Interview with William Domico J.D., Ph.D., Attorney and Audiologist

    

AO/Beck: Hi Bill. It's great to speak with you again.

Domico: Hi Doug, nice to talk with you, too.

AO/Beck: Bill, would you please take a few moments to review your education and professional background?

Domico: I actually went to Audiology school in the Navy at the US Navy Aerospace Medical Institute in Pensacola, Florida in 1969. My undergraduate degree was in biology, at Tulane University in 1976 and I received my master's in audiology, also from Tulane, in 1978. In 1981, I got my Ph.D. in Audiology from Florida State.

AO/Beck: What was your dissertation on?

Domico: It was a study on abnormal Bekesy patterns in normal hearing ears.

AO/Beck: And then once you had your doctorate, where did you go?

Domico: I first went to Radford University in Virginia. After that I went to the University of Memphis and University of Tennessee Medical Center until 1986. I was also on the staff at Methodist Hospital in Memphis. In 1986, I started law school at the University of Memphis Law School.

AO/Beck: Were you a full-time law school student?

Domico: Yes, I was. But, I also maintained a clinic at Methodist Hospital throughout law school. The people at Methodist were very nice to me. They let me change my hours of operation every semester as my law school schedule changed. My normal schedule throughout law school was something like.... two mornings and one afternoon per week seeing patients, and the rest of my time was spent studying law.

AO/Beck: What was it that attracted you to law after having earned a doctorate in audiology?

Domico: I'm asked that a lot. I wanted to take courses relating to malpractice and related legal issues. Even though I was on the university faculty, the law school would not allow me to take classes unless I was enrolled as a law student, or I went to night school. We didn't have any children at that point, so I said, OK, I'll go to night school. Just as I was about to start night school, the law school suddenly cancelled the night program! At that point they said...OK, you can come to classes during the day, so basically, I decided to go for it and enrolled full-time.

AO/Beck: So you've been practicing law for how long?

Domico: I've been an attorney for 12 years.

AO/Beck: Have you ever found yourself in the position where you've defended or represented audiologists?

Domico: Yes, I have, but it's rare. Audiologists do not have very many legal actions against them. I have had two cases dealing with perforated eardrums. Both have resulted from the earmold material getting around the dam and penetrating the middle ear cavity. In one case, the middle ear space was filled with ear impression material and the patient needed surgery to rebuild the middle ear.

AO/Beck: How did the material get past the tympanic membrane? Were these ears previously operated on, or did they have previous or pre-existing perforations?

Domico: No, they were otherwise healthy and normal anatomically. It may have been the pressure from injecting the material into the ear that penetrated the tympanic membrane. Of course it was very painful, and the audiologist sent the patient directly to an ENT, but by the time the patient got there, the material had solidified and had to be removed surgically.

AO/Beck: I should state that Audiology Online, William Domico and Douglas Beck are not giving legal advice or recommendations here. Rather, this discussion/interview is meant for informational and thought provoking purposes only. Each reader is urged to address their concerns with their own legal counsel, their state licensing boards and the national and state associations they belong to. OK, having said that, any other audiology cases?

Domico: Yes. I had one failure to diagnose, involving an acoustic neuroma, based on an incorrect reading of an ABR. Fortunately, the tumor was picked-up very soon thereafter, and the failure to diagnose did not make a significant difference in the management of the case, but there was a law suit and there was a judgment. That case was in the mid-1990s.

AO/Beck: Are you familiar with any cases where ethical violations turned into legal matters? In other words, we're all accountable for the ethical guidelines of our state licenses and the national associations we belong to, but have there been situations where an individual may have been tagged for ethical charges, which then became the basis for a legal case?

Domico: The only time I've heard of this was based on a false advertising situation. The audiologist involved had failed to renew their CCC-A through ASHA, yet they kept the CCC-A displayed on their wall. Well, as you can imagine that was the basis for an ethical violation from ASHA, and concomitantly for the licensure board in that state.

AO/Beck: I've heard lots of discussion on that over the years. I think the main line of reasoning is the audiologist says something like I earned my CCC-A, so they are mine, I do not have to rent them annually. But what you're telling me is, if you don't annually maintain the CCC-A, you legally should not have the CCC-A on your wall or in your ads. In other words, this is more than a philosophical disagreement, it could be the basis for a state licensure board to act against the practitioner and they can act in whatever way they deem appropriate. For instance, they might fine you, or send you a reprimand, but then again they could pull your license too.

