Identify elements of a well-documented patient record.

Enumerate elements of the informed consent for procedures.

Recognize the 2 classes of medication that most commonly contribute to lawsuits.

Avoid common mistakes when acting as an expert witness.

Follow ethical guidelines when providing expert witness testimony.

Prophylaxis of Malpractice: How to Stay Out of the Attorney’s Office
Howard A. Slavin, JD, Partner, Lewis Brisbois Bisgaard & Smith LLP, Los Angeles, CA

Patient care: keep office user-friendly (eg, no tripping hazards); patients frightened when given “blind” diagnosis; use, eg, no light perception, reduced vision; address unreasonable expectations

Office staff: utilize staff to explain expected outcomes; train staff to handle emergency situations and triage calls; physician responsible if staff member does not appropriately refer calls to him or her; use laminated reference card or information sheet (from American Academy of Ophthalmology) to identify situations requiring immediate care and referral; every conversation should be documented; prioritize calls from patient’s primary care physician (PCP); instruct staff to check with physician if any question or doubt; follow-up (especially on prescription refills) should always have physician’s consent

Prescription errors: account for one-quarter of ophthalmic-related lawsuits over past 10 yr; typically related to antibiotics and steroid therapy (eg, failure to prescribe, failure to monitor); unmonitored long-term steroid use may cause glaucoma (difficult to defend); many cases involve giant cell arteritis, which requires large maintenance doses of steroids; these patients can develop bilateral aseptic necrosis of hip; important to follow up and warn patients of risks

Office environment: make sure environment safe; physician liable for any area patients access, even if those areas not under physician’s direct responsibility; ensure office space provided for service animals (eg, guide dogs; separate requirement of Americans with Disabilities Act [ADA]); address equipment malfunctions; if problem occurs, explain to patient and follow up

Office protocol: patients whose pupils are dilated need special attention (eg, they cannot drive home); consider providing disposable dark lenses; physician responsible if patient sent home with vision discrepancies and incident occurs; elderly patients and those requiring special assistance (eg, patients with mobility issues) should not be left unattended in darkened room

Informed consent: utilize brochures; videos useful supplement to other information provided; videos also provide excellent documentation of exact information conveyed to patient (helpful in court); if any deficiencies in administrative system, physician ultimately responsible (even if he or she had no interaction with patient); ensure that patient adequately informed of what is expected, especially before surgery; assure patients that physician and staff care

Office communication issues: lack of detail or inadequate record-keeping; inadequate communication among team members caring for patient; physician not properly overseeing staff-patient communication; note—staff not authorized to make specific comments about findings or expectations

Privacy issues: encourage patients to give permission for physician to speak with family members; if no specific patient consent obtained, physician cannot discuss case with family; in true emergency, however, permission not needed

Chart documentation: well-documented records crucial; eg, if chart reviewed by another physician, it should be readily apparent whether one’s conduct conformed to (or deviated from) standard of care; well-documented records include data needed for diagnosis, treatment, and prognosis

Obtaining informed consent: hazards—patients may claim that informed consent papers not fully explained; solutions— allow patient to review informed consent form at home and call in with questions; or, make office appointment specifically for informed consent; ensure that patient informed of all risks, hazards, complications, and alternatives of proposed treatment

Protected information: in California, physician permitted to discuss care with another physician without risking liability or breaching confidentiality

Follow-up: evaluate test results promptly; pay careful attention to medications and contraindications; ask about allergies before administering any medication via any route

Medication errors

Case 1: woman, 75 yr of age, underwent penetrating keratoplasty; history—documented chronic obstructive pulmonary disease (COPD); patient on albuterol and occasional intravenous aminophylline; community physician noted elevated intraocular pressure (IOP); referred patient to expert (concerned that elevated IOP would interfere with graft); expert changed glaucoma medication to timolol (Timoptic); husband applied 2 drops as directed; 10 min later, patient suffered cardiopulmonary arrest and could not be resuscitated; 2 lawsuits brought (wrongful death of patient, and negligent infliction of emotional distress for husband); case settled before trial for $500000

