L&T: RxPertise

Jul
2014

Limit Your Leyeability

Malpractice Insurance for Opticians


Photo: Getty images/photodisc

By Palmer R. Cook, OD

People, technology and even professions change. The old lamplighters of long ago morphed into licensed electricians, and town criers have become police officers with computer equipped cruisers and night vision goggles. Opticians today are aware of rapid changes in technology. These changes raise the complexity of every optician’s daily decisions, and with that increased complexity comes increased professional responsibility. The following illustrates how shouldering that responsibility can lead to unforeseen consequences.

A tired 49-year-old uninsured male driving on a two-lane highway at 1:00 a.m. swerves left of center and collides with an oncoming vehicle. Three fatalities result, including the driver that swerved and the two occupants of the oncoming vehicle. The accident is ruled to be alcohol-related.

Months later, the adult children of the couple killed by the swerving vehicle file suit, and you, the optician who sold the eyewear worn by the driver at fault, are named among the defendants. The attorney for the plaintiffs discovered the patient had returned to both you and to the prescribing doctor with problems. The doctor’s records show that the patient complained of adaptation issues and “intermittent double vision,” which the patient related to the newly dispensed glasses. At the doctor’s suggestion, the patient returned to you, and you found no problems with the eyewear. You realigned the fit of the eyewear and reassured the patient that his problems were “adaptation.” You suggested he return to the prescribing doctor if the problems continue. The accident occurred four days later.

Upon receiving a subpoena, you contacted the doctor and learned that the eyewear had been checked carefully, and the doctor felt that the prescription had been filled correctly. The patient’s eyes were retested and no cause was found for the complaints.

Although you were concerned about the subpoena, you believed you had met your responsibilities professionally, and you felt you bore no responsibility in the matter. You were forthcoming in answering questions at your pre-trial deposition.

Fail Safes

Get in the habit of looking at each prescription carefully. Everyone makes mistakes. Some clues that the Rx is in error include:

  1. Cylinder axes are often symmetrical, so if the right axis is 10 and the left axis is 80, the correct axis might be OD 100 and the OS 080. Writing the axis with three digits helps avoid this kind of error, but some doctors do not follow this convention.
  2. A sphere power without a sign (+ or -) could be an error, although some practices only use the minus sign for sphere powers and do not use plus signs.
  3. Any Rx with greatly differing powers between right and left should be suspect, especially if changing the sign of one would make the powers similar (e.g., OD +4.00 and OS -3.75).
  4. Always specify the vertical positioning of the MRP for all non-PAL lenses.
  5. Scratches on the front of a 1.49 lens can decrease impact resistance by 20 percent, and on the back surface, the impact resistance can decrease by 80 percent. Even when you are simply aligning old eyewear, your professional knowledge carries a duty-to-warn about safety issues related to old eyewear.

YOUR DAY IN COURT

On the stand, you identify the patient’s eyewear and confirm that you had sold them to the deceased. His sturdy frame and Trivex PAL lenses had survived the accident, although their wearer had not. The attorney for the plaintiff produces a lensmeter and with the court’s permission, you find the Rx matches the prescribed OD -3.00 -0.75 x 090 and OS -3.75 -1.75 x 005. No prism was prescribed, and you find no prism is present. You are relieved to confirm the lens powers match the doctor’s Rx. The attorney for the plaintiff then asks you to reconfirm the distance powers and asks if you would also tell the court what prism powers exist at that level in the lens. The right lens shows 3∆BU and the left lens shows almost 5.5∆BU. You are then asked to analyze the D-28 lenses the patient “had been wearing when he entered your store” for prism at the distance MRP. You find no imbalance present in the previous eyewear for distance seeing.

When the plaintiff’s attorney asks whether you had previously verified the correctness of the powers at the distance reference points, you answer, “Yes, of course I did.” When he then asks if you understand that lenses have both focusing power and prism power, you answer, “Yes.” But, when asked if you found the prism powers to be suitable for driving, you no longer can answer in the affirmative.

Expert witnesses subsequently testify that there is a high likelihood that the patient could not have fused the 2.5∆ of vertical imbalance at the level of the distance reference points, and that alcohol is known for causing a decrease in fusional ability. The inability of the patient to fuse more than 1.2∆ of vertical imbalance was confirmed by the doctor’s records. The $2.5 million settlement includes punitive damages, and it is apportioned between you and the doctor. The doctor’s malpractice carrier is unhappy, and you have no insurance that covers this award. You unsuccessfully sue the company that carries your business liability insurance.

Fortunately, the above case is fictional. There was a time when most malpractice suits against opticians involved lenses that shattered or chipped or that had been knocked out of the frame. Today however, opticians often make eyewear decisions that can have serious and unexpected results.

In the above case, the optician might have anticipated the problem if he had noted the prism imbalance at the near and distance reference points when he verified the Rx before dispensing. Or he might have caught the problem when placing the order or when the patient returned with difficulties. The doctor might also have identified the issue on his follow-up. This accident was the result of unexpected errors, or accidents, on the part of two eyecare professionals, and both should have had insurance to protect them. Unfortunately only one did.  

WHAT’S YOUR RISK?

Risk is often self-created. Some common errors that raise the risk level for opticians include: dispensing the eyewear without verifying the prescription, not specifying the MRP heights on all single vision and multifocals with lines, failing to take measurements (instead using manufacturer default values), or not using Trivex or poly lens materials for patients that might reasonably be expected to be “at risk.” In the example above, neither the doctor nor the optician recognized that the prescription had high potential for causing diplopia. The lens design compelled the patient to look above the Fitting Cross for distance clarity, yet there was prism imbalance at that level.

