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Thread: Liability & working with a CL fitting Optician

  1. #1
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    Confused Liability & working with a CL fitting Optician

    Hi All,

    I'm an optometrist looking at an opportunity to go work with/for an optician. It's his building, equipment etc. I get fees for services provided, he gets the $ from the optical. In our state, opticians are able to fit CL's, and he has been doing so for years. I will fit my patients with CL's, but he fits CL's on "outside" patients from local ophthalmologists with the infamous "OK for CL's" on the Rx. I won't have anything to do with those outside patients that he fits and I will never see.

    How can I "distance" myself from those patients if something goes wrong with the CL's(read ulcer). It's not that I don't trust the opticians abilities, but I'm a firm believer in "John's Law" which states: "If there is a remote chance that someone will get screwed in a given situation, it will be ME!" I'm just trying to protect myself. Also, many of those outside patients have not been dilated. What's my liability for them if some undetected pathology arises (retinal tear, glaucoma etc.)?

    Obviously, I feel that I'm not responsible for either of the above scenarios, but since we're both under the same roof, we're both gonna need lawyers. Any pearls on how to best handle this situation???

    Also, he does not charge for the CL fitting( nor will I under the current set up) if they purchase their CL's through him. For those of you opticians who fit CL's, is this the norm? I understand why he has done it this way( hoping for the glasses sale along with the CL's), but I hate giving my CL fitting services away.

    Thanks,
    John Keriotis, O.D.

  2. #2
    OptiBoard Professional Excel-Lentes's Avatar
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    Hey now,

    I am a contact lens fitting optician that has a part-time OD giving exams on-site. He does not fit any contacts an is an independant contractor.

    What benefit do you get by fitting the lenses for free? Do you get the profit from the lenses that are sold after you fit them? I charge a fitting fee for new customers and if they purchase the lenses from me I will not charge them for the re-fit when they come in for an eye exam the next year. If they choose to purchase lenses elsewhere I will charge them for a re-fit.

    I don't feel we should work for free and there isn't a whole lot of profit to be made from soft lenses. Just look how much Wal-Mart sells them for.

    -b

  3. #3
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    I don't agree with giving any services away, with the exception of an eyewear adjustment. I am a licensed optician, and CL fitter, but I would rather let the OD's on staff do it, as they do it more often, and I want them to be able to enjoy the extra revenue. I make much more money on the eyewear side, than I could fitting CL's for an extra 45-100 a patient.

    One thing I don't understand, is why you are entering into a business arrangement with an individual you want to "distance yourself" from, before you begin ? Have you discussed your concerns with him about this subject ? There is a good chance that if he has been doing it for years, and you are just starting out, he is more proficient at the craft than yourself. Have you thought about the risk he is taking on by allowing you to practice under his roof ?

    I have 4 OD's that work in my office under the same arrangement you described. 3 of these OD's have been with me for over 10 years. We all have a very open and on-going dialouge regarding our roles within the practice, as well as our legal exposure regarding our shared practice.

    If you are having such serious doubts about your "partnership", now is the time to iron it out.

    One last thought: You mentioned that this optician has "doing this for years" In all these years, how many legal problems has he had ?

    Another John

  4. #4
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    Contrary to your obvious lack of respect for the CL fitting Optician, some of the nations best fitters are in that professional category. I have fitted thousands of patients over the years and had some complications that required immediate referral. The complications were immediately recognized and reffered to a competent medical professional. Believe it or not, even an Optician can pick up an ulcer. Now if you are truly interested in working for an Optician, then you must share confidence. If it is beneath you, then don't do it. But if you do, watch his/her CL experience in action, you just may learn something about CLs.

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    Two points I want to address :



    1. Those of you that have an arrangement with the optician fitting the contact lenses.... What happens when a patient the optician has fit with contacts, asks for their contact lens prescription ?

    Who writes it ?