Case 2: woman scheduled for routine cataract surgery; physician did not obtain patient’s history of heart and lung problems; patient developed complications during surgery and physician not knowledgeable about advanced cardiac life support; patient died before proper care could be given; jury awarded husband $6.1 million

Recommendations: obtain thorough patient history before surgery (know medications and allergies); review all prescriptions; determine severity of documented allergic reactions; if co-managing patients with others, be sure line of responsibility clearly delineated; physician should be available by telephone to any colleague managing patient postoperatively; if patient on systemic medications that can cause complications (eg, large doses of steroids), work with PCP to determine whether dosage can be titrated (inform patient as well)

Patient expectations: address unrealistic expectations before surgery; patients entitled to know what to expect; the more communication, warmth, and caring provided, the less likelihood of lawsuit; minimize interruptions during office visit; stay on time, keep patients informed, apologize, and offer to reschedule if late

Communicating with patients: use lay language, not medical terms (particularly for informed consent); do not criticize previous physician’s actions; maintain user-friendly telephone system; keep notes on all calls; make sure patients have emergency access to physician; ensure access for those with language or physical barriers; return all calls

Informed consent: obtain written consent for any procedure that carries risks, hazards, complications, or that has an alternative surgical procedure; determine what reasonable prudent patient would want to know about proposed procedure; if procedure refused, document informed refusal with supporting evidence, and send copy to PCP; document evidence and data that support decision to perform procedure; documentation that you “discussed with patient per usual customary practice,” and ability to recite by rote what you discussed, sufficient from legal standpoint; preprinted forms useful, but should be reviewed

Medical record: acts as “number one” witness in litigation; contains documentation of examination, information used to make diagnosis and treatment plan, and results of continuing treatment; records should be as thorough as possible; note and date any changes to chart and reason for change

The Ethical Expert Witness: An Oxymoron?
Tamara R. Fountain, MD, Associate Professor of Ophthalmology, Rush University Medical College, Chicago, IL

Code of Ethics Rule 16: governs expert witness testimony; adopted in 1984; states that “expert witness testimony should be provided in an objective manner using medical knowledge to form expert opinion; non-medical factors should not bias testimony; it is unethical for a doctor to accept compensation that is contingent upon the outcome; false, deceptive, or misleading expert testimony is unethical”; rationale—ego, greed, and bias can influence what is said on stand; providing expert testimony can be lucrative; testimony must be truthful and complete; in theory, expert testimony can hurt or help both sides because it is factual and physician’s medical opinion; it should be based on medical knowledge and sound principles, not anecdotal experience or personal preferences; maintain intellectual elasticity and recognize acceptable alternatives that do not deviate from standard of care; nonmedical factors should not bias testimony; competition among physicians should not affect testimony; do not “try to make it right” for system (conflict of interest; allows bias to creep in)

Compensation: unethical to accept compensation contingent on outcome (clear conflict of interest); financial incentive interferes with objectivity; compensation should be commensurate with effort involved, and be agreed to up-front and in writing; false, deceptive, or misleading testimony unethical

American Academy of Ophthalmology (AAO): members take pledge to uphold Code of Ethics; accepted within “house of medicine” that expert witness testimony part of practice of medicine and obligation to society; self-regulation of expert witness promotes ultimate justice; some criticism of this philosophy (eg, “circling wagons,” “protecting bad apples,” “effort to muzzle expert witness testimony”); speaker acknowledges need for avenue of redress for unethical testimony

Case 1: man, 44 yr of age, with myopic astigmatism; history—patient underwent laser in situ keratomileusis (LASIK); tracking mechanism not available; patient reported poor fixation; received decentered ablation, which resulted in poor acuity; after enhancement to refraction, patient had anisometropia; LASIK for right eye scheduled but not performed; plaintiff able to use contact lenses successfully; alleged damages —uncorrectable anisometropia that caused headaches, double vision, loss of depth perception, and embarrassment about wearing 2 pairs of glasses; sued for $1.5 million in punitive (not actual) damages; outcome—expert retained by plaintiff referenced specific articles on treating decentered ablation but was unable to cite them (later found not to exist); expert witness testimony misleading; witness discredited

