The Top Three Things to Know about the Top Three Risk Management Issues

| March 1, 2019

by Charles D. Cash, JD, LLM

Mr. Cash is Assistant 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. 2019;16(3–4):31–32


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 am always interested in improving patient safety and reducing my professional liability risk. I would also like to know that I am not alone in what I worry about in my psychiatric practice. In providing risk management consultations, what are the most frequent risk management topics about which psychiatrists ask? As a psychiatrist in a busy private practice, what are the most important risk management steps that I should implement on those topics?

Answer

Here are the top three risk management issues about which we are asked, along with their risk management pearls. Sometimes these vary in the short-term, but over time, psychiatrists have consistently shown the most interest in these topics.

Requests for Information. Treatment records are the most frequently requested type of information a clinician might receive. At some point, patients might want to see their records or obtain a record copy. Patients generally enjoy a robust right to access and/or obtain copies of their treatment records. This includes records kept by the treating clinician but created by another provider. It also might be necessary for a patient to request the release of his or her health records to someone with adverse interests, such as the opposing attorney in a patient’s divorce proceeding. Appropriately descriptive wording that accurately captures the clinical situation of the patient is most important when documenting a patient’s treatment. However, the clinician might consider using words the patient might find least upsetting should he or she ever read his or her treatment records. Consider also whether the information is clinically relevant and just how much detail is needed before including it in the record. A patient’s infidelity, for example, might be clinically important, but the identity of the paramour might not be. Discreet documentation can greatly reduce the angst that sometimes accompanies treatment record requests. Consider the following three pearls:

1. The clinician should not sit on requests for information. It is vitally important that requests for information be addressed quickly because there are professional, ethical, and legal penalties for failing to respond in a timely manner. Furthermore, failure to respond appropriately to requests in a judicial context might invoke professional liability coverage issues. Responding to a request for information does not always involve disclosing the information. In fact, frequently it does not. Even if the request will be denied and information will not be released, the clinician’s response should be a made in a timely manner. Many states specify a response deadline to requests for information.

2. A bare subpoena is rarely sufficient to release information. A subpoena is a legal document used to obtain the testimony (written or oral) of a witness in a legal proceeding. Subpoenas are usually issued by an attorney, but while attorneys have the authority of the court behind them, their requests do not carry the same weight as actual court orders. Generally, a subpoena alone is not sufficient to compel the release of mental health records. This does not mean, however, that a subpoena can be ignored. Subpoenas require a timely response, even if no information is released.

3. The threshold for denying access to a treatment record copy is high. A written request with a proper release authorization almost always compels a clinician to release a health record copy, even if he or she does not wish to do so. For example, information can be withheld if disclosure would cause the patient to become imminently suicidal or homicidal, but information can not be withheld if it would simply cause the patient to become angry and file a lawsuit. Some states and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule allow clinicians to refuse to release treatment information that might be detrimental to the patient; however, there is typically an appeal mechanism under which the patient can have the clinician’s denial of access reviewed.

Documentation. As with most aspects of clinical practice, proper documentation is a skill that requires ongoing learning and assessment to ensure it meets continually evolving demands. Consider the following three pearls:

1. Documenting the “why” is important. Judges and juries give great deference to clinicians when they understand why the clinician did what he or she did. Detailed explanations of the clinician’s decision-making will substantiate his or her clinical choices and demonstrate that the clinician exercised professional judgment to achieve optimal outcomes for the patient. There are critical junctures in treatment when particular attention should be given to documenting the “why” of things—e.g., admission, discharge, significant changes to a treatment plan, responses to significant clinical events, and changes in observation or privilege level. Documenting what the clinician didn’t do and why he or she did not do it might be considered just as important as documenting what he or she did do and why.

2. Be familiar with documentation standards promulgated by your licensing board. State professional licensing boards often have standards regarding documentation with which psychiatrists must comply. Failure to follow state regulations might be a breach of the standard of care.

3. Never alter a treatment record after an adverse event. An altered or falsified record will be indefensible if discovered (and they almost always are). Additionally, treatment record falsification might be considered a crime and/or constitute professional misconduct. This admonition also includes proper corrections to the record. A treatment record is considered trustworthy for evidentiary purposes because the documentation is created before any adverse event has occurred. Post-event documentation is inherently self-serving and not trustworthy. For proper corrections to the treatment record post-event, it’s best to seek the assistance of risk management or legal counsel so as not to compromise the evidentiary sanctity of the record.

Termination of the treatment relationship. Once a treatment relationship has been established, the clinician has an ethical and legal obligation to continue treating the patient until the relationship has been properly terminated. For this reason, the clinician must know who is and who is not a patient. Ideally, the termination process will begin with an in-person discussion of the need to end the treatment relationship. Consider the following three  pearls:

1. Sufficient notice of the need to end the treatment relationship is the key to avoiding an accusation of abandonment. The length of the termination notice might depend upon the patient’s condition and available healthcare resources in the community. Usually, 30 days’ notice is considered adequate; however, individual state licensing boards or managed care contracts might require a different notice period. In areas where it might be difficult to find another treating clinician, it might be appropriate to give longer notice. The clinician should always provide the patient with a specific termination date after which the clinician will no longer be available. During the notice period, the clinician will need to be available to the patient for emergencies.

2. Educate the patient on his or her treatment needs and available resources. It is important to give explicit treatment recommendations to the patient and to educate the patient about the need for continued medical care, if necessary, and the potential risks of not obtaining recommended treatment. This should also include detailed instructions regarding medications. Clinicians should include the name and dosage for each medication, as well as any other important information in the treatment recommendations prior to termination (e.g., the danger of stopping a medication abruptly). Unless the patient no longer needs treatment, the clinician must provide the patient with suggestions for finding continued care. This does not mean the clinician needs to provide specific names of other clinicians willing to see the patient. Suggesting that the patient look to his or her primary care physician, his health insurance panel, a referral service, or a local clinic are all acceptable. A letter should be sent to the patient memorializing the discussion. The letter should also include instructions for how to obtain a treatment record copy for the patient’s new healthcare clinician.

3. Persisting in a treatment relationship that has run its course and inadvertently re-establishing a treatment relationship should be avoided. There are many valid reasons for a clinician to terminate treatment. The patient might require a higher level of care or would benefit from someone who specializes in treating his or her specific disorder. It is also acceptable to terminate a treatment relationship with patients who are nonadherent to the treatment plan, are overly demanding of the clinician’s and/or staff’s time, do not pay fees, or have breached the clinician’s trust. Giving treatment advice and writing or refilling prescriptions beyond the date of termination might be seen as re-establishing a treatment relationship with the patient and assuming all of the ethical and legal obligations that go along with it.

Conclusion

While the answer above describes the top three risk management issues that we are asked about, these are not the greatest professional liability risk exposures for psychiatrists. Those are medication adverse events and patient suicide or attempted suicide. Readers are encouraged to review available resources on these topics from their professional societies and licensing boards.

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