Although malpractice is not a major concern for optometry, cases do occur against O.D.s. And, certain errors are more likely to result in claims. The most common claim alleges negligencean allegation that the optometrist failed to adhere to the standard of care, resulting in injury to the patient. Among negligence cases, large money liability claims most often involve allegations of misdiagnosis. By comparison, cases that involve treatment particularly with ophthalmic drugsare rare (although certain errors, oversights or lapses in care can lead to major lawsuits).

With that in mind, here are the top 10 mistakes, in order of importance, that can land an optometrist in court, and suggestions about how to avoid them.

1. Dont dilate the pupil.

This is the most important cause of claims. More than 90% of cases against optometrists that allege misdiagnosis of intraocular disease involve failure to dilate the pupil.1 Dilation of the pupil is a necessary part of the comprehensive examination. It is also a great help in enabling a clinician to detect glaucoma, retinal detachments and tumorsthe three causes of more than half of large malpractice claims brought against O.D.s.1

The key question, of course, is when to dilate. To minimize the risk of missing pathology, O.D.s should dilate the pupil when symptoms (e.g., drop in acuity, sudden onset of spots or flashes or visual field loss) indicate that intraocular disease may be present; patients at risk for intraocular pathology (such as diabetic patients) require initial or follow-up exam; or a patient presents for the first time and periodically thereafter (based on age and risk of disease).

An undilated pupil can obstruct a binocular view of the disc and complicate the assessment of optic nerve cupping. Similarly, retinal detachment (particularly if peripheral) and intraocular tumor are much less likely to be detected if assessment is made through an undilated pupil.

Liberal use of pupillary dilation is probably the single most important thing an O.D. can do to reduce the likelihood of misdiagnosis that results in a malpractice claim. Dilation of the pupil should always be used when patients are at risk for disease, such as individuals with acute onset symptomatic posterior vitreous detachment (8% to 15% risk of a retinal break) and individuals with diabetes (particularly type 1 with disease in excess of 10 years).

Dilation itself is an exceptionally rare cause of liability claims (despite the worry over angle closure).1 But it does result in injuries from slip-and-fall accidents that occur in the office or on the premises. Warn patients that blur and reduced acuity can result from dilation, and provide mydriatic sunglasses. Elderly patients or patients with infirmities may require assistance.

2. Dont determine the cause of reduced acuity.
One of the most important indicators of disease is a reduction in acuity that cannot be improved and is not readily explainable. In several cases, reduced vision in children has been attributed to amblyopia when the childs refractive error was not amblyopiagenic. Measuring visual acuity in children can be difficult, and results can be unreliable, but only certain types of uncorrected refractive error (anisometropic hyperopia, significant cylinder) cause amblyopic vision loss.

Failing to rule out disease in young patients with reduced acuity can result in huge liability claims (in the millions) because of the lifelong effects of diminished vision or blindness. Although intraocular or brain tumors are rare in children, they have resulted in some of the largest malpractice claims against optometrists. In each of these cases, acuity was an important symptom.

Reduced acuity is a much more common finding in adults, in whom cataract is endemic and can mask the presence of co-existing disease. For this reason, optometrists should examine cataract patients through a dilated pupil to ensure that co-existing disease is not also contributing to their reduced acuity. When you find reduced acuity, always note the reason in the patient record. If it is not known, describe in your management plan what you are doing to determine the cause (further testing, consultation or referral).

3. Dont refer/recall properly.
A practitioners legal responsibility for a patient has not ended unless treatment is concluded or the patient is referred to another practitioner for care.

A practitioner who merely tells a patient that further examination by another practitioner is necessary has not made an appropriate referral. Suppose a patient receives a non-dilated exam and there is reduced acuity. Patients who have only been told that dilated examination by another practitioner was needed to determine the reason, have been able to successfully sue for damages if diagnosis and treatment were delayed. They have successfully asserted that the doctor did not emphasize the seriousness of the referral, did not establish a time frame for the referral and did not even identify a practitioner to whom the patient should be referred. These assertions are often supported by a lack of documentation in the patients record.

