Ocular Anesthesia Claims: Years to Have Achieved Balance and Diversity Among Its Board and Causes and Outcomes Committee Members

Winter 2006 Volume 16 Number 1 OPHTHALMIC MUTUAL INSURANCE COMPANY

Ophthalmic Risk Management Digest

MESSAGE FROM THE CHAIRMAN

OMIC has been fortunate over the Ocular Anesthesia Claims: years to have achieved balance and diversity among its Board and Causes and Outcomes committee members. A few of the company’s original founders remain involved in OMIC’s gover- By Anne M. Menke, RN, PhD, and James J. Salz, MD nance, providing institutional memory and an understanding of Anne Menke is OMIC’s Risk Manager. Dr. Salz is a member of OMIC’s Claims what is necessary to keep the company on an and Risk Management Committees. even keel. Newer Board and committee members, meanwhile, infuse the company with energy, cular anesthesia presents challenges for both the enthusiasm, and a spirit of innovation. Both play ophthalmologist and anesthesiologist. Each must crucial roles in OMIC’s success. Oaddress patient anxiety about eye surgery, including Recent scandals have heightened awareness concerns about eye pain or movement during surgery, and of corporate governance and put in sharp relief possible vision loss. When determining the appropriate anes- the importance of properly and ethically managing thesia to use, physicians must take into consideration possible a company. Although OMIC is a relatively small multiple medical comorbidities in elderly patients and the insurance company, it is no less regulated and particular anesthesia risks for pediatric patients, especially scrutinized than larger financial corporations. those who may be premature or have congenital syndromes. The company’s ultimate goal is straightforward: Following application of the anesthetic agents, they may need to manage intraocular pressure or respond to cardiovas- defend and indemnify insured members who are cular events precipitated by oculocardiac reflexes. sued for malpractice and invest members’ premi- OMIC recently conducted a review of claims related to ums wisely so there are sufficient reserves to do anesthesia and sedation in order to identify issues that can be this. This necessarily involves many highly skilled addressed through proactive risk management. The results of continued on page 2 this study are summarized in this article and in an online course. The study was a retrospective analysis of 18 years of OMIC claims experience (1987-2005). While OMIC’s database includes IN THIS ISSUE incidents reported by physicians on a precautionary basis, only 2 Eye on OMIC actual malpractice claims – defined as written demands for money and lawsuits – were included. Cases were located by Broad Regulatory Protection Policy Now Covers DEA searching for anesthesia- and sedation-related words in allega- and STARK Violations tions and through codes assigned to these procedures, such as 3 Policy Issues retrobulbar or peribulbar injections. Therapeutic injections The Impact of a Claim on Your OMIC Policy were excluded. At times, information was available only from case summaries, not from medical records. As these results 6 Closed Claim Study show, very few of the thousands of patients who undergo Codefendant Nurse Anesthestist’s Insurance Carrier ophthalmic procedures sue their provider for professional Builds a Case Against OMIC Insureds negligence in the administration of anesthesia or sedation. 7 Risk Management Hotline Out of 2,474 OMIC claims during this 18-year period, only 78, or 3%, were related to anesthesia and sedation. Of the 65 Interpreters for Deaf Patients closed anesthesia/sedation claims, 43, or 66%, were closed 8 Calendar of Events without any indemnity payment to the plaintiff. Claims Online Courses, CD Recordings, Upcoming Seminars resolved without any payment to the plaintiff (former patient) for several reasons: (1) the claim was not pursued by the plaintiff, continued on page 4