Asking a layperson to select a lens design will not relieve an ECP from responsibility. Some designs work better than others depending on the patient, Rx and other factors. In the case above, the problem was not with the chosen design, but rather with the way the optician ordered the eyewear. (Read “Prisms and PALs” in the 20/20 October 2013 issue.)

Be Pre-Emptive
  1. Call the prescribing doctor before ordering if something seems amiss. Your lab can help predict unwanted prism outcomes.
  2. If you are fitting individualized or compensated lenses, take measurements. Using a default measurement is akin to using “average” PDs (as is done with non-Rx readers). This is inappropriate and unfair to the patients you are serving.
  3. For every PAL, measure both power and prism at the distance and near reference points when verifying the Rx. If the unwanted prism is excessive, call the prescribing doctor and explain. Caution: If the lens has prism at an oblique axis, your lensometer will show some lateral prism effect at the distance reference point and possibly more lateral prism, but with the base in the other direction, at the near reference point. If the lateral prism exceeds the ANSI standards, ask the prescribing doctor for guidance. In most cases, the amount of prism will not be a problem, but let the doctor make that decision. Never try regrinding with a different decentration to correct this problem—it will not work. If the doctor approves the lateral prism, ask that the modified Rx be e-mailed to you.
  4. Keep written records that are intelligible and detailed.
  5. When a patient says there is a problem with the eyewear you are dispensing, take the comment very seriously. Be sure you are correctly matching the patient and the eyewear. There can be more than one Mary Smith or John Jones, and if the order matches the patient’s ID, check the eyewear carefully to be sure there was neither an ordering nor a lab error. If the eyewear checks out, but the patient’s complaints seem inexplicable, do not dispense the eyewear.

Letting the patient do a little adapting in your office can help. Patients should not leave your office with eyewear until they feel somewhat comfortable with them. Asking the patient to return in a few days after your lab has checked the eyewear is a reasonable approach. Professional judgment is needed in such cases, and yours should be backed up with appropriate malpractice coverage.

ARE YOU COVERED?

Insurance companies that offer vision care policies require ECPs to show “proof of coverage” to be providers. Doctors typically carry professional liability coverage, but opticians may only have business and product liability insurance of one sort or another. That was probably sufficient in the past, but technology has changed.

Today, lens-induced problems can give rise to both fusional and spatial distortion problems. Had the doctor in the above case specified that the patient should remain in bifocals with lines, his attorneys might have shifted the total blame to the optician.

The bottom line is to consult an attorney knowledgeable in matters related to professional liability, and follow his or her advice. If you are employed as an optician, rather than owning your own business, ask your employer if you are covered. Secure an answer in writing. Be sure your attorney reads the answer and provides you with advice.

If you are licensed, your state board will be very specific about what constitutes the practice of opticianry. Your insurance may not cover you for actions that your board deems outside the scope of opticianry. For example, if you change the power of a patient’s Rx, because the fitting vertex is different from the refracting vertex, you might argue that the lens in the position worn would give the effect the doctor prescribed—and it’s likely that your board would back you up. On the other hand, if you changed the axis of a cylinder so the patient might not see things tilted, you could well be acting outside the scope of opticianry unless you had that change approved by the prescribing doctor. If an accident occurred after making the change without the doctor’s consent, you might find yourself up the chain of liability without a paddle, so to speak.

Your position may be more uncertain if you are unlicensed, or if licensure is not available for opticians in your state. Becoming ABO-certified might be a good way of becoming credentialed.

HALF-PDS AND LIABILITY

The dispensing of PD measurements seems to be appearing more frequently in the ophthalmic news, and at least one or more major ophthalmic manufacturers have chosen to retail online eyewear recently. Glasses should always be designed using half-PD measurements. If you issue half-PDs or even full PDs, you may be inserting yourself into the chain of liability for eyewear obtained online. To correctly order eyewear, you should ALWAYS specify both the lateral and vertical positioning of each major reference point. To do less certainly shortchanges the patient, and it argues for having insurance, especially if you decide to dispense PDs.

YOUR CALL-TO-ACTION

Even though your manner of practice is meticulous in every way, “Things Happen,” as W. C. Fields put it. Ask for advice from one or several insurance agents who are familiar with professional liability coverage (they all carry it for themselves). In your state, the coverage you need could be termed errors and omissions. Perhaps you will find an insurance carrier that already offers malpractice policies for opticians. Many companies offer “umbrella coverage” that could plug holes in the coverage you already carry. Umbrella coverage often only costs a few hundred dollars a year with a high deductible—possibly as much as $10,000, but if you need it, $10,000 might ultimately seem like a small amount indeed.

Insurance agents do their best to sell insurance, and the good ones also try to help you get what best meets your needs. After you have done your due diligence by collecting insurance information, seek an attorney’s advice before doing anything. After planning carefully, take action. Once an incident has occurred, the cleanup may be devastating and expensive for you if you have not put your coverage in place.

Today’s lens technology is better than ever, but patients don’t always respond in ways that are easily anticipated, and accidents do occur. If you understand the technology you are using, malpractice insurance should seldom be called into play. But having it when needed can make the future more secure for you and your family.


Contributing editor Palmer R. Cook, OD, is director of professional education at Diversified Ophthalmics in Cincinnati, Ohio.


The information in this article is made available by the author and publisher for educational purposes only and is not intended to provide legal or medical advice. The information is not to be used as a substitute for competent legal or medical advice from a licensed practitioner in your state.

 

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