When faced with the day to day challenges of running a practice and managing patients, the thought of being sued (or being the subject of a regulatory or other official complaint) is not something we spend a lot of time thinking about. It is naïve to believe that a legal action or complaint “will never happen to me”. In the event that it does, though, Professional Indemnity Insurance will be there, along with Optometry Australia, to support you.
Working for Optometry Australia (OA) in Professional Services and assisting in claims triaging and management has been a real eye opener (pardon the pun). Over the years, it has certainly made me review and change some of the things I do in my clinical practice. Thankfully, in Australia, we have nowhere near the frequency of litigation the American system has so instead I like to promote a “be alert but not alarmed” message to my colleagues. I am also tempted to reinforce the fact that stuff happens, and even the best clinician may simply be unlucky with the patient cards they are dealt.
There is plenty that you can do to help defend against a claim or official complaint, and your professional indemnity insurance (PII) cover, your legal team, and assistance from OA can play a big part in the outcome.
Very few optometrists who I have spoken to have ever read their PII policy… and many do not understand some of the legal ‘mumbo-jumbo’ in these documents
Very few optometrists who I have spoken to have ever read their PII policy (I’m not on any high moral ground as neither had I prior to working for OA) and many do not understand some of the legal ‘mumbojumbo’ in these documents (see page 33 for helpful definitions). So let’s look at some of the basics, explore some of the traps, and highlight some things to look out for. We will also review some of the areas we are doing badly in as a profession and discuss how to minimise risk in these areas.
BACK TO BASICS – WHAT EXACTLY IS PII?
PII is a form of insurance that protects you from bearing the full cost of damages in any claim of negligence relating to the practice of your profession. This includes, but is not limited to:
- Direct treatment of patients;
- Clinical advice provided to patients or potential patients;
- Follow-up of patients; and
- Supervising practice staff who provide advice to patients.
PII protects practitioners against civil liability incurred by, or loss arising from, a claim made as a result of a negligent act, error or omission by a practitioner. Each state and territory in Australia contains negligence laws that confer a duty of care onto professionals, including optometrists. This type of insurance is available to both practitioners and practices, and generally covers the costs and expenses of defending any legal claim and any damages payable.
Negligence claims generally fall into one of two categories:
- A claim that the care provided did not conform with accepted standards; or
- A claim that the health practitioner failed to warn of risks associated with their care.
Scenarios that may give rise to a negligence claim might include:
- Failure to manage the patient with appropriate care or skill;
- Misdiagnosis, failure to diagnose or delay in making a diagnosis;
- Incorrect therapeutic, spectacle or contact lens prescription provided;
- Unsatisfactory follow-up care;
- Failure to report;
- Failure to act/respond as required on test results or reports from other professionals;
- Privacy breaches.
LAWSUITS 101 – YOUR DUTY OF CARE
A duty of care is a legal obligation to avoid causing harm, and arises where harm is reasonably foreseeable if care is not taken. Negligence is doing, or failing to do something that a reasonable person would, or would not do, in a certain situation and directly results in causing another person damage, injury or loss. State and territory laws are used to assess the negligence of practitioners and the liability they face as a result of any negligent acts on their part.
Whether or not negligence occurred is a matter of answering the following questions:
- Did the practitioner owe the patient a duty of care?
- Did the practitioner breech their duty of care?
- Did the patient suffer an injury or other damage, be it physical, financial or emotional?
- Was the injury or damage caused as a result of the breach of duty of care?
Ok, so what is contributory negligence?
Contributory negligence is where a patient who has suffered loss or damage was also negligent. Any contributory negligence on the part of the patient can, if established, reduce the amount of damages awarded in a negligence claim. In rare cases, where the patient bringing a claim was extremely negligent, this may defeat a claim made against a practitioner.
Even if there is contributory negligence, you must still meet your duty of care or you may be liable. An example of contributory negligence could be a patient who has refused to attend an ophthalmologist appointment despite the clear advice of the optometrist. The optometrist’s duty of care in such a case would be to:
- Continue to manage the patient appropriately, taking account of the wishes of the patient,
- Clearly advise the patient about all risks associated with their decision, and
- Document the advice given, and the patient’s response to that advice.
WHY THE NEED?
“But I’m a safe and conservative practitioner who has never had a problem – why do I need PII?”
The National Law states that a registered health practitioner must not practise his/her profession unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner’s practice of the profession (section 129 of the National Law). Each year, when we renew our registration, we are declaring we have met this (and the other) registration standards. Adherence to this standard is randomly audited by the Australian Health Practitioner Regulation Agency (AHPRA). Practising without PII that meets this Board standard is a breach of the legal requirements for registration and is viewed by the Board as a professional conduct matter. As such, it may be dealt with by the Board through the disciplinary mechanisms available under the National Law. These mechanisms include the imposition of sanctions ranging from caution or reprimand, to suspension or cancellation of registration.