Broad Regulatory Protection Now liability policyholders. For policyholders wishing additional supplementary coverage, OMIC has Covers DEA and STARK Violations arranged several purchasing options. Limits of The Ophthalmic Risk $50,000 and $100,000 may be purchased as a Management Digest is standard BRPP upgrade while limits of $250,000, published quarterly by the ue to the continuing vulnerability of Ophthalmic Mutual physicians to regulatory investigations, $500,000, and $1 million are available through Insurance Company, a Risk OMIC has further enhanced its Broad a BRPP Plus policy. Retention Group sponsored D Regulatory Protection Policy for 2006 to Because the standard $25,000 coverage is by the American Academy automatically extended to OMIC professional of Ophthalmology, for include coverage for alleged violations of DEA OMIC insureds and others and STARK regulations. Coverage for alleged liability insureds, a declarations page is not nec- affiliated with OMIC. violations of the Emergency Medical Treatment essary and is not produced unless additional and Active Labor Act (EMTALA) was added in coverage (higher liability limits) is purchased. OMIC, not the Academy, is Policyholders who have provided their email solely responsible for all 2005 when the policy replaced the Fraud and insurance and business Abuse/HIPAA Privacy Legal Expense Reimburse- address to OMIC have received a link to the decisions, including ment Policy. At the same time, the policy Members Area of OMIC’s web site where they coverage, underwriting, extended coverage for fraud and abuse claims can review and download the policy documents claims, and defense and upgrade forms (see E-Bulletin, March 1, decisions. related to billing errors and HIPAA privacy pro- ceedings to include fines and penalties (where 2006). Other OMIC policyholders can view this OMIC owns the copyright allowed by law) as a standard policy feature. information by going to www.omic.com/ for all material published members/mbrsOnlyBRPP.cfm. If you would like in the OMIC Digest (except As a benefit of membership, OMIC purchases as otherwise indicated). a $25,000 Broad Regulatory Protection Policy OMIC to have your email address, please contact Contact OMIC for permission for each of its physician and entity professional us at [email protected]. to distribute or republish any Digest articles or committee members attain a certain level of information. The general Message from the Chairman expertise, they are nominated to the Board information on medical and continued from page 1 legal issues that OMIC where they help develop Board strategy as well provides in the Digest is people and entities to carry out specific tasks as continue their committee work. Currently, we intended for educational over a long period of time. It is the responsibility have a particular need for ophthalmologists purposes only and should not be relied upon as a of the ophthalmologists who make up the OMIC with an aptitude for finance and accounting source for legal advice. Board of Directors to oversee this long, complex principles, in part because of recent reforms that OMIC will not be liable process and the people involved with it. They necessitate the formation of an audit committee for damages arising out must formulate strategy, establish norms and to oversee the company’s financial reporting. of the use of or reliance on information published in procedures, select competent senior management A significant time commitment is required of the Digest. and advisors, and monitor their performance as Board and committee members, including atten- well as that of the company itself. dance at three Board meetings a year. The OMIC 655 Beach Street In screening potential new Board and com- Finance Committee holds a fourth meeting each San Francisco, CA mittee members, we look for insured ophthal- August in Vermont, where OMIC is domiciled. 94109-1336 mologists with an interest and experience in Additional responsibilities between Board PO Box 880610 San Francisco, CA insurance operations who have held leadership meetings include speaking at various state and 94188-0610 positions in state and/or national ophthalmologic subspecialty meetings, reviewing underwriting Phone: 800-562-6642 Fax: 415-771-7087 organizations. Candidates must understand applications and claims, developing risk manage- Email: [email protected] OMIC’s mission of exclusive service to Academy ment materials, and spending time at the OMIC Web: www.omic.com members and appreciate the cooperative rela- exhibit booth during the AAO annual meeting. Timothy J. Padovese tionship between the two organizations. We seek I encourage any member who possesses the Editor-in-Chief Paul Weber, JD individuals who are representative of the diversity skills, the time, and the interest to become a part Executive Editor of OMIC’s insured base as well as its subspecialty of OMIC’s governance to write us. We are always Linda Radigan and geographic distribution. The individual must looking for a few good men and women with the Managing Editor Anne Menke, RN, PhD maintain the highest ethical standards. “right stuff.” I cannot promise that any particular Associate Editor Potential Board members first serve on one or individual will be selected, but I can promise that Kimberly Wittchow, JD more of five committees to gain experience in each letter will be carefully considered. Associate Editor Stoller Design Group insurance operations. These committees Production oversee insurance finance, underwriting, risk Joe R. McFarlane Jr., MD, JD management, claims, and marketing. When OMIC Chairman of the Board

