By Pamela Miller, OD, FAAO, JD, DPNAP
The greatest areas of liability to your practice may come as a surprise–because you’ve never thought of them before. Here are five major areas of your practice to keep your eye on, along with specific precautions you can take. As with all legal concerns, it is best to check with your attorney and state optometric board before taking any action.
NEGLIGENT STAFF
Your staff is the portal to your practice. They control the patients coming in, acting as a first touch point over the phone, and also usually oversee patient care, the optical and the level of concern expressed toward the patient. Staff members, in other words, often control the majority of communications with patients. They’re not just scheduling appointments, but reiterating and further explaining the doctor’s diagnosis, and are tasked with being alert to potential problems. In other words, they’re your first line of defense against litigation.
What can go wrong: Let’s say a patient seen the previous week for a procedure calls up and explains to the person answering the phone that her eyes are having an adverse reaction. A responsible receptionist or other support staff member answering the phone might say: “Thanks for letting us know, Mrs. Green. This is something the doctor should know about. I’m going to tell her what you’ve described to me and have her call you back as soon as possible.” The receptionist would then, of course, do as she said–and let the doctor know of the patient’s complaint, noting the interaction in the patient’s health record.
The problem arises when you have a poorly trained or irresponsible receptionist who decides on her own to resolve the issue: “Oh, that’s nothing to worry about, Mrs. Green. I’m pretty sure I’ve seen that happen to a lot of other patients who have had that procedure. I think it’s OK if you just give us a call back in a week or so if it doesn’t clear up.”
The patient with the complication following the procedure then does as the receptionist advised–doesn’t call back for a week, by which time her cornea has been significantly damaged. While it was the doctor’s staff member, and not the doctor herself, who was negligent (what could the doctor do, you might reason, she never was even told about the issue), as practice owner, the doctor would be held liable for the patient’s damaged eye, under the Theory of Respondeat Superior.
What to do: Offer comprehensive training to all employees on the protocol for handling patient questions. Make it understood that if the question relates to anything eye health- or vision-related, the doctor should be notified as soon as possible, and the patient’s inquiry and doctor’s response should be added to the patient’s health record. This training should be reviewed once a year to be on the safe side, and it also helps to have an employee handbook online or in print that all employees can access if they are not sure what to do in such a situation.
FAILURE TO BILL OR INCORRECT BILLING
Billing Medicare incorrectly or over-charging can result in your practice getting audited. You also can find yourself facing an audit from an insurance company whose panel you are on if billing keeps getting rejected and getting kicked back to the practice. The most serious offense is over-billing, but you may be surprised to learn that under-billing also may be cause for legal concern–you’re billing for services when you’re actually providing more services. Regardless of whether it benefits your finances, any inaccurate billing could trigger an audit and loss of place on an insurance company’s panel.
What can go wrong: Let’s say as doctor and practice-owner that your hands are too full to become educated about coding and billing. You leave it to your trusty staff. You had the staff take a refresher online course on coding and billing, and they all have previous experience at other practices doing coding and billing, so you’re not concerned. However, one staff member has a complicated personal life and is exhausted lately, so she isn’t conscientious about her work and constantly but accidentally over-bills Medicare. Your practice is audited and found to owe Medicare thousands of dollars due to over-charging. Your practice is in danger of not only losing ability to charge Medicare, but of being shut down, due to the financial impact.
What to do: Even though you’re busy, it’s worth gaining at least a rudimentary understanding of proper coding and billing procedures. Once a month, you might want to sit down with your office manager and/or coding and billing staff member and review insurance claims and money coming into the practice. Make sure you can reconcile the procedures with the coding and billing that occurred afterwards and then check on the money paid to the practice by insurance companies. If there are any unexplained holes or blanks, find out from staff what might have happened and resubmit claims. When billing codes change or expand (ex. ICD10) there may be increased stress, as well as a sharper learning curve.
It’s also worth investing in continuing education in coding and billing for staff members who oversee this area of the practice. If you find your in-house staff is not able to keep up with proper coding and billing, then look into third-party coding and billing services that can do this for you.