    2. As an OD, I never charge less for a returning patient's contact lens exam, because every subsequent year that a patient continues to wear contacts, the OD's liability increases.. If anything, the fee should increase with every visit, not decrease !

    mobile OD

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    Who's Liable

    A: The precribing ophthalmologist is responsible (read liable).
    B: What makes you feel that he is less likely to have a patient with an ulcer than you?
    3) Unless you charge for it, it ain't medcine, it's charity, no libability.
    4) Can't figure out why you do this for free, unless it's tied in to spectacle sales and you are over charging for them.
    5) Why go into business or work for someone whom you don't trust, albeit professionaly.
    6) Open your own store or are you too much of a wimp for that, if you are afraid of liability of your co-workers.
    7) Get malpractice insurance (both of you) you probably still can in Alabama, you don't have Mississippi's lack of tort laws and ignorant juries.
    8) Where do you thing all the early research, development and training O.D.'s get in contact lenses came from? Opticians. Mostly from the CLSA (where we are dumb enough to help the enemy).

    Chip

  7. #7
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    ...liability

    Chip...

    Just to set the record straight...Even if you don't charge a patient, you're still liable for anything you do, or advice you give.

    This is why you must be particularly careful with those 'quick look' patients. You know who those are. They say "Hey doc can you take a quick look at this". What they are really saying is, "Tell me what's wrong, but don't charge me, and I'll take your advice, and hold you accountable if something goes wrong".

    mobile OD

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    Dear Mobile:

    I can't confirm this from the source as he died two years ago, but my old friend Dr. Samuel B. Johnson, M.D. Who was for many years the chief of the University of Mississippi, Department of Ophthalmology, told me on many occasions that unless you charge money, it is good Samaritan work and not subject to liability, and not concidered practicing medcine. Sam was also one of the the country's leading experts on Medical~Legal things.
    He graduated Medical school at age 16, and testified in hundreds of medical legal liability cases in his career.

    I have had many (friend) lawyers tell me that they are not liable for "free advise" . I have also have had many other ophthalmologist and physicians tell me this. But I have never been sued and hope never to find out different.

    Of course, I do not think one should act irresponsibly even when given a free pass.

    Chip

  9. #9
    OptiBoard Professional Dannyboy's Avatar
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    long

    Aside from the obvious feeling that the optician should not be fitting contact lenses, you maybe in a dilemma. The contractual agreement that you have maybe the key to see if your liable. If your state requires direct supervision of the optician or general supervision maybe the key. Let me explain, if there are any laws actually recognizing the independent fitting of contact lenses by the optician? If it is direct supervision you maybe the one providing it even though the MD is giving an OK.

    Any act (controlled or not) that a person performs is always in court held to the highest standard of care. If you as an OD miss an ulcer (professional optician dont), the court may require an individual with similar training to testify on that standard. Once the level of care is established, the court may accept opinions as to your negligence on an expert in the matter. As an OD you are not the highest standard of care when an MD gives an OK for contact lenses, so you are safe but maybe found negligent for not properly supervising the optician.


    The next point has to do with the infamous "ok for contacts" . In almost all states this is a grey area. Opticians fitting contact lenses in a licensed state usually have it spelled out up to a certain point. Mosts states require a contact lens prescription, but what is a contact lens prescription? For that matter what is a spectacle Rx? Prudency calls for an ok.

    If the law is silent, it is fair and legal for the licensee to interpret it. If the opticianry or optometry regulators in your state fine you, you can always appeal to a judge and the burden is on you to prove that it was silent, which shouldnt be hard for an attorney to prove.


    The best contact lens fitters are not ODs or MDs. The best fitters are opticians. Almost all medical schools and practices rely on the services of opticians. If you are in doubt contact the CLSA and ask how many non MDs or ODs are fitters? Even those numbers are low since membership is voluntary. That is another standard of care point.

