Psychiatrist Helps Colleagues Reduce Malpractice-Suit Pain

One in 20 psychiatrists faces a malpractice lawsuit each year. Although that rate may be among the lowest in medicine, one psychiatrist, himself a former malpractice-suit statistic, suggested steps that other physicians should take to avoid or win such suits.

Eugene Lowenkopf, M.D., described his experience as the subject of a malpractice suit to other clinicians so they could learn from it during a presentation at APA's annual meeting in San Diego in May.

He was one of several medical professionals sued when a woman patient under observation at a hospital for a suicide attempt again tried to commit suicide by jumping from the hospital's second-story window. Although a jury eventually cleared Lowenkopf of any legal responsibility, the experience made clear that several simple steps could have saved him time and trouble.

The first suggestion Lowenkopf had for other psychiatrists was to consult a private attorney, in addition to any that may be provided by their malpractice insurer.

Active involvement by the physician also is critical in malpractice cases. Physicians should retain their own attorney with whom they can carefully review all aspects of the case on an ongoing basis. One source for private attorney recommendations for psychiatrists, Lowenkopf said, is the Psychiatrists' Purchasing Group Inc. (PPG), operator of the APA-endorsed Professional Liability Insurance Program.

His attorney also taught him to assume that every document related to malpractice lawsuits is “discoverable,” or subject to a court demand that makes it available to all parties in a suit. This assumption reminded him to keep all written records clear and to explain any assumptions he made in describing the case when documenting it in any form.

A way to prevent patient notes from being used against a psychiatrist, he said, is to use precise language and write what diagnoses have been considered and rejected and why such decisions were made. He also noted that using medications only for broadly accepted purposes may reduce potential legal liabilities.

Another lesson he said he learned was that his curriculum vitae would be checked for accuracy, and any discrepancies or omissions would be used by plaintiffs' attorneys to question his character before the jury. Standard pretrial work by opposition attorneys also would include a review all of his published writing to find anything he might have written that contradicted his reasoning in deciding how to treat the patient whose care is at issue in the lawsuit.

Another painful lesson Lowenkopf derived from his experience was the strong belief that psychiatrists need to avoid professional associations with any health care facility with “failings” because the clinician could be held legally responsible for some of those failings.

Lowenkopf also shared with his colleagues the lesson that a physician should never sign anything giving the insurer authority to settle a malpractice suit at any time without the physician's permission, unless his or her private attorney reviews it and agrees to it.

A private attorney is also valuable because he or she can review state laws governing the use of arbitration as an alternative to court proceedings.

In general Lowenkopf advised physicians to reduce the high degree of frustration that stems from a malpractice suit, where so much is beyond their control, by channeling it into teaching those involved in a malpractice case about the goals and limits of medical care.

“No one in the court room knows as much about the case as you do,” Lowenkopf said. “You have to teach your lawyer, the jury, and the judge.”

Physicians should never underestimate the long-term effects of malpractice cases. All malpractice settlements are noted in the National Practitioner Data Bank, where judgments or settlements over $25,000 remain permanently in the record. Such information may raise physicians' insurance premiums, and potential employers may review it before they make a hiring decision.

“Only in recent years have I not had to respond to questions on this case, and I came away clean,” he emphasized.

Information about the Professional Liability Insurance Program is posted at<www.apa-plip.com>.▪