LENS LIABILITY

Daily Disposable Lenses and Liability

Detailed record-keeping, discussing options and proper follow up are just a few ways to prevent problems.

By Pamela J. L. Miller, OD, FAAO, JD

Dr. Miller has a private practice in Highland, CA. She's written seven books, is a widely recognized author and lecturer and a Distinguished Practitioner in the National Academies of Practice in Optometry. She graduated from SCCO in 1973 and the Loma Linda College of Law in 1983.

It's no accident that contact lens misuse can lead to an action for liability. Furthermore, it's no secret that anyone who can sue frequently does. The bottom line is how we can protect our patients, our staff and ourselves from litigation and from basic stupidity.

Note that stupidity is not confined to patients; it unfortunately can be on our part as well. To make matters worse, under the Theory of Respondeat Superior, stupidity on the part of our staff can be imputed to us. So we have the opportunity to get into quite a pickle!

As a clinician, you and I make decisions every day that could result in litigation. It isn't just what we do but what we neglect to do that can result in liability. Above all, the most important words of wisdom are these: Write it down. If cautions, warnings, discussions and other pertinent information aren't part of the record, it makes our defense so much more difficult. The bottom line is that we need to do the best we can, take care of our patients, educate ourselves and our staff, oversee the details and not obsess about the possibilities of litigation.

Equally important is that we have an obligation to refrain from being shortsighted — we all make mistakes. If we ignore our mistakes or refuse to admit when we're wrong or need to seek another professional opinion, the likelihood is that we will live to regret that decision financially, spiritually and professionally.

That said, we have a tremendous opportunity to help our patients live a safer and more convenient lifestyle. Our obligation is to protect and monitor these patients and keep them out of trouble. You may select a daily disposable as your first lens of choice, or it may serve as a secondary or even auxiliary lens. Regardless of lens wear regimen, we have a legal obligation to "protect and serve."

Be Proactive, Not Reactive

The process starts at the very beginning of a patient encounter. Whether you're seeing a new patient or a returning one, just ask if he's interested in contact lenses. For current lens wearers, double check to be certain that they aren't having any problems or that their needs haven't changed. If they've worn contact lenses in the past and discontinued wear, perhaps it's time to re-evaluate. Regardless of the patient, you must take the initiative when making your patient recommendations at the conclusion of your examination. Even if you don't think the patient is interested in disposable contact lenses or if you've mentioned disposable lenses to the patient in the past, you should include this recommendation as part of the viable options for your patients when appropriate.

The thread of Informed Consent runs throughout the contact lens evaluation, fitting, instruction, follow up and re-evaluation. As lens modalities change, we have an obligation to remain proactive. Patients don't determine which lens is best for their needs, but it's up to us to make certain that patients are aware of their options. Daily disposable contact lenses make a tremendous daily option or adjunct to existing lenses with today's active generations.

When you've completed the contact lens fitting or annual examination, you need to give each patient a copy of his prescription. It's the law. But, try this technique. As the patient is leaving your examination room, hand a copy of his prescription to him with the words, "I want you to have a copy of your prescription, just in case you are out of area and there is an emergency." Follow this with, "I want to see you in six months to re-evaluate your contact lenses and in a year for your annual examination. We'll schedule your appointments today."

Ask Questions, Get Information

Most of us get caught up in the daily explosion of practice and forget that we must take time with each and every patient to elicit pertinent information, speak to the patient's needs and desires, and truly assess what is best and will work for them. A complete case history is the best place to start, accompanied by the viable options that will meet the patient's needs.

Our staff must function as part of this investigation process, which sometimes includes just talking with patients about what is going on in their lives. Of course, they need to convey that data to you so you can make appropriate recommendations during the examination process.

A critical, but often overlooked part of contact lens patient care is making certain that patients have appropriate sun protection, safety wear and auxiliary corrections for nighttime driving, long-term reading, computer use, etc., as needed.

The needs of a 20-year-old patient are totally different from those of a 40-year-old, and a 60-year-old has even different needs and concerns. Your job is to investigate, ask questions and address those issues before they actually arise or become a problem. Patients become upset when they're not informed or educated about their viable options, expected outcomes and what the future holds for them.