2 Winter 2006 O PHTHALMIC M UTUAL I NSURANCE C OMPANY Policy Issues

The Impact of a Claim on further review by OMIC’s physician Insureds are provided the oppor- review panel depends upon the tunity to appeal coverage and Your OMIC Policy insured’s history of claims frequency termination decisions to the full By Kimberly Wittchow, JD (the number of claims or suits) and Underwriting Committee. OMIC OMIC Staff Attorney severity (indemnity amounts) and on would not generally apply a policy the specific circumstances surrounding surcharge (higher premium) tress and worries abound when the claim(s). This could include indi- because of claims experience. a patient sues or claims mal- cations that an insured is performing Spractice. One concern of experimental procedures outside of Reporting a Claim or insureds is the effect such action will the ordinary and customary practice Medical Incident have on their insurance coverage. of ophthalmology or has provided The policy requires that an insured Although claims can and sometimes substandard care, followed poor report to the Claims Department do have an impact on insurability, informed consent techniques, or any claim or medical incident that understanding how a claim is han- failed to cooperate during the occurs during the policy period dled at OMIC may provide insureds claims-handling process. OMIC’s which may reasonably be expected with some peace of mind. reviewers consider the insured’s to result in a claim. The reporting of Each department at OMIC has a entire claims experience, including such an incident triggers coverage different responsibility when a claim his or her experience with insurance with OMIC. Even if the insured arises. Risk Management encourages carriers other than OMIC. doesn’t obtain an extended insureds to be proactive and contact After consideration, the physician reporting period endorsement (tail the department when medical incidents review panel may determine one of coverage) when he or she leaves or issues occur so the risk manager can several outcomes, including any of OMIC, OMIC will continue to insure help them appropriately respond to the following: him or her for all covered claims the incident and incorporate any and incidents reported while the necessary changes in their practices • The panel may continue the policy was in force. An incident that or procedures. The Claims Depart- insured’s coverage without any does not develop into a claim will ment, in cooperation with the conditions placed on his or her have no effect on the insured’s insured, wants to resolve the claim policy. premium and will not be included in or lawsuit as efficiently and cost • The panel might continue the pol- claims history reports provided to effectively as possible. Underwriting, hospitals or other third parties. meanwhile, must make certain that icy coverage with conditions, such as endorsing the policy to exclude Claims or incidents reported to OMIC insures good risks. Insureds OMIC’s Risk Management may therefore get several seemingly coverage for certain activities or reducing the policy limits. Department are kept confidential: conflicting messages from the com- they are not shared with the pany depending on the status of • The panel could also conclude Underwriting or Claims Departments their claim. Rest assured, however, that the insured’s risk profile falls without an insured’s permission and that there are checks and balances outside of OMIC’s conservative are not considered reported to in OMIC’s operational protocols to underwriting standards, and that OMIC for coverage purposes. balance these priorities. Most impor- OMIC, therefore, is no longer in a Finally, any indemnity payment tantly, OMIC’s Board of Directors position to cover the insured made by OMIC on behalf of an is made up of ophthalmologists beyond the expiration of the insured will result in the removal of who not only approve company insured’s policy. the insured’s loss-free credit upon processes but also conduct claims renewal and for two policy terms. and underwriting reviews. • Finally, the panel, in rare circumstances, might determine that the Then, if no further claims payments insured’s actions warrant mid-term are made on behalf of the insured, Physician Review Panel the insured will begin earning loss OMIC employs a continuous under- cancellation if the reasons for the free credits again, beginning at 1% writing process, monitoring the cancellation fall within the policy and increasing 1% annually to a claims activity of all insureds not provisions. These include fraud maximum discount of 5%. only in anticipation of policy relating to a claim made under the renewal, but also during the course policy and a substantial increase in of the insured’s coverage. Whether “hazard insured against,” such as an insured’s claim(s) will warrant claims frequency or severity or unacceptable practice patterns.

