By Ann Mcnary, JD
Ms. McNary is Senior Risk Manager at PRMS, Inc. in Arlington, Virginia.
Funding: No funding was provided for the preparation of this article.
Disclosures: Ms. McNary is an employee at PRMS, Inc.
This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice. 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.
Innov Clin Neurosci. 2018;15(5–6):46–59
A patient whom I had been seeing for quite some time recently committed suicide. The patient had expressed some suicidal ideation in the past, but things were going very well for her recently, and I am completely shocked by this. I am devastated by the loss of this patient and concerned that I will be found liable for her death.
An impression shared by many clinicians is that to avoid liability related to patients with suicidal behaviors, they must be able to predict whether a particular patient will attempt suicide and then prevent all suicide attempts, however unforeseeable. Thankfully, courts recognize that clinicians are only human and are not expected to have impossible powers of prediction. The clinician is, however, expected to meet the standard of care when treating the patient. In other words, the clinician will exercise that degree of skill, care, and diligence exercised by members of the same profession/specialty practicing in light of the present state of medical science. As stated in court during the case of O’Sullivan versus Presbyterian Hospital,1 “When a psychiatrist chooses a course of treatment within a range of medically accepted choices for a patient after a proper examination and evaluation, the doctrine of professional medical judgment will insulate such psychiatrist from liability.”
To prevail in a medical malpractice lawsuit, the plaintiff must prove that the defendant clinician breached the standard of care in his or her treatment of the patient. But the standard of care is not a static concept. Just as there is no such thing as a blanket treatment plan applicable to every patient with a given diagnosis, there is no such thing as a blanket standard of care. The standard of care encompasses a range of acceptable treatment options and requires the exercise of the clinician’s professional judgment based on that specific patient’s clinical needs. For this reason, the plaintiff attorney will often need to attack a clinician’s care from several angles.
Since the 1980s, PRMS Inc. (Arlington, Virginia), a manager of medical professional liability insurance programs, has reviewed and managed tens of thousands of claims and lawsuits against clinicians—many of which have involved a patient’s suicide or attempted suicide. In so doing, we have observed many ways in which a plaintiff might allege that a clinician has breached the standard of care. This information has allowed us to develop risk management strategies to assist clinicians in providing good clinical care and also in guarding against the most frequent types of allegations. The following is a discussion of our findings.
Common Allegations and Risk Management Strategies
Allegations related to evaluation of the patient. These types of allegations relate to a clinician’s failure to take an adequate patient history and/or adequately assess the patient and/or make an accurate diagnosis. Typical allegations include the following:
- Failure to obtain an adequate medical and social history
- Failure to contact the prior physician
- Failure to obtain history from the family, including past suicidal behaviors
- Failure to determine what treatments had previously failed
- Failure to review prior medical records
- Failure to perform a full mental status exam
- Failure to properly evaluate and record patient’s risk for suicide
- Failure to reach a rational diagnosis based on careful examination and history of the patient
- Failure to weigh psychodynamic factors
- Failure to diagnose medication intoxication and dependency
- Failure to diagnose suicidality.
Risk management strategies to consider include the following:
- Explore the patient’s clinical history and past treatment, if any. Obtain prior treatment records and consult with past treaters if indicated and if possible. Document your attempts to get records and information. While your treatment recommendations might not be affected by previous information, past records can give you a more comprehensive and nuanced context in which to understand the patient. Additionally, you might benefit from the experiences of previous clinicians.
- If permitted, consult with family members and others close to the patient for information about the patient’s history, presenting condition, and life circumstances.
- Assess the patient’s suicide risk at significant points in the treatment, including, but not limited to the following:
- At the outset of treatment
- With the occurrence of suicidal or self-destructive ideation or behavior
- When significant clinical changes occur
- When a change in supervision or observation level is ordered.
- Be alert for, and respond to, developments in a patient’s life that could increase the risk of suicide, such as the following:
- Being discharged
- Being transferred from one level of care to another.
