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Cover Focus | Jul/Aug '16

Help! I’m a Doctor, Not a Lawyer

Five steps young ophthalmologists should take to protect themselves.

New ophthalmologists who are just going into practice undoubtedly have a lot on their minds and their plates. It can be challenging to navigate the many firsts that lie ahead, especially those related to an area that was not mastered in medical school, such as how to protect themselves legally. Having been involved in ophthalmology and the legal aspects of practice for 17 years, I have considered the primary steps I would take to protect myself if I were an ophthalmologist starting out today. They are detailed below.

No. 1: Communicate With Your Patients

When people come to me in crisis—whether it is a government investigation, a whistleblower, or a patient who goes to a Board of Medicine—communication is often in the middle of or at least a part of the problem. Proper communication will be fundamental to your success. There is mounting evidence that patients are far less likely to sue a physician with whom they feel they have made a personal connection and who they believe, no matter the outcome, is acting in their best interest.

In the face of mounting pressure to see more patients, you may seek to delegate the task of communicating with patients to your clinical staff. However, in doing so, you are losing the opportunity to build that doctor-patient relationship that might actually save you when someone is not happy, and someone at some point is not going to be happy.

In the literature, there are two positions on apologizing for errors. Some say physicians should never apologize or admit that there was a problem, as that gives patients ammunition to sue. However, more and more we are starting to see physicians apologize. I say admit your mistake, and, if you have cultivated relationships with your patients, most will walk away understanding that you are human, too. Then you can work to mitigate whatever the bad outcome was.

Informed consent is important. Informed consent benchmarked against your marketing and benchmarked against what you verbally tell patients is even more important. If you give the patient a piece of paper that lists all of the risks and benefits of a treatment, but then, in your conversation with the patient or in your marketing materials, it looks as if there are no potential risks, that becomes a gray area. Patients may interpret that as, “Everyone has a perfect outcome. I’m going to walk out of here 20/20.” Juries and judges, they compare that messaging. You need to ensure that you give consistent informed consent to your patients across all channels. Also, informed consent is not a delegated part of your job. You can have your staff participate in the process, but, at the end of the day, only you as the physician can provide complete informed consent, and you are held accountable for informed consent.

A number of years ago, we looked at refractive and cataract surgery malpractice cases to get a sense of the allegations commonly made. We found that almost 95% of the cases—regardless of the outcome or the main clinical allegations—included an allegation of a lack of informed consent. It is very easy for a patient to allege.

No. 2: Read Your Employment Agreement

Employment contracts are changing, and they will get more challenging to understand as your compensation evolves and as health care is paid for in different ways. Avoid terms of higher standards of care. We see contracts that say the physician is going to deliver the highest quality care known to mankind. Instead, you are going to deliver standard of care. You do not want to set yourself and the practice up for more than what is achievable.

Most contracts are starting to note compliance with laws and list progressive penalties if you are not compliant with the compliance program of the practice. For example, practices are holding individual physicians accountable if they are not paying attention to billing or how they are coding, if they are failing to follow the practice policies on professional courtesy, or if there is any kind of penalty lodged on the practice. We are also seeing an increase in the amount of penalties being lodged on physicians.

Ask if there is a provision for covering excess compensation paid on monies that were inappropriately paid to the practice. If the practice gets audited and has to pay back money, does the practice then expect that to come out of the pocket of the physician who was not coding or billing correctly? How is meeting the new value and quality measures going to be incorporated into your compensation formula? Although the sustainable growth rate was repealed, in 2019, the Medicare system will basically be based all on quality and agreeing to practice under alternative payment methodologies, eg, value-based measures that look at your cost efficiency while achieving a high quality of care. You will need to understand those measures you will be expected to meet in order to understand and negotiate your compensation.

Make sure that if there is a productivity bonus in your contract it is consistent with the Stark Law. If it is not, then the services that you render that are designated health services cannot be billed to Medicare, and you could have a significant over-payment for your practice.

Attaining meaningful use standards is becoming a common provision in contracts. Who keeps the bonus? Does the practice? Or, does the physician receive it? If there is a penalty, does the physician or the practice pay? Remaining meaningful use travels with the physician. So, if you are taking in a new physician who has been in practice, you need to understand whether he or she has achieved meaningful use and whether that is going to be counted toward you.

