Forensic Coverage, Suicide Risk

A. As more psychiatrists are undertaking forensic work, it is inevitable that lawsuits will increase in this area of psychiatry. Therefore, it is essential that a psychiatrist providing forensic services be insured by a medical malpractice insurance policy that covers these activities. Many insurance carriers classify forensic services as nonmedical because this professional activity by a psychiatrist does not involve the direct treatment or care of a patient. Thus, these insurance carriers do not cover claims arising out of forensic services. The Program, however, recognizes the specific exposures in the practice of psychiatry and includes forensic psychiatric services in the basic policy.

These are among the common areas of forensic psychiatry practice:

• Performing court-ordered child-custody and child-abuse evaluations

• Reviewing medical records for insurance companies

• Evaluating defendants in criminal cases

• Providing an expert psychiatric opinion in a civil trial on behalf of the plaintiff

• Performing fitness-for-duty evaluations for public safety agencies or licensing boards

• Evaluating housing placement of accused sexual offenders in prison systems

The Program’s risk management department has developed a comprehensive article, “Risk Management Practical Pointers for Psychiatric Forensic Practice.” To request a complimentary copy, please call (800) 245-3333, ext. 389, or visit www.psychprogram.com.

A. An impression shared by many psychiatrists is that to avoid liability related to treating patients with suicidal behaviors, psychiatrists are expected to be able to predict whether a particular patient will attempt suicide and thus prevent all suicide attempts, however unforeseeable. Thankfully, however, courts recognize that psychiatrists are only human; they do not expect impossible powers of prediction.

What is expected, as in any psychiatrist-patient interaction, is that the psychiatrist will meet the standard of care—that is, will exercise that degree of skill, care, and diligence exercised by members of the same profession/specialty practicing in light of the present state of medical science. In a lawsuit involving suicide, the psychiatrist’s actions will be assessed by reviewing certain factors, including, but not limited to, these:

• Whether there was adequate identification and evaluation of suicide-risk indicators and protective factors for the patient with suicidal behaviors

• Whether a reasonable treatment plan was developed based on the assessment of the patient’s clinical needs

• Whether the treatment plan was appropriately (that is, not negligently) implemented and modified based on an ongoing assessment of the patient’s clinical status

• Whether the psychiatrist was professionally current regarding the assessment and treatment of patients with suicidal behaviors (that is, knew suicide-risk indicators and protective factors, knew current treatment options/interventions including medications, therapy, hospitalization

• Whether documentation in the patient record was adequate to support that appropriate care was provided in terms of the assessment, treatment, and monitoring of the patient

Failure to meet the legal duty to provide the standard of care to a patient is negligence. In a medical malpractice lawsuit, the plaintiff has the burden of proving that the physician was negligent. It is significant to note, however, that the standard of care is not a static concept. In any particular instance, the standard of care encompasses a range or repertoire of acceptable treatment options and requires the exercise of the psychiatrist’s professional judgment. The exercise of professional judgment alone when choosing among acceptable treatment alternatives will not support an allegation of the breach of the standard of care. The standard of care in a particular case is determined by and based on that specific patient’s clinical needs. Just as there is no such thing as a blanket treatment plan applicable to every patient with a given diagnosis, there is no such thing as a blanket standard of care. Testimony regarding the standard of care is provided in the discovery process or at trial by an expert witness, that is, another psychiatrist who expresses an opinion on whether the care rendered was appropriate given the circumstances.

By doing your professional best to fulfill the expectations listed above, you will be doing all you can to provide quality patient care and thus reduce your potential malpractice liability exposure.

A. The Program’s Online Education Center features many multimedia presentations for participants. From the comfort of your own home or office, you can learn the theory behind the risk management process and its associated legal concepts in a 20-minute presentation. Other topics range from “Insurance 101” to “Six Things You Can Do Now to Avoid Being Sued Successfully Later.”

To reach the Online Education Center, visit www.psychprogram.com and log in to the “For Participants Only” section.

This column is provided by PRMS, manager of the Psychiatrists’ Program, for the benefit of members. More information is available by visiting the Program’s Web site at www.psychprogram.com; calling (800) 245-3333, ext. 389; or sending an e-mail to [email protected]. ▪