It’s Nice to Be Nice, But…A Little Risk Management Can Go a Long Way in Reducing Your Liability Risk

| November 1, 2018

by Donna Vanderpool, MBA, JD

Ms. Vanderpool is Vice President at PRMS, Inc. in Arlington, Virginia.

Funding: No funding was provided for the preparation of this article.

Disclosures: The author is an employee of PRMS Inc., a risk management consulting company for healthcare providers.

Innov Clin Neurosci. 2018;15(11–12):36–38

PLEASE NOTE: This article and all other articles in the Risk Management series of this journal are intended for physicians and other healthcare professionals only. If you are a patient or are the friend, family member, parent, guardian, or caregiver of a patient and have a question regarding medical treatment, please contact your personal attorney or seek advice from a professional service that is intended for patients. Emails, letters, phone calls, or any other form of communication sent to the authors, editors, journal staff, or publisher of this journal from individuals seeking advice regarding medical treatment—who are not licensed healthcare providers—will not be answered or otherwise acknowledged and will be immediately deleted by the recipient.


This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice. The questions and 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

“My patient is having financial difficulties and is behind in paying my bill. He owns a landscaping company and has asked me if he could work off his bill by providing me landscaping services. I’m considering it because I own the building with my office, so he could do the work there versus at my private residence. I know this arrangement would help my patient, and I would like to do it. Am I missing any professional liability concerns?”

Answer

Psychiatrists being asked by patients who are unable to pay their bill to agree to a barter arrangement, whether exchanging professional services for a tangible item or for personal services, should recognize the complicating issues. For example, how will the barter arrangement be structured? Are there tax implications? What if the work is not acceptable? What if the patient becomes too ill to work? In some cases, the psychiatrist had the best intentions, but then something went wrong in the relationship, and allegations of nontherapeutic motivations resulted. In such situations, psychiatrists are advised to consider working out a monthly payment plan to help the patient meet his or her financial obligation. If this is unacceptable, the psychiatrist might need to consider termination of the treatment relationship and referral to community mental health services or other services that can meet the patient’s clinical and financial needs.

As illustrated by this question, psychiatrists can easily find themselves in situations where agreeing to help someone, such as a colleague or a patient, results unexpectedly in an increase in their own professional liability risk. Presented here are various examples that, while certainly not an exhaustive list, illustrate the importance of evaluating your own risk exposure when agreeing to the seemingly reasonable requests of others.

Be careful when “helping” a patient

Prescribing extended amounts of medication. Patients might ask psychiatrists to prescribe large amounts of medication, often for the purpose of receiving better prescription drug plan benefits. Such requests must be evaluated for clinical appropriateness, including consideration of the patient’s risk of overdose, even if it might cost the patient more money.

Prescribing medication after termination of the psychiatrist–patient relationship. Psychiatrists should understand that if they prescribe after the termination date, they are still treating the patient they purportedly terminated. Sometimes former patients request a medication refill after a termination date. There might be a valid basis for the patient’s request, such as a delay in being seen by the new psychiatrist. Certainly, psychiatrists who weigh the risks and benefits of prescribing versus not prescribing might decide to prescribe. If this is done, the prescriber should understand his or her responsibility for meeting the patient’s clinical needs, as always, and prescribe only the minimum amount necessary. Also, it should be explained to the patient that the termination date is being extended this one time and that there is a new termination date, after which medications will no longer be prescribed.

Failing to terminate the treatment relationship with a nonadherent patient. Patients, by their own nonadherence, might limit the psychiatrist’s ability to effectively treat them, such as a patient who is prescribed lithium but refuses to get the ordered blood work. If the patient remains nonadherent after reasonable efforts have been made to work with the patient and resolve this issue, the psychiatrist should understand the risk associated with staying in that treatment relationship—A patient who is chronically nonadherent to treatment is not allowing the psychiatrist to provide treatment within the standard of care. Once it is clear there is no agreement on a treatment plan, including actions required of the patient (e.g., bloodwork or taking medication as prescribed), the psychiatrist should consider terminating the treatment relationship. Psychiatrists in these situations might believe that substandard care is better than no care, which would be the case if the treatment relationship was terminated. However, from the risk management perspective, substandard care is just that—care that does not meet the standard of care. Psychiatrists are encouraged to not allow patients to convince them to be negligent.

