by Jacqueline M. Melonas, RN, MS, JD
Ms. Melonas is a Risk Manager for Professional Risk Management Services, Inc., Arlington, Virginia.
Innov Clin Neurosci. 2011;8(3):45–49
This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice. We invite questions from our readers. The answers are provided by PRMS, Inc. (www.prms.com), a manager of medical professional liability insurance programs with services that include risk management consultation, education and onsite risk management audits, and other resources to healthcare providers to help improve patient outcomes and reduce professional liability risk. The answers published in this column represent those of only one risk management consulting company. Other risk management consulting companies or insurance carriers may provide different advice, and readers should take this into consideration. The information in this column does not constitute legal advice. For legal advice, contact your personal attorney. Note: The information and recommendations in this article are applicable to physicians and other healthcare professionals so “clinician” is used to indicate all treatment team members.
QUESTION: I have heard that patient suicide is one of the most frequent causes of medical malpractice lawsuits against psychiatrists. What is the basis for these lawsuits and are there recommendations for reducing this risk?
ANSWER: It is a hard reality that sometimes in the course of treatment a suicide occurs. In the claims based on patient suicide, there are recurring problems with care that may increase the probability of a lawsuit being filed following suicide. These include inadequate suicide risk assessment, failure to develop or implement a treatment plan that protects the patient from harm, and insufficient documentation of suicide assessments, and clinical decision making.
In risk management terms, a patient suicide is a low frequency, high-severity event. It is a high-severity event because of the devastating impact on those surrounding the patient (i.e., family, friends, treating physicians and other clinicians, community, and school) and in terms of the liability risk for the treating physician or clinician(s).
There are effective risk management strategies that can be used to help protect patients and reduce liability risk for clinicians. Although a patient suicide, or suicide attempt, is one of the most frequent causes of medical malpractice lawsuits against psychiatrists, improving patient safety and reducing liability risk is an important goal for all clinicians who assess and treat patients who are at risk for suicide. These recommendations are based on reviews of lawsuits against psychiatrists. However, the information is applicable to many healthcare professionals, in both inpatient and outpatient settings, who are responsible for assessing patients for potential suicide risk and treating or referring for appropriate assessment and treatment.
The Standard of Care and Allegations
Clinicians are expected to meet the standard of care when treating patients (i.e., exercise the degree of skill, care, and diligence that is exercised by members of the same profession/specialty practicing in light of the present state of medical science). The standard of care does not require clinicians to be able to predict whether a particular patient will attempt suicide nor prevent all suicides and attempts. However, the legal concept of foreseeability is part of the liability determination in a medical malpractice lawsuit. Foreseeability in this instance is related to whether the clinician performed an adequate suicide risk assessment and implemented appropriate safety measures based on that assessment. Stated another way, based on the information available did the clinician know or should he or she have known that the patient was at risk of suicide and, if such foreseeability existed, did the clinician take appropriate steps in response?
Whether a clinician meets the standard of care when caring for a patient who commits suicide or makes an attempt will be assessed by reviewing certain factors, including, but not limited to the following:
- Whether there was adequate identification and evaluation of suicide risk indicators and protective factors for the patient with suicidal behaviors
- Whether a reasonable treatment plan was developed based on the assessment of the patient’s clinical needs
- Whether the treatment plan was appropriately (i.e., not negligently) implemented and modified based on an ongoing assessment of the patient’s clinical status
- Whether the clinician was professionally current regarding the assessment and treatment of patients with suicidal behaviors (i.e., knew suicide risk indicators and protective factors, current treatment options/interventions including medications, therapy, hospitalization)
- Whether documentation in the patient record was adequate to support that appropriate care was provided in terms of the assessment, treatment, and ongoing monitoring of the patient.
These standard-of-care factors and the recurring problems, or risks, in lawsuits are expressed in the allegations commonly asserted in these actions (Table 1). When a plaintiff files a lawsuit, the complaint includes the allegations on which the medical malpractice case is based. These allegations are how a plaintiff asserts that there was a duty of care on the part of the clinician, that there was a departure from accepted standards of care, that the departure caused the plaintiff to sustain damages, and that the plaintiff is entitled to monetary compensation for those damages. At the time that an initial complaint is filed, the allegations listed are unproven. Whether ultimately proven or not, these allegations provide insight into what the plaintiff will try to claim is the standard of care. The following risk management strategies are effective in avoiding many of these common allegations
Managing Risk
The goals of risk management are to 1) ensure patients get appropriate care and 2) reduce legal liability. These dual goals can be achieved through effective risk management strategies that support the best practices in clinical care. The outline provided is not meant to oversimplify the difficulty of finding solutions to reduce risk related to this complex situation but is offered as a synopsis of risk management strategies found to be effective in avoiding the allegations typically seen in these lawsuits, as follows:
- Gathering and analyzing information
a. For adequate suicide risk assessment and treatment plan
b. Including past treatment records/information
c. To stay professionally current about clinical condition and treatments - Communicating
a. With the patient
b. With others
i. Physicians/treatment team
ii. With family, support system - Documenting
a. Suicide risk assessments
b. Patient care and the decision-making process.