FAILURE TO DOCUMENT
Documenting in your patients’ health record all your communications with the patient and all treatments and actions taken is your first line of defense should a question of liability arise. If you and/or your staff don’t add into the patient’s record that you asked to see him back for a follow-up exam, and he never followed through, despite repeated warnings, then you have no way of backing up your claim that you weren’t negligent in your communications with the patient.
What can go wrong: For example, I recently had a family come into my office for a contact lens fitting for a boy under the age of 10. He seemed responsible enough to follow through with a regimen for daily replacement contact lenses, so I agreed to prescribe these lenses for him. My policy is the patient has to be able to get the contacts in and out three times on their own before I let them walk out with contact lenses in hand (or a supply ordered for them). The patient was not able to do this, so I followed my protocol, and did not allow him to leave the office with contact lenses.
The boy’s mother threw a tantrum explaining that they were about to go on vacation and her son needed the contact lenses to wear while they were away. I explained what could happen if her son found on the trip that he was not able to remove the contacts–he could get an eye infection that could endanger his vision. The mother filed a complaint with her insurance provider. Without proper documentation as to what I did and why I did it, even with staff witnessing, I could run into trouble during an audit of my patient records.
What to do: Carefully documenting this exchange with the patient and his mother and the actions I took, and why I did so, allows me to have something beyond my own recollection in case the insurance provider decides to conduct an audit. I will be able to explain our office’s policy on contact lenses, and that I felt it would endanger the patient’s eye health to leave the office without the ability to easily remove and care for the lenses.
UNSAFE OFFICE ENVIRONMENT
If you have frayed wires that could cause a staff member or patient an electrical shock or injury in a fire, or uneven flooring that results in a patient fall, you’ve got a problem. Staff and patients can sue over an unsafe office that results in an injury. In addition to injuries, you may find your practice fined following an inspection by the Occupational Safety and Health Administration (OSHA).
What can go wrong: Let’s say Mr. Brown visits your office and despite verbally warning him of the large step down from the reception area into the pre-testing area, he falls and breaks his hip. Even though your staff warned him to be careful, your office could still be held liable for his fall and resulting injury.
What to do: Once a year, do a safety run through your office, looking for potential problems such as places a patient could easily trip or lose their footing. Also look for places where a staff person or patient could be electrocuted or shocked, such as faulty electrical outlets or wiring. Other hazards are not as obvious, such as Drano or other poisonous cleaning solutions under a sink where a child in the office could easily reach it. You also want to make sure in your contact lens area that only contact lens solutions, soap for hand washing and clean, unused contact lens cases are present. Imagine the disaster if a patient accidentally put a chemical cleaning agent into their contact lens case!
NOT MAINTAINING COMPETENCY
Beyond meeting continuing education requirements, you are responsible for maintaining a high degree of skill in all of the services and treatments you offer patients. For instance, if you advertise on your web site that you provide long-term monitoring and care for those with macular degeneration, then you must be up-to-date enough in your knowledge of this condition, including knowing when to refer the patient to a specialist for additional care.
What can go wrong: Let’s say you have a patient who has macular degeneration, or another serious condition, and you don’t keep up your skills on evaluating this eye condition so that you don’t realize you no longer have sufficient instrumentation to conduct a thorough evaluation by current standards. You evaluate the patient by the standards of maybe a decade ago or more, using decade or older instrumentation and miss a vision-threatening problem.
The patient goes on to lose vision. Just because you can point to a sufficient number of continuing education credits in this area, doesn’t mean you will be legally protected. Ultimately, the doctor is responsible for having a skill level sufficient to not endanger patients, and importantly, to recognize when a problem or development exceeds her knowledge.
What to do: Meet your CE credits, but then go beyond that and be honest with yourself and recognize what you don’t know. Do the needed reading and take the necessary classes to get yourself as up-to-date as possible, and when in doubt, refer out to a more skilled specialist or colleague.
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Pamela Miller, OD, FAAO, JD, DPNAP, has a solo optometric practice in Highland, Calif. She is an attorney at law, holds a therapeutic license, is California State Board-certified and glaucoma-certified to prescribe eye medications, and offers comprehensive vision care, contact lenses, visual therapy and low vision services. To contact her: drpam@omnivision.com.