Allegations related to treatment of the patient. Generally, these allegations concern decisions about appropriate treatment modalities and settings, as well as the correct development and implementation of the treatment plan. Typical allegations include the following:
- Failure to take reasonable steps to ensure the patient’s safety
- Failure to take protective measures (such as placing the patient on constant observation)
- Failure to remove dangerous objects (such as shoelaces, sharps, firearms/weapons)
- Failure to develop a comprehensive treatment plan
- Failure to hospitalize for suicidality
- Failure to communicate with other clinicians involved in the patient’s care (e.g., clinician fails to communicate clinical concerns to other clinicians involved in the patient’s care)
- Failure to communicate with the patient’s family or significant others (e.g., the family alleges that the clinician failed to alert them to the patient’s suicidal ideation)
- Improper reliance on “no-harm” contract
- Failure to weigh the benefits of electroconvulsive therapy (ECT) in a timely manner
- Improper medication prescribing/management
- Failure to provide adequate post-discharge care.
Risk management strategies to consider include the following:
- Discuss the need for a safe environment for patients with suicidal behaviors. The accessibility of firearms or other weapons should be assessed, and an appropriate plan for safety should be instituted, including obtaining information from and instructing family/significant others about this issue.
- Familiarize yourself with the policies of all hospitals or other institutions/organizations where you provide treatment and practice accordingly. For example, understand what is meant by “one-to-one” observation at each facility.
- Frequently reassess the patient’s risk of suicide and the safety of the patient’s environment and make adjustments in the treatment plan, as needed.
- Know the criteria and procedures for involuntary hospitalization in your state. Even though a patient at risk for suicide does not meet the criteria for hospitalization at one point in treatment, assessment should be ongoing to determine when and if that assessment changes.
- When appropriate, involve and educate the patient’s family and significant others about the patient’s situation and treatment. The patient, other clinicians, and the patient’s family should be appropriately warned about the potential for suicide and significant risk factors. If the patient will consent to communication with significant others, consider discussing the following:
- Do they know what behaviors to be on the lookout for that might indicate increased risk?
- Do they know what to do if they notice these symptoms or behaviors?
- If the patient will not consent to communicating with family or others,2 remember, there are some exceptions to patient confidentiality, such as when a patient is in danger of harming himself or others. Accordingly, even without patient consent, consider alerting family members and significant others to the risk of outpatient suicide when 1) the risk is significant, 2) the family members do not seem to be aware of the risk, and/or 3) the family might contribute to the patient’s safety.
- Listen to those who reach out to provide you with information regarding the patient. It is not a breach of confidentiality to listen or to otherwise receive information, and it might provide valuable insight into the patient’s suicide risk.
- Train office staff as to what conditions and issues patients or families might call about that would require immediate referral to you or another clinician.
- Maintain ongoing communication with other treaters, especially when the patient is being treated in a split treatment or collaborative treatment situation. Have a plan in place outlining what information will be communicated and what events/situations will trigger contact, (e.g., missed appointments, medication changes, reports of suicidal gestures, loss of protective factors). Obtain patients’ consent to communicate with other treatment providers, if such consent is needed, at the outset of treatment.3 On an inpatient unit, read the documentation of other treaters and address conflicting information or assessments. This demonstrates that you were aware of the information, took steps to clarify it, and factored the information into your assessment and treatment recommendations.
- Avoid relying solely on “no-harm” contracts as a guarantee of patient safety. These “contracts” have no legal force and cannot take the place of an adequate suicide risk assessment. It might be appropriate for a “no-harm” contract to be one part of a comprehensive treatment plan, but it is your responsibility to evaluate the patient’s suicide risk and ability to participate in the overall treatment plan.
- Complete appropriate baseline laboratory testing, a comprehensive patient history, and any necessary physical examinations before prescribing medications. Monitor medication levels and all ongoing laboratory testing regularly. Medication decisions should reflect your knowledge of this patient, the severity of the risk, and the extent to which prescribed medications could be of significance to the patient. Avoid telephone refills without assessing the patient, particularly when you are covering for a colleague.
