Playing it safe: Hints to avoid a claim Presentation to University of Melbourne Students

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1 Playing it safe: Hints to avoid a claim Presentation to University of Melbourne Students

2 Disclaimer: The information in this presentation is general information relating to legal and/or clinical issues within Australia (unless otherwise stated). It is not intended to be legal advice and should not be considered as a substitute for obtaining personal legal or other professional advice or proper clinical decisionmaking having regard to the particular circumstances of the situation.

3 Agenda Negligence and duty of care What level of cover is required by law? reporting an incident/claim what to report and what happens next Claims history Risk management: what is it? Real case studies

4 What is negligence? Here in Victoria Wrongs Act 1958 Governs claims for damages for personal injury (and death) Good Samaritan protection Apologies protected from liability A. What could reasonably be expected of a person possessing that skill and B. The relevant circumstances at the date of the alleged negligence and not a later date. i. professional owed a duty of care? ii. professional breached their duty of care? iii. alleged negligence has caused harm or damage? iv. harm or damage actually occurred? ALL have to be satisfied for negligence to be proven

5 What is professional indemnity insurance? PII provides cover for claims brought against the insured due to their professional negligence. Any act, error or omission by you that adversely affects a patient; or an unexpected complication or injury occurring to a patient under your care as a result of the provision by you of professional treatment, advice and services to patients in the course of your profession as an optometrist. For health-care professionals, PII policies generally also extend to cover legal fees for certain matters Defending a prosecution, responding to a commission, inquiry, investigation or complaint brought by a registration board, tribunal, complaints unit, criminal court or professional body directly relating to the practice of your profession.

6 What level of PII is required by law? Optometrists are required to hold PII that meets the Optometry Board of Australia PII registration standard Guideline clarifies: $10 million cover required Retroactive cover for all past practice Run-off: on retirement cover must be maintained for 7 years The insurer must be APRA regulated

7 My Optometry Australia Plug Master Policy that includes All qualified Optometrists who are current members of a state division of Optometry Australia. Practice entity that is wholly owned by the Optometry Australia member/s Practice staff employed (other than a medical practitioner). Employed optometrists must be Optometry Australia members or hold their own PII. Optometry Australia members who retire from practice (run-off cover)

8 Why is reporting claims and incidents so important? Insuring clause We will cover You for amounts You become legally liable to pay as compensation for a Claim: A. first made against You and notified to Us during the Policy Period; and B. which arises directly in connection with the Practice of Your Profession which occurred after the Retroactive Date Excludes known claims and circumstances any Claim, circumstance or matter which You: a. knew about or a reasonable person in Your position would have thought might result in a Claim or matter covered under this policy and which You failed to notify Us of prior to the commencement of this policy; or b. any circumstances or matter to which the policy would otherwise respond which You notified to Us or to another insurer before the Policy Period commenced.

9 Why is reporting claims and incidents so important? A claim should be straightforward to report there is a demand (i.e. solicitor s letter) What incidents do I need to report? Pursuant to section 40(3) of the Insurance Contracts Act 1984 (Commonwealth). where you give notice to us of facts that might give rise to a claim as soon as was reasonably practicable after you become aware of those facts but before the policy expires, you are covered for any claim made against you arising from those facts even if it is not made against you until after the policy period has expired.

10 Claims made and notified policy In a claims made and notified policy, the policy trigger is: The date you become aware of the claim or incident AND The date the insurer is notified in writing and NOT the date of the incident (unless occurring on the same day)

11 What does it really mean? Circumstance Policy Period 2007 Policy Period 2014 Outcome Eye test in 2007 failed to diagnose eye condition Optometrist receives solicitor s letter & notifies insurer Covered by 2014 Policy (not 2007) Obvious incident occurs in 2007 Optometrist becomes aware of incident & notifies insurer Patient raises claim! Covered by 2007 Policy even though claim arose in 2014 Eye test in 2007 failed to diagnose eye condition Optometrist becomes aware of incident & DOES NOT notify insurer Optometrist notifies insurer in 2014 Potentially NOT covered by either policy!

12 What happens after you report an incident? Report the incident to your insurer in writing providing the details: Date of treatment and date you became aware of the claim Patient name Description and opinion of what happened The insurer will: CHECK INDEMNITY Check the policy and advise you of decision APPOINT CLAIMS MANAGER Appoint a claims manager as your contact person ADVICE Provide relevant medico-legal advice to manage incident

13 What happens after you report a claim? Report the claim to your insurer in writing providing the details: Date of treatment and date you became aware of the claim Patient name Description and opinion of what happened The insurer will: CHECK INDEMNITY Check the policy and advise you of decision APPOINT CLAIMS MANAGER Appoint a claims manager as your contact person INFORMED Keep you informed as to claim status and what, if anything you need to do (attend court, supply documents) LIABILITY Determine liability

14 Decision time Your insurer will do 1 of 2 things: Settle: i.e. breach of duty of care to the patient Defend: i.e. deny liability to the patient/their lawyer In nearly all cases, there is only one thing that is used by the insurer to make this decision. Any ideas?

15 Claims Statistics Optometry Australia Optometrists How many compensation claims in optometry each year? What are the triggers of optometry claims? Average claim size Biggest claim to date Average time for a claim to mature

16 Optometry Australia Claims Exposure overview 20% of the notifications and 3% of the cost of claims are in relation to disciplinary matters Diagnostics is the main activity area that presents a source of problems for optometrists (similar to GPs) 40% of optometry claims are diagnostic and account for 98% of damages awarded There are several moderately expensive informed consent cases While there is a moderate number of cases involving prescribing and dispensing of glasses, these are mostly low cost when claims are made. Less than 2% of the total claims costs were as a result of prescribing and dispensing glasses.