Not asking for proof of substitute decision-maker’s authority. Whenever the patient is incompetent to make treatment decisions, particularly minors with divorced parents or adults for whom guardians have been appointed, the treating psychiatrist should obtain proof of the substitute decision-maker’s authority. Such authority could include court documentation of appointment of the guardian for an incompetent adult or a copy of the custody order for minor children of divorced parents. Problems for psychiatrists have occurred where proof was not obtained and the psychiatrist treated the patient based on the representations of the party bringing the patient to the appointment, when in fact, that party had no authority to consent to treatment. When the party with authority to consent found out, the psychiatrist was accused of treating without consent.

Taking on dual roles of “expert witness” and “treating psychiatrist.” Psychiatrists might be asked by patients who are involved in litigation (where the treating psychiatrist is not a party to the litigation) to provide expert witness testimony. However, taking on the dual roles of treater and expert witness (i.e., performing an evaluation for legal purposes) could adversely affect the therapeutic relationship and the psychiatrist’s objectivity as an expert. For child and adolescent psychiatrists, this situation might arise in the context of a parent requesting testimony in a custody dispute. While it may be appropriate for the psychiatrist, as the treater, to provide factual information (with proper authorization), multiple roles bring with them the real possibility, if not inevitability, of conflicting obligations (i.e., the patient’s clinical needs versus the parents’ legal needs). Conflicting obligations increase the risk of clinical, ethical, and even legal problems. If possible, avoid assuming multiple roles. The safest response to such a request is to explain the limits of your role as a treating psychiatrist, outlining the potential conflicts, and reiterating that the patient’s treatment is the primary concern. If an expert opinion is needed, it should be obtained from an independent expert.

Psychiatrists are also encouraged to let the record speak for itself. For example, when a patient’s attorney wants to talk to you about the patient’s care, remember that you do not have to agree to speak informally (vs. formally in a deposition) with the patient’s attorney, even if the patient authorized such discussions. Rather, you can advise the attorney that, with the proper authorization, you can release the patient’s record and that you have nothing to add to the record. Psychiatrists might find themselves in a tough situation after agreeing to talk to a patient’s attorney about the treatment, and later (often close to the trial date) learning that the patient and the patient’s attorney are expecting the treating psychiatrist to provide expert witness services.

Giving a deposition without notifying your malpractice insurance company. Psychiatrists might find themselves being asked to assist in a patient’s litigation, aside from being an expert witness. The patient’s attorney might want to depose the psychiatrist about treatment issues. In addition to confidentiality issues, there could be issues related to the psychiatrist’s own liability. There have been cases where the psychiatrist, who was not a defendant in the patient’s medical malpractice case against another healthcare professional, agreed to give a deposition and did not notify his/her malpractice insurance company prior to the deposition. As a result of the deposition testimony, given without legal counsel representing the psychiatrist’s interests, the psychiatrist was named a defendant in the underlying medical malpractice case.

Be Careful When “Helping” a Colleague

Prescribing for a colleague. Psychiatrists should understand that prescribing medication is generally equated with treating. Accordingly, if prescribing for a colleague (or other non-patient, such as a family member), it is likely that the state licensing board would attach the same treatment expectations as with a formal patient, such as examination before prescribing and documentation of the evaluation and treatment.

Agreeing to not keep records. While the urge to accommodate a colleague might be strong, psychiatrists should keep in mind that the standard of care must always be met, and documenting the care provided is part of the standard of care. Consider the case where a physician sought treatment from a psychiatrist and asked the psychiatrist not to keep any records. The psychiatrist—as a courtesy to her colleague—agreed, but regretted this decision later when that patient who was the physician sued the psychiatrist and filed a board complaint. Because there were no records, the psychiatrist’s defense of her care in the lawsuit was compromised and she was disciplined by the board.

Renting office space for a percentage of fees collected. Psychiatrists might be approached by colleagues who are  independent practitioners and want to rent office space. The renting providers might ask to pay a percentage of fees collected for rent and administrative support over paying a set monthly rental fee. While such business arrangements are common, there are ethical and legal issues that should be considered. Legal counsel for clarification of these issues might be necessary. The preferred arrangement would be to negotiate a mutually agreed upon fair market value fee for the use of space and, if applicable, administrative support.

*Author note: The examples discussed in this article are based on actual cases reported to PRMS, Inc. by insured psychiatrists. In all of these cases, the psychiatrist was very well intentioned, and did not envision any negative consequences.  The next time you have a similar request from a patient or colleague, you may want to check with your risk managers or a colleague prior to agreeing to the request. 

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