Illustration by Shannon Mooney

The term "Duty to Warn" has been a familiar optical term for so long that some eyecare offices may be giving it more lip service than compliance. If this happens, an ophthalmic practice or optical store can be vulnerable for some serious potential liabilities. While many doctors and dispensers understand the term and their duty to inform patients about the availability of impact resistant lens material, there are undoubtedly many entry-level dispensers who have little knowledge of what it means in everyday dealing with patients or customers.

Understanding and adhering to Duty to Warn responsibilities is as important today as it ever was. Here is a current review with a detailed explanation of the role that Duty to Warn plays in present day dispensing of eyewear.

The first time the ophthalmic world heard the fateful phrase "Duty to Warn" was in 1987 when the Optical Laboratories Association (OLA) issued a bulletin advising its laboratory members to remind retail customers of their responsibility to "inform" patients regarding the impact resistance of lens materials. The OLA wanted to minimize lab exposure to litigation arising from eye damage resulting from broken eyeglasses. 

The term "Duty to Warn" has been a familiar optical term for so long that some eyecare offices may be giving it more lip service than compliance. If this happens, an ophthalmic practice or optical store can be vulnerable for some serious potential liabilities. While many doctors and dispensers understand the term and their duty to inform patients about the availability of impact resistant lens material, there are undoubtedly many entry-level dispensers who have little knowledge of what it means in everyday dealing with patients or customers.

Understanding and adhering to Duty to Warn responsibilities is as important today as it ever was. Here is a current review with a detailed explanation of the role that Duty to Warn plays in present day dispensing of eyewear.

The first time the ophthalmic world heard the fateful phrase "Duty to Warn" was in 1987 when the Optical Laboratories Association (OLA) issued a bulletin advising its laboratory members to remind retail customers of their responsibility to "inform" patients regarding the impact resistance of lens materials. The OLA wanted to minimize lab exposure to litigation arising from eye damage resulting from broken eyeglasses.

Based on the legal principle of "informed choice," the OLA program pointed out that consumers can only make an informed choice about lens materials when they are knowledgeable regarding the relative impact resistance of lens materials. If patients are informed that one material (polycarbonate) is more impact-resistant than other materials, they are able to make an "informed choice" based on their individual lifestyle. Informing patients about eyewear safety had become an obligation on the part of the doctor/dispenser.

Somewhat later, in 1993, a sizeable judgment was awarded over the failure of an optical store to properly inform a patient about the impact resistance of various lens materials. The judgment was widely publicized in trade magazines, and informing patients about eyewear safety issues became a hot issue for professional offices and retail optical stores.

For the next four or five years, seminars on Duty to Warn were included in many eyecare professional meetings. In 1994, the OLA revised and updated its Duty to Warn Kit and OLA labs once again took to the missionary trail, preaching the need for informing patients on vision safety. Since then, concern over vision safety issues has abated somewhat. There seems to be a general feeling that most offices are in compliance with their Duty to Warn responsibilities. Pamela Miller, who holds a doctorate in both optometry and jurisprudence, has lectured and written on Duty to Warn issues for years. Considered an authority on the subject, she was asked recently whether Duty to Warn is still important for eyecare professionals. Her answer: "It's more important than ever."

The following information reviews vision safety issues and explains how an office routine can be set up to ensure that every patient is fully informed on vision safety issues.

The Role of Polycarbonate

If polycarbonate had never developed into a lens material, there would be no legal reason to warn patients regarding lens material safety issues. Safety became important when polycarbonate became viable.

Courts have long recognized that in order for consumers to make what the legal profession terms an "informed choice," they must be fully informed on what's available. With polycarbonate in the picture, simply asking the patient which lens material they wanted was no longer enough. Patients now had to be informed that one lens offered substantially less risk of breakage than others. If their work or leisure activities exposed them to risk of impact to their eyewear, they had to be told that polycarbonate lenses offered the greatest protection. Armed with that information, patients could then make an informed decision.

Does that mean only polycarbonate lenses should be dispensed? Not at all. It means that doctors or dispensers should recommend polycarbonate for patients subject to risk of impact to their eyewear because of their work or leisure activities. Examples would be children (usually active and prone to breaking glasses), industrial workers, police and fire personnel, sports enthusiasts, etc. By using a lifestyle questionnaire, the doctor/dispenser is alerted to such impact-prone activities and can make specific lens recommendations.

Failure to use a lifestyle questionnaire, however, can leave eyecare professionals unaware when there is a need for added eye protection. Experience has shown that even when lifestyle questionnaires are used, patients often overlook listing a high-risk activity (perhaps they go rock climbing once or twice a year and forget to list it). Failure to inform the doctor/dispenser about such activities does not release eyecare professionals from liability.

