What is legal standard for non-psych MDs?
Dismissal often hinges on documentation
(Editor's Note: This is the first of a two-part series on liability risks involved with psychiatric patients. This month, we give strategies for physicians to protect themselves legally. Next month we'll cover the legal standard of care to which physicians will be held.)
If a family practice physician chooses to treat a patient for depression, he or she will be held to the same standard of care as a psychiatrist, according to Mary Jean Geroulo, JD, an attorney at Wilson Elser in Dallas.
There are some circumstances, such as a true emergency, when a physician without the typical specialty skills would not be held to the same standard of care, she acknowledges.
"But in general, if a physician accepts a patient for treatment, they are held to the same general standard of care as a physician in the specialty," she says. If an emergency physician accepts the responsibility to deliver a baby in a non-emergent situation, he or she is held to the same general standard of care of an obstetrician gynecologist, notes Geroulo, and the same is true for primary care physicians caring for psychiatric patients. "One of the elements that should be addressed in the standard of care is when it is appropriate to refer a patient to a specialist," she says. "Failure to make a referral when indicated can be interpreted as a violation of the standard of care in certain circumstances."
Non-psychiatric physicians generally will be held to the standard of care of their specialty in screening for mental disorders and offering referrals to specialists. However, if they undertake to treat the disorders, they might be held to the higher standard of psychiatric specialists, says Paul S. Appelbaum, MD, Dollard Professor of Psychiatry, Medicine, & Law and director of the Division of Law, Ethics, and Psychiatry at Columbia University College of Physicians & Surgeons in New York City. "Since non-psychiatric physicians' obligations are fairly circumscribed, their documentation should reflect that they at least met minimum standards of care," says Appelbaum. "Many offices accomplish this by having patients complete self-report forms."
Documentation of these actions can make it more likely a non-psychiatric physician would be dismissed from a claim involving a patient's self-harm, says Appelbaum:
- inquiring about the patient's psychiatric history and the presence of the major categories of current psychiatric symptoms: anxiety, depression, and cognitive impairment;
- asking about past or current suicidal ideation;
- encouraging regular follow-up if the patient is in mental health treatment;
- offering a referral to a psychiatrist or other mental health professional if a patient with significant mental health symptoms is not in mental health treatment.
Sparse records with no indication of whether a physician inquired about mental health issues or thoughts of self-harm are an invitation for plaintiff attorneys to dig deeper, moving toward deposition and further discovery, says Appelbaum.
"Records indicating that the questions were asked, but without any indication that affirmative responses were followed up by the physician, can be equally problematic," he adds.
The standard of care when treating a patient with a psychiatric history remains the same as in any other medical negligence case, but the specifics might vary greatly depending on the resources available, says Andrew H. Koslow, MD, JD, an assistant clinical professor of emergency medicine at Tufts University School of Medicine.
If there is no psychiatrist available to the see a patient being boarded in an emergency department, for example, the physician cannot reasonably be expected to provide the same level of psychiatric care expected of a psychiatrist.
"Regardless of the psychiatry resources, however, provision of a safe environment is a must," adds Koslow. "The cases that stand out the most are those where a patient comes to harm through lack of observation or noncompliance with policy or procedure, such as a restraint policy."1,2
- Freeman v. St. Clare's Hospital, 548 N.Y.S. 2d 686, 156 A.D.2d 300 (1989).
- Pisel v. Stamford Hospital, 430 A.2d 1 (1980).