Malpractice Litigation Prevention
By Renee Binder, M.D.
As a forensic psychiatrist, I have reviewed multiple malpractice cases. I have identified five common areas that arise in malpractice cases which have informed my own clinical practice. I am writing this article in the hope that these pointers will help my colleagues, young and experienced, avoid malpractice lawsuits.
(1) Excellent documentation is crucial.
Most of us give excellent care to our patients, but because of our busy schedules, we often do not document very well. When we are sued, experts on both sides look at thedocumentation. It is usually assumed by the fact finders (arbitrators, juries or judges), that when physicians testify in court or at depositions, they may say that they did something even if they did not, and therefore the best defense to malpractice is good contemporaneous documentation. It is especially important to document our thinking process when we are dealing with a high-risk situation, e.g. prescribing off label, discharging a suicidal patient or prescribing/not prescribing medications to a pregnant or lactating patient.
(2) It is especially important to document risk assessments for suicide or violence risk.
For example, in one casethat went to trial, a patient committed suicide one day after discharge from an inpatient unit. The patient had been on a voluntary status with suicidal ideation. In the medical records, there was excellent documentation by the psychiatrist about suicide risk during the hospitalization and on the day of discharge. The documentation included the risk factors for suicide as well as mitigating factors.The documentation included the risk factors for suicide as well as mitigating factors and that there was a reasonable after care plan. The documentation also included the rationale for discharge including the fact that the patient insisted on discharge and did not meet the criteria for an involuntary commitment. Since the patient was on a voluntary status, he could leave if he wanted. The jury agreed unanimously that there had not been a breach in the standard of care and that the subsequent suicide was unforeseeable at the time of discharge.
In another case, a developmentally disabled clientstabbed his roommate in a Board and Care home one week after discharge from a hospital. In this case also, there was excellent documentation about violence risk factors and the thinking process behind the decision to discharge the patient back to his Board and Care Home with supervision. The documentation included the rationale that the two clients had lived together for over ten years without any prior incidents of violence. The case against the psychiatrist was dismissed.
When following outpatients on a long-term basis who have shown minimal evidence of suicidality or violence potential, psychiatrists understandably do not assess for suicide or violence risk on every visit. It can be argued that the standard of care does not necessitate such assessments. However, when the patient’s situation changes, e.g. the loss of a job or relationship, or there is report of an increase in depressive symptoms, it is important to assess and document the risk of suicide. In cases where this was not done, the argument which has prevailed at times is that the situation of the patient had changed and the psychiatrist should have done a more detailed assessment of violence or suicide risk.
(3) It is important to only treat patients within our areas of expertise.
If we have any questions about how to use a specific medication, it is important to refer the patient to or to get consultation from a clinician with more experience with that medication.
In one case, a patient died after she was treated in an emergency room with a combination of medications that were contraindicated in her situation. When in doubt, it is useful to check a website like “drugs.com”,”Lexi-Comp“oranother reference about interactions and contraindications. In another case, a patient developed severe complications from neuroleptic malignant syndrome after being given high doses of antipsychotics with a rapid upward dose titration. The actual dosage and the rate of titration were significantly higher that what was recommended in the peer-reviewed literature. In another case, a patient died of fulminant liver disease secondary tovalproic acid. The patient had had a prior history of hepatitis, but this was not recorded in the review of systems or past medical history. In addition, liver function tests were not obtained before or after starting valproic acid, until the patient developed jaundice. The implication was the clinicians in these cases did not know how to use these medications and were unaware of the potential risks.
It can be argued that psychiatrists have the skills and knowledge to use medications above recommended doses and for off-label indications. However, if doing so, psychiatrists need to obtain written and informed patient consent and document their thought process and their rationale for their prescribing practices. Otherwise, it may appear that the psychiatrist did not know the risks of their treatment plan.
(4) It is important to be aware of the institutional policies in the setting where we work.
In one case, a psychiatrist admitted a depressed, suicidal patient to the hospital. The psychiatrist wrote for level 1 observations, which meant 30-minute checks in that hospital. The psychiatrist seemed unaware of what level 1 meant. Hospital policies said that if patients are admitted with a complaint of depression or suicidal ideation, they should never be put on level 1. The policies stated that such individuals should either be put on level 2 (15 minute checks) or 1:1 observation. The patient committed suicide on the unit in between the 30 minute checks. It was very difficult to defend the actions of the psychiatrist.
(5) It is important to consider the family’s wishes in important and risky decisions (with the patient’s consent).
When there is a bad outcome, such as a suicide, the family will bring the lawsuit. There have been cases where the family was consulted and agreed with the treatment plan to discharge a patient from a hospital or release them from an emergency room. In these cases, if a suicide subsequently occurs, family members can still claim that they did not know any better because they are not professionals and were swayed by the opinions of the psychiatrist. Nevertheless, psychiatrists are in a more advantageous position concerning why they made the decision if the family agreed with this action. There have been cases where the psychiatrist discharged a patient against the wishes of the family. The family members then said that the doctor should have listened to them. If psychiatrists disagree with the recommendations of family members, psychiatrists need to document their thinking process and the basis of their decision to go against the family’s wishes.
In summary, I have described some of the lessons that I have learned in consulting about malpractice cases. Although anyone can be sued, and we all may be sued, it is helpful to be aware of what we can do as busy clinicians to minimize the likelihood of lawsuits being successful.
Renee Binder, M.D. is the Forensic Fellowship Director at the University of California, San Francisco. She is both a Past President of the American Academy of Psychiatry and the Law and a Past Chair of the APA Council on Psychiatry and the Law.