    Optometry does not want to loose the fitting fee money. Most ODs do charge. As an LDO, I fill and interpret prescriptions and have a delight that I do not write prescriptions. When I fit a soft contact lens, my patient does sign a disclaimer which explains exactly the requirements for the prefit, fit and follow ups. I also explain that since we are filling an existing prescription the records are given to them in non prescription form and that is up to the other party to assume responsability for the lenses they dispense. Since I match prices usually loose only the ones that move away. The MDs have usually written the Rx for the Cls with my specs when the patients want without a problem. Now there are some Ods that will charge again to write the Rx and reexamine the patient not because they are money hungry (?) but by statute they have to when they write an Rx for lenses. Weird but that is Florida. Now RGps is a different story, unfortunately.


    As to the unlicensed states, Mds have long established that it is within their rights to delegate any procedure they want. Texas comes to mind...

    Dannyboy;)
    Old, grey but still working

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    Thanks for all the comments. Much of my concerns have to do with the fact that I have never encountered a situation like this before. In 12+ yrs of practice, I think this is the first CL fitting optician I have run into. In my mind, it opens up a medicolegal can of worms and I'm just trying to find the best solution for the situation. I would very much like to make it work, but I need to know what kind of exposure I'm getting myself into. To jump in blindly would be foolish.

    Contrary to some of the comments, this isn't about my lack of respect for the skills , competency, and trust for the optician. Of course as in any new situation, there will be a time for each of us to find our comfort zones with each others skills and proficiencies. The issue is how to go about structuring our arrangement to minimize exposure legally(his and mine). I am talking closely with the optician, but I'm merely asking for suggestions from others in similar situations.

    I just found out about the opportunity last week and I haven't had time to investigate all the various aspects, especially the regulations/laws for opticianry. There seems to be so much gray area in laws and regulations. I'm hopng for a little more black and white answer. According to the optician, he is allowed to fit under the supervision of a "doctor". I don't know if it is direct or general supervision. Does that "doctor" refer to me or the referring doctor who'd "ok'd for CLs".

    As I think someone mentioned, the doctor is at the top of the culpability ladder. If a patient whom I've never seen has a problem, and I'm the "in house" doctor, I would venture to say I'm in deep do-do. In the eyes of the average juror:, "You mean the doctor never saw the patient?" Case closed. Again, I'm not saying that the problem has anything to do with the fact that the optician did the fitting. Call me crazy, but I like to avoid liability, especially when I have nothing to do with it, as I'm sure he does too if the roles were reversed.

    Anyway, would saying something in our agreement as simple as "Dr is responsible for patients under his direct supervision only", or something similar be a remedy? I don't know, just thinking out loud.

    For Johns, do you charge rent to the OD's? Are they independent contractors? Do they set their own hours, have their own phone #s? Does your staff file insurance for them? The reason I ask is that each of these factors can tie you together or further establish separate business entities.

    Anyway, thanks for all the help...

    John

  11. #11
    Master OptiBoarder Joann Raytar's Avatar
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    John,

    We have two stores both are owned by an OD and both have dispensaries. The Doc is pretty good about letting us make decisions based on our experience. The only times he questions our calls is when he knows the history of a patient by heart and knows that person will have adaptation problems to certain products for one reason or another. I try very carefully not to get too cocky about what is really his area of expertise.

    It is not only the Doc's neck on the line but my own also. I wouldn't want to give a patient incorrect information or send them on their way only to have them come back a week later with a serious problem, alot of anger and a threat that they are calling a lawyer. Since it is the Doc's business they may decide what I say is medical advice and think I mis-represented myself as the Doc. It sounds silly but I find alot of folks don't know who the person is that they are being helped by.

    It goes both ways. I worked in another shop that LO owned; we had an independent Doctor come in a couple of times a week. A patient stuck themselves in the eye with a paper price tag that was attached to the temple of a frame. We sent them in to see the Doctor. It turns out the woman scratched her cornea with the tag. The Doctor told her he wouldn't charge her for a full exam, just for an office visit. As soon as he mentioned there would be a charge, the woman went livid. She swore she would call her lawyer because she was injured in our shop and we wanted to charge her for the treatment. We would have covered the cost of the exam but the Doctor didn't know that. Once we told the woman there would be no charge she went happily on her way but it was nerver wracking for us. We officially had nothing to do with the Doctor and at the time thought people knew that.