Case 2: woman, 59 yr of age; history—chronic uveitis, bilateral vitrectomies, bilateral cataract extraction, and uncontrolled glaucoma; patient underwent trabeculectomy with mitomycin C; problem controlled for 1 mo, then IOP increased, and bleb failure diagnosed; patient received subconjunctival 5-fluorouracil (5-FU) injection; at beginning of injection, spike seen in patient’s blood pressure; patient became dizzy and was sent to emergency department (ED); patient subsequently lost eye due to large choroidal hemorrhage; legal outcome—expert witness (comprehensive ophthalmologist) testified for firm previously; claimed only explanation for suprachoroidal hemorrhage that bleb needled (ie, 5-FU not given); no documentation in record that surgeon needled bleb or planned to do so; expert provided other testimony that could be refuted (eg, that IOP markedly elevated in suprachoroidal hemorrhage, [but data show IOP can be low, normal, or high in this setting]); under cross-examination, expert witness admitted to not having experience needed for case; defendant prevailed at trial but filed grievance with ethics committee against expert; case dismissed with letter of concern to expert

Case 3: woman, 45 yr of age, involved in motor vehicle accident; sustained chemical injury from battery fluid and deployed airbag; irrigation not performed at scene, during transport, or in ED; patient sustained bilateral severe corneal opacification and limbal cell damage; legal proceedings—patient sued emergency medical services (EMS), ambulance, and ED for failure to perform ocular irrigation; county fire department (EMS) and hospital settled, but lawsuit continued against ambulance emergency medical technicians; medical follow-up—patient referred to cornea specialist to manage bilateral corneal stem cell deficiency and opacifications; cadaveric and living-related keratolimbal stem cell transplantation performed on right eye; cataract extraction and keratoprosthesis performed on left eye; legal follow-up—cornea specialist asked to provide deposition as treating physician; however, attorney refused to pay physician for provided declaration since it did not help case

Expert witness role: confirm status as expert witness, eyewitness, or percipient witness; not witness for plaintiff or defendant; get retainer up-front and in writing; always stay with “truth and nothing but the truth”; good expert witness helps jury reach just verdict

Typical instructions to jury: “a physician is negligent if he or she fails to exercise the level of skill, knowledge, and care in the diagnosis and treatment of the patient that other reasonably careful physicians would possess and use in similar circumstances; when you are deciding whether the physician was negligent, you must base your decision only on the testimony of the expert witnesses who have testified in this case”

Mistakes by expert witnesses: misrepresenting one’s training and experience; unfamiliarity with intricacies of specialty of concern and inability to recognize nuances of care (probabilities vs certainties); tunnel vision; missing larger picture which, if understood, might alter one’s opinion; confusing personal opinions or preferences with legal standards of care; allowing personal relationships or competitive issues to bias testimony; allowing attorney to stretch your beliefs to fit attorney’s view of case; not answering truthfully or objectively because answer damaging to your side

Tips on expert witness testimony: be equally available to testify for plaintiff or defendant, regardless of personal consequences; do your homework and review records before you sign affidavit to provide expert testimony; review all documents (both sides); be honest and objective with attorney who retained you; be knowledgeable about standard of care and standard of care prevailing at time of occurrence; be able and willing to distinguish medical malpractice from unfortunate medical outcome; accept compensation fair and commensurate with time and effort involved; contingency compensation unethical; provide documentation on percentage of your time involved in expert witness testimony, your hourly fee, and total times you testified; be willing to submit transcripts of previous depositions and trial testimony for peer review

Summary: answer well-asked questions and ask for clarification on poorly asked questions; sometimes “I don't know” best and most truthful response; ethical expert witness testimony service to justice system and society; biased or unethical testimony distorts process and threatens confidence in it; courts cannot independently assess expert witness testimony; therefore, subject to scrutiny of one’s peers; personal as well as professional restraint helps safeguard expert witness testimony