In the article titled “When the ophthalmologists turn blind,” the authors are bringing to the fore an important area of discussion that has been the concern of all practicing ophthalmologists. This has been discussed at all India level and various state-level conferences for several years and probably for the first time presented as an article. It is about the consumer lawsuits and the high levels of compensations awarded. In this context, the authors question various day-today practices of the ophthalmologists including documentation and also the wisdom of high volumes of free surgeries being done through outreach work.
What we are witnessing is the change happening all around us. The ecosystem or the environment that anyone operates in continually changes and evolves. This implies to healthcare and eye care as well. With time, the patients (consumers) are becoming better-informed and more demanding. Laws are emerging globally to protect the consumers and some consumers resort to legal recourse when they feel that there has been a deficiency in the services. It is important to recognize that all of us, without exception, are consumers and some of us could be providers as well. So the legal framework by itself is not biased to penalize any one segment of providers of service or suppliers of goods. There is a case being made in this article that the judgements are biased in favor of the patient (consumer). This could be true, but it is difficult to arrive at the conclusion without evidence on how many lawsuits were filed, of which, how many were dismissed in favor of the ophthalmologist and how many were decided in favor of the patients and awarded compensations.
The authors have quoted a number of instances wherein the patients were awarded varying levels of compensation. Some of these have to do with relatively simple tasks, but often overlooked, like not recording proper informed consent, all the investigations done and their results in the case sheets, prescriptions and postop care not properly communicated in writing, and so on.
In each of the instances, they have also analyzed the root causes. They broadly fall into two categories – deficiency in the services or lack of evidence to show that there was no deficiency. The latter is largely due to not properly recording the details in the medical record. There is a lot of variation in the comprehensiveness and completeness of the medical records. In all lawsuits, it is the medical record that essentially forms the basis for the legal decision. Because medical records are mostly in paper form and maintained manually, its quality is dependent entirely on how diligent the ophthalmologist and the rest of his or her team members are in recording the clinical details. The emergence of Electronic Medical Records (EMR) offers a solution. In an EMR, it is possible to mandate the completeness of critical information and enforce a checklist-controlled patient flow to ensure patient safety and minimize errors.
All of these have to do with internal clinical protocols and how well they are followed. A mindset has to develop that these protocols have to be the same for all patients, regardless of whether they are paying or not. Having a common protocol in many ways are easier to implement and will also help in embedding a process of continuous improvement. This applies both to clinical process and all that goes into creating the patient experience. Quite often it is the shortcomings in the patient experience that triggers legal action.
While the courts have a duty to uphold delivery of “responsible service,” they could be educated to moderate the penalties, especially in the context of “humanitarian” surgeries. So that the practice of medicine does not become overly defensive and expensive as it has happened in some countries and even worse resulting in “nonservice” as this article wants the ophthalmologists to contemplate. This approach of taking a more lenient view of humanitarian work also raises the philosophical issue of having laws based on how much a patient pays – current (high) levels of penalties in case of deficiency in paying clientele versus more lenient penalties for those paying less or nothing. In spite of not being an expert in law nor in our constitution, I doubt if such an approach would hold any promise. Having said this, there is still a scope for doing something to educate the judiciary and this is best done by the collective of ophthalmologists in the country.
Probably unintentionally, a linkage has been made between high volumes of free surgeries done to address the blindness in rural areas as the cause for poor outcomes and this resulting in some instance in lawsuits, in some of which high compensations were awarded. When a fair volume of surgeries have to be done free or at below costs, there is a pressure to become cost-efficient. So lowering the cost is not an issue by itself, but cutting corners and compromising the quality and safety by lowering cost is an issue. There are many ways by which cost-efficiencies can be achieved, without compromising the quality. Ensuring quality and safety is completely in our hands. Compassionate intentions and humanitarian services cannot justify cutting corners that have the potential to result in poor quality or adverse outcomes. This can be avoided by embracing an equitable mindset. Though it may sound idealistic, why should we expect that those who get free services are not entitled to good outcomes and that they should not demand it?
It is not justified to link poorer quality to free surgeries. Free surgeries, the massive publicity in case of outreach and enormous goodwill generated in the community, are what grow the market, bring in more patients to the ophthalmologist, and build trust in the community. Many view this as an investment and that is why as the authors have stated, even those in “core private practice” indulge in this. So how could this “devalue the very services provided by these ophthalmologists”?
In summary, as the International Council of Ophthalmology, very poignantly, states“If ophthalmology is to continue to ‘own’ cataract surgery, it must ‘own’ as well the enormous problem of unmet cataract surgical needs.” We need to realize that litigations are not going to go away and the most effective way to avoid it is to treat every patient in the best possible manner. This is the leap we need to make, to remain successful.
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