¡ MEDICAL ERRORS Brian P. Den Beste,O.D.,F.A.A.O. 2014 ¡ ¡ ¡ ¡ 105 Bonnie Loch Crt. Orlando, Fl. 32806 Lasik Pro Vision Consultants Besteyedoc@aol.com ¡ ¡ ¡ ¡ ¡ Comanaging Ocular Disease for 25 Years ¡ ¡ Today's to do list Review ways to minimize errors Study Root cause analysis Review cases that have resulted in litigation. By eliminating errors does that eliminate, litigation? ¡ Give a Flip ! I’ve seen some crazy lawsuits in my day, but this one just has me, ahem, flipping out: Allecyn Edwards sued the Chicago Zoological Society and the zoo because she claims they "recklessly and willfully trained and encouraged the dolphins to throw water at the spectators in the stands making the floor wet and slippery." Why a Florida Requirement ? ¡ ¡ ¡ ¡ ¡ JAMA 2008 106,000 pts die each yr. From neg effects of meds. 80,000 pts die each yr. Infections incurred in hospital 20,000 deaths each yr. From hospital errors 7,000 medical malpractice deaths per yr attributed to medication errors in hospital Total of 225,000 deaths each yr. Due to medical negligence of some nature. ¡ ¡ What is the most common cause of Medical Errors? ¡ ¡ ¡ ¡ ¡ ¡ Examination errors? Misinterpretation of Data? Poor Records/charts? Poor training? Poor follow up appt? I nappropriate referral? ¡ ¡ ¡ ¡ According to National Patient Safety Foundation COMMUNICATION problems represent the number one cause of medical errors. Makes sense as communication covers a lot of ground. Patient to Dr. ..Dr. to technician…Dr. to Pharmacist Also applies to our practices…”I didn’t tell you that Mrs. Jones couldn’t make her appt. today….” ¡ ¡ You need to communicate important visits ¡ Communication and Beyond Pts sued even if they had been told to have a diagnostic test and did not……”if only DR. X had told me how important the colonoscopy was” “My Dr. should have called me to remind me to have the MRI performed” 2010 AMA Physician Practice Survey #1 reason for Malpractice suit was not communication but Diagnostic Error. Several dxs but missing MI in younger pts topped the list They also surveyed the group of docs who had practiced > 30 yrs and had not been sued. Found that they thought spending time with pats to communicate their thoughts and to comm. what to look for if something changed ¡ Study of root cause analysis The 5 whys technique, great tool for us to use in practice to determine why an error was made. Doesn’t mean you always need 5 whys Why did Mrs Jones not get seen the next day for her corneal ulcer ….because Jean did not call her back….why did Jean not call her back…because Jean asked Joan to call her…why did jean ask Joan to call …because Jean had Jaguar tickets….. ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ 9/1990 -‐ 3/ 2008 Malpractice payments reported MD 232,727 DO 14,733 Dentists 40,261 Podiatrists 6,618 OD 580 17 Yr. Malpractice Data ¡ ¡ ¡ ¡ ¡ ¡ ¡ AOA News, 4.28.2008 Malpractice premiums for ODs are even lower than those paid by some non-‐doctoral supervised allied health professions such as nurse practitioners and physician assistants. ¡ Malpractice payments by ODs:an Analysis of the Natl. Optom.1/2011 Article by Duszak and Duszak 18 yrs. Of malpractice data from National Provider Data Bank (NPDB) Analysis of payouts by insurance companies for settlements or judgements ¡ Duszak cont. Data base is maintained by US dept of health and human services. Judgments must be reported with 30 days 49 states allow tx of glaucoma 47 states orals 43 controlled substances 32 injectables ¡ 1 analysis of this data for Optometry ¡ ¡ ¡ ¡ ¡ st ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ Duszak cont Ave number of payouts per yr. 30-‐40 (40 in 2008) 34,800 Ods so 1/1000 chance of payment per annum 98 %of payments negotiated out of court….if you go to court you usually win…more on this later Mean payout of $190K Optometry accounted for .14% of all payouts ¡ Duszak cont. 11 States accounted for more than half of the cases Florida number 1 with almost 8% of the total. Followed by PA,CA, N, NY , OK, TX, IL, NM, LA and OH. Florida has no oral or injectable or controlled substance law ¡ Duszak Over 55% of cases were failure to diagnose, delay in diagnosis, or wrong diagnosis. Not wrong treatment