17 Claims Exposure overview Diagnosis errors (40% of total claims): retinal detachment* glaucoma* malignancies (most expensive claim at $1.5 million) AMD* cataract* diabetic retinopathy retinal haemorrhage visual fluctuation* * What can we as optometrists do to avoid each of these?

18 Clinical diagnostic incidents: total cost incurred (n = 99) 30.0% 25.0% 43 Percent of total cost incurred: Clinical diagnostic incidents Frequency % % % % % Optic Glaucoma glioma/tumour other than Optic Retinal melanoma nerve other Intraocular than tumour melanoma Amblyopia MacularRefractive errorcorneal CataractCiliary spasm Clinical diagnostic category

19 Claims Exposure overview Failure/delay to refer deteriorated/ing vision raised intraocular pressure for second opinion re: treatment of cataracts macular lesions Professional conduct fitness to practise boundary violation

20 Claims Exposure overview Patient complaints incorrect prescription unhappy with glasses/contacts communication style unhappy report re: fitness to drive breach of privacy Infection control use of tonometer symptoms following eye-drops/contacts

21 Disciplinary via registration board Increased frequency of disciplinary/ahpra notifications consistent with trend for medical practitioners and other health-care professionals post national registration Many of these are able to be managed early and at low cost through assisting with drafting an explanatory response to the patient complaint or issue Key message: contact Optometry Australia and/or indemnity insurer for advice as soon as you are aware of a potential issue

22 New and emerging treatments Optometric practice is constantly evolving Evidence-based practice Need to actively monitor best practice to keep abreast Risks associated with both being an early adopter or a late adopter Patients entitled by law to know what the options are, including risks and benefits and make an informed choice

23 So, what do we do in practice? These are real examples of cases when patients have sought to claim negligence against an optometrist

24 1. Migraine Symptoms vision normal mild unilateral ocular pain (RE) mild non-specific headache onset today history of migraine Management diagnosis of migraine 3 days later presents to emergency in severe pain, reduced vision diagnosis of orbital cellulitis vision loss 2 months later Alleged claim. MISDIAGNOSIS

25 What do your records say? What clinical questions should be asked of this patient? What diagnostic tests should be performed? What should be documented on the record card? What information documented on the record card would reduce likelihood of negligence? Would the practitioner be found to be negligent? Does vision loss mean negligence occurred?

26 2. Glaucoma February 2010 asymptomatic, IOPs 30 mmhg OU discs healthy, visual fields normal given referral and told to make appointment with ophthalmologist January 2013 symptomatic / patient had not seen ophthalmologist because lost referral and thought it could wait until next visit IOPs 34 mmhg OU significant bilateral arcuate defects April 2013 Alleged claim FAILED TO INSTITUTE APPROPRIATE FOLLOW-UP

27 Follow-up What is follow-up in your practices? Do you think this was appropriate follow-up for this patient back 2010? What would be appropriate follow-up for this patient? What processes do you have in your practice if a glaucoma suspect does not attend for a follow-up visual field? What is appropriate follow-up in general? Where and what do you document in relation to follow-up?

28 3. AMD March 2012 unaided 6/6 OU senile hard drusen - otherwise ocular health normal No discussion on AMD risk undertaken Patient advised and noted in record: normal vision and eye health and review 2 yrs May 2012 family member diagnosed with AMD so attended for review with another practitioner advised bilateral AMD June 2012 patient returns to first practitioner asking why it wasn t diagnosed turned into a FAILURE TO DIAGNOSE claim.

29 Communication What should you advise the patient in March 2012? What should you note on the record card? Is normal vision and eye health review 2 years appropriate documentation of patient management? Do you use the Beckman AMD classification to guide patient discussion in scenarios like this?

30 Optometric risk management Communication train staff appropriately take a proper history from the patient educate and inform the patient about their condition/treatment/options ensure that the patient knows what to do if the condition does not improve or deteriorates clear instructions Documentation good patient records are key to defending complaints and claims record details of history taken and investigations performed, including negative as well as positive findings check patient records every visit to ensure continuity of care, and record advice given to patient

31 Optometric risk management Follow up: Have a proper recall system in place Onus to follow up increases with potential severity of the issue Ensure patient understands the management plan including any referral and the reason for it Duty is on the health professional to make sure patient either attends for referral/investigation/ review etc, or makes a conscious decision not to do so after appropriate advice Referral situations and transfer of care to another health professional can lead to assumptions and oversights regarding provision of ongoing care and advice

32 Records must include sufficient information to identify patient information known to practitioner relevant to diagnosis and treatment details of clinical opinion treatment plan particulars of medication prescribed notes of any information or advice given to patient Including s/telephone/verbal

33 Suggested tip for Optometrists Know the status of a clinical record Do not obscure / delete / discard The record (where indicated) should state that you have checked in your examination for Glaucoma, Retinal detachment AMD Record the result of: tests/investigations completed structures examined Review periods Management options discussed Management option decided What to do if change or management not successful

34 You should also ALWAYS note in records Any phone contact with patient by optometrist or staff (when relevant) Any non-attendance by patient All attempts to follow up, e.g. phone calls, letters etc. Any worries or concerns expressed by the patient

35 Take-home messages You have legal requirement to hold Professional Indemnity Insurance that meets the registration standard Report claims and incidents when you first become aware of them and in the policy period. If in doubt, report! The top causes of claims are misdiagnosis, and delay or failure to diagnose especially glaucoma, tumour, retinal detachment Ensure your patient record clearly details your examination and results.

36 Thank you

37 Optometry

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