Patient suicide? You'd likely be named in suit

If one of your patients commits suicide, you're likely to be named in any subsequent lawsuit, says Martin G. Tracy, JD, ARM, president and CEO of Professional Risk Management Services, an Arlington, VA-based firm that manages professional liability insurance programs covering psychiatrists and neurologists.

"They may get dropped from the case as the case progresses, but it wouldn't surprise me that any doctor who has seen the patient in the month or two leading up to a suicide would be named in the suit," he says.

Tracy occasionally sees psychiatrists named in claims alleging failure to diagnosis cancer. "It's not that anyone expected the doctor to treat the cancer, but sometimes a patient's psychiatric condition can be due to a brain tumor," he explains. "Other doctors would be held to that same standard." For example, a primary care physician treating a patient who suffers from depression has to deal with the patient's mental health issue in some way.

Fifty-nine percent of mental health drug prescriptions are written by family doctors, not psychiatrists, according to a 2009 study.1 "That certainly indicates that doctors of all specialties are aware that psychiatric conditions can have an impact on a person's overall health. Somehow, those psychiatric conditions should be addressed," Tracy says.

Courts generally are disinclined to hold non-mental health professionals liable for a mentally-ill patient's self-harm when such parties lack special training and expertise enabling them to detect mental illness and/or the potential for self-harm, says Neah L. Mitchell, JD, an attorney with Balch & Bingham in Montgomery, AL.2 In addition, courts have recognized that physicians do not have a duty to treat each of their patients for every conceivable medical condition that they might have, she adds.3 "However, a primary care physician with a longstanding relationship with a mentally ill patient could be at risk if he fails to at least attempt to refer his patient for treatment of an apparent mental health condition," says Mitchell.

Different standard of care

In general, non-specialists in a given area of medicine are held to a lower standard of care than are specialists treating the same disorders, according to Paul S. Appelbaum, MD, Dollard Professor of Psychiatry, Medicine, & Law and director of the Division of Law, Ethics, and Psychiatry at Columbia University's College of Physicians & Surgeons in New York City.

However, in circumstances in which non-specialists would ordinarily refer patients to a specialist but elect not to do so, or when non-specialists hold themselves out as providing a specialist level of care, they might be held to the standard expected of a specialist, he adds. "Since the majority of patients with depression and anxiety are treated by non-psychiatrists, a physician undertaking such treatment will likely be held only to that level of care expected of someone with similar training," says Appelbaum. However, non-psychiatric physicians who decide to treat patients with schizophrenia, bipolar disorder, and other conditions that usually are managed by psychiatrists might be held to the same standard as psychiatrists, he says.

"Hence, before undertaking such treatment, they should ensure that they are thoroughly familiar with applicable standards of care," says Applebaum. A primary care physician, for example, could be held liable for failing to properly assess or manage suicidal or homicidal ideation.

At a minimum, any physician dealing with patients who have psychiatric disorders should be inquiring about suicidal and homicidal thoughts, Applebaum says. "If such thoughts are present and the physician is uncertain how to handle them, consultation with or referral of the patient to a psychiatrist is indicated," he says. (See related stories on non-compliance and involuntary commitment, p. 90, and unique legal risks posed by patients with psychiatric conditions, below.)

References

  1. Mark TL, Levit KR, Buck JA. Psychotropic drug prescriptions by medical specialty. Psychiatric Services 2009. 60:1,167.
  2. Brooks v. Logan, 903 P.2d 73 (Idaho 1995).
  3. Garcia v. Lifemark Hospitals of Florida, 754 So.2d 48, 49 (Fla. Dist. Ct. App. 3rd 1999).

Sources

For more information on liability risks of caring for patients with psychiatric conditions, contact:

  • Paul S. Appelbaum, MD, Director, Division of Law, Ethics, and Psychiatry, Columbia University College of Physicians & Surgeons, New York City. Phone: (212) 543-4184. Fax: (212) 543-6752. Email: psa21@columbia.edu.
  • Gerald E. DeLoss, JD, Popovits & Robinson, Frankfort, IL. Phone: (708) 479-3230. Fax: (708) 479-3236. Email: jud@popovitslaw.com.
  • Neah L. Mitchell, JD, Attorney, Balch & Bingham, Montgomery, AL. Phone: (334) 269-3139. Fax: (886) 237-7416. Email: nmitchell@balch.com.
  • Martin G. Tracy, JD, ARM, President and CEO of Professional Risk Management Services, Arlington, VA. Phone: (703) 907-3872. Fax: (703) 276-9637. Email: tracy@prms.com.

Non-compliant patient with mental illness?

Involuntary commitment requires burden of proof

If you are aware your patient is not receiving treatment for his mental illness and that this lack of treatment will prevent him from complying with your prescribed treatment of a physical condition, could you be held liable for a resulting bad outcome? It is possible, says Neah L. Mitchell, JD, an attorney with Balch & Bingham in Montgomery, AL.

"Thus, under such circumstances, a physician should first consider referring the patient to a mental health professional for treatment," she says.

