By Luke Arundel
National professional services manager
For anyone who missed it, on 10 September the Daily Mail Australia ran an article detailing the first case in the United Kingdom of an optician being charged with negligent manslaughter. This followed the death of an eight-year-old boy following a routine high street check-up four months earlier.
There have previously not been any cases of criminal charges laid against a UK optician. If found guilty, she faces a maximum gaol term of life in prison. The UK Crown Prosecution Service will allege that she should have spotted papilloedema in her internal examination during a routine eye test.
The case brings home the fact that as optometrists we can play a very important role in patient health and that in the practice of our profession we may at some stage have to face very serious legal action.
In situations like this you want the best possible team in your corner defending you.
Doctors generally talk about ‘when’ rather than ‘if’ they are going to be sued over the course of their career. While optometrists are less frequently sued, it may still be helpful to understand the areas where we are getting into trouble.
I had never thought much about this area prior to working for Optometry Australia as I had hoped it was something that would never happen to me. The reality is that it does happen; 260 incidents were reported in 2014.
Assisting members as professional services manager, I have seen first-hand that this time is extremely stressful for those with a claim against them.
While it is often practitioner error, I have discovered that:
• there is a bunch of crazy, litigious patients out there who are ticking time bombs
• sometimes lady luck simply doesn’t smile on us and things can go pear-shaped despite best practice and protocols being followed.
Like all professions, we are receiving an increased number of complaints to regulatory bodies, which automatically triggers an investigation and in some cases this results in disciplinary action or a request for financial compensation without any involvement by lawyers on the claimant’s behalf.
When thinking about this area, it is helpful to have an idea of where we are most exposed and which issues are most problematic across our profession.
The top causes of claims are misdiagnosis, delay or failure to diagnose, especially retinal detachment, glaucoma and tumour.
While we are not missing many tumours, these are consistently awarded the highest damages, with the largest pay-out recorded at $1.5 million in this area.
As I still practise part-time as well as work at Optometry Australia, I have been trying to incorporate some of the feedback we receive from our insurer into my day to day practice. What seem like small tips can make a huge difference to the outcome when tested in court.
In pretty much every case the critical factor in mounting a successful defence is your clinical records.
AHPRA has also cleared some optometrists of the initial complaint levelled against them but then mounted disciplinary action against them for poor record-keeping, so this is an easy area to start with.
WNL may as well stand for ‘We Never Looked’.
Records must include information known to practitioner relevant to diagnosis and treatment, details of clinical opinion, treatment plan, particulars of medication prescribed and notes of any information or advice given to patient.
If someone presents with, for example, flashes and floaters, the record should state that you have ‘checked for retinal detachment’ and record the result.
You should also note in the records any phone contact with the patient, non-attendance by the patient, all attempts to follow up such as phone calls, letters and SMSs, and any worries or concerns expressed by the patient.
The second important point is to make sure you report claims and incidents when you first become aware of them and if you are in doubt, call me for advice. We have access to a 24/7 medico-legal hotline for the sole purpose of stopping ‘incidents’ turning into claims. Dealing swiftly and professionally with complaints can make a huge difference to the outcome.
If you are unsure if an incident is worth reporting or simply want to talk through something that has happened in the practice, please feel free to call me any time for confidential and independent advice.
If it has been a while since you have thought about how well you are protecting yourself, then on your next no-show or quiet day at work, jump onto the Optometry Australia website and have a look in the Practice Notes section at the risk management check-lists and professional indemnity insurance information sheet for more detailed information.
Optometry Australia will also be partnering with Avant at state conferences next year and in 2017 to present lectures on ‘How not to get sued 101’.
Optometry Australia’s insurer Avant has Australia’s largest in-house medical defence legal team and with its 16-year history of partnering with Optometry Australia has the most experience in the optometry sector. Unlike general insurers, Avant focuses on and provides only professional indemnity insurance. Avant’s assets exceed liabilities by over $900 million and it is supported by a robust reinsurance program backed by international reinsurers.
• Nil-excess on claims policy.
• Specifically covers telehealth and includes unlimited retroactive cover and full run-off cover.
• Covers practice staff, volunteers and final-year optometry students working under your instructions.
• Policy covers practice entity, removing need for purchase of separate policy for optometrist practice owners.
• National network of claims specialists in all states ensures they can apply the nuances relevant to member’s location with knowledge of local laws.
• Avant policy enables you to work for anyone, anywhere; even if an optometrist works for multiple employers, changes jobs, is working in community health centres, volunteer work at schools or overseas for aid organisations for up to 120 days, in research or giving public talks.
• The policy allows you to take a career break for less than three years and still be covered by professional indemnity insurance, which is ideal for those who go on maternity leave, or an extended world trip or break from practice.