Despite increased privileges and co-‐management successful lawsuits against ODs remain infrequent over the past 2 decades The data does not show dismissed or dropped lawsuits or verdicts in the OD’s favor ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ “Be nice, be happy” Surgery 2002 Jul; 132:5-‐9 57 surgeons evaluated: ten traits were looked at: warmth, interest, hostility, concern, sincerity…. Tone of voice and malpractice was compared, Surgeons with H/O malpractice were 5X more likely to have dominant voice tones. Did these MDs commit 5X the errors? Wendy Levinson and Nalini Ambady research Sued Drs. talked with a dominant voice, tone was analyzed not the content Comes down to a matter of respect to pts Talking down to someone st Orienting comments …were positive,1 we are going to do this and this and then…. Laugh and be jovial Law 101 You can be sued if you were negligent as compared to what a “reasonable practitioner” would do under like or similar circumstances. AND you caused an injury…no harm no fowl. Has to be both negligent and an injury. Law 101 Plaintiff attorney has to show a really unreasonable departure from what others would do …this is pretty difficult. You have a good case you want a smart jury If you have a bad case…want a not so smart jury…”easier to convince.” 7 jurors and 2 alternates. Law 101 You receive a letter from a plaintiff’s attorney saying they are intending to sue you, that means they have received your chart and have gotten another OD to sign a medical affidavit…….. What is that? ¡ You then call your insurance co. and you are assigned an attorney and you have 90 days to respond ¡ Law 101 ¡ Statute of limitations= the plaintiff has 2 yrs. from when they knew their was a problem or should have known to proceed with litigation. ¡ Statute of Repose= 4 yrs. An absolute number ¡ Obviously some problems happen quick …death, and others longer, ie tumors. ¡ Law 101 ¡ Ok what is reasonable? ¡ Softball player age 25 presents to ER with chest pains. No known hx of heart disease. The doc says you’ve strained your intercostals. The next day he dies from MI ¡ Not a very probable scenario but this is why so many unnecessary tests are ordered ¡ Everyone gets a breast bx ¡ Everyone gets a physical before cat.sx ¡ ¡ ¡ ¡ ¡ ¡ What is reasonable? 43 yowf presents complaining of blurred vision, found to have unilateral pigmentary glaucoma with a pressure of 53. OD starts timolol.5% which lowers the IOP to 44 and calls to ask what drop he should add. Was referred and found to have a ciliary body melanoma ¡ ¡ Reasonable? ¡ What if the IOP was lowered and the patient was found 6 mo. later by someone else to have the Melanoma…and the lady ultimately had to have the eye removed. What if 12mo. ¡ What about the choroidal melanoma that was found 6months later by a different physician….actual case. Reasonable Protection ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ If you don’t dilate, have a reason Try to bring the patient back, it is their choice if they don’t come back If you have trouble with the dilation note it, …..some people are difficult to examine If you don’t feel comfortable with a BIO, get some help as the std of care has changed. Law 101 You get sued for one or more of the following three reasons, 1. You screwed up 2. There is a potential big payday for someone and their attorney 3.the patient didn’t like you Ob-‐Gyn going bareback 96 yr.old with a detached retina vs. 3 yr.old with retinoblastoma. What case is more likely to be taken to court? ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ Law 101 Non-‐hospital providers: economic damages are not capped and can result in a big number. I can’t mow the lawn because I need to protect my only remaining eye…not a big number I can’t play major league baseball anymore because I have lossed my stereo acuity….big number. Pain and suffering is capped at $500,000 in Fl. Loss of consortium means…can’t make love anymore because he/she is disfigured. Law 101 2 yrs. Is the approx. time from letter of intent to an actual court date. Defense lawyers determine if a case goes to court…sometimes the ins. carrier Therefore it’s a stacked deck and that is why if you go to