Risk Management Resolutions For the New Year

• Be careful. Claims against psychiatrists frequently include vague allegations of “improper treatment” and “misdiagnosis.” Many times these allegations are groundless, but sometimes the poor outcomes are a result of unfortunate lapses in basic, good medical practice that easily could have been avoided.

• Stay focused on patients’ clinical needs. Treating psychiatrists are minimally obligated to obtain an adequate medical and psychiatric history, conduct an appropriate examination, and follow-up with a patient at reasonable intervals to assure that treatment is progressing as desired. Any obligation not met will increase the psychiatrist’s professional liability risk.

• Communicate with patients’ other clinicians. For the care given by an individual clinician to be as effective as possible, the patient’s overall care must be coordinated. Psychiatrists should obtain patients’ authorization to communicate with other clinicians, especially in split-treatment situations, so that information can be exchanged freely. Similarly, psychiatrists should attempt to obtain patients’ prior treatment records. Past records can give the psychiatrist a more comprehensive and nuanced context in which to understand the patient. Additionally, the psychiatrist may benefit from the experiences of previous clinicians.

• Monitor medications. Medication levels and appropriate physiologic functions should be monitored regularly; patient compliance with monitoring should be tracked.

• Know and follow policies and procedures. Psychiatrists working at facilities or in large practices should know and follow all relevant policies and procedures. The standard of care is largely established by the opinion of other psychiatrists, and since policies and procedures often are the result of a consensus of practitioners, the policies and procedures may be a close approximation to the standard of care.

• Stay current with the field. It is imperative that psychiatrists maintain competency with regard to the medications and other forms of psychiatric treatment they are providing. Psychiatrists should not hesitate to consult with or refer to colleagues when appropriate.

• Do not prescribe for nonpatients. Psychiatrists should not prescribe medication or treatment outside of a formal psychiatrist-patient relationship. This admonition includes prescribing over the Internet when there is no pre-existing psychiatrist-patient relationship, prescribing for individuals never seen by the psychiatrist, prescribing controlled substances for oneself, and covering for friends or family for anything more than an emergency situation. Prescribing medication or treatment creates a physician-patient relationship along with all the attendant obligations.

The written treatment record stands as a testament of the treatment provided and the decision making behind it. The record comprises a significant and substantial part of the defense against any claim of malpractice against the psychiatrist. Highly defensible cases where the psychiatrist delivered seemingly flawless treatment have been lost or settled because of poor documentation by the psychiatrist.

• Document the informed consent process. All major aspects of patient care (e.g., suicide assessments, session times, authorizations, prescriptions, lab reports, the termination process, and follow-up on missed appointments) should be documented in the treatment record. Documenting the decision-making processes underlying treatment decisions is key to building a supportive record (i.e., what actions were taken and why, as well as what actions were rejected and why).

• Never alter a treatment record. The strength of the treatment record as evidence in a malpractice case is based on the idea that a contemporaneous record of actions and observations can reasonably be relied upon to be true and unbiased. Altering the record can result in an otherwise defensible case being rendered totally indefensible.

• Be familiar with statutory and/or regulatory requirements. Some state legislatures and/or licensing boards require certain minimum information to be made part of the treatment record.

One of the duties a psychiatrist owes to patients is to maintain confidentiality with respect to information revealed in treatment. Where an exception to confidentiality exists, those exceptions tend to be narrowly tailored to allow the psychiatrist to reveal the least amount of information required to satisfy a legal or ethical requirement. For example, the duty to warn potential victims is frequently limited to disclosing the name of the potential perpetrator and the nature of the potential violence.

• Maintain physical security of information. Paper records should be secured physically. Electronic files, whether located in personal computers, laptops, or PDAs, should be secured both physically and electronically against theft or unauthorized access.

• Do not automatically release information pursuant to a subpoena. In most jurisdictions, a subpoena alone usually is not sufficient to release psychiatric information. Risk management advice is to contact the patient upon receipt of a subpoena and confirm whether the information is to be released. Even if information will not be released, the subpoena must be responded to.

• The obligation to preserve patient confidentiality survives the death of the patient. Upon the death of a patient, the psychiatrist certainly may make himself available to the patient’s family. However, proper authorization by the appointed representative of the patient’s estate or, in some instances, a court order is almost certainly required to release detailed information or a copy of the record.

The second part of this article, featuring three more resolutions, will appear in the next issue. The full version of this article and related multimedia presentation are available online to participants of the Psychiatrists’ Program, the APA-endorsed Psychiatrists’ Professional Liability Insurance Program, at www.psychprogram.com under the “For Participants Only” section. If you are not insured with the Program, a complimentary copy of this article may be obtained by calling (800) 245-3333, ext. 389, or e-mailing [email protected].