  12. #12
    OptiBoard Professional Dannyboy's Avatar
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    Well the fact that you seem to so up against it, I will say walk away. I am sure the optician will survive without you.

    dannyboy:)

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    Bad address email on file NC-OD's Avatar
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    Wow,

    The guy just asked a question to see if anyone was in a similar situation and as usual some of you jump all over him. Quit being so damn defensive and condensending. If you have an answer for the question, then answer it. If you don't, there is no reason to insult the man. He thought this forum was valuable and the people intelligent enough to seek the advice here and all (or mostly all) I see are derogatory statements about how HE probably doesn't know how to fit Contact Lenses

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    Master OptiBoarder LaurieC's Avatar
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    Originally posted by NC-OD
    Wow,

    The guy just asked a question to see if anyone was in a similar situation and as usual some of you jump all over him.
    Well I must agree with this statement. You know OptiBoard's tag line is that it's the premier online community for eyecare professionals. Think that means it's all inclusive. I often ponder the wranglings of the three O's on the Board and elsewhere. My statement to clients who want to go that road is this:

    If I could see the energy spent bashing the other O's and worrying about them transferred to activities focused on building your own profession's and business's images based on their merits.....well then you'd be so successful you wouldn't have time to worry about the other two O's.

    As for the original question, I wholeheartedly recommend charging a fitting fee and using the additional revenue to boost liability coverage for all parties under the roof. I believe that disposable contacts are an excellent choice for a "loss leader" to drive traffic to the dispensary. However, I believe when a fitting is done for free it devalues that service and therefore diminishes all eyecare professionals as just that.

  15. #15
    Master OptiBoarder Joann Raytar's Avatar
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    Laurie,

    I agree with you. Ixmnr didn't mention anything that implied a lack of respect for the optician he will be working with in fact he mentioned that the LO has been fitting CL's for many years.

    Ixmnr has a situation where he will evaluate and fit that shop's patients and the LO will fit outside patients. Ixmnr wanted advice on how to handle the liability issues associated with patients who see outside doctors but are fit for lenses in their shop.

    He also wanted advice and information on fee set ups.

    That was all I read out of his post.

    I must add that he is quite a gentleman. He thanked everyone for their input and tried to ask a few more questions even though some folks were rude to him. It is nice to see someone have a little bit of class when joining in on "cross-specialty" discussions.

  16. #16
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    IXMR (John)
    To answer your question(s): In our office, the OD's do pay a (token) rent of $1.00 per year. They are not private contractors, for me, but private practioners located on our premises. (The difference is that if they were contractors, I would be required to 1099 them, and neither of us want that. Contractors can also affect your workmen's comp. rate, as well as send your errors & ommsision insurance through the roof!) Customers (patients) make out 2 checks; one for the doctor, and one to our optical. (Although we could easily accept payment for them, and reimburse them, we won't, because the OD's, as well as myself, like to stress the indpendence of the optometry practice, from the optical. We also have a sign at the reception desk (we use only one) as to what the arrangement is. We have an electronic insurance submission co. that we use, and I submit the OD's insurance for them, as a courtesy to both the OD, and the patient. It must be noted, that our practice accepts no insurances on assignment, and all fees are collected up front. The insurance is submitted for direct reimbursement to the patient. The doctors file their own Medicare, and they do not accept Medicaid. The doctor's set their own hours, but we work closely w/ each other on this to assure optimal staff coverage at peak hours. We do have seperate phone lines, but I pay for them, and it's really more for marketing, as the more phone lines we have, the more listings we get in the Yellow pages. I own all the equipment, and pay all the staff. My goal has always been to make it so nice for the OD's, and to make sure that they make so much money, that they wouldn't wnat to go anywhere else. So far it seems to be working.

    As far as the optician fitting the CL's...you stated that he's been doing this for years. Has he always had another OD there, or does he not fit when there is not one around ? If he must fit "under supervision" that would undoubtedly be you in this case, and I would think you would be liable.


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