If this action is unsuccessful, the physician might be faced with the difficult decision of whether to initiate involuntary commitment proceedings to ensure the treatment of the patient's physical condition. Procedures for involuntary commitment of mentally ill patients typically are governed by state statutory procedures, says Mitchell. Whether a physician can meet the burden of proof based solely upon a patient's refusal to comply with treatment of a physical condition might depend upon the severity of the physical condition necessitating treatment, she says.

"Most state statutes allow involuntary inpatient treatment only upon showing that a patient has threatened to inflict serious bodily harm upon himself or others, has exhibited or threatened violent behavior, or is unable to avoid severe injury," Mitchell says.1,2

A physician requesting involuntary commitment of patient for the patient's inability to comply with a necessary treatment regimen must be able to show that this inability could lead to severe injury, explains Mitchell. "If the inability to comply with treatment would not lead to a severe injury, a physician may still be able to initiate involuntary commitment proceedings for outpatient treatment, as such proceedings may require only proof of some harm to the patient without treatment of the patient's medical condition," she says.3

Respond appropriately

Where non-compliance interferes with treatment, the question in any subsequent litigation will be whether the physician behaved appropriately, according to Paul S. Appelbaum, MD, Dollard Professor of Psychiatry, Medicine, and Law and director of the Division of Law, Ethics, and Psychiatry at Columbia University's College of Physicians & Surgeons in New York City.

"That is, did he or she inquire about or otherwise monitor compliance? If non-compliance was anticipated or actually occurred, did he or she respond appropriately?" Appelbaum says.

Suitable responses could include talking with the patient or family members about the importance of treatment, exploring whether compliance is more likely with alternative treatments, and considering the availability of resources that might aid in compliance, he says.

"Realistically, however, there is a limit to the degree of control that a physician has over any patient's behavior," says Appelbaum. "Non-compliance does not necessarily indicate that a physician has performed inadequately or that liability should be imposed."

References

  1. Ala. Code § 22-52-10.4(a).
  2. Tenn. Code § 33-5-403.
  3. Ala. Code § 22-52-10.2.

Psych condition? There are unique legal risks

Are you caring for a patient with a psychiatric condition? Be aware of these specific legal risks, advises Gerald E. DeLoss, JD, an attorney with Popovits & Robinson in Frankfort, IL:

• There is an increased likelihood that patients will harm themselves or others.

"The failure to prevent the psychiatric patient from harming herself or himself or others is a known legal risk for therapists," says DeLoss. "It is less well-known and less common for the primary care provider."

The physician needs to be aware of the possibility, monitor patient comments or warnings, and report or disclose the information to protect the patient or others, as may be allowable under federal and state laws, he says. Primary care physicians have a duty to refer patients with a psychiatric condition in some cases, adds DeLoss. "Just as a medical condition may require a referral to specialist, so may a psychiatric patient need to see a psychiatrist or other professional," he says.

If the physician is aware that the patient intends to harm a specific third party, the physician may be under a duty to warn or to take steps to protect others, says DeLoss. The Health Insurance Portability and Accountability Act (HIPAA) recognizes the need to disclose information to protect third parties, and it specifically allows a physician to disclose health information without an authorization to carry out the notice needed.1

To sustain a cause of action in tort predicated on a therapist's alleged duty to warn third parties of the potential violent acts of a patient, the plaintiff must demonstrate that the patient made specific threats of violence, that the threats of violence were directed against a specific and readily identifiable victim, and that there is a direct physician-patient relationship between the defendant and the victim or a special relationship between the patient and the victim, says DeLoss.

California, Michigan, Minnesota, New Jersey, Pennsylvania, and New York similarly hold that a cause of action against a therapist exists when the patient has communicated to the therapist serious threats of physical violence against reasonably identifiable victim(s), says DeLoss.2-8

• There are specific state laws governing mental health information in most states that differ from what HIPAA generally requires.

If there is substance abuse treatment information involved, federal law under 42 Code of Federal Regulations Part 2, "Confidentiality of Alcohol and Drug Abuse Patient Records," may govern, adds DeLoss. (To view the regulations, go to http://bit.ly/WUyNQ5.)

The physician must understand that these laws function differently from HIPAA and generally are more restrictive about what mental health data a physician may disclose, and when, he explains.

• The provider should not assume that the patient understands the consent form or the standard explanation utilized by the provider during the consent process.

"State laws provide additional protections and rights in this area that may govern," says DeLoss. "The physician should comply with state law and document the consent process."

References

  1. 45 C.F.R. § 164.512(j)]
  2. Eckhardt v. Kirts, 534 N.E.2d 1339, 1344 (1989), citing Kirk v. Michael Reese Hospital, 513 N.E.2d 387, 399 (1987).
  3. Cal. Civ. Code § 43.92(a)
  4. MCLS § 330.1946(1).
  5. Minn. Stat. § 148.975.
  6. N.J. Stat. § 2A:62A-16
  7. 49 Pa. Code § 41.61.
  8. NY CLS Men. Hyg. § 33.13.