Psychiatrists’ risk of malpractice liability1 is broadening as courts consider the uncertainties of off-label prescribing, telemedicine, and confidentiality. Juries are holding mental health practitioners responsible for harm done both to and by psychiatric patients.
How you keep medical records, communicate with patients and colleagues, and arrange consultations can reduce your malpractice risk (Box 1).4-9 We offer recommendations based on court decisions and other evidence for managing:
- traditional risks—such as patient violence and suicide, adverse drug reactions, sex with patients, faulty termination of treatment, and supervisory and consultative relationships4
- newer risks—such as recovered memory, off-label prescribing, practice guidelines, and e-mail and confidentiality.
Want to reduce malpractice risk? Cultivate 3 clinical habits
1. Keep thorough medical records
The most powerful defense against a malpractice suit is a well-documented chart. It can often prevent a malpractice suit by providing evidence that the physician adequately evaluated the available information and made good-faith efforts with his or her best judgment. Juries are typically forgiving of mistakes made in this context.4,5
Write legibly, and sign and date all entries. Try to think out loud in the chart. By outlining your thoughts about differential diagnosis, risks and benefits, and treatment options, you can help a jury understand your decision-making process and show that you carefully evaluated the situation. When documenting difficult cases, for example, imagine a plaintiff’s attorney reading your notes to a jury.6
2. Communicate freely with patients
Careful interaction with patients and their families can also prevent lawsuits. Communicating includes preparing patients for what to expect during treatment sessions, encouraging feedback, and even using humor.7 Freely sharing treatment information with patients can build a sense of mutual decision-making and responsibility.8 Acknowledging treatment limitations and deflating unrealistic expectations can also protect you.
Patients who file malpractice suits are often seeking an apology or expression of regret from their physicians. It is appropriate and prudent to admit and apologize for minor errors. It is also appropriate to express condolence over what both sides agree is a severe, negative outcome.9 Expressing sympathy is not equivalent to admitting wrongdoing.
3. Seek consultation as needed
Discussing difficult or ambiguous cases with peers, supervisors, or legal staff can help shield you from liability. For example:
- Second opinions may help you make difficult clinical decisions.
- Peers and supervisors may provide useful suggestions to improve patient care.
- Legal staff can give advice regarding liability.
The fact that you sought consultation can be used in court as evidence against negligence, as it shows you tried to ensure appropriate care for your patient.9
This article describes general guidelines and is not intended to constitute legal advice. All practitioners have a responsibility to know the laws of the jurisdictions in which they practice.
PREVENTING PATIENT VIOLENCE
The case that opened Pandora’s box. Prosenjit Poddar, a student at the University of California at Berkeley, was infatuated with coed Tanya Tarasoff and told his psychologist he intended to kill her. The psychologist notified his psychiatric supervisor and called campus police.
The psychologist told police Poddar was dangerous to himself and others. He stated that he would sign an emergency hold if they would bring Poddar to the hospital.
The police apprehended Poddar but released him. Poddar dropped out of therapy and 2 months later fatally stabbed Ms. Tarasoff.
Ms. Tarasoff’s parents sued those who treated Poddar and the University of California.2 After a complicated legal course, the California Supreme Court ruled that once a therapist determines—or should have determined—that a patient poses a serious danger of violence to others, “he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.”3
The 1976 Tarasoff ruling has become a national standard of practice, leading to numerous other patient violence lawsuits. In these cases, psychiatrists are most likely to be found liable when recently released inpatients commit violent acts, particularly if the physician had reason to know the patient was dangerous and failed to take adequate precautions or appropriately assess the patient.4
Wider interpretations. Cases in several states have extended the Tarasoff ruling. In at least two cases, this standard has been applied when the patient threatened no specific victim before committing violence:
- A New Jersey court (McIntosh v. Milano, 1979) found a psychiatrist liable for malpractice on grounds that a therapist has a duty to protect society, just as a doctor must protect society by reporting carriers of dangerous diseases.
- A Nebraska court (Lipari v. Sears, Roebuck, and Co., 1980) held that physicians have a duty to protect—even if the specific identity of victims is unknown—so long as the physician should know that the patient presents an unreasonable risk of harm to others.2