Practice, not malpractice: 3 clinical habits to reduce liability risk
Psychiatrists face legal risk not only when patients are harmed but also when they harm others.
If you doubt a patient’s capacity to provide informed consent, a court determination may be necessary. In emergencies, however, treatment becomes a priority, even if the patient’s capacity to make rational decisions has not been established.13
TERMINATE TREATMENT WITH CAUTION
Terminating treatment can lead to malpractice, particularly if a patient becomes suicidal or violent. Psychiatrists have the right to choose their patients but cannot terminate care if a patient is acutely ill or requires emergency care.
Ensuring appropriate follow-up for patients at risk for decompensation often requires more than providing a referral or phone number. With the patient’s permission, for example, you could contact his subsequent psychiatrist or work with his support network to ensure that he receives follow-up care.14
Recommendation. With stable patients, send a written notice of termination and specify a reasonable period, usually 30 days. Send the letter by certified mail, and request a return receipt. Offer to help the patient find a new doctor, and say that you will forward the patient’s records to the new doctor when you receive appropriate release-of-information paperwork.15
LET THE SUPERVISOR BEWARE
Under the legal concept of respondeat superior (“let the master reply”), liability for the actions of subordinates may be transferred upward to the supervisor.4 For psychiatrists, supervisory liability obviously applies to teaching residents but may also apply in joint care, as with psychologists or social workers.
Recommendation. As a co-treating psychiatrist, you may be liable for other therapists’ actions unless you formally distinguish your role as a prescriber and not as a supervisor.9
When you prescribe medications for patients of nonphysician therapists, be sure you, the therapist, and patient understand the nature of your collaboration. Document the type of relationship and your discussion with the patient in the patient’s chart.
WATCH OUT FOR ‘CURBSIDE’ CONSULTS
Consult-liaison psychiatrists typically face a lower malpractice risk than do those who provide primary treatment. Duty to care for the patient is usually established by a formal consult request, after which the psychiatrist examines the patient and recommends treatment to the primary team.
You can, however, establish duty without meeting a patient. If sufficiently detailed, an informal “curbside” consult may establish a duty and corresponding liability16 (Box 2).4,5,9,17.18
Liability is usually shared with the primary team but may be related to how much responsibility you assume in the patient’s care. Any direct treatment—electroconvulsive therapy, psychotherapy, prescribing, writing orders in the chart—can elevate your risk to the primary level. Similarly, if the patient is harmed because the primary treater followed a consulting psychiatrist’s negligent advice, the psychiatrist can be found solely liable.
When you recommend a treatment, you share a portion of liability for informed consent. If neither you nor the provider obtains appropriate informed consent, you may both share liability for adverse outcomes. Both teams also share the duty to report child and elder abuse.16
Recommendation. Establish an explicit division of responsibilities with the primary team, including who writes orders and manages medications and who provides follow-up and discharge planning.
For curbside consults, inform the primary physician that you are providing general information and not a specific treatment recommendation. If the case is too complicated for general information to be useful, a formal consultation would serve the patient better. In written consultations, specify:
- the reason for the consult
- the issues addressed
- and the parties responsible for follow-up.16
RECOVERED MEMORY? FORGET PROSECUTION
In 1994, a father successfully sued his daughter’s therapists for implanting false memories of incest. A California court awarded him $500,000 on grounds that the therapists owed a duty of care to the patient’s parents as well as to the patient. Since then, multimillion-dollar cases have been litigated on grounds of false recovered memories, and some insurers exclude coverage for “revival of memory.”12
Most therapists who have been found liable have strongly supported the accuracy of their patients’ memories. These memories have usually contained bizarre features, including satanic abuse, baby breeding, human sacrifice, and cannibalism. Therapists in these cases have often recommended that their patients press charges or file lawsuits against their alleged abusers.
Lawsuits against therapists have been won on grounds that they used unorthodox procedures without informed consent, negligently or recklessly implanted memories of abuse, negligently reinforced such memories, and failed to sufficiently investigate the memories’ accuracy.19
Malpractice requires four conditions:
- A doctor-patient relationship was established.
- The physician practiced below the standard of care.
- The patient was harmed.
- The patient’s harm was a direct result of the physician’s failure to practice at the standard of care.4
Standard of care. A treatment may be considered within the standard of care so long as a “respectable minority” of practitioners considers it appropriate.17 Standard of care may be established by expert testimony, published texts, or practice guidelines18 and tends to be flexible in medical specialties—such as mental health—that allow for multiple treatment options.
Preponderance of evidence. In court proceedings, the plaintiff must establish malpractice by a reponderance of the evidence, which means “more likely than not.” This is a much less-stringent level of proof than beyond a reasonable doubt, as is required in criminal cases.9
Although a preponderance of the evidence may seem disturbingly easy to establish, courts are often forgiving of adverse outcomes caused by judgment errors if the physician acted in good faith and followed professional standards.4,5
