Legal News
Psychiatrists Advised on Ways To Avoid Legal Quicksand
Psychiatric News
Volume 39 Number 11 page 26-43

In everyday practice, psychiatrists may encounter situations that place them at increased risk for being sued for negligence or worse—for example, treating patients who are aggressive or at risk for additional medical problems due to old age. How to better manage that risk was the subject of a conference sponsored by Professional Risk Management Services Inc. (PRMS) in March in New York City.FIG1

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PRMS Vice President for Risk Management Jacqueline Melonas, R.N., M.S., J.D., and PRMS Senior Risk Manager David Cash, J.D. 

PRMS manages the APA-endorsed liability insurance program, known as the Psychiatrists' Professional Liability Insurance Program.

A major area of concern is patients who may be violent and/or disorganized and as a result are restrained and placed in seclusion. If they are harmed during the process, the treating psychiatrist could be at risk for malpractice, according to Kim Masters, M.D.

Masters is an assistant clinical professor of psychiatry at the Medical College of Georgia and medical director and director of youth services at Focus by the Sea, a private psychiatric hospital in St. Simons Island, Ga.

Until the 1990s, little national attention was paid to the potential medical problems associated with restraining and secluding patients, Masters said.

The act of restraining someone who is angry "clearly inhibits normal responses, which may lead to heart arrhythmias and breathing problems," he pointed out.

In October 1998 an investigative series in the Hartford Courant," Deadly Restraint," reported on 142 patient deaths caused by physical restraint. The series fueled a public outcry and gave rise to the realization that "physicians were asleep at the switch," Masters said.

Organizations such as the Health Care Financing Administration, which is now the Centers for Medicare and Medicaid Services, issued new regulations including the "one-hour rule." This rule requires physicians to conduct a face-to-face interview with the patient within an hour of the restraint and seclusion episode (Psychiatric News, October 1, 1999; July 6, 2001).

The agency also issued regulations about the number of hours a patient could be kept or restrained in a seclusion room depending on his or her age, Masters said.

In addition, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) issued a policy that required institutions to report seclusion and restraint-related deaths (Psychiatric News, October 6, 2000).


Soon efforts to prevent the need for seclusion and restraints arose, Masters said.

For instance, the JCAHO suggested that upon admission to an inpatient psychiatric unit, staff work with patients to create a "psychological advance directive," according to Masters. A directive is prepared with the patient to identify coping strategies for the patient once he or she becomes angry, psychotic, or extremely depressed and begins to lose control.

Masters has found that it is helpful to teach young patients about aggression and strategies to cope with it.

"This helps patients feel as though we are with them as teachers, not prison guards," Masters observed. At Focus by the Sea, "one of the most powerful anger-management strategies we've found is cognitive-behavioral therapy."

Staff work with youth to help them identify thoughts associated with feelings of anger, recognize the circumstances that trigger angry feelings, and teach them how to manage anger in appropriate ways.

Avoiding restraint and seclusion is not always possible, however, and when patients must be secluded, Masters said, "the idea is not really about seclusion, but distraction."

He has used music and lights—even a disco ball—in the seclusion rooms at Focus by the Sea to calm angry youth and has been successful, he said.


Psychiatrists treating geriatric patients should be aware that there is a growing trend in which some plaintiffs' attorneys are naming individual physicians, along with the nursing homes and other care facilities where they work, in suits involving elderly patients, according to Jacqueline Melonas, J.D., M.S., R.N., vice president for risk management at PRMS.FIG2

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Kim Masters, M.D.: "Physicians were asleep at the switch." 

The nationwide rise of litigation against nursing homes and affiliated physicians, Melonas observed, has resulted in heightened efforts by federal and state agencies to protect the elderly.

In addition, she said, "there is a pervasive mistrust in our society of nursing homes and a certain level of guilt in how we treat the elderly in general."

One of the risks in treating elderly psychiatric patients is suicide, Melonas said, and psychiatrists should be aware that suicide rates are higher in older people than for any other age group.

For instance, the overall suicide rate in the United States is 10.7 for every 100,000 people, but among people over the age of 80, the suicide rate doubles to 20 suicides per 100,000 people.

Compared with other age groups, Melonas said, quoting APA's Practice Guideline for the Assessment and Treatment of Patients With Suicidal Behaviors, "suicidal elders give fewer warnings to others about their plans, use more violent and potentially deadlier methods to attempt suicide, and use greater planning and resolve."

Melonas advised psychiatrists to read the guideline, which lists risk factors for suicide and treatment strategies to use when working with suicidal patients.

Psychiatrists should also note that there is a high correlation between alcohol use and abuse in the elderly and suicide, she added.

One of the contributing factors to suicide in elderly patients is the loss of a spouse or long-time partner through death, divorce, or separation or quality of life issues such as chronic pain or illness.

"Chronic stressors such as financial decline or loss of independence can also be risk factors," she said.

Also, she cautioned psychiatrists never to avoid direct discussions of suicidal ideation during a comprehensive evaluation.

"Assessing elderly patients once for suicide risk isn't enough," Melonas said. When a patient's clinical condition, living situation, or other factors in his or her life change, it may be necessary to reassess the patient for suicidal ideation.

Getting information from the patient's family members and/or significant others may be helpful in gathering information while assessing the patient, she added. Including the patient's family in treatment can also help him or her comply with treatment.

For psychiatrists who practice in nursing homes, communication with nursing home staff is crucial, Melonas said. Long periods between patient visits can increase liability risk.

Many lawsuits against psychiatrists include allegations involving medications and preventable medication errors, according to David Cash, J.D., PRMS senior risk manager, and psychiatrists treating geriatric patients may be especially at risk due to the increased number of medical problems experienced by geriatric patients. Research has shown that 55 percent of all fatal medical errors in hospital settings involves seniors, he pointed out.

Medications that may be particularly risky for geriatric patients include sedatives, pain relievers, and some antidepressants, and caution should be used when prescribing them, he said. "The use of benzodiazepines and other sedating medications, which can cause geriatric patients to be more vulnerable to falls, must be monitored carefully," Cash said.

Psychiatrists have been the defendants in cases handled by PRMS involving haloperidol sedation in geriatric patients, he told attendees. "Usually, the patient becomes sedated, falls, and is injured. The treating psychiatrist is named in the suit as bearing partial responsibility for the fall."

Geriatric patients taking medications usually require increased blood-level and side-effect monitoring.

Cash advised psychiatrists to document carefully patients' responses to medications, as well as reassessments and treatment changes.

Psychiatrists have also been named in suits involving geriatric patients who become critically ill or die after taking two medications that should not be taken together. "Communication with and integration of treatment with that of other practitioners are critical," said Cash.

In general, geriatric patients require more diligent assessments, including those for competence and organic and cognitive problems, he observed.

More information about Professional Risk Management Services is posted online at<www.psychprogram.com/home.htm>.

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PRMS Vice President for Risk Management Jacqueline Melonas, R.N., M.S., J.D., and PRMS Senior Risk Manager David Cash, J.D. 

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Kim Masters, M.D.: "Physicians were asleep at the switch." 

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