O PHTHALMIC R ISK M ANAGEMENT D IGEST Winter 2006 3 Ocular Anesthesia Claims: Causes and Outcomes continued from page 1

often after OMIC denied it for lack tered Nurse Anesthetists. Of the 16 TABLE 2 of merit; (2) the physician was dis- peribulbar blocks, 9 were given by ORBITAL ANESTHESIA missed from the lawsuit through eye surgeons and 6 by anesthesiolo- COMPLICATIONS legal action; this was most common gists. The only O’Brien block was Perforation 28 when he or she did not administer injected by an ophthalmologist; the the anesthesia; or (3) a jury, medical type of orbital anesthesia was not Cardiovascular event 10 review panel, or arbitrator sup- specified in 3 claims. Of note, there Hemorrhage 8 ported the physician’s care. were no claims resulting from In 22 of the 65 closed cases, the sub-Tenon’s blocks. CRAO 4 plaintiff was awarded money as a Corneal abrasion 3 result of settlements or plaintiff ver- TYPES OF ANESTHESIA Diplopia 3 dicts at trial or arbitration. While the RESULTING IN CLAIMS frequency of anesthesia claims is low, Topical General Pain 3 both the percentage of claims result- Optic nerve damage 2 ing in payments and the severity of the indemnity awards were higher Seizure 2 than OMIC’s overall claims averages Orbital Injection Vision loss 2 (see Table 1). Defense costs for these Brain stem anesthesia 1 65 closed claims, however, were some- what lower than OMIC’s overall aver- Numbness 1 age ($34,574 vs. $39,324) and median Vitreous prolapse 1 ($21,688 vs. $26,223) cost per case. Complications of Ocular Anesthesia In all 4 closed general anesthesia The complications resulting from TABLE 1 claims, the ophthalmologists were retro- and peribulbar blocks in the ANESTHESIA OVERALL dismissed from the lawsuits despite OMIC cases correlate closely with those INDEMNITY INDEMNITY complications that included adult reported in the medical literature1,2 respiratory distress syndrome, High $ 999,999 $ 1,800,000 (see Table 2). Perforation was the intraoperative choking with a post- most likely complication, followed Low $ 5,500 $ 500 operative CVA, and death due to by cardiovascular events and hemor- aspiration. The authors do not have Average $ 202,993 $ 131,960 rhage. Sedation-related problems information on the outcome for the were the primary issue in two settled Median $ 150,000 $ 75,000 anesthesia providers in these claims. claims. In one case, the plaintiff Failure to control pain and/or move- Total $ 4,446,853 $55,360,884 alleged that her pain and anxiety ment was the allegation in 2 open were inadequately controlled, % Payment 34% 21% topical anesthesia claims, while resulting in a $450,000 indem- inadequate pain relief allegedly led nity payment on behalf of the to hypertension and hemorrhage in Types of Anesthesia ophthalmologist. In the second, the 2 closed topical anesthesia claims. In Resulting in Claims ophthalmologist ordered a nurse to the closed cases, a cataract surgery Complications of orbital injection administer sublingual Procardia and claim closed without payment, while anesthesia accounted for the over- oral Valium to an elderly patient, a combined cataract/trabeculectomy whelming majority of anesthesia/ who suffered a series of strokes case settled for $150,000. Both plain- sedation-related claims against after she was discharged with a tiff and defense experts criticized OMIC insureds (69 claims), while blood pressure significantly lower the use of topical anesthesia for general and topical anesthesia than upon admission. Neither the trabeculectomy and felt surgery was accounted for only 5 and 4 claims, ophthalmologist nor the nurse was not indicated in the first place, as respectively. Sedation was an issue in aware of the “black box” warning the patient did not have glaucoma. 5 of the 69 orbital claims. Retrobul- associating sublingual Procardia bar anesthesia was administered in with severe hypotension and stroke. Standard of Care Was Met 49 cases: 32 times by ophthalmolo- The ophthalmologist and ambula- But Other Issues Arose gists, including one ophthalmology tory surgery center each contributed Eye surgeons who meet the standard resident, 14 times by anesthesiolo- $375,000 toward the settlement. of care expect to successfully defend gists, and 3 times by Certified Regis-