Some laboratories include a safety statement with every job they send out. These warnings are intended for the end user and should be passed on. They should always be delivered to the patient.

OLA Concern

Why did the OLA get involved in legal matters that seem more a concern for doctors and dispensers than for laboratories? Anytime a lab has a hand in fabricating eyeglasses involved in a lawsuit, the lab is usually made party to the suit. Labs have a vested interest in minimizing that type of litigation for their customers. OLA officials concluded the best way to protect their members was to help professional offices minimize eye injuries by making sure patients fully understood their options when ordering eyewear. It was a sound decision and one from which OLA labs, eyecare professionals, the ophthalmic industry, and spectacle wearers have all benefited.

If judgments from broken eyeglasses are relatively common, why don't we hear more about them? These cases rarely get into print. Often, the court records are sealed, and neither the eyecare professional involved nor the insurance company has any wish to publicize judgments. We sometimes hear about a case from someone who testified in the case as an expert witness. Be aware that, much like icebergs, these cases exist mostly out of sight.

Compliance trends

Do today's eyewear consumers always fully understand safety issues when they order new eyewear? Many professional offices and optical chains have been diligent in establishing office procedures to ensure that every patient is informed regarding safety issues and polycarbonate. This has been particularly important for multi-store retail chains. Usually perceived to have "deep pockets," chains have been careful to make sure their customers are fully informed that one lens material offers superior protection for anyone with an active lifestyle. These stores usually insist on only polycarbonate for children. Some have organized special marketing programs for children-offering price incentives to ensure young customers get only poly.

After 13 years of indoctrination from OLA labs, one might assume that by now every patient is being informed about eye safety. Unfortunately, this isn't true. The responsibility of discussing lens materials is usually left to the dispensing staff. Dispensing personnel often change, and new dispensers are not always fully informed regarding vision safety. Unless a routine Duty to Warn procedure has been set up for the office, patients may not get information they need.

This issue is compounded by the fact that the legal profession has become aware of Duty to Warn. Failure to warn patients about lens materials is one of the first things that is investigated when there are injuries from broken eyeglasses. Pamela Miller explains that informing patients of safety issues is only part of the procedure. The other equally important component is documenting in the patient's file that the patient was so informed. Unless the doctor or dispenser can prove the patient was informed, a jury is more likely to rely on the patient's account.

Other Liability Issues

In this day of overriding concern about the cosmetic appearance of lenses, it's easy to get carried away with the eternal quest for thin edges. Labs are frequently asked to fabricate lenses thinner than factory-recommended center thickness. Labs turn down these requests for good reason. They know that following the manufacturer's thickness recommendations produces lenses that readily pass the FDA standard drop ball test. Processing lenses thinner than the manufacturer's recommended thickness chart is an invitation to breakage.

To protect their customers and themselves, labs refuse these requests. It's always a sound tactic to accept a lab's advice in regard to lens thickness.

There is another important concern regarding thickness. Applying scratch coating to any lens reduces its impact resistance somewhat. Applying an anti-reflective coating on top of the scratch coat reduces the impact resistance further. Extensive impact testing of coated lenses has established minimum thickness charts used by labs. It's one more reason to follow the lab's advice regarding lens thickness.

An Overlooked Hazard

How would you answer this question: What common potential impact risk to eyeglasses is faced every day by the largest number of people? The risk is one that most people never think about: riding in an automobile. The danger, of course, comes from an exploding air bag. They save a great many lives but it is accomplished by blasting an air bag into the occupant's face.

An abbreviated checklist for establishing a vision safety office procedure to comply with Duty to Warn is shown in the sidebar on page 68. Setting up a routine to protect the office is not difficult but requires attention to detail. The fastest shortcut is to order the OLA Duty to Warn Kit from any OLA lab. They are priced at $16.95. The Polycarbonate Lens Council also produces an attractive small plastic plaque that states, "For maximum eye protection, we recommend polycarbonate lenses." Thousands of offices use these signs as part of their Duty to Warn process. Plaques can be seen at www.polycarb.org.

Summing Up

The gist of the Duty to Warn concept is to establish a defense against the possibility of ever having to hear a patient testify, "If the doctor had told me about polycarbonate lenses, I would have ordered them. Since he didn't, he should be liable for my eye injuries."

The best defense against this scary scenario is to know that your office records back you up by documenting that each patient was informed about Duty to Warn eyewear safety issues. The cost to implement this effective program into a practice or business is minimal. Best of all, it can actually enhance the professional services you provide to your patients. EB