So, you are stuck with it – knowing some basics about PII, including what has changed recently, would be useful…
Whether you are aware of it or not, the Optometry Board of Australia (OBA) changed the PII standard in 2016, resulting in a watering down of some of the key components of PII, which had previously been mandatory (eg. AU$10 million cover, unlimited retroactivity etc). The new requirements are that your PII cover must include civil liability cover, “appropriate” retroactive cover (for otherwise uncovered matters arising from private practice), and automatic reinstatement. There is now no minimum amount to be covered (they suggest you ensure you have “adequate and appropriate” cover), and there is no minimum retroactive period (dealt with later in traps for young players). They also note that, “when you decide to cease practice, you must take out appropriate run-off cover for matters that would otherwise be uncovered arising from previous practice as a registered health practitioner”. These changes are certainly helpful if you are a registered optometrist requiring PII while working in low risk areas (eg. research) but could mean running into trouble for regular optometrists if sourcing a ‘bargain basement’ policy without a firm understanding of what to look out for. You can read more about the changes made at www.optometryboard.gov.au/ Registration-Standards/Professionalindemnity- insurance.aspx )
WHERE ARE WE GOING WRONG?
Diagnostics is the main activity area that presents a source of problems for optometrists (similar to GPs). Forty per cent of optometry claims are diagnostic and account for 98 per cent of damages awarded. Principal diagnostic areas by cost are glaucoma, tumour, and retinal. While there are a moderate number of claims involving prescribing and dispensing of glasses these are mostly low cost when damages are awarded (~1 per cent of claims total).
TRAPS FOR YOUNG (AND OLD!) PLAYERS
Understand What You’re Insured For
It’s not just the “you are being sued” letters that may trigger a PII policy. Formal complaints received from AHPRA (or other regulatory bodies such as the Office of the Health Complaints Commissioner) could potentially affect your ability to remain registered. Like all health professions, these complaints have been on the rise in optometry and often we will see a patient ‘test the water’ with an AHPRA complaint (simple/free to lodge) and then pursue a claim if successful. Fortunately, these complaints are covered by the OA PII policy, and a response from the legal team with assistance from OA professional services can help shut these down promptly. What else is included in your cover? Practice entity (your practice may be sued along with you as an individual), practice staff working under your instruction, aid work overseas, telehealth, defamation, criminal investigations, and privacy breaches are also covered by the OA policy. The UK trial of Honey Rose for criminal negligent manslaughter highlights an extreme case of when criminal (and not just civil) cover can assist an optometrist.
But I’m a safe and conservative practitioner who has never had a problem – why do I need PII?
Your OA PII policy also covers you when you’re working as a locum, anywhere in Australia. If you are only covered by your employer’s insurance and you do a locum shift (within the same company but not at your usual practice location), you may be considered a contractor at that location and, therefore, not covered by that store’s (or your normal store’s) PII cover for employees.
Additionally, if you are undertaking study that involves patient treatment, your treatment of that patient may not be covered.
Not notifying your insurer when you think something may have happened may give an insurer a chance to weasel out of paying a claim! The following is an excerpt from the AVANT policy covering OA members, and details when they want you to call something in:
“You must notify Us in writing as soon as practicable of any Incident or Claim including, but not limited to:
(a) A patient suffering a major complication; or
(b) There is an error made, causing harm; or
(c) An adverse outcome results in significant anger in Your patient or their family; or
(d) You receive a letter from a solicitor indicating dissatisfaction or requesting a patient record; or
(e) You are concerned that an Incident has occurred (including a complaint, investigation or inquiry) which You think may lead to a Claim.
If You do not notify Us of an Incident or Claim as soon as practicable, You may not be covered under this policy and Your right to indemnity may be significantly reduced by Us.”
With the OA policy, there is no ‘no-claims bonus’ and no excess fee, so there is no need to worry about hiding any potential incident. Prompt, professional legal advice to assist with dealing with ‘incidents’ early on can help stop these from escalating into a lawsuit or complaint. OA offers a 24/7/365 legal hotline for members on (AUS) 1800 128 268, or call professional services on (AUS) 03 9668 8500 if you would prefer to discuss the matter confidentially with us first. The OA PII policy is between you and the insurer and your employer is not notified of incidents or claims.