court ….85% Dr. wins On ave. 5% of cases go to court others are dropped or settled…..95% of time. It is expensive to go to court for defendant and plaintiff. ¡ 101 cont. ¡ ¡ ¡ ¡ Overall Ophth./optom. are small players Dentistry also small. Breast cancer big. Obstetrics big. Only things important in lecture other than being nice 1. Why are you here today to see the Dr. and what are your complaints? Need this in your chart… preferably in their handwriting Remember if it is not in your chart you didn’t do it. If it is in your chart …you altered it. 2.Be prepared for your depo. Only thing admissible in court and if you change you have to explain 3.If you go to court the jury wants to see you as caring. ¡ Example of how patients can change the story I told the Dr. I was having flashes of light and lots of floaters, when in reality the form they filled out said …I am only here to get my glasses changed. If 3 months later they have a detachment, and you never noted a careful peripheral retinal exam or referred for another opine it could be a problem vs. if no complaints before probably a new finding. ¡ Case #1 2005, law suit against My Practice Plaintiff claims permanent loss of vision because patient was not seen in a timely fashion. Case #1 cont. 58 y.o. female with complaints of new floaters and flashes of light, assoc. with blurred vision. ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ st ¡ ¡ ¡ ¡ ¡ Claims receptionist gave her 1 available appt. 2 days after the call. Chart and electronic scheduler confirms that no changes were made to the scheduler and that the patient was worked in the next morning Case 1 Pt. was seen and had 20/70 acuity with a temporal detachment, approaching the macula Diagnosed by me as a “macula on” detach. ¡ ¡ ¡ Referred to a retina doctor who saw the patient about an hour later. Had retinal surgery and obtained 20/50 vision. So why did this case go to trial? ¡ ¡ ¡ ¡ ¡ ¡ Patient didn’t like me Patient thought I had a “deep Pocket” Her attorney didn’t like me Her attorney needed the money Wrong diagnosis? Read 463.0135 ,referal mandatory:loss of field &floaters ¡ ¡ Discussion on why this case went to trial. Reasons this case goes to trial ¡ Certainly patients sue those they don’t like you, so if you are losing it take a walk ¡ Sue if they have a bad outcome ¡ Sue if the consultant “has issues” ¡ Think they have over paid…goes with #1 ¡ ¡ ¡ ¡ ¡ ¡ My thoughts on why case 1 goes to court First of all, attorneys want to settle I had good coverage The note by the receptionist wasn’t all that clear about when the call came in Retinologist waited 6 days to operate and became their expert witness..he worried? I won in court Communication Pearls Document in the chart, sign, time date, EMR makes this easier Receptionists need to be trained extensively and ongoing Charts have to be able to withstand shaken baby syndrome, i.e. no sticky notes or loose papers allowed. Nice to have more than one signature on the chart regarding what was said. ¡ Communication cont. Review charts mid day or in the evening, its ok to add notes and changes as long as they are true. Use the same pen everyday Understand that by the time your chart is requested and reviewed typically, months have past and so best to get it right from the start. ¡ Communication case 2 Dr.to Dr. ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ Refractive referral center in south fl. I was an expert witness 2003 pretrial, actual Lasik in 2001 Pt. Was a 50yo male, occupation: judge Poor bilateral outcome post lasik. Case 2 that almost goes to trial Good vision preop but with difficulty wearing Cls Topos as shown Diagnosis? ¡ ¡ ¡ ¡ Good candidate for lasik? Std of care in 2001? Similar to the judge’s topo, asym. Astig. His was worse than this. dsdssssssssssssssssssssssssssssssssssssbrian ¡ ¡ Case 2 cont. ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ Forme fruste keratoconus The surgeon was sued and during his depo, he said he made a mistake and didn’t look closely at the topo and felt that the center director who did the preop should have made him aware of the abnormality. The plaintiff’s attorney then added the OD to the suit…that is called… “thrown under the bus.” ¡ Case 2 , Communication or Poor Knowledge/ Exam ? By the time the case goes to court, the std. of care was definitely more defined Communication ? Who is in charge Both settled out of court Hopefully your referral source is kind Similar case to #1 I was the expert on a case involving an young man who wanting to enter the Navy as a pilot in 2004. Wanted PRK and got LASIK MD said it was not clear in the chart that he wanted to go to flight school. Signed PRK consent (MD and pt) and got Lasik. Both OD and MD sued Certain Patients/Situations Are Error Prone ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ The very elderly and the very young, because they aren’t the best at history giving and sometimes don’t care or have dementia. Parents always sue if you screw up their kid. The poor, lower socio-‐economic status, “more successful than buying a lottery ticket” Sometimes we don’t do what is best because we are trying to make the treatment less expensive or convenient. Case 3 . Making treatment convenient for the patient 2002, DOH vs Dr.U. The OD drained/ needled two small conj. cysts. Late that evening she developed a SCH and made an emergency call to his office. The answering service made her an appt. for the next AM. ¡ Expert witness (an OD testified that he performed surgery, as did her surgeon) ¡ I wrote a letter to the board on his behalf… ¡ Florida,Chap 64B13-‐3.010 “An Optometrist shall not use or perform any technique, function, or mode of treatment which the Optometrist is not professionally competent to perform…” this implies that not all ODs are capable or trained to perform the same techniques, and that clearly there are some techniques that are allowed. It states that professional competence can be obtained in several ways..CE, direct supervision, observation. ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ What is Surgery? Culturing an ulcer? (we are held to the medical std of care for treating an ulcer in Fl.) Punctal occlusion, removing a plug? Removing a filament? EKC membrane removal can result in heme and SCH FB’s, Rust removal Old lost CL Old Sutures ? ¡ Surgery Continued ¡ The OD had an answering service ¡ He charged her minimally.. ¡ I called about his reputation which was stellar ¡ Surgery ¡ One would hope that after 8 yrs of college you would be allowed to drain a blister 2 mm in size. ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ Case #4 40 yo male with good outcome post lasik Presents 6mo post LASIK with pain and redness, 1999 Diagnosed with Sands/DLK post blunt trauma (delayed sands) Completely resolved on steroids then worsened and was dx’d on day 10 with fungal keratitis ¡ Case 4 Bad outcome…patient lost his eye Bad communication…at the initial exam patient did not give details despite being asked how he injured his eye Convenience…tried to treat the patient and save him the inconvenience of travel and/or poor care Referral source made several errors and joined the plaintiff’s team. Case 4 Seen multiple times, sometimes twice a day DLK post trauma was not well described in the literature, so plaintiff attorney did not think our treatment was correct std of care When patient did not respond to antifungal,pt was referred to BPEI ¡ Fungal keratitis Case 4 Talked to OD on staff, explained all MD denies talking to OD, despite hx in chart was same as what I outlined to OD Pt. Arrived late seen by MD on call, who stopped antifungals Seen the next day, Stat Penetrating Keratoplasty. Chamber was sterile, so injected steroids and started postop PF Case 4 Patient was referred back to me for postop care… Initially did great, then developed a “fungal ball” in the AC and graft became cloudy, sent back to BPEI ¡ Did inject intracameral antifungals but no retinal consult despite admitting him. ¡ Concerned with pain but discharged on T-‐3s ¡ Fungal regrowth ¡ Case 4 ¡ Patient agreed to enucleation after spending the weekend taking tylenol #3 ¡ Surgeon gave steroids during and post graft and then joined the plaintiff’s team ¡ Outspoken in past against OD’s ¡ Sued all three of us ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ Case 4…What To Be Learned? Know your referral source…a lot of eyes much worse than