Gathering and analyzing information. For an adequate suicide risk assessment and treatment plan. Gathering the essential information for an adequate suicide risk assessment is crucial to reducing risk for the patient and the practitioner. It requires utilizing significant available sources of information about the patient. Expert witnesses in a lawsuit criticize any failure to obtain, or failure to attempt to obtain, past treatment records and information. Input from those who know the patient’s history and current situation, like current and past clinicians and family members, must be obtained. Systems-based solutions can be useful. For example, a standardized checklist of sources of patient information can be used to avoid overlooking routine sources and as a location for documenting all attempts to obtain information and to support that, even if information was not pursued from a particular source, it was considered but rejected for a reason. As the use of interoperable electronic health records (EHR) becomes more readily available, they have the potential to improve access to and completeness of patient information.
Patient safety research and review of lawsuits show that standardization reduces error, making it less likely that important information will be overlooked. Consider using a specific suicide assessment methodology or resource when assessing suicide risk. Evidence-based authoritative practice guidelines provide guidance about the information clinicians should consider in making a suicide assessment, along with recommendations about treatment and planning. An evaluation of comorbid conditions (e.g., substance use/abuse, medical conditions) should not be overlooked and may require consult and/or referral. Reassessment of the patient’s suicide risk at significant clinical points should occur. Too frequently a medical record review reveals that an adequate initial assessment is followed by deficient or no ongoing assessments as treatment progresses. Even if subsequent assessments are performed, they often are not documented.
To stay professionally current. Collect information to stay informed and be professionally current about the assessment and treatment of patients at risk for suicide. Clinicians, who can be portrayed by a plaintiff attorney as not current regarding the professional literature and research about suicide assessment, suicide risk and protective factors, emerging suicide risk in various special populations, proper interventions (e.g., involuntary commitment procedures in the particular jurisdiction), and medications, are more susceptible to claims that they are not proficient in their practice areas. Staying current about medications that may increase suicide risk is essential but can be a challenge due to the amount of information being produced, the speed at which it develops, and because, in some cases, there is conflicting and/or incomplete information (e.g., antiepileptics, antidepressants). Clinicians must be up to date about the medications they prescribe.
Certainly, it is important to be current with applicable evidence-based practice guidelines from authoritative sources. Keep in mind that, although practice guidelines do not by themselves conclusively establish the standard of care, they are used as evidence by both parties in litigation: by plaintiffs to show that the defendant did not follow the standards of practice and by defendants to show that they did.
Do not neglect the basics. Understand and follow the policies and procedures in the settings where you practice (private practice, school, clinic, hospitals), as each setting may have different requirements. For example, in one hospital, the order “close observations” may indicate 15-minute observations, but in another hospital the same order may mean one-to-one supervision or perhaps 30-minute observations. Also, policies and procedures provide evidence as to the standard(s) that has been set by the particular practice/facility. Failure to follow his or her own or the facility’s policies will be used to present a clinician as careless and negligent.
Communicating. With the patient. Good rapport and effective communication with patients can improve patient outcomes and decrease lawsuits. Barriers to communication, not the least of which may be the patient’s reluctance to reveal his or her own true intentions about suicide, must be addressed when they are present. Limited English Proficiency (LEP), health literacy concerns, and physical and cognitive barriers are just some of the obstacles that may be present and must be recognized and dealt with. Some specific communication concerns noted in lawsuits reviewed are the use of “no harm contracts” and failure to involve the patient in treatment planning and the safety plan.
Suicide prevention contracts cannot substitute for an adequate assessment and safety plan for a patient at risk of suicide. These “no-harm contracts” have no legal force and may be relied upon to the detriment of thorough and ongoing assessment and appropriate suicide prevention planning and care. Physicians should evaluate the use of suicide prevention contracts by supervisees and employees. Before considering the use of a no-harm contract, there should be a well-thought-out and clinically sound basis for doing so, and it should be considered as only one possible part of an overall treatment plan.