Cutting Corners on Retroactive/ Run-off Cover Period
This comes back to the difference between ‘Claims made’ vs. ‘Occurrence based’ policies. In Australia, most PII policies are ‘Claims made’, so the policy ‘trigger’ is the date the insurer is notified in writing NOT the date of the incident. So, for events that occurred in the past, your current policy’s retroactive cover clause will determine if you are covered. We have seen optometrists caught by cheap PII policies with five years retroactive cover when glaucoma and malignancy issues have surfaced after six or seven years. On the other end of insurance is ‘run-off ’ cover, which for the OA policy, protects you when you have retired, or your estate if you die, on an ongoing basis from claims arising from when you were working and had an active policy. We have had members working overseas who have bought cheap PII policies without this cover. They then have to keep buying extensions for their policy on their return, to ensure they are protected from claims arising from their active work period.
Forgetting the Simple Stuff
I have been surprised to see successful claims and complaints over failure to diagnose cataract and unfortunately, many of these cases have been simply due to poor record keeping or poor communication. If you are seeing early lens changes, note it in the record and bring it up with the patient.
No Records – No Defence
We’ve all had this drummed into us numerous times, but it pays to be reminded – if you don’t write it down, you may as well not have done the test. Medicare also requires contemporaneous notes and this is the area where experienced (but time poor) practitioners are often caught. Having locumed extensively and seen things like a tick in internals (great – they have internals!), WNL (we never looked) or ‘nothing recorded’ are free passes for the opposing legal team.
Failure to Follow Up
You’ve given the patient a referral to the ophthalmologist, so it is up to them from there, right? Wrong. When you make a referral to a specialist that may have serious clinical significance, you should also follow up to determine whether or not the patient attended the appointment. Consider implementing a system (shared spreadsheet with reception, notebook, etc.) where outgoing referrals are logged and periodically checked, and where patients are removed from the list when a report is received from the specialist. Similar responsibilities apply for patients who fail to attend follow up appointments for important tests.
Unsexy but important. This is a huge topic in itself and if it has been a while since you’ve thought about this, I would strongly suggest reviewing the resources prepared by the AVANT teams who have been defending Australian optometrists over the last 18 years. Our risk management checklist, podcast, clinical articles, and exploration of cases upheld against optometrists are available online at www.optometry.org.au/for-optometrists/professional-practice/professionalindemnity.aspx
Optometry Australia provides all members with a nil excess, customised PII policy that not only meets the Optometry Board of Australia requirements, but also contains a number of extensions over and above the minimum requirements. These have been tailored specifically to the optometric profession. Not only can members access OA for medico-legal advice, but also Avant’s medico-legal experts when you need them, 24/7 in emergencies. Avant has the largest in-house specialist medicolegal team of any MDO in Australia, with 70 medico-legal specialists including lawyers, medical advisors, claims managers, and local state experts.
Please note this article is for general information purposes only and does not constitute legal or financial services advice.
Luke Arundel, BAppSci(Optom)Hons, GCOT, FCCLSA, FIACLE, FBCLA, CO, is the national professional services manager for Optometry Australia. He currently holds fellowships with the BCLA, CCLSA and IACLE and is an Adjunct Associate Professor of the University of Missouri, St Louis, USA. Mr. Arundel has worked in independent, corporate and specialty practices in Australia and overseas, and in the contact lens manufacturing field. He has been a guest lecturer at state and international contact lens conferences and at the University of New South Wales, University of Melbourne and Queensland University of Technology Schools of Optometry.
Legal Mumbo Jumbo: What Does It Actually Mean?
|There’s nothing easy about reading through an insurance policy, especially when it comes to soaking up the fine print. To help lighten the load, below are some
of the terms used in PII policies and the definitions, as described by the Optometry Board of Australia (you can find more at www.optometryboard.gov.au/
Registration-Standards/Professional-indemnity-insurance.aspx.)Retroactive cover means PII arrangements, which cover the insured against claims arising out of, or in consequence of, activities that were undertaken in the
course of the practitioner’s professional practice, prior to the date of the commencement of the insurance.Run-off cover means insurance that protects a practitioner, who has ceased a particular practice, against claims that arise out of or are a consequence of activities
that were undertaken when he/she was conducting that practice. This type of cover may be included in a PII policy or may need to be purchased separately.Practice means any role, whether remunerated or not, in which an individual uses their skills and knowledge as a health practitioner in their profession. For the
purpose of the PII registration standard, practice is not restricted to the provision of direct clinical care. It also includes using professional knowledge in a direct
non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any
other roles that impact on safe, effective delivery of services in the profession.Automatic reinstatement is a provision in policies, which allows for the limit of indemnity (amount insured) to be reinstated for new, unrelated claims, after
one or more claims has been paid to the limit of the indemnity.Civil liability insurance means insurance that covers the costs of liability incurred by the insured, arising from civil claims seeking compensation for
personal injury, harm or loss incurred, where the claim arises directly from an alleged act, error or omission committed in the conduct of the practitioner’s
practice or professional business during the policy period. Civil liability cover includes cover for legal expenses incurred in defence or settlement of a civil
claim and for damages payable.