4 Winter 2006 O PHTHALMIC M UTUAL I NSURANCE C OMPANY their treatment. Nonetheless, in 6 of suade a jury to give the plaintiff, TABLE 3 the 22 paid indemnity cases, the rather than the physician, the benefit INCIDENCE OF RISK ISSUES plaintiff prevailed even though of the doubt. Three of OMIC’s 22 INVOLVING NEGLIGENCE OMIC’s Claims Committee, claims cases that closed with indemnity pay- (more than one may apply) associates, and defense experts were ments fall into this category. In the fully supportive of the care provided. first case, lack of indications for Negligent management 7 Three of these cases were settled at surgery, failure to communicate to of complication: • the request of the insured physician the anesthesiologist the difficulties of After-hours telephone screening • Failure to refer to subspecialist due to the ophthalmologist’s health a wide and long eye, and criticisms • Poor control of IOP issues, nervousness, or desire to com- about the lack of documentation of a pensate the patient for lost wages. staphyloma led to a settlement. In the Documentation issues concerning: 6 In another, an unwitting dictation second case, a settlement was • Informed consent • mistake concerning the timing of a reached because there was no docu- Findings • perforation following a retrobulbar mented consent, the cause of the Errors • Decision-making process unduly complicated the defense. In 2 injury to the optic nerve could not be • Altered records instances, the plaintiff attorneys ascertained, and the postoperative made side deals with the anesthesia management was subpar. Question- Surgery not indicated 4 providers just before trial in order to able indications for a second surgery Negligent choice of anesthesia 3 pressure the ophthalmologists to set- coupled with scanty documentation and inadequate control of: tle, even though the anesthesiolo- and a difficult venue led to a settle- • Pain gists were felt to be responsible for ment in the third claim. • Movement the plaintiffs’ injuries. The anesthesi- • Anxiety ologist was dismissed in one of these Negligence Negligent administration 3 cases and the anesthesiology group Physician negligence was felt to be of orbital injection: made a nominal payment, leaving the cause of the plaintiff’s injury in 13 • Oxygen mask hindered the ophthalmologist as the sole of the 22 cases that resulted in an view while injecting defendant. After similar maneuvers indemnity payment. Table 3 indicates • Injected into wrong muscle in the other case, a new theory of the point in the care process at which • Injected into wrong eye negligence was introduced against the skill, judgment, or expertise of Negligent preoperative 2 the ophthalmologist. When the the insured was not that of a reason- assessment of: medicine is complicated, the venue ably prudent ophthalmologist, which • Patient on Coumadin is plaintiff-oriented, the outcome is is generally the standard experts use • History of hemophilia poor, and the ophthalmologist is the when evaluating a case. Negligent choice of anesthesia 2 only defendant left, a settlement within Lawsuits may be mitigated by provider to administer and policy limits can be a prudent move to applying risk management princi- monitor sedation protect the insured’s personal assets. ples at every step of care, from determining the proper procedure Negligent communication 1 Concerns About Care to making appropriate care decisions with anesthesia provider During the informed consent discus- after maloccurrences, and document- sion, ophthalmologists warn patients ing that care clearly and completely. sub-Tenon’s for orbital injection about the complications associated Careful informed consent discussions anesthesia when appropriate, given with anesthesia and the patient’s about anesthesia choices, clear com- its significantly lower risk profile. particular surgery. If a complication munication with other providers, OMIC’s online “Ophthalmic Anes- occurs but is promptly recognized and an empathetic response to thesia Liability” course, nearing and appropriately managed, the patient concerns and questions completion, will feature a video outcome is considered to be a maloc- can also significantly reduce the demonstrating this technique. currence rather than malpractice or likelihood of claims. Please see the negligence. A single concern about document “Ophthalmic Anesthesia 1. Stead SW and Bell SB, Focal Points: Ocular an aspect of care can usually be Liability” at www.omic.com. Anesthesia, The Foundation of the American explained to a jury. Multiple concerns Finally, while the actual choice of Academy of Ophthalmology, March 2001: Vol. XIX, No. 3. about care still do not constitute anesthesia or its administration was negligence, but they can greatly less frequently a concern, physicians 2. Anesthesia Alternatives for Ocular Surgery, strengthen a plaintiff’s case and per- should consider substituting American Academy of Ophthalmology, 2001.

