Clinicolegal Aspects of Practice Dr. John G. Class�

							Clinicolegal Aspects
     of Practice

John G. Classé, OD, JD
Schedule of classes for 2009-2010
     Jan. 5   Doctor-Patient Relationship
              Emergency Care
     Jan. 14 Recordkeeping and Release of Information
              Documentation for Medicare Patients
     Jan. 15 (Fri) Medicare Coding and Billing (Extra Credit)
     Jan. 21 Malpractice
              Intentional Offenses
     Jan. 28 Strict Liability
              Informed Consent
     Jan. 29 (Fri) Evaluation of Ocular Disability
     Feb. 4    MIDTERM EXAMINATION on Lectures 1-10
     Feb. 11 Optometrist’s Duty to Diagnose and Treat Glaucoma
              Optometrist’s Duty to Detect Retinal Detachment
     Feb. 12 (Fri) Optometrist’s Duty to Detect Ocular Tumors
     Feb. 18 Liability for Ophthalmic Pharmaceutical Agents
              Liability for Anterior Segment Disease
     Feb. 25 Liability for Ophthalmic Materials
              Liability for Premises and Personnel
     Feb. 26 (Fri) Liability and Comanagement


     TBA      FINAL EXAMINATION on Lectures 11-18
Doctor and Patient
The doctor-patient relationship is based in
contract and may be either express
(written) or implied (based on the conduct
of the parties).

An objective test is used: if an observer
would have reasonably concluded, based
on the conduct of the parties, that one
acted as doctor and the other as patient,
the legal relationship is created.
A telephone call to a doctor’s office to
schedule an appointment does not, of
itself, create a doctor-patient relationship.

Although the formation of the doctor-
patient relationship does not guarantee a
cure, and poor result will not , of itself,
confer liability upon the doctor, a
“guarantee” or “warranty” can be created
by words or action, and the doctor will be
held to the guarantee or warranty.
A guarantee (“I’ll have you seeing
20/20”) or a warranty (“these lenses
are shatterproof”) is a statement or
writing that becomes part of the
contractual obligation of the doctor
to the patient.

Failure to comply with the guarantee
or warranty subjects the doctor to
legal action for breach of contract.
A contact for services should be
signed by the patient.

The contract should include:

1—personal information
2—how payment is to be made
3—the “fine print” (for collections)

The contract must be signed by the
patient and retained in the record.
The “fine print” should state:

    The doctor, at the doctor’s
    discretion, may place an unpaid
    account with an attorney for
    collection. In the event the account
    is referred to an attorney for
    collection of unpaid charges, the
    patient or person responsible for
    the account agrees to pay an
    attorney’s fee and any other
    reasonable costs of collection.
Written contracts are also essential in
certain areas of practice (such as
informed consent agreements for
extended wear contact lens patients).

In addition, HIPAA requires that the
confidentiality of patient information
be protected, and the doctor’s policies
for so doing must be described in
writing and acknowledged by patients.
A doctor’s office is considered a “place of public
accommodation” and thus subject to federal and
state laws, such as the Americans with
Disabilities Act (ADA). The ADA prohibits a
place of public accommodation from denying
access to health care to a patient because of
disability, unless the individual involved poses a
direct risk to the health and safety of others. The
U.S. Supreme Court has ruled that an individual
with asymptomatic human immunovirus (HIV)
infection is considered to have a “disability” as
defined by the ADA, does not pose a “direct
risk” to others, and that health care practitioners
are thereby obligated to provide care to such
individuals.
An optometrist is a fiduciary and thus has
the duty of “affirmative disclosure”.

A fiduciary is accorded legal status as a
“person in whom special confidence is
reposed, and who in equity and good
conscience is bound to act in good faith
and with due regard to the interests of the
one who has reposed confidence in him”.

Silence breaches the duty.
During the doctor-patient
relationship, an optometrist must
act as a reasonable practitioner
would have acted under the same
or similar circumstances.

This obligation to observe “due
care” is the basis for malpractice
claims—failure to act reasonably
subjects the doctor to liability.
The doctor-patient relationship may
be limited by either party.

Substitutes for doctors are classified
as either “employees” or
“independent contractors”; legal
responsibility is conferred upon the
doctor only for the acts or omissions
of the former.
An independent contractor is defined
as:

“One who, exercising an independent
employment, contracts to do a piece
of work according to his own
methods and without being subject
to the control of his employer except
as to the result of the work”.

Thus, control is the essential issue.
One of the key legal issues when working
as an independent contractor is fee-
splitting:
For example, an optometrist working at a
commercial practice for $400 per day who
generates $900 from services allows $500
to be paid to the business entity, thereby
allowing the business to “practice
optometry”, an act that is limited to
licensees. The optometrist can be
disciplined for violating the optometry law.
To avoid fee-splitting, the optometrist
independent contractor needs to make
sure that fees for services are paid only to
him or her (exception: working for an OD
or MD).

This is especially important for Medicare
reimbursement; fee-splitting of Medicare
payments can result in termination from
the program.
Patients should be recalled at reasonable
intervals, ranging from a day to 2 years.

If patients under treatment or with an
undiagnosed problem do not keep recall
appointments, the doctor—though not
legally obligated to do so—should contact
them to schedule another appointment.

“Routine” patients (contact lens check,
annual exam) do not require such efforts.
A doctor to whom a patient is
referred must be chosen with “due
care”; a referral by an optometrist to
an ophthalmologist for surgery is an
example of referral.

A “joint enterprise” only occurs if the
two doctors work together to care for
the patient; a consultation with an
MD to determine treatment of a
patient is an example.
The doctor-patient relationship may be
terminated by:

1-discharge of the doctor by the patient
2-withdrawal of the doctor from care

“Abandonment” is withdrawal by the doctor
without reasonable notice and when
continuing care is still needed. To prove
abandonment, however, the patient must be
able to demonstrate that the doctor’s
withdrawal resulted in delayed or lost
treatment, causing injury.
When closing or selling a practice, the
optometrist should provide notice to
patients.

Word of mouth and the dissemination of
printed information is preferable, but it is
also appropriate to have announcements
published in local newspapers or other
media. As many patients as possible
should be informed.
When transferring patient records to
another practitioner (whether through
sale, retirement, or because the
practitioner is leaving a practice), the
transfer must be to a HIPAA-compliant
successor.

Records cannot be left to a business
entity, because it is not subject to HIPAA
requirements, and thus the practitioner
may be guilty of unprofessional conduct
for breaching patient confidentiality.