The appropriate way to refer a patient: Identify the other doctor, and schedule an appointment. Send a letter to the doctor to explain the purpose for the referral, and request a summary of findings. Keep a copy for your records. Failure to receive a reply should prompt you to inquire if the appointment was kept.

If the patient didnt keep the appointment, contact the patient, and ascertain why. If feasible, set up a second referral appointment. Always note in the patients chart whenever a patient fails to return for follow-up.

Patients scheduled for follow-up rather than referral remain the responsibility of the O.D. Patients who need continuing care (such as glaucoma patients) constitute a liability risk if they fall through the cracks and fail to return for periodic evaluations. Contact these patients and urge them to return for assessment of treatment. If they fail to do so, inform them in writing of the potential consequences.

4. Dont offer polycarbonate when eye protection is needed.
Polycarbonate, the most impact-resistant lens material, is the material of choice for patients who are at risk for eye injury. These include monocular patients, the most important group in terms of protection; patients who engage in sports (even occasionally) that pose a risk of eye injury, particularly baseball, football, basketball and racquet sports; patients who work in occupations that pose a risk of eye injury, such as police work; patients who have undergone surgery that weakened the cornea (e.g., radial keratotomy, penetrating keratoplasty or LASIK); and children, particularly myopic kids who wear glasses when participating in at risk sports or while riding their bicycles.

Children are probably the hardest group to protect, as they may not fully appreciate the risks that eyewear can pose. They may scratch lenses and damage frames, which discourages parents from enforcing wear or from buying polycarbonate again. Practitioners should advocate eye safety and take the time to educate patients about the value of eye protection. Properly document all polycarbonate prescriptions, and keep a copy of the prescription specifying polycarbonate in the patients record.

For athletic ametropic patients who cannot wear contact lenses, prescribe polycarbonate eyewear. For at risk sports, eyewear should meet the requirements of the American Society for Testing and Materials (ASTM) standard F803.

5. Dont do periodic eye health exams on contact lens wearers.
Patients who wear contact lenses are not immune to glaucoma, retinal detachments and ocular tumors, so practitioners must conduct periodic eye health assessments on contact lens patients to rule out the presence of intraocular (or other) diseases. In particular, daily wear patientswho tend to return less frequently than disposable lens or overnight wear patientsshould be given periodic eye health exams.

A particularly troublesome patient: one who fails to return at regular intervals for contact lens follow-up. A patient who has no difficulties with lenses and does not return for an extended period (years) has a need for an eye health assessment thats just as compelling as the need for a lens evaluation. Consistently remind contact lens patients of this.

An 11th Mistake: Inadequate Coverage

Perhaps the most preventable error an O.D. can make is failing to obtain adequate professional liability insurance. Coverage for O.D.s (at least $2 million is recommended because loss of vision can be worth millions in damages) is affordable, and can be applied to acts of optometry performed anywhere, i.e., within or outside the office (umbrella policies).
Claims-made policies only provide coverage as long as premiums are being paid. You must purchase a reporting endorsement to cover the risk that you might be sued after payments end, based on something you did while you had coverage. This period (typically one to two years) is called the risk tail. Talk to your insurer about the risk tail when changing from a claims-made policy to another policy or when ending coverage. J.G.C.

6. Dont tell patients about suspicious findings.
Practitioners who do not adequately explain the importance of a suspicious finding leave themselves open to a malpractice claim.

One common example: elevated IOP. The usual management of patients with elevated IOP is to schedule testing (optic nerve assessment, visual field testing, gonioscopy, serial tonometry and pachymetry) to rule out glaucoma. But, if the patient fails to return for this follow-up testing appointment, the O.D. can be vulnerable to a liability claimusually brought years later after the delay in diagnosis has significantly damaged the visual field. The basis for the claim is failure to adequately inform the patient of the suspicious finding, its significance, and the need for testing to determine if disease is present. Claims are often bolstered by a lack of documentation to show that the patient was adequately informed.

