Psychiatry patients can increase liability risks

Risk managers who take a good look at their organization's psychiatric treatment may find reason to worry, because the risk mitigation that works in other areas might not be as effective in this field. The standard of care is more difficult to define in this field than in most others, and there is a tangled web of state and federal regulations that apply, not to mention the legal minefield that can come with involuntarily admitting some psychiatric patients.

One problem is that the concept of the standard of care is quite broad in psychiatry, says Alan Lambert, MD, JD, chair of health care practice with the law firm of Butzel Long in New York City. In most other medical fields, the standard of care can be defined with relative certainty, but this is more complicated in psychiatry, because patient rights are deeply entwined in treatment decisions.

"There also is a whole layer of appeals processes for patients to exercise their rights, and then there is accreditation by state agencies, The Joint Commission, CMS. All of that feeds back onto the determination of the standard of care when malpractice is alleged," he says. "The multiple obligations create an additional layer of liability beyond the traditional common-law malpractice standards."

Many factors involved

Determining the standard of care in psychiatry requires drawing on a number of factors, according to a recent study by Carla Rodgers, MD, clinical assistant professor at the University of Pennsylvania School of Medicine in Philadelphia.1 To a larger extent than in other specialties, the standard of care in psychiatry is dictated by a number of determinants of standard of care, which include court opinions, hospital policies and procedures, psychiatric literature, and state and federal guidelines, she says.

Clinical publications determine the standard of care, of course, but in psychiatry, state and federal legislation and guidelines also are important. "State involuntary commitment laws, for instance, determine how long a patient may be held in a hospital against his will before some type of hearing must take place to decide how long the patient will continue to be held," Rodgers wrote. Involuntary length of stay is a legal issue, for instance, and the standard of care is not determined solely by the psychiatrist.

One of the pitfalls regarding standard of care is interpreting it to mean "exactly what I would do under those circumstances," says Stephen Dinwiddie, MD, a professor and director of the Law and Psychiatric Medicine Program at The University of Chicago Medical Center. Given the range of opinion often seen in psychiatry, the standard of care must be defined more broadly than that, he says.

"Another problem is that there is often a significant gap between what is known to be best practice and the treatment actually rendered," Dimwiddie says. "Standard of care is not the same as the optimal level of treatment. It's more like the minimally acceptable level of treatment."

Involuntary stays bring risks

Most states have statutory limitations on extended involuntary length of stay, Lambert says. One example is the Pennsylvania Mental Health Procedures Act, mandating a judicial hearing within 120 hours of an involuntary hospitalization. The state laws typically include a well-defined, specific process for involuntary admissions, Lambert says. Failing to comply with any step in that process creates a significant liability risk for the provider, he says.

In New York state, for instance, a state service provides lawyers to meet with patients who have been involuntarily admitted to determine if the patient would like a hearing before a judge. And if the patient has difficulty exercising that right, the legal service may request a hearing on his or her behalf.

"So, it is very important that the hospital have good medical records for involuntary psychiatric hospitalizations," he says. "If they fail to follow that process and cause a violation of the patient's legal rights, they can be subject to liability on that basis."

Self-examination can be your best defense, Lambert says. Too many health care providers forego examining their own data to look for exposures in psychiatric care, he says.

"The hospital needs to have a team that involves someone in senior management, possibly the director of psychiatric services or chief medical officer, along with administrative and health care providers, who constantly review the Joint Commission standards and other criteria to make sure you're in compliance," Lambert says. "You have to drill down to the patient level with random audits and charts. It also is crucial to review cases with adverse events, not only to bring that particular patient back into compliance with the standard of care, but to make the necessary modifications in policies and procedures to be sure other patients are in compliance."

Lambert points out that The Joint Commission has become much more active in collecting quality and patient safety data from institutions providing psychiatric care, which means that risk managers must be aware of the picture that data are painting for regulators.

"Sometimes risk managers can do it on their own, and sometimes they need to hire outside consultants; but they must manage this data in a way that presents their institution in the best possible light to The Joint Commission, CMS, and state regulators, in order to avoid being sanctioned," he says.

Document thought process

Psychiatric patients can pose a liability risk not usually seen by other patients, says Charles Kutner, JD, an attorney in New York City who focuses on malpractice defense. For instance, the psychiatric patient can lead to workers' compensation claims by employees if the patient becomes violent. There also can be third-party liability if the patient harms another person; the health care provider can be sued for not preventing the assault.

"The duty ordinarily ends with the patient, but psychiatry is different in this regard," he says. "Third-party liability seems to be opening up more, especially if you had any kind of knowledge that the patient would harm another."

Dinwiddie stresses that good documentation is crucial to proving that a disputed treatment decision was based on sound reasoning. If the plaintiff alleges later that the psychiatrist erred in treating the patient, the defense must be able to show that the decision met the standard of care, even if other professionals might disagree. There usually is more debate and more room for disagreement on treatment decisions in psychiatry than in internal medicine, for instance.

"It's a lot easier after the fact to criticize a decision, but it becomes a lot more difficult to criticize your decision if you have memorialized your thought process and laid out your thought process in favor of or against a course of action," he says. "Even if the decision turns out not to have been correct, as when a patient is discharged and then goes and takes his life, it is more difficult to second-guess that decision if the physician has been careful to document what steps were taken to prepare the patient and why it was a reasonable decision at the time."

Medication claims rising

Kutner says a growing area of concern is liability related to medications that produce suicidal ideation and behavior.

"Obviously, the defense to those cases is that you can't stop everyone intent on killing themselves, but there are some medications that produce side effects you must monitor very closely," he says. "It's the medication cases we're seeing more and more of lately."

Good documentation also is key in those cases. The defense must be able to show that the psychiatrist explained, specifically and with great emphasis, that the medication can produce suicidal behavior and what symptoms to watch for, he says. It is important that the warning be conveyed to the parents or other caretakers of the patient as well.

"Psychiatrists are notorious for writing notes that no one else can read," Kutner says. "That can't happen in this situation. The documentation must be extremely clear that you warned the patient and the parents and stressed the danger, the need to monitor and act, if necessary. It will all come down to what is in the notes."

Reference

1. Rodgers C. Keys to avoiding malpractice standard of care in psychiatric practice. Psychiatric Times 2009; Vol. 26, No. 12.

Sources

For more information on psychiatric malpractice, contact:

• Stephen Dinwiddie, MD, Professor, Director of the Law and Psychiatric Medicine Program, The University of Chicago Medical Center. Telephone: (773) 834-1239. E-mail: sdinwidd@yoda.bsd.uchicago.edu.

• Charles Kutner, JD, Attorney, Law Office of Charles E. Kutner, New York City. Telephone: (212) 308-0210. E-mail: ckutner@ckutner.com.

• Alan Lambert, MD, JD, Chair of Health Care Practice, Butzel Long, New York City. Telephone: (212) 905-1513. E-mail: lambert@butzel.com.