Psychiatrists Can Minimize Malpractice-Suit Anxiety

Psychiatrists can lessen their chances of being sued for malpractice—or increase their chances of winning a suit— by demonstrating good clinical judgment through documentation when treating suicidal patients, say attorneys who have represented APA members in the courtroom.

“Suicide is the most frequently identifiable cause” of psychiatric malpractice cases, said Jacqueline Melonas, J.D., vice president of risk management at Professional Risk Management Services Inc. (PRMS), the company that manages the APA-endorsed liability insurance program.

Melonas addressed a room of nearly 200 psychiatrists who gathered in New York City this summer for the seminar, “Patients with Suicidal Behaviors: Risks and Risk Management Strategies.”

The good news is that psychiatrists are sued less often than other medical specialists, according to PRMS President Martin Tracy, J.D. In his view, juries tend to be “sympathetic to psychiatrists—provided that they can demonstrate, through records and testimony, that they are skilled and caring practitioners,” he said.

To win a psychiatric malpractice suit, the plaintiffs—most often the family of a patient who has committed suicide—must prove that the psychiatrist owed a duty or standard of care to the patient, that the psychiatrist’s care fell below that standard, and, as a result, the patient suffered injury or death.

The standard of care, according to Donna Vanderpool, J.D., a senior risk-management consultant with PRMS, is not a clinical concept, but a legal one.

Although its exact definition differs from state to state, it can be viewed as “the degree of skill, care, and diligence exercised by members of the same profession or specialty practicing in light of the present state of medical science.”

This standard is established by expert witnesses testifying in legal settings. It should not be confused with quality of care, which is the care a patient actually receives, she said. She also said that the fact that a patient committed suicide does not automatically mean that his or her psychiatrist is liable for malpractice.

“The psychiatrist will not be held liable for his or her failure to predict the suicide as long as the decision-making process in treatment is based on a careful clinical assessment,” she added. And the only way to prove that is through careful documentation, she said.

Just the Facts, Please

“Documentation is your best defense,” Vanderpool said. “It could mean the difference between winning and losing a lawsuit.”

She noted that a psychiatrist’s documentation of a patient's treatment is seen by juries as more factually accurate than subsequent court testimony—“your record was created when your only concern was documenting the facts”—and should include enough information so that someone could look at the record, know what services were provided to the patient, and understand why the psychiatrist chose or rejected certain modes of treatment.

While documenting the clinical decision-making process is important, Vanderpool cautioned, “documentation is a written record that could later be used against you, so be careful about what you write. What are the best cases we see? Good care that is well documented. What are the worst cases we see? Bad care, well documented.”

Failure to Obtain Records

In a malpractice suit, a plaintiff may allege that a psychiatrist failed to review a patient’s previous medical records and that failure resulted in the patient’s suicide, Vanderpool said. Thus, she urged psychiatrists to obtain prior medical records or document attempts to do so.

In one case she recalled, a psychiatrist was managing a patient’s medications but never obtained the patient’s past records, which detailed multiple suicide attempts. After the patient committed suicide, the patient’s family sued the psychiatrist. “The question was whether the psychiatrist had enough information to evaluate the patient’s suicide risk and, therefore, treat the patient adequately.”

Another allegation sometimes put forth by plaintiffs involves the failure to follow proper discharge procedures.

In one example, a psychiatrist wrote discharge orders a day before the actual discharge, but did not actually evaluate the patient on the day of discharge. The plaintiff alleged that the patient’s condition had worsened during that 24-hour period, and he was thus not ready to leave the hospital. “It’s fine to write orders in advance, but at the time of discharge, you need to determine if your orders are still appropriate,” Vanderpool said.

Other allegations focus on the problems that can arise in a split-treatment arrangement, where the psychiatrist is managing a patient’s medications and a nonmedical mental health professional conducts psychotherapy with the patient.

Legal Advice Offered

Bruce Brady, J.D., who has defended psychiatrists in malpractice suits as a member of the PRMS panel of defense counsels, said he prepares his clients for trial by telling them to “hold your own and be yourself.” He assures them that during the examination and cross-examination, “your knowledge and compassion will come through.”

It can be extremely frustrating, he said, to be examined by the plaintiff’s attorney with questions that demand a yes or no answer.

“You are chomping at the bit to say more. . .but you have to be patient and understand that when your attorney examines you, you will have the chance to explain your position,” he said.

Brady also stressed that there is only one group of people in the courtroom that is important—the jury. Psychiatrists should “use the essence of their profession” to communicate their points to the jurors with careful attention to their nonverbal cues, for instance.

Ultimately, he said, a jury assesses psychiatrist defendants on three factors: whether they are competent, were diligent in their care of the patient, and cared about the patient.

According to David Dince, J.D., who is also a member of the PRMS defense counsel panel, it is difficult for plaintiffs to win a psychiatric malpractice case if the psychiatrist used and documented his or her best clinical judgment when treating the patient.

He said that New York appellate courts acknowledge that the practice of psychiatry is not an exact science and that a psychiatrist has “wide discretion to exercise [his or her] judgment.”

In the words of one New York court, “[D]ecisions with respect to the proper course of treatment often involve a calculated risk and disagreement among experts as to whether the risk was warranted or in accordance with proper procedures,” Dince said.

However, when a psychiatrist fails to document his or her decisions about a patient’s treatment, there is no proof that he or she used appropriate medical judgment when treating the patient, he said.

Clinical Wisdom

Douglas Jacobs, M.D., who is associate professor of psychiatry at Harvard Medical School and founder and executive director of Screening for Mental Health, Inc., offered some clinical advice to attendees: Psychiatrists should evaluate patients not only for the risk factors for suicide, but also for protective factors, such as having children in the home, social supports, and religious involvement, for instance.

In those who are suicidal, “there is a wish to die and a wish to live,” an ambivalence Jacobs described as “our greatest clinical hope—if we can ally ourselves with the side of the patient that wants to live yet acknowledge the side that wants to die, we can make a connection,” he said. ▪