When you start your first job, you probably do not want to think about your exit, but you need to plan ahead and consider post-termination collections. If you are going to leave, then you are going to have accounts receivable that will probably trail you. How long is the practice going to try to collect those? Are you going to get paid on those? Are you going to be charged for the costs for the practice to collect even after you are gone? You should be thinking about these issues.

No. 3: Cataract Bundle Watch-Outs

Review your “advanced technology” or “refractive” packages critically to ensure that patients are only paying for services that fit into the two-aspect rule, meaning that they are medically necessary only to the refractive aspect of the lens or that they are a noncovered service because they are not medically necessary or they are just not a benefit or covered by a particular payer. We are mostly worried about Medicare here. It is understandable why physicians talk about outcomes—that is what the patients understand and that is the way you can talk to them about it. However, at the end of the day, the options in that package may only be charged to the patient if that the services are not covered.

You should also be thinking in terms of consumer protection. The options in the package must be items that the patient reasonably might actually need. If you have an aggressive package that includes offerings that patients are paying for, yet only 10% or 15% of patients might actually ever need that technology or service, that becomes risky. Patients need to understand the likelihood they may need those services. They could easily complain to the Board of Medicine or the state consumer protection agency, feeling like they paid for something they did not receive.

No. 4: Take Compliance Seriously

You and your staff work hard to make the practice successful. However, just one bad compliance issue can cause serious damage to both the financial health and morale of the practice. The four main areas of risk for physician practices include (1) coding, (2) billing and collections, (3) unreasonable or unnecessary services, understanding what is and what is not paid and what you can and cannot charge patients for, and (4) documentation. Documentation absolutely matters. If you do not document, you do not get credit for doing it. If you do not document, you get into a “he said, she said” between the physician and the patient. Improper inducements, kickbacks, self-referrals—understand those relationships and take compliance seriously.

No. 5: Understand Comanagement Risks

Understand the risks associated with comanagement. The vast majority of ophthalmologists participate in some level of shared care. It raises concerns about that relationship between the external referring optometrist and the surgeon. There cannot be any quid pro quo, no agreements, no winks that “you send me your patients, and I’ll send them back to you,” no swapping arrangements, no paying high levels of reimbursement for LASIK comanagement in return for cataract referrals, etc.

Comanagement also raises risks of improper delegation of care to the optometrist. If you do not know what the optometrist is going to do, again that patient and that surgical outcome is still on your shoulders. It will be considered negligent referral if the optometrist to whom you refer is not competent to take care of the patient and potential abandonment if the patient did not choose to go to that optometrist but felt pushed to agree to comanagement.

Another key legal and ethical rule is to follow payer rules for billing the services. There can be no agreements to refer. The comanager is only entitled to fair market value for the amount of services he or she performs. We hear about optometrists who want a piece of the action on advanced-technology IOLs or femtosecond lasers. They think, we referred the patient, we discussed the technology, and so we should get a piece of it. However, if the optometrist has not done anything—he or she has not run any diagnostics, did not do the surgery, will not do any of the preop discussions—then they are not entitled to any of the money for advanced-technology IOLs. We hear of practices that were given a straight percentage, as in, “We will give you 10% of whatever we charge.” Well, that means 10% of the diagnostics and 10% of the lens—those are not things that the optometrist can be getting paid for.

If the patient’s financial responsibility includes a portion that you are collecting for the optometrist and a portion for your practice, the patient needs to understand the amount he or she is paying to the optometrist. If an optometrist says to you, “I don’t want the patient to know what I’m getting paid,” that should trigger a red flag that perhaps it is too much and that is why they do not want the patient informed. Last, ensure that patient choice is honored. Make sure it is memorialized that you have some kind of consent form saying the patient wants to go back to the optometrist for shared care.


By following these key points, new ophthalmologists can rest a little easier knowing that they are protecting themselves from the legal risks of medical practice and focus on what they have truly set out to do: provide superior ophthalmic care.

Allison W. Shuren, MSN, JD
Allison W. Shuren, MSN, JD
  • Partner and Co-Chair of the Life Sciences and Healthcare Regulation Practice at Arnold & Porter, Washington, DC
  • (202) 942-6525; allison.shuren@aporter.com