- Avoid terminating treatment with a patient who is in crisis. If the patient’s condition requires hospitalization, you can terminate safely while the patient is hospitalized. The patient and the in-patient treatment providers should be informed of your inability to accept the patient back into your practice upon discharge so that planning for alternative treatment arrangements can begin as soon as possible.
- Patients are at increased risk of suicide after discharge from hospitalization. An assessment of the patient’s status should be done prior to discharge, and a reasonable discharge plan should be in place to provide adequate support and care at this vulnerable time.
Allegations related to a physician’s lack of knowledge of current treatment methods of assessing and treating patients with suicidal behaviors. Many of the allegations previously cited could be asserted to support a claim that a clinician did not meet the standard of care because the clinician was not professionally current about assessing and prescribing treatment for patients with suicidal behaviors. For example, an allegation of failure to diagnose suicidality could result from a clinician’s not knowing the suicide risk associated with specific psychiatric disorders. Or, an allegation of negligent psychopharmacologic management could be related to a clinician not being up-to-date on the effectiveness of certain medications on decreasing potential suicide risk.
Risk management strategies to consider include the following:
- Stay current with the field. Maintain competency with regard to the medications and other forms of psychiatric treatment you are providing.
- Do not hesitate to consult with or refer to colleagues when appropriate.
Unfortunately, meeting the standard of care is not enough to deter a plaintiff’s attorney from filing a lawsuit against you; you must also be able to prove that you have met the standard of care. Here, the old phrase “if it isn’t documented, it didn’t happen” rings particularly true. Your written treatment record stands as a testament of the treatment provided and the reasoning behind it. Your record is a significant and substantial part of your defense against any claim of malpractice. Highly defensible cases where the clinician delivered seemingly flawless treatment have been lost or settled because of poor documentation. Documentation problems that have been noted in malpractice cases run the gamut from no chart notes to poor or incomplete chart notes to wildly inconsistent and self-serving entries made after an adverse event.
If, after an adverse event, you find your records to be lacking in thoroughness, you must resist the urge to “fill in the blanks” (unless instructed to do so upon the advice of counsel). 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 totally indefensible.
As we have learned from our PRMS defense attorneys, generally a jury will ultimately decide whether the provider departed from the standard of care. That determination will be made after the jury is presented with the testimony of the provider, the experts for the provider and the patient, and other relevant witnesses. A chart that carefully documents the provider’s reasoning process and suicide assessments is a powerful defense tool because it 1) allows the provider and his expert to testify as to specifics, 2) makes the provider’s testimony more believable, and 3) places the provider’s attorney in a better position to convince the jury that the patient’s expert is engaging in second-hand guessing after the fact.”
There are important lessons to be learned from reviewing malpractice claims and understanding the types of allegations that are frequently asserted against clinicians. By taking these into consideration, clinicians might be able to correct potential problems in their own practices and thus improve patient care—which, of course, is always the very best risk management strategy.
- O’Sullivan v Presbyterian Hosp. in City of N.Y. at Columbia Presbyt. Med. Ctr., 217 AD2d 98, 100 
- American Psychiatric Association. The Principles of Medical Ethics: With Annotations Especially Applicable to Psychiatry, eEdition. Washington, DC: American Psychiatric Press, Inc.; 2013: Annotation 8, Section 4: “When, in the clinical judgment of the treating psychiatrist, the risk of danger is deemed to be significant, the psychiatrist may reveal confidential information disclosed by the patient.” https://www.psychiatry.org/psychiatrists/practice/ethics. Accessed June 22, 2018.
- Under the Federal Health Insurance and Portability and Accountability Act of 1996 (HIPAA), covered providers have regulatory permission to discuss patients’ protected health information for treatment purposes. Some states, however, might have more stringent requirements to obtain permission from patients before releasing protected health information for this purpose. From a risk management perspective, it is recommended that psychiatrists obtain consent to talk to other treaters whenever possible and clinically reasonable. This is also consistent with the American Psychological Association (APA)’s holding in The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry that the patient’s consent should be obtained before disclosing protected health information.