Do Not Get Sued! or the Right Way to “Date” a Patient

Assessing the biggest liabilities in an optometric practice and how to protect yourself.

By Pamela J. Miller, OD, JD

The very thought of malpractice litigation is enough to make any doctor stop and take stock of how he or she practices, where potentials for liability exist, and how to best protect one of their biggest assets. No one consciously seeks litigation, and very few doctors are intentionally negligent. Unfortunately, if preventive measures are not taken, by the time an event occurs, it may be too late to remedy the problem.


Basically, professional liability is based on the legal concept of negligence—in point of fact, it is gross negligence. The standard is that of the reasonable optometrist or ophthalmologist and that standard continually changes as our professions expand in both knowledge and technology. Of course, the patient must suffer harm as a result of the care (or lack thereof) received.

Doctors are expected to maintain their competency and knowledge and take care of their patients in a professional manner. That expectation extends to any individual who comes under one’s immediate supervision as well. So, an eye care provider may in fact be very competent, but be liable due to the actions or inactions of an employee or associate, under the theory of respondeat superior.

If one works in an integrated care practice, his or her employer may be at greater risk. The more people directly involved with the patient in a single setting or where that setting is under one’s control, the greater the liability factor. As health care options change, and as patients are controlled by their insurance and primary care physician, a provider’s risk factor may increase, even if he or she does not have physical or actual control over who one’s patient is seen by when it comes to specialists or referrals.


The bottom line, of course, is: Do not malpractice! Unfortunately, it is easier said than done, particularly as optometrists and ophthalmologists employ more staff and utilize electronic health records/electronic medical records systems, which can lead to repeated and even gross errors in recording. Just as physicians are responsible for maintaining their education, they are also responsible for making certain that their staff and associates are trained appropriately.

Training starts from the first day a new individual becomes part of the practice and only ceases when that person leaves. Even then, an act or failure to act resulting in a cause of action for negligence can arise if the action results from the date of actual injury or from the date of discovery, depending on the jurisdiction. If the patient is a minor, then the action may be tolled until they reach the age of majority.

The fact is that everyone makes mistakes. Statistically, most optometrists are caring individuals who have patients’ best interests at heart. Some areas of practice, however, tend to create a greater opportunity for litigation. Failure to refer, failure to follow-up, or failure to treat may result in increased liability. The more invasive a procedure is, the greater its risk. Failure to obtain informed consent from the patient (or the parent or guardian if the patient is a child or under conservatorship) can open the door to potential charges as well, even including assault and battery (harmful or offensive touching or the threat of such).

Of course, some patients are more litigious than others, and some folks just like to threaten to see how much they can get away with. Regardless, it is wise to take some initial preventive actions before the issues arise.


So, what is a doctor to do—especially as their control over patients and even their own practices seems to be slipping away? First of all, one should step back and look at his or her practice, the setting, staff and how business is conducted in an objective light. If help is needed, enlist the aid of a practice management consultant who can assess the office in its entirety. Eye care practitioners may even need to utilize a billing and coding consultant to specifically look at the recordkeeping and documentation aspects of the practice.

In short, there are three distinct areas of potential liability that must be addressed: The individual’s personal competency, including the equipment and techniques used; the competency of the staff and associates; and the competency of the professional colleagues within the referral family. A weak link in any of these can open the door to litigation.


To protect one’s most valuable professional asset, consider thinking in terms of “the right way to date a patient.” No, I am not suggesting that one asks one’s patients out socially, but rather, a simple way to help ensure sanity, assets, and patients’ safety.

D is for documenting. Document clearly, legibly, and completely. In short, write it down. Legally, if it is not written down, then the test or action did not occur. If others cannot read it, then the documentation is not worth much. If one uses an electronic health records/ electronic medical records system, make certain that it does not automatically pull information forward and populate the fields without direct oversight.

A is for advising. Advise patients of their viable options, what they are being tested for, what is seen, and the actions that are going to be taken as well as the actions the patient should take. Then, do not forget to follow up with the patient or referral. Part of the eye care specialists’ care is to make certain that the patient returns to the practice when appropriate and that the patient receives any specialty care that was recommended. Of course, even using one’s best efforts does not guarantee that the patient will comply, but make certain that what does occur is documented.

T is for testing. Testing is an integral part of every practice. The staff needs to be trained, follow-up techniques instituted, and a specific protocol must be in place so that the physician sees and reviews the patient’s records. Testing procedures require informed consent: the patient needs to know what is going to happen and agree to it. They need to know the pros and cons of a particular procedure. Remember that the patient always has the right to refuse treatment, care, or specific testing procedures. If that occurs, make certain that all actions are thoroughly documented in the record. The doctor who takes the time to ensure that patients are properly informed minimizes the potential for litigation.

E is for explaining. Explain and communicate with patients (and staff). Patients tend not to sue people they like. Taking the time to make certain that one’s staff is well trained, that they do not speak out of turn, and that the provider and the staff exude a genuine and caring nature goes a long way toward preventing litigation. When patients feel that they are important to the practice, when they feel that their needs are being met, and when they feel comfortable enough to ask questions, then the risk of malpractice litigation decreases proportionately.


The biggest liabilities in our practices are ourselves, our employees, and yes, our patients. The best way to prevent litigation is to pay attention to our practices, train ourselves, and our staff, and provide the best care we possibly can for our patients, remembering to document what we say and do. There is no magic pill that keeps us safe, but if we remember to “date our patients,” that will go a long way to ensuring a long and healthy practice.

Pamela J. Miller, OD, JD, has a private optometric practice and is a practice management consultant in Highland, California. Dr. Miller may be reached at (909) 862-4053;