Domico: Absolutely. Each state board will have it's own rules and they can do whatever they believe is appropriate. So, the bottom line is, each audiologist in that position should review the rules ASHA publishes (or whichever association they belong to) and if they are in violation, or if it is questionable, they should seek legal counsel to remedy the situation. Basically it boils down to, following the rules is not an option, it is a legal responsibility. You may disagree with the rules, and you have the right to try to change them, but you don't have the right to violate them.

AO/Beck: What can you tell me about the term board certified. I know of at least two national groups, which are primarily non-physician groups, who use the term, and I wonder what the legal definition of that term is?

Domico: Of course each state is different. In Tennessee, there is no legal status to the term board certified. Nonetheless, those words are recognized by the patients as having some meaning, because the physicians use the terms to mean advanced standing or extra knowledge . So when the patient hears that term, they probably think it does have a legal definition. I think the use of the term with respect to audiology is fine, as long as the title is issued by a legitimate national body, and as long as that body is qualified and competent to issue the certification.

AO/Beck: Let's switch over to more basic issues for a little while...What about the issues related to informed consent? I know that when I've seen you lecture, people in the audience break into cold sweats when you address some of their questions about informed consent for cerumen removal, ENGs, ABRs, EcoG, EnoG and even immitance tests. Any overview comments?

Domico: Yes. Informed Consent is a very real issue that every clinician has to address. To ignore this issue is folly. The basic office procedures like air/bone/speech are probably not areas of concern. Tympanometry on a recently operated ear can be an issue, and informed consent would be a good thing to think about and obtain anytime there is a risk of injury. Of course, the more you have in writing the better, from a legal standpoint, but it is acceptable to simply write a note in the chart stating that the risks and the benefits of the procedure were explained to the patient, and the patient agreed. That is sufficient, most of the time.

It is very difficult to draw a line that is valid for each event. However, as a rule of thumb, if there is any risk to the patient, inform the patient and obtain consent. Now the other side of the equation is that if you have the patient read three pages of risks and benefits and have them get a witness and then notarize that they have indeed been informed and signed the document, two other things can happen. First, your patients will be so scared you may have nothing to do all day. Second, if the risk becomes a reality, and a negative event happens, they may still sue you, despite the signed consent form! So basically, reasonable efforts and reasonable actions are the key.

AO/Beck: What about ENGs and EcoG? Are they worthy of written consent?

Domico: I would say that for ENG testing, written consent would be a good idea. Some of these patients will become very vertiginous, and you don't want them driving home. A written consent form for that patient can take the form of an instruction sheet with do's and don'ts to better inform them as to what to expect, what they cannot eat, what they should expect to happen, medicine issues etc. But at the end of that form, there should be an INFORMED CONSENT section, and that should probably be reviewed by legal counsel, and then it should be signed and dated by the patient.

One thing that is probably a good idea is to go to the national associations to see if they have any guidance or legal advice on their websites on these issues. If not, call them and speak with their officers to see what they recommend. I had to draft an informed consent form for an anesthesiology group, and their national association had lots of valuable materials to use.

Regarding EcoG, if you're using transtympanic needles, I would definetly get a written consent from the patient.

Again, I think you have to be reasonable. You don't want to blow this out of proportion, but you need to practice from a sound legal stance. Nonetheless, even if you're abrading the ear canal and then using the gold foil electrodes, some folks are going to complain that it hurts, and it probably does. A brief consent form stating that the patient understands the risks and the benefits may be very useful in the event that the patient gets a little scratch, or a little bleeding, or perhaps even an infection. The key here is the reasonable patient standard. You see, if it went to court, you'd have to show that you gave sufficient information for a reasonable patient to make a decision as to whether or not to proceed. Importantly, it doesn't have to be the patient that you're working with. It has to be a reasonable patient. You don't have to list and discuss every single possible outrageous outcome, you just need to cover what a reasonable patient would need to know to make the decision.

AO/Beck: Bill, you always draw a huge crowd whenever I've seen you speak, and I know we can't discuss every possible scenario in this format, but if the readers want to contact you, how do they go about that?

Domico: I am a member of AAA and they can contact me through the AAA membership directory.

AO/Beck: Bill, thanks so much for your time. I always learn a lot when I speak with you and I appreciate your taking the time to share your thoughts on these issues.

Domico: Thanks Doug, it's always nice to get together with you too.