has reduced Peter's vision. Did the assistance of Dr. Lenz create a doctor-patient relationship?
Flash, a 60 year old myope, suddenly begins seeing numerous small "gnats" in one eye, and 7 days later consults an optometrist, Dr. O'Dee. The examination reveals no observable pathology by ophthalmoscopy through an undilated pupil in the affected eye, which is found to have 20/20 vision. Dr. O'Dee explains the symptoms of retinal detachment to Flash, who experiences these symptoms--blurred vision and showers of sparks--3 weeks later. An ophthalmologist finds that there is a long-standing retinal detachment in the eye, which has now involved the macula. Did Dr. O'Dee's examination of Flash breach the standard of care?
Zoobreath went to an ophthalmologist for an eye examination, and the ophthalmologist prescribed glasses. After purchasing the glasses, Zoobreath experienced severe headaches that caused him first to consult a physician, who prescribed medication for hypertension, and then to see an optometrist, who prescribed a different pair of glasses. Zoobreath's headaches disappeared. Were the ophthalmologist's glasses the proximate cause of the headaches?
A 20 year old man was examined by an optometrist, Dr. Stu Dense, who found nothing remarkable despite the patient's complaints about decreased acuity at night. Two years later the man was examined in an optometry school clinic, where the diagnosis of retinitis pigmentosa (RP) was made. The young man's visual field was greatly constricted and his acuity was reduced to the point that he could no longer work at his job. Did Dr. Dense's failure to diagnose the RP cause the young man to suffer damages?
There are several defenses to a malpractice claim that can be asserted by a doctor: the most important are: • Statutes of limitation • Contributory/comparative negligence
State statutes of limitation establish the period of time within which a case must be brought.For negligence, the usual limit is 1 or 2 years. The allowable period may be different for wrongful death actions or for claims brought by minors. Fraud by the doctor “tolls” (stops) the running of the statute of limitations.
The Alabama “statute of limitations” states that:All actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act, or omission, or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act;…no action shall be commenced more than four years after the act, omission, or failure complained of; except, that in the case of a minor under four years of age, such minor shall have until his eighth birthday to commence such action.
Contributory negligence (concurrent negligence by the patient), if proven, can bar the liability claim completely.Comparative negligence allows a jury to apportion fault, so that concurrent negligence committed by the patient is used to reduce the size of the award to the patient rather than bar it altogether. Comparative negligence is the law in almost all states.
Professional liability insurance may be purchased to manage the risk of malpractice claims.Coverage pays for any judgment or settlement, up to the policy limits, and for attorney’s fees and costs of litigation.The best policies require the doctor’s approval before a claim can be settled.