When you encounter a suspicious finding, inform the patient of its importance and what will be done to determine whether treatment is required. If you can perform same-day testing, make sure the record reflects the outcome of the testing and disposition of the patient.

If you schedule a recall, explain to the patient the purpose of the appointment, and adequately document this in the record. If he or she fails to return as scheduled, contact the patient, and attempt to reschedule the testing. If he or she fails to show a second time, send a letter that carefully describes the need for testing, and ask the patient to contact you.

7. Forget informed consent.
Informed consent arises in several areas of clinical practice, including fitting patients with extended-wear (overnight) or disposable contact lenses, dilating an anterior chamber angle that is anatomically narrow enough to cause an angle-closure attack and prescribing drugs with ocular side effects.

Ophthalmic drugs are important in terms of litigation. The drugs most likely to cause legal claims due to adverse effects are steroids and glaucoma medications.2 Most of the glaucoma cases involve high drug concentrations (pilocarpine), drugs not commonly used today (carbachol, echothiophate) or drugs systemically administered (particularly carbonic anhydrase inhibitors).2 Although the newer glaucoma drugs have fewer side effects, some (such as beta-blockers) can cause serious systemic adverse reactions.

The most litigation-prone drug is a topical steroid used for an extended period without follow-up.2 Glaucoma and cataract may result under such circumstances, so follow-up must be planned and patients must be warned about potential adverse effects. Document all communications and recall appointments.

8. Dont do visual field testing on children.
Because of the rare but unfortunate occurrence of brain tumors in children, visual field testingeven of children as young as ages 5 and 6has become a legal issue. O.D.s should not unilaterally decide that a youngster is too immature for field testing, and they should attempt testing. Even if the results are unreliable, the practitioner has complied with the standard of care and has a defense to a liability claim. However, the tests may reveal telltale field loss that indicates the presence of a tumor, thus sparing the child further injury and removing the specter of misdiagnosis.

The same rule applies to elderly patients and individuals who have problems with attention. Testing establishes the patients capacity, while failing to test leads to second-guessing. Tangent screen testing may occasionally provide reliable results even though automated testing does not.

9. Dont follow comanagement protocols.
Postoperative care has become routine in optometry, but liability claims involving comanaging optometrists are few. Since comanaging optometrists are responsible for postoperative complications, they must comply with informed consent requirements.

When a patient returns to an O.D. for postoperative care of cataract or refractive surgery, the O.D. should follow the protocol established by the surgeon for follow-up examination. This obligates the optometrist to inform the patient of any findings that require further management, especially adverse events that may diminish vision. Failure to adequately inform the patientincluding no mention of the finding at allputs both the O.D. and the surgeon at risk of legal action. In fact, fraud can be successfully alleged because there is an intent to deceive.

Refractive surgery has been the source of many liability claims, but few cases have involved O.D.s. Compliance with disclosure requirements should protect O.D.s against having to defend a liability action.

10. Keep poor records.
This is a preventable mistake described repeatedly in the above review of errors. Complete and specific documentation is the cornerstone to any malpractice defense. Institute a daily fail-safe system to ensure that your records are reviewed for completeness. The time you spend will be well worth the effortand it will be much better spent then, rather than after receiving a lawsuit. Do your best to maintain accurate, complete, contemporaneous records. 

Dr. Class is a professor at the School of Optometry of the University of Alabama at Birmingham and a member of the Alabama Bar Association.

1. Class JG. Standards of Practice for Primary Eyecare. Columbus: Anadem Publishers, 1998. 2. Bettman JW. A Review of 412 Claims in Ophthalmology. In: Bettman JW, ed. International Ophthalmology Clinics. Vol. 20, 1980:13141.

Vol. No: 141:10Issue: 10/23/04