Treatment Guides and Liability Risk

Q. APA and other professional organizations sometimes publish treatment guidelines. The facility where I work maintains policies and procedures that address the treatment of patients. Are these treatment guidelines and policies and procedures the same as the standard of care? Am I committing malpractice if I deviate from them in treating my patients?

A. Treatment guidelines and policies and procedures do not by themselves definitively establish the standard of care. The standard of care against which a psychiatrist’s conduct will be measured in a malpractice action is that of a similar psychiatrist in similar circumstances. A judge or jury will consider treatment guidelines or policies and procedures as just one piece of evidence, along with other evidence, such as experts’ testimony about prevailing medical practice, to define the applicable standard of care.

Reputable treatment guidelines and policies and procedures often constitute a consensus of experienced practitioners on prevailing medical practice in a given situation. Since the standard of care is largely determined by peers based on what the conduct of a psychiatrist should be under the circumstances, treatment guidelines and policies and procedures may closely approximate the standard of care.

Human variation precludes the development of a predetermined standard for every possible situation. Every clinical situation is different, and reasonable psychiatrists can disagree. In fact, treatment guidelines sometimes conflict with each other. Should a psychiatrist deem it necessary to deviate from a recognized guideline, he or she should document and justify the reasoning for the deviation.

A psychiatrist should not be deemed per se negligent simply for departing from guidelines or deemed innocent simply for adhering to them.

In the litigation arena, treatment guidelines are one tool that can be used by both plaintiffs and defendants. Plaintiffs try to use guidelines to show that the defendant failed to observe standards of practice. Defendants use guidelines to show that they did observe standards of practice. For this reason, compliance with guidelines may work to the psychiatrist’s advantage if those guidelines are widely recognized as authoritative. While such compliance will not conclusively defeat a negligence claim, it can go a long way toward defeating the plaintiff’s argument.

A defendant psychiatrist who departed from authoritative guidelines will likely have to explain his or her reasoning for the departure in court. Psychiatrists who depart from authoritative guidelines should take care to document their reasoning and decision-making process in the patient chart. Contemporaneous documentation is one of the most powerful forms of evidence for a defense.

Reputable treatment guidelines and policies and procedures developed by professional societies must not be confused with utilization review or protocols used by managed care organizations, which are influenced by economic considerations. Adherence only to utilization review and other similar protocols that do not necessarily have an authoritative clinical basis will not protect psychiatrists from allegations that their care fell below the standard of care.

Q. I currently practice in New Jersey but will be moving in a few months to California. Does the Psychiatrists’ Program offer nationwide coverage?

A. Yes. The Psychiatrists’ Program offers coverage in all 50 states and the District of Columbia. Coverage through the Program is portable—it will move with you. If you are currently insured with the Program, call your underwriter at (800) 245-3333 to complete the necessary paperwork, as requirements may vary by state.

Q. I need to purchase malpractice insurance for the first time. There are many insurance terms and concepts that are difficult to understand. What resources are available to help in my purchase decision?

A. Purchasing insurance can often be a difficult and confusing decision. A multimedia tutorial titled “Insurance 101” is available on the Program’s Web site. You can learn more about basic insurance concepts such as policy types, hammer clause, and consent-to-settle provisions.

The Web address for this education feature is www.psychprogram.com/Risk_Management/oec.htm. Information is also available by phone at (800) 245-3333, ext. 389.

Q. I am forming a group practice with three other psychiatrists, two psychologists, and several social workers and nurse practitioners. Does the Psychiatrists’ Program offer coverage for such a group?

A. The Psychiatrists’ Program offers professional liability insurance coverage for multidisciplinary behavioral health care groups. There are many advantages to purchasing this coverage including consolidation of each professional’s coverage into a single policy. All of the benefits and features of the individual insurance program are available to members of the group, including access to the toll-free Risk Management Consultation Service and copies of the quarterly risk management newsletter Rx for Risk. More information on obtaining group liability coverage is available by phone at (800) 245-3333, ext. 314, or online at www.psychprogram.com.

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]. ▪