O PHTHALMIC R ISK M ANAGEMENT D IGEST Winter 2006 5 Closed Claim Study

Codefendant Nurse Anesthestist’s Insurance perforations represented a considerable departure from the standard of care. An Carrier Builds a Case Against OMIC Insureds additional criticism was that the nurse failed By Ryan Bucsi, OMIC Senior Claims Associate to recognize this complication, thus delaying a referral to a retinal specialist. The plaintiff did not retain an expert to ALLEGATION Case Summary testify against insured A or B. Insured A was Against Insured A n elderly male patient underwent a dismissed from the case, but the group he was retrobulbar block by the codefendant part of was not. The codefendant alleged the Negligent supervision Anurse anesthetist, apparently without ostensible agency theory, essentially claiming of nurse anesthetist complication. Insured A then performed that the group caused the plaintiff to believe the CRNA was an agent or employee of the during administration cataract surgery on the left eye. When the patient returned the following day, insured A group. Since insured A was dismissed and of a retrobulbar diagnosed a submacular hemorrhage and there remained only the allegation of block. referred the patient to insured B, a retinal vicarious liability against the group, OMIC Against Insured B specialist. Insured B performed a TPA/gas attempted to tender the defense to the nurse injection and two weeks later performed a anesthetist’s carrier. The carrier denied OMIC’s Negligent use of gas pars plana vitrectomy. Subsequent procedures tender based on the theory that insured A bubble injection to were performed by insured B because of a was somehow independently negligent, even though insured A had been dismissed. repair a retinal retinal detachment resulting from prolifera- tive vitreous retraction. The patient ultimately OMIC’s defense counsel estimated a 90% detachment. lost all useful vision in his left eye. During chance of a defense verdict, since the plain- Against Non- their respective depositions, insured A and the tiff's expert was supportive of insured B, and Insured Nurse nurse anesthetist both testified that the injury the only critical testimony would be presented was a result of the retrobulbar block. by an expert retained by the codefendant. Anesthetist The plaintiff’s demand was for $1 million. Improper adminis- Analysis The case was mediated prior to trial and the codefendant offered $100,000. No offer was tration of a retrobul- The defense expert for insured A testified that since the nurse anesthetist had significant made on behalf of any OMIC insured. The jury bar block. experience in administering anesthesia, there returned a defense verdict for OMIC insured was no need for direct supervision of the B, found against the nurse anesthetist, and anesthesia administration. The defense expert awarded the plaintiff $250,000. Since OMIC’s DISPOSITION for insured B was fully supportive of the offer to tender the defense to the nurse anes- insured's care and treatment of the patient, thetist’s carrier was rejected, it allowed OMIC Insured A was dis- stating that TPA and gas injection was cutting to pursue a portion of the defense costs. missed prior to trial edge and the least invasive approach. The Defense counsel filed a complaint for costs against the codefendant and OMIC received while insured B defense expert for the nurse anesthetist testified that everyone except the nurse violated $22,250 reimbursement from the nurse received a defense the standard of care. He testified that insured anesthetist’s insurance carrier. verdict at trial. Jury A breached the standard of care by perform- Risk Management Principles verdict of $250,000 ing cataract surgery on the patient in the first place and opined that a macular pucker, not a As this case demonstrates, ophthalmologists against non-OMIC cataract, was the cause of the patient’s poor who delegate retrobulbar injections to quali- insured codefendant vision. The codefendant also retained an fied anesthesia providers are not held liable for the alleged negligence of that provider. nurse anesthetist. expert to testify against insured B. This expert opined that the decision to use a gas bubble The surgeon does, however, need to carefully injection, rather than a vitrectomy with mem- convey to the anesthetist any information brane stripping, fell below the standard of that could impact the anesthetic choice, care. This testimony prompted the plaintiff to dosage, or technique, such as unusual amend the complaint to include insured B. As anatomical features and co-morbid ocular to the care provided by the nurse anesthetist, or medical conditions. the plaintiff’s expert opined that the double

