Evidence-Based Reviews

Practice, not malpractice: 3 clinical habits to reduce liability risk

Current Psychiatry. 2003 December;2(12):17-34

References

1. Slawson PF, Guggenheim FG. Psychiatric malpractice: a review of the national loss experience. Am J Psychiatry 1984;141:979-81.

2. Buckner F, Firestone M. Where the public peril begins: 25 years after Tarasoff. J Legal Med 2000;21(2):187-222.

3. Tarasoff v. Regents of the University of California, 551 P.2d 334 (California 1976).

4. Menninger WW. The impact of litigation and court decisions on clinical practice. Bull Menninger Clin 1989;53:203-14.

5. Davenport J. Documenting high-risk cases to avoid malpractice liability. Fam Pract Manag 2000;7(9):33-6.

6. Rice B. How plaintiffs’ lawyers pick their targets. Medical Economics 2000;8:94-110.

7. Levinson W, Roter DL, Mullooly JP, et al. Physician-patient communication: the relationship with malpractice claims among primary care physicians and surgeons. JAMA 1997;277(7):553-9.

8. Condon JT. Medical litigation the aetiological role of psychological and interpersonal factors. Med J Aust 1992;157:768-70.

9. Gutheil TG, Appelbaum PS. Clinical handbook of psychiatry and the law (3rd ed). Philadelphia: Lippincott Williams & Wilkins; 2000.

10. Resnick PJ, Scott CL. Legal issues in treating perpetrators and victims of violence. Psychiatr Clin North Am 1997;20(2):473-87.

11. Resnick PJ. Risk assessment for violence (lecture). Cleveland, OH: Case Western Reserve University, June 26, 2003.

12. Slovenko R. Malpractice in psychotherapy. Psychiatr Clin North Am 1999;22(1):1-15.

13. Mills MJ, Eth S. Legal liability with psychotropic drug use: extrapyramidal syndromes and tardive dyskinesia. J Clin Psychiatry 1987;48(9S):28-33.

14. Appelbaum PS. Can a psychiatrist be held responsible when a patient commits murder? Law Psychiatry 2002;53(1):27-9.

15. Tan MW, McDonough WJ. Risk management in psychiatry. Psychiatr Clin North Am 1990;13(1):135-47.

16. Garrick TR, Weinstock R. Liability of psychiatric consultants. Psychosomatics 1994;35:474-84.

17. Bradford GE. The “respectable minority” doctrine in Missouri medical negligence law. J Missouri Bar 2000;56(6):326-34.

18. Jacobson PD. Legal and policy considerations in using clinical practice guidelines. Am J Cardiol 1997;30(8B):74H-79H.

19. Scheflin AW, Spiegel D. From courtroom to couch: working with repressed memory and avoiding lawsuits. Psychiatr Clin North Am 1998;21(4):847-67.

20. Bradford GE, Elben CC. The drug package insert and the PDR as establishing the standard of care in prescription drug liability cases. J Missouri Bar 2001;57(5):233-42.

21. Hyams AL, Brandenburg JA, Lipsitz SR, et al. Practice guidelines and malpractice litigation: a two-way street. Ann Intern Med 1995;122(6):450-5.

22. Jones J. MD liability for electronic medical communications. Physician’s News Digest [serial online] 2000;(5).

23. Spielberg AR. Online without a net: physician-patient communication by electronic mail. Am J Law Med 1999;25:267-95.

Recommendation. Patients in therapy sometimes report newly found memories. To reduce your risk:

obtain informed consent from patients before you begin any psychotherapy
carefully document therapy session details when patients divulge new memories—particularly of abuse
avoid encouraging patients to act on recovered memories.¹⁹

OFF-LABEL DRUG USE: KNOW THE LITERATURE

Off-label prescribing is both common and legal but may increase a physician’s liability risk if adverse events occur. Cases in Minnesota, Texas, and Louisiana have established precedents for using the Physician’s Desk Reference or package inserts to establish a standard of care.

In 1970 the Minnesota Supreme Court held that deviating from the package insert constituted prima facie evidence of negligence. This interpretation shifts the burden of proof from the plaintiff to the physician, who must then prove that he or she was not negligent when prescribing the drug.²⁰

Recommendation. Off-label prescribing is an important component of modern psychiatric care. Research supports most accepted off-label prescribing, at least to the point of establishing a respectable minority for a standard of care (Box 2).

When prescribing, know which indications are FDA-approved and which are off-label. For off-label prescribing, know the literature supporting that use and notify patients of off-label status as you document informed consent.²⁰

PROS AND CONS OF PRACTICE GUIDELINES

Clinical practice guidelines developed by professional organizations to assist physicians have also acquired legal ramifications. Difficult questions about guidelines include:

Do they set the standard of care, or are they merely suggestions?
Do they provide a defense against liability?
How does a practitioner select between conflicting guidelines?

On the other hand, following clinical guidelines can protect you in cases with adverse outcomes. In a study of insurance company claims, approximately one-fourth of plaintiff’s attorneys who were surveyed said they had refused cases because the physician had followed practice guidelines. Conversely, one-fourth of defense attorneys said they had been influenced to settle cases because the physicians they represented had not followed practice guidelines.²¹

Liability cases involving practice guidelines have produced varying decisions. As a rule of thumb, courts tend to find that more-specific guidelines constitute a standard of care, whereas more-general guidelines are flexible suggestions.

Recommendation. If the court finds that existing guidelines establish the standard of care and your care has deviated from the guidelines with adverse consequences, the burden of proof shifts to you to prove that you were not negligent.¹⁸ When guidelines exist, know them and be prepared to defend decisions that deviate from them.

TELEMEDICINE: DANGERS IN CYBERSPACE

Unauthorized use or disclosure of patients’ electronic information can leave physicians liable for invasion of privacy and breach of confidentiality.²²

E-mail communication with a patient may also be sufficient to establish a duty of care, especially if the patient presents diagnostic information and the physician provides medical advice. Once duty to care is established, the physician is responsible for ongoing care or may face charges of abandonment.

Establishing duty to patients through e-mail is particularly troublesome, as patients may be writing from another state where you are not licensed to practice. Several states have explicitly forbidden unlicensed telemedicine; others have offered limited licenses for telemedicine practice.²²

Using e-mail to communicate with established patients introduces other liabilities. E-mail is legally considered part of the medical record and is subject to discovery in legal proceedings. Failure to preserve important patient e-mail may be evidence of negligence, especially in cases involving the medical record.

On the other hand, e-mail can be surprisingly permanent; it is virtually impossible to definitively delete e-mail that contains sensitive or embarrassing information. Deleted e-mail frequently can be recovered, and every e-mail exists in multiple copies, including the sender’s, the receiver’s, and at least one in a centralized server.²³

Recommendation. Reduce liability risks with informed consent if you use e-mail to communicate with existing patients. Minimize e-mail contact with nonestablished patients, and make sure the confidentiality of patients’ communications is secure.²²

Related resources

Gutheil TG, Appelbaum PS. Clinical handbook of psychiatry and the law (3rd ed). Philadelphia: Lippincott Williams & Wilkins, 2000.
American Psychiatric Association. Practice guidelines. http://www.psych.org/clin_res/prac_guide.cfm