this that never end up in litigation, but OD vs MD perhaps made the difference. The patient developed endophthalmitis during the Penetrating keratoplasty Fungal Dx was made w/i 10 days of presentation… which is great, always cult. Good records, lots of visits, showed caring Lift flaps early, Fungi have to be debrided Case 4 cont. Be prepared for your deposition, only what is said in your depo is allowed in court, so you want it to be complete Hope for a smart jury Help choose your experts and make sure your attorney asks them the right ques. In their depo. You are on stage at all times while in the court room. Do not let your emotions get the best of you ¡ ¡ ¡ ¡ WE WON !!! Despite feeling like a criminal for 2 wks. Defense expert, showed a chart of tx for DLK, which is exactly what we did. Your charts are blown up, so make sure they are presentable ¡ Case 5 (2000) ¡ 35 yowf with central corneal ulcer referred for tx ¡ Diagnosed on day three fungal keratitis, switched to natamycin and eventually obtained uncorrected VA of 20/40 ¡ Later considered a law suite because of acuity Case 5,Lessons ¡ OD’s need to carefully consider the treatment of central ulcers ¡ Must culture and know the lab ¡ Document with “others present” from day one: do the best we can, another specialist may do a better job, may have vision loss despite our best efforts ¡ Will need help from family with the drops ¡ Vision will be worse tomorrow ¡ Have to be seen daily for 7-‐10 days ¡ Case 6 Dec.1990 ¡ ¡ 12 yo white female presented with complaints of intermittent headaches and blurred vision for the previous 2 yrs. Seen by multiple ODs and MDs in Pa. ¡ I noted chronic disc swelling and referred her to a neurologist for an LP post MRI ¡ Case 6 ¡ Lumbar puncture revealed opening pressure of 390 ¡ She was started on DMX and her HA’s resolved as did her VA Case 6: So What’s The Problem? ¡ Pt. Was asked to see a neurophthal. For a second opinion by the neurologist ¡ She then convinced the neurologist to file a complaint with the DPR that stated I was not trained to change a diamox Rx. ¡ Patient would not participate in the complaint ¡ Case 6 lessons ¡ ¡ ¡ ¡ ¡ ¡ If someone makes a complaint with the state, you need to contact your ins.carrier and an attorney The DOH of will send an investigator to interview you….be careful what you say I wrote my statement, and refused to talk to the official. Med-‐mal Jds can use this as free discovery to see if the case is worth their time. Case 7…1997 ¡ 45 white female, referred by her OD to a retina specialist for bilateral decrease in VA. ¡ Visual fields showed central scotoma in one eye and temporal loss in the fellow eye. ¡ No APD ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ Case 7 MD thought she was malingering She missed a few appointments Her visits lasted only a few minutes Told she would get better Visual loss progressed and she was eventually dx’d with Pituitary adenoma She did not recover vision post surgery ¡ Case 7 I testified for the plaintiff I felt the OD should have been able to diagnose from the visual field He was found not guilty but the MD was found culpable I was not allowed to testify against the MD How about malingering? Recently had an ex military male trying to get visual disability Seen at BPEI MRI normal Groped down the hallway ¡ ¡ Held paper in and out Confrontations are still the key ¡ Other Cases ¡ IOFBs remember any foreign body assoc. with a lot of compression may ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ mean intraocular penetration…tires, battery explosions Flat chambers,low pressures,uveitis..see often, refer or send for imaging ¡ Glaucoma I think I get consulted on this one the most regarding litigation Open angle vs. chronic narrow angle Infantile, tactile tension, refer lg. corneal diameters Neovascular glaucoma PRK and steroid response, check IOP every visit. ¡ Glaucoma lessons Get second opinions if in doubt of control or diagnosis Don’t treat if you don’t feel comfortable with the disease IF you are filling in for a practice communicate or just refer Continuity of care is essential in Glauc. What about puff tonometers ? ¡ Questions ? Besteyedoc@aol.com Many thanks Support each other !!