6 Winter 2006 O PHTHALMIC M UTUAL I NSURANCE C OMPANY Risk Management Hotline

Interpreters for Deaf information about the patient’s Q Does the ADA even apply to concerns/ expectations for the visit so Patients my practice? the physician can determine the best By Anne M. Menke, RN, PhD way to meet them. Document the OMIC Risk Manager A Yes. Intended to stop decision and the assistance provided. discrimination on the basis of dis- For many routine office visits, a ability, the ADA requires those who notepad may be sufficient to ensure hysicians are well aware of the own, lease, or operate a place of good communication. Office visits central role clear communication public accommodation, such as a before major surgery or for a new, Pplays in the physician-patient physician’s office, to make reason- complex treatment plan may require relationship. Patients who are deaf able accommodations to meet the an interpreter. If the physician and present special challenges to effec- needs of patients with disabilities, patient disagree, reconsider the tive interactions. Ophthalmologists unless “an undue burden or a fun- decision. Finally, maintain a list of often have questions about how to damental alteration would result.” qualified sign language and obtain and reimburse interpreters Actions, standards, and policies that oral interpreters. and whether family members can either intentionally discriminate or fulfill this role. have the effect of discrimination Q Can I charge the patient for the against persons with disabilities are cost of the interpreter? prohibited. Moreover, failure to Q My deaf patient insists that I take steps that may be necessary to A No, the cost of aids cannot be provide a translator. Am I required ensure access, such as providing passed onto the patient. However, to do so? auxiliary aids and services, could be the patient’s employer, health plan, seen as discriminatory. Medicare, or a local hospital may be A Although the law has been able to help provide or pay for an interpreted “by some as creating a Q What steps must my group take ASL interpreter. requirement that the physician pro- to meet the needs of patients with For further information on federal vide and pay for the cost of hearing disabilities? rules concerning accommodations interpreters for their patients who for deaf patients and risk manage- are hearing disabled,” the American A First, conduct and document an ment recommendations on how to Medical Association has noted that analysis of your overall obligations. meet the needs of deaf patients, go there is “no hard and fast require- Decide what particular aid or service to www.omic.com/resources/ ment for the provision of such ser- will be provided, based in part upon risk_man/ forms/man_care/ vices” and that the Americans with an analysis of the length and/or InterpretersforDeafPatients.rtf. Disabilities Act (ADA) “does not complexity of the medical service, New risk management recom- mandate the use of interpreters in treatment, or procedure. A patient’s mendations for meeting the needs every instance.” The Supreme Court request for a sign language inter- of patients with limited English ruled in an education suit, for exam- preter should be a significant factor proficiency are also available at ple, that American Sign Language in the decision. Determine whether www.omic.com/resources/risk_man/ (ASL) interpreters are not required providing such a service would result forms/man_care/InterpretersforLim- when lip reading or other accommo- in an undue burden on the overall itedEnglishProficiencyPatients.rtf. dations are sufficient. In the medical practice. Second, assess the patient’s arena, physicians often rely upon needs before providing a particular 1. AMA Legal Issues: Americans with Disabilities Act note pads to communicate with auxiliary aid or service. Ask the refer- and Hearing Interpreters, http://www.ama-assn.org/ deaf patients. At times, such as ring physician how he or she usually ana/pub/category/print/4616.html, accessed before major surgery, or when initi- communicates with the patient. 11/21/05. ating a treatment plan for a complex Consult with the patient about his or 2. Americans with Disabilities Act (ADA), 42 U.S.C. § condition, an interpreter may be her needs when the appointment 12101, et seq. ADA Title III Technical Assistance necessary. is scheduled and document the discussion. If a patient requests an Manual,http://www.usdoj.gov/crt/ada/taman3.html, accessed 1/10/06. interpreter, ask staff to acknowledge the request and gather more