Follow Up and After Care

This is an area we sometimes just forget about. Every single time you see patients, you must re-assess their needs, their lens fit, their lifestyle, lens care and replacement schedules, emerging problems or difficulties, and any health or work-related issues that might affect comfort and fit. Don't forget to schedule patients for their annual ocular assessment and health visit as well as for their contact lens follow-up visits. We actually schedule the annual and the six-month contact lens appointments a year in advance — and it works!

Remind patients that this modality is daily disposable and that regimen commitment is essential to maintaining a healthy eye, decreased side effects and, yes, a happy eyecare practitioner.

At every visit, you should automatically check and record some findings including an updated case history, visual acuities at distance and near, prescription changes or needs, biomicroscopy evaluation with fluorescein when appropriate, lens solutions used, case replacement frequency, lens wear per day and actual replacement. Patients don't always tell the truth, so it's critical to thank them for being honest. When there is a problem, tell the patient. If it's appropriate to discontinue lens wear, order different diagnostic lenses or change to a different modality of wear, this is the time to address these issues. Although you prescribed a daily disposable lens, there is no certainty that patients are wearing their lenses as prescribed or that they never store, clean or rinse their lenses. If you don't ask, they often won't tell — so ask.

Sometimes it's necessary to advise patients to discontinue lens wear on a permanent basis or at least for a period of time. It may be to allow the cornea to heal or because of an ocular or systemic infection, severe health problems, pregnancy, use of ocular medication, specific medical treatment that may affect lens wear and safety. Patients typically are unhappy when faced with this option, so your ability to educate and monitor patients can be the basis for preventing problems and even litigation. An option for the standard daily wear or extended wear patient may be changing the modality to a daily disposable lens to minimize discomfort or lens contamination.

Re-assess Lenses

Let's face it: we all get older, work on the computer and/or have dry eyes. Some of us take an incredible amount of medication or have health problems. That being said, it doesn't mean that we just give up, crawl into a closet or abandon life. The baby boomer generation is alive and kicking and will never be older than age 40. Unfortunately, no one told our patients up front about these extraneous problems, so it's up to us to break the news as kindly as possible. This may lead to many problems, but the good news is that it opens up possibilities to meet the vision needs of our patients.

These patients are often juggling work, home life, taking care of elderly parents and their children and grandchildren, and are trying to keep it all together. What a perfect patient for the convenience of daily disposable lenses.

Special Patients

Yes, all of our patients are special. But some are more special than others. Daily disposable contact lenses may be an excellent option for daily wear but really a huge benefit for other needs as well. Such special patients may include athletes who are in competition, weekend warriors, dry eye or allergy patients, people who work in a job that does not allow lenses on the job, people who desire the convenience of occasional lens wear, frequent travelers and people who may be in a less-than-hygienic environment on a temporary basis.

Patients don't limit their horizons or expectations and neither should we. Sometimes daily disposable lenses are a creative solution, and sometimes they may be prescribed as the lens of first choice or as a secondary option for specific needs.

Convenience and Compliance

Occasionally, patients may purchase their contact lenses from outside sources for one reason or another. Usually the reason is cost, but convenience is an important factor as well. If you haven't figured out how to keep your prescriptions from walking, you should probably rethink this area. Several companies, including Vision Service Plan, have excellent systems that allow you to set the contact lens prescription information, expiration and prices, while patients can order their lenses online and have them delivered directly to any location. Even so, patients may purchase their lenses elsewhere. What's more, the prescription may or may not be what you determined was best for them. It's important to remind patients not to stockpile their lenses as their prescription might change.

How you handle your patients sets the stage for patient control and compliance. Getting upset accomplishes nothing, puts you into a legally questionable position, and will most likely result with the patient seeking care elsewhere.

For patients who decided to purchase their contact lens evaluation and care elsewhere, but return to you for their annual examination, you must make a clear distinction about the scope of your care. Most of these patients may expect you to give them a copy of their contact lens prescription at the conclusion of the examination, so make certain you have laid out your ground rules before this happens.

If you're not performing a contact lens examination or if there's a charge in addition to your basic fee, or if the patient needs to provide you with additional information, be sure to make it as clear as possible. Fee misunderstandings and unmet patient expectations are frequent grounds for doctor-patient problems. Table 1 provides key phrases and questions that can make the difference in your care of daily disposable patients.

Summary

The key to preventing litigation is to keep patients happy and informed. You have a duty to investigate, to inform, to document, to educate and to follow up. Just because a patient is wearing daily disposable contact lenses does not make your legal obligations any less. CLS