You’re Being Sued for Medical Malpractice! Now What?

By Practice Growth April 08, 2021

It’s a common concern for every physician including optometrists, ophthalmologists, and other doctors. Any time that a patient has a negative outcome, he/she is likely going to want to blame someone. The natural person to blame is the physician who diagnosed and or treated the patient. The possibility of a medical malpractice claim is the number one reason eye doctors and other doctors need to have medical malpractice insurance.

The good news is that just because a patient files a complaint doesn’t mean that the patient wins. The burden of proof is on the patient to prove malpractice. In many cases, the physician complies with the appropriate medical standards for his or her medical practice area or specialty. Insurance carriers work with experienced med mal defense lawyers who understand when cases have merit and when they don’t. Your insurance and defense team will guide you through each step of the litigation process.

What are the main parts of a medical malpractice claim?

There are several parts to a medical malpractice claim:

The patient must establish that you owed a duty of care to the patient. This duty is usually shown through the appointment records, your work to diagnose the patient’s health problems, any treatments or surgeries that are performed, and any written contracts with the patient.

The patient must show that you breached the duty of care. This means the patient must show that you failed to diagnose or treat the patient according to the medical standards for an eye doctor or for your health care practice area. Often, this is the most contentious part of the case. Doctors aren’t gods. They can’t guarantee a specific outcome. Doctors have the right to assert they did their job according to current accepted medical practice. Part of your defense will be your testimony in this regard and the testimony of other eye doctors or other professionals in your field of practice.

The patient must show the breach of duty caused their injuries. It’s not enough to show you didn’t do your job according to medical standards. The injured patient must show that this breach is what caused the injury. In many cases, the patient would have had a negative outcome even if you did your job as other optometrists or other health professionals in your field would have done them. If there was no known treatment for their condition, then you shouldn’t be held liable.

The patient must prove their damages. Damages are normally based on the cost of corrective surgeries or treatments or the loss of function due to their injuries. Damages generally include pain and suffering (including pain and suffering due to blindness), medical expenses, and loss of income.

Blindness or loss of vision is a life-changing event. Therefore, doctors will often need millions of dollars of liability coverage and umbrella coverage insurance.

Optometrists and other care physicians should:

- Keep current with the latest medical standards in their field;

- Keep clear and precise medical records to document the patient’s care; and

- Make sure they review how much medical malpractice insurance they need – before they begin practicing medicine and on a yearly basis.

- Blindness or loss of vision is a life-changing event. Therefore, doctors will often need millions of dollars of liability coverage and umbrella coverage insurance.

What types of medical malpractice claims can be filed against an optometrist or ophthalmologist?

Eye patients treat with optometrists and ophthalmologists for many reasons include glaucoma, cataracts, contact lenses, vision loss, retinal detachments, and other eye disorders. Medical malpractice claims generally include:

- The failure to obtain informed consent for treatments or surgeries. Patients have the right to be informed of the risks associated with any procedure.

- The failure to make a correct diagnosis.

- The failure to refer the patient to a specialist. For example, optometrists should know and strictly follow when they need to refer a patient to an ophthalmologist.

- Not conducting a dilated eye examination

- Making an improper diagnosis

- Delaying a proper diagnosis

- Not performing any surgeries properly

- Not prescribing the correct lenses

- Not monitoring the patient after surgery

- Not explaining suspicious findings

- Not complying with other medical standards

What should you do if you receive a malpractice complaint?

The first step should be to notify your health insurance company. They’ll calmly answer your questions and explain what steps you need to take. Normally, the insurance carrier will arrange for a lawyer to represent you. You’ll then meet with the attorney who will guide you through the litigation process. You must meet with the lawyer appointed by the insurance carrier. They’ll help calm your worries.

What happens in a medical malpractice case?

A medical malpractice case can take a long time to resolve. The litigation process can take months or even years. There are numerous stages to the litigation process including:

- The initial preparation. Your lawyer will help you prepare for each stage of the process including preparing the records you need and identifying any witnesses. The lawyer will likely work with independent optometrists who will analyze the standard of care you provided.

- The initial court filings. The lawyer will prepare an answer to the complaint. He or she may file motions to have the case dismissed. The attorney may file other motions depending on the medical malpractice procedure requirements in your state.

- The discovery phase. There are normally three parts to the discovery process:

- Interrogatories: These are written questions from the patient’s lawyer that you must answer. You also have the right to submit written questions to the patient.

- Requests for production of documents. You and the patient both have the right to seek relevant reports and records.

- Oral depositions. These are recorded sessions where you, the patient, and any witnesses answer questions about the care that was provided and the injuries and damages the patient claims.

You generally should not discuss the case with the patient. Your lawyer is your mouthpiece. You shouldn’t admit fault. Your lawyer is your advocate. You shouldn’t make any statements about the case without your lawyer being present. Your lawyer may object to many questions the plaintiff’s lawyer has.

You need to be honest with your lawyer. Your med mal lawyer needs to know the worst so he/she can prepare an appropriate response.

How do you handle the emotional toll of a medical malpractice case?

Litigation is stressful. It takes a lot of time. Generally, you should trust your med mal defense lawyer and your insurance carrier to handle the case for you. You have the right to ask them all the questions you have.

How does a settlement affect your ability to practice medicine and your insurance?

These are questions you need to review with your insurance carrier and with the medical associations and boards that govern your optometry practice or other practice.

Settlements offer peace of mind because jury trials are always risky. A settlement normally means the patient is paid by your insurance company and doesn’t have claims against your practice once the payment is made. You have the right to approve or reject any settlement offer.

If the settlement is significant, your insurance premiums may rise. A settlement may be reflected on various state or county or medical association evaluations.

The information provided on this website shall not constitute legal advice. All content offered on this site is for informational purposes only. This information may not be up-to-date. No representations are made that the content is error-free. We expressly disclaim all liability with respect to actions taken or not taken based on the content. Please contact an attorney with respect to your specific legal matter.  

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