O PHTHALMIC R ISK M ANAGEMENT D IGEST Winter 2006 7 Calendar of Events

OMIC continues its popular risk State and Subspecialty May June management education programs Society Online Courses in 2006. Upon completion of an A special society-specific edition 5 Ophthalmic Anesthesia 24 Ophthalmic Anesthesia OMIC online course, audiocon- of OMIC’s Informed Consent for Liability Liability ference, or seminar, OMIC Ophthalmologists online course American Osteopathic Virginia Society of insureds receive one risk is available for physicians in College of Ophthalmology Ophthalmology Meeting management premium discount California, Hawaii, Louisiana, Hyatt Regency Grand Virginia Beach Convention per premium year to be applied Nevada, Oklahoma, and Wash- Cypress Hotel, Center, Virginia Beach, VA upon renewal. For most pro- ington, as well as Women in Orlando, FL Time TBA grams, a 5% risk management Ophthalmology members.* Time TBA Register with the Virginia discount is available; however, Register with AOCCO Society of Ophthalmology insureds who are members of a CD Recordings (800) 455-9404. (804) 261-9890. cooperative venture society • Lessons Learned from Trials may earn a 10% discount by and Settlements of 2004 6 Ophthalmic Anesthesia August attending a qualifying cospon- (2005 Nationwide Liability sored event or completing a Audioconference) $40 Texas Ophthalmological 9 Lessons Learned from Set- state or subspecialty society • Noncompliance and Follow-up Association Meeting* tlements and Trials of 2005 course online (indicated by an Issues (2005 OMIC Forum) $50 George R. Brown OMIC Nationwide Live asterisk). Courses are listed Convention Center, Audioconference below and on the OMIC web • Research and Clinical Trials Houston, TX OMIC Home Office, site, www.omic.com. CME (2004 Nationwide 3:30-4:30 pm San Francisco, CA credit is available for some Audioconference) $40 Register with TOA 2:00-3:00 pm PST courses. Please go to the AAO • Responding to Unanticipated (512) 370-1504. Register with OMIC web site, www.aao.org, to Outcomes $25 (415) 202-4652. obtain a CME certificate. • Risks of Telephone Screening 19 Ophthalmic Anesthesia and Treatment $25 Liability 20 Ophthalmic Anesthesia Online Courses Arizona, Nevada, and New Liability • EMTALA and ER-Call Liability Go to www.omic.com/resources/ Mexico Tri-State Meeting* Florida Society of addresses liability issues sur- risk_man/seminars.cfm to Sedona Hilton, Sedona, AZ Ophthalmology Meeting* rounding on-call emergency download CD order forms. 3:00-4:00 pm Ritz-Carlton, Naples, FL room coverage and EMTALA Register with your 7:00-8:00 am statutes. Frequently asked Upcoming Seminars respective state society: Register with FSO questions on federal and April Arizona (602) 246-8901; (904) 998-0819. state liability are answered. Nevada (303) 832-4900; • Ophthalmic Anesthesia Risks 28 Ophthalmic Anesthesia New Mexico (505) 962-0358. offers an overview of anesthe- Liability sia risks and provides case West Virginia/Kentucky 20 Ophthalmic Anesthesia For further information studies supporting the issues Joint Meeting Liability about OMIC’s risk addressed in the overview. Griffin Gate Marriott, Missouri Society of Eye management programs, Lexington, KY Physicians & Surgeons* please contact • Informed Consent for 2:00-3:00 pm St. Louis, MO Ophthalmologists provides an Register with West Virginia 1:15-2:15 pm Linda Nakamura at overview of the informed Academy of Ophthalmology Register with MOSEPS (800) 562-6642, ext. 652 consent doctrine as it applies (304) 343-5842 or Kentucky (847) 680-1666. or [email protected]. to various practice settings. Academy of Eye Physicians and Surgeons (317) 813-3147.

655 Beach Street San Francisco, CA 94109-1336 OPHTHALMIC MUTUAL INSURANCE COMPANY PO Box 880610 (A Risk Retention Group) San Francisco, CA 94188-0610