Auto accidents. Tarasoff liability also has been extended to auto accidents. In Washington state (Petersen v. Washington, 1983), a psychiatrist was held liable for injuries to victims of an accident caused by a psychiatric patient. The court ruled that the psychiatrist had a duty to take reasonable precautions to protect any foreseeable persons from being endangered by the patient.
In a similar case in Wisconsin (Schuster and Schuster v. Altenberg, et al., 1988), the court ruled that damages could be awarded to anyone whose harm could have been prevented had the physician practiced according to professional standards.2
Other extensions include cases such as Naidu v. Laird, 1988, in which patient violence occurred more than 5 months after hospitalization.2 Vermont has extended the Tarasoff precedent to property destruction by psychiatric patients.10
Recommendation. Most states require a psychiatrist to protect against only specific threats to identifiable victims.10 To defend yourself against a Tarasoff-type suit, you must show that you:
- carefully assessed the patient’s risk for violence
- provided appropriate care
- and took appropriate precautions.
The most protective evidence is a medical record documenting that you thoroughly assessed a patient for risk of violence (Table).4,11
If you are unsure about how to manage a patient you believe may be dangerous to himself or others, consult with supervisors, peers, and legal advisors. Many states have Tarasoff-like statutes that specify the conditions that require action and the appropriate actions.
In states without specific statutes, options that generally satisfy Tarasoff requirements include hospitalizing the patient, notifying authorities, and/or warning the potential victim.10 As the Tarasoff case demonstrated, notifying authorities may not substitute for warning or hospitalizing.2
SUICIDE RISK? DOCUMENT CAREFULLY
Patient suicide accounts for one-fifth of claims covered by the American Psychiatric Association (APA) insurance plan.
In court, key points of challenge to a physician’s judgment in a suicide case include the admission evaluation and any status changes. Thorough risk assessment includes carefully reviewing existing records, evaluating risk factors for suicide, and seeking advice from colleagues or supervisors when appropriate.4
Recommendation. Document for every inpatient admission, discharge, or status change that the patient’s risk for suicide was assessed. List risk factors, protective factors, and risk for self-harm.
Explicitly address in the patient’s chart any comments about suicidality (such as heard by nursing staff).9 Document your rationale for medical decisions and orders, consistently follow unit policies, and explain risks and benefits of hospitalization to patients and their families.
Before discharge, schedule appropriate follow-up and make reasonable efforts to ensure medication adherence.4
SEX WITH PATIENTS IS UNPROTECTED
Sexual involvement with patients is indefensible and uncontestable in malpractice cases. Even so, up to 9% of male therapists and 3% of female therapists report in surveys that they have had sexual interaction with their patients.4
In 1985 the APA excluded sex with patients from its malpractice insurance coverage. Courts generally consider a treatment to be within the standard of care if a respectable minority of physicians consider it to be appropriate. Sex with patients is considered an absolute deviation from the standard of care, and no respectable minority of practitioners supports this practice. Because patients are substantially harmed, sex with patients is considered prima facie malpractice.12
Table
Is this patient dangerous? Risk factors for violence
| Psychiatric |
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| Demographic |
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| Socioeconomic |
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WHEN MEDICATIONS CAUSE HARM
Adverse drug reactions—particularly tardive dyskinesia (TD)—are a source of significant losses in malpractice cases. Multimillion-dollar awards have been granted, especially when neuroleptic antipsychotics have been given in excessive dosages without proper monitoring.13
Informed consent has been a particularly difficult issue with the use of neuroleptic medications. Many doctors worry that patients who fear developing TD will not take prescribed neuroleptics. A study of North Carolina psychiatrists in the 1980s revealed that only 30% mentioned TD when telling their patients about neuroleptics’ possible side effects.13
The fact that a patient develops TD while taking an antipsychotic does not establish grounds for malpractice; a valid malpractice suit must also establish negligence. Negligence could include failing to obtain appropriate informed consent or continuing to prescribe an antipsychotic without adequately examining the patient.4
Informed consent does not require a patient to fully understand everything about a medication. The patient must understand the information a reasonable patient would want to know. Obvious misunderstandings must be corrected.
Recommendation. Consider informed consent a process, rather than one event—especially when you give neuroleptics for acute psychotic episodes. You can establish, review, and refresh consent in follow-up visits as medications help patients become more coherent and organized.