Two Top Liability Risks for Psychiatrists: Patients with Suicidal Behavior and Psychopharmacology

Patient suicides may trigger the most lawsuits, but according to PRMS data, cases with the largest verdicts or settlements don’t involve the death of a patient, but significant and permanent physical and neurological damage requiring lifelong care. Such damage can occur from things like renal failure from lithium toxicity, severe Stevens-Johnson Syndrome or brain damage from a suicide attempt.

“Defensive medicine is not the answer,” said Jacqueline Melonas, RN, MS, JD, Senior Vice President of Risk Management for PRMS. “Care that has a sound clinical basis that also is well-documented is the best way to avoid or, if necessary, defend lawsuits.”

That was one theme on May 22, 2010, when PRMS presented the seminar, Managing Malpractice Risk for Psychiatrists: The Basics and Beyond, at the American Psychiatric Association’s Annual Meeting in New Orleans, La.

During the past 25 years, PRMS has managed more lawsuits, claims and potential claims against psychiatrists than any other professional liability insurance program in the U.S.

“Because of PRMS’s experience consulting with insured doctors and reviewing claims, we’re uniquely qualified to know the things that cause problems for psychiatrists and increase their risks of being sued or have an adverse patient outcome,” Melonas said. “Hopefully, if they use good risk management practices, they can avoid a claim or be in a better position to be defended.”

When it comes to potentially suicidal patients, PRMS recommends using the 3 C’s. They include collecting information about past treatment and assessments and staying professionally current, communicating with the patient, other providers and the patient’s support network, and carefully documenting assessments and decision-making, including the patient evaluation and treatment plan.

“One of the issues that emerges is inadequate assessment of the suicide risk,” Melonas said. “Sometimes the assessment took place, but the documentation is not adequate. We really focus on the importance of a comprehensive assessment, as well as very good documentation of both the assessment and of the treatment plan going forward to manage that risk.”

Melonas discussed what to do if, despite everyone’s best efforts, suicide does occur in terms of being “sensitive to the family, dealing with the clinician’s own feelings and managing the confidentiality of information after the patient’s death.”

PRMS experts also provided an overview on handling requests for patient information (including subpoenas and court orders), HIPAA, HITECH’s increased enforcement, and proper patient termination. Attendees heard case scenarios and provided their responses using an interactive audience response system PRMS first introduced in 2007.

Donna Vanderpool, MBA, JD, Assistant Vice President of Risk Management for PRMS, noted that breach of duty or negligence is just one element of a malpractice lawsuit. Other elements include duty of care (to meet a standard of care), damages or harm to the patient, and causation (the harm was caused by the breach).

“A plaintiff has to prove all four elements to win a medical malpractice lawsuit,” Vanderpool noted.

During the session, PRMS also focused on another high-risk area for psychiatrists – psychopharmacology.

“Most psychiatric ailments are treated at least in part with medication, and much can go wrong when prescribing,” said Denita Neal, JD, a Risk Manager with PRMS. Issues might include prescribing negligently, failing to monitor the medication or failing to obtain inadequate informed consent.

The same 3 C’s can help reduce risk when prescribing. It’s critical to collect information about the medication and the patient, to communicate with the patient and other caregivers “as appropriate,” and to carefully document the process, Neal said.

Special consideration should be given when recommending complementary and alternative medicine, when prescribing controlled substances and when prescribing for pregnant patients.

The seminar also provided an overview of two emerging risk areas – technology and forensic activities. Vanderpool said many questions about electronic records and prescribing “are unanswered” and there are hurdles with telepsychiatry, including licensing questions if treating patients out of state and whether you can provide good clinical care at a distance. Lastly, she discussed forensic activities and the liability associated with providing independent medical evaluations and expert testimony.

Also during the APA Annual Meeting, PRMS presented a workshop titled Psychiatric Professional Liability 2009 – The Year in Review, held on May 25, 2010, Vanderpool noted that the top questions from psychiatrists for PRMS’s risk management department in 2009 were release of confidential information, termination, and treatment issues. The top five incoming events, clams, lawsuits and administrative actions included suicide/attempted suicide, psychopharmacology, non-specific administrative actions, breach of confidentiality and incorrect treatment.

In terms of claims and lawsuits closed in 2009, about 78 percent had no indemnity paid, 19 percent were settled and 3 percent went to verdict (all resulted in a defense verdict).

“That’s roughly consistent with what we’ve seen over the years with our program,” Vanderpool said.

To help shape its risk management program and information, PRMS carefully monitors the psychiatric liability profession to gather information from multiple sources about issues of importance. During the session, PRMS briefly discussed several non-PRMS cases, including one where a provider was found liable for failing to provide a sign language interpreter, another where staff violated HIPAA by accessing a patient’s records “without any legitimate purpose,” and a journal report that the majority of clinicians override most medication alerts and the liability implications of doing so, Vanderpool said.

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Risk Management Advice Highlights

On Medical Board Complaints:

“Even if a patient can’t bring a medical malpractice action or loses a lawsuit, a complaint can be filed with medical board. Take board complaints seriously, even if they appear merit-less. Contact your insurance carrier.” Jacqueline Melonas, RN, MS, JD, Senior Vice President, Risk Management

On Terminating a Patient Relationship

“Improper termination exposes psychiatrists to allegations of abandonment, which may result in a lawsuit and/or board complaint. Be sure to give adequate notice, provide referrals, educate the patient about treatment recommendations, and send a follow-up letter confirming your discussion.” - Denita Neal, JD, Risk Manager

On Advice:

“Not all risk management advice can be followed by everyone all the time. It’s important that psychiatrists sort through and choose the advice that is most useful to them in their clinical practice.” - Denita Neal, JD, Risk Manager

On Practice Websites:

“Practice websites that are non-interactive and informational only are low risk. The more a website facilitates interaction between a visitor and the physician, the higher the risk becomes.” - Donna Vanderpool, MBA, JD, Assistant Vice President of Risk Management.

On Blogs and Social Networks:

“Don’t post patient information, or narratives that look like treatment advice, and don’t assume your post will be anonymous. And don’t “friend” patients on social networks. Be sure to keep your personal life separate from your professional.” - Donna Vanderpool, MBA, JD, Assistant Vice President of Risk Management