Communicating (as clinically appropriate) with the patient about treatment planning, as part of the informed consent process, to educate the patient about the risk of suicide and to identify and respond to risk factors as well as suicide prevention plans supports patient safety and can reduce liability risk. For example, the informed consent process should include a discussion of the risks of prescribed medications and safety measures to take, such as reporting symptoms to the clinician. Allegations about the failure of discharge plans in lawsuits related to suicide often include the failure to involve the patient in the discharge planning and/or poor communication of the plan so that the patient is not informed about or committed to the plan.
With other physicians, treatment team members, family, support systems. Lack of proper communication with other clinicians involved in the patient’s care may result in a possible breach of the standard of care. Consultation with other physicians and specialists, formal or informal, is important communication for patient safety, especially with a clinically complex situation. The patient benefits from such consultation and it demonstrates thoughtful decision making by the physician.
Transition points in care are times of high risk for patients. Patients at risk of suicide are particularly vulnerable after discharge from the hospital. Good handoff communication among clinicians is critical at and after discharge so that patients are not lost to follow up. Of course, proper attention must be given to handoff communication at all transition points in care (e.g., referral, termination of treatment relationship, on-call or when covering for a colleague, shift changes, and changes in observation levels in inpatient settings).
As clinically appropriate and subject to patient consent, communicate with family members to educate and get them involved in the patient’s safety. Their input can be vital to understanding the patient risk assessment and treatment. Sometimes clinicians mistakenly believe that to protect patient confidentiality, they cannot take calls or information from family members. Listening to concerns/information from a family member without divulging patient information is not a breach of confidentiality and, in some cases, the communication is invaluable for understanding and protecting the patient. In a critical situation, even if a patient has not given consent, consider alerting family members to the risk of outpatient suicide when 1) the risk is significant, 2) family members do not seem to be aware of the risk, and 3) the family might contribute to the patient’s safety. Patient safety is an exception to confidentiality. In this instance, only the minimum information necessary for the purpose should be revealed.
Documenting. Suicide risk assessments. The documentation of suicide risk assessment is often found to be less than thorough and follow-up assessments are less detailed and sometimes absent when patient records are reviewed after a lawsuit based on a patient suicide is filed. Careful documentation of suicide risk assessments is crucial for evaluating and caring for the patient. Clinicians are often faced with barriers to thorough documentation, such as time limitations, but after the fact, it is difficult to justify reasons for lacking or missing assessments. Reducing risk for both the patient and the clinicians requires identifying and managing any barriers to adequate documentation.
Patient care and the decision-making process. Good documentation provides for continuity of care (the reason for the existence of the patient record) and is also useful for other purposes, such as defending against allegations of breach of the standard of care. The record comprises a significant and substantial part of the defense in a lawsuit based on a patient suicide. Documenting the decision-making processes underlying treatment decisions is vital to building a supportive record. The record should include documentation of actions that were taken by the clinician and why, as well as actions that were considered but rejected and why. This type of documentation demonstrates reasonable, professional, clinical judgment.
Never alter a treatment record. The strength of the treatment record as evidence in a malpractice case is based on the idea that a contemporaneous record of actions and observations can reasonably be relied upon to be true and unbiased. Altering the record undermines this assumption and can result in an otherwise defensible case being rendered indefensible. Correcting mistakes does not constitute “altering” a record; always use accepted methods when correcting mistakes or omissions. A risk manager or legal counsel should be consulted about documentation questions after a patient suicide or any serious adverse event involving a patient.
Conclusion
There are important lessons to be learned by reviewing malpractice claims and understanding the types of allegations that are frequently asserted. Risk management strategies emerge from the information about past lawsuits that can effectively reduce the risk of professional liability and put clinicians into a better position to defend a lawsuit, should one occur.
References
1. A resource guide for implementing the Joint Commission 2007 Patient Safety Goals on Suicide. http://www.stopasuicide.com/downloads/sites/docs/Resource_Guide_Safety_Goals_2007.pdf. Accessed on February 14, 2011.
2. Jabbarpour YM, Jayaram G. Safe passage through suicide risk: navigating the failure modes. SAFE MD: Practical applications and approaches to safe psychiatric practice. APA Committee on Patient Safety. 2008:4–9. http://www.psych.org/Departments/QIPS/Downloads/SAFEMD.aspx. Accessed February 14, 2011.
3. Simpson S, Stacy M. Avoiding the malpractice snare: documenting suicide risk assessment. J Psychiatr Pract. 2004;10(3):185–189.
4. Simon RI. Preventing Patient Suicide: Clinical Assessment and Management. Washington, DC: American Psychiatric Publishing Inc.; 2011.
5. The Joint Commission Sentinel Event Alert. A follow-up report on preventing suicide: focus on medical/surgical units and the emergency department. 2010. http://www.jointcommission.org/assets/1/18/SEA_46.pdf. Accessed on February 14, 2011.
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