Practicing Well: Staying Ethical & Avoiding Malpractice ...

Practicing Well: Staying Ethical & Avoiding Malpractice ...

Practicing Well: Staying Ethical & Avoiding Malpractice William H. Reid, M.D., M.P.H. Clinical Professor of Psychiatry, University of Texas Health Science Center Adjunct Professor, Texas A&M College of Medicine & Texas Tech University Medical School Clinical Faculty, UT Southwestern Austin Medical Education Program For a copy of the PowerPoint slides of this presentation, please email [email protected] Copyright 2010, William H. Reid, M.D. 1

Learning Objective To understand many of the primary causes of malpractice and ethics violation allegations in psychiatry and other mental health professions. Copyright 2010, William H. Reid, M.D. 2 I am not a lawyer. Nothing in this presentation should be

construed as legal advice. Copyright 2010, William H. Reid, M.D. 3 Scope of the problem Practice problems may sometimes be systemic. We should be concerned about bad or mediocre practices being taught to trainees and becoming normal. Normalizing doesn't make them right, and

doesn't generally protect one from malpractice allegations. Copyright 2010, William H. Reid, M.D. 4 Malpractice Insurance Reform Sounds good on paper, but. . . One consequence is removing patients opportunities for redress for real wrongs. Thats not fair to patients; it supports bad doctors & hospitals; and it makes broad

government restrictions far more likely. Copyright 2010, William H. Reid, M.D. 5 PRACTICING WELL IS THE BEST APPROACH. That's easy for me to say. Copyright 2010, William H. Reid, M.D. 6

Practicing well often simply involves remembering our training, but . . . Sometimes poor clinician models, & training sites teach or encourage questionable care. For example, Early discharge Admission rules confused w/ commitment reqts Inadequate time & frequency for appointments Limitations based on payers (even for acute care) Limitations on obtaining collateral information Requiring referral to unknown therapists or other practitioners (Why is requiring in quotes?) Accepting facility policies as within the standard of care

Copyright 2010, William H. Reid, M.D. 7 ETHICS Copyright 2010, William H. Reid, M.D. 8 ETHICS Official ethics are promulgated by organizations. The only enforcement is censure or expulsion by the

organization. If you're not a member, that may not matter to you. Ethical principles per se have nothing to do with law or government rules unless they have been incorporated into it/them. Thats often the case. Copyright 2010, William H. Reid, M.D. 9 Ethics & Malpractice Ethical principles per se have nothing to do with malpractice unless they have been incorporated into the standard of care.

Thats often the case. Some general ethics of our professions (e.g., from Hippocrates) are keenly felt regardless of affiliation. Many observers hold contradictory or hypocritical views of Hippocrates (e.g., supporting do no harm while ignoring proscriptions against abortion). Copyright 2010, William H. Reid, M.D. 10 APA version Principles of Medical Ethics (AMA, annotated for psychiatry), 2009 Revision at

www.psych.org/MainMenu/PsychiatricPractice/Ethics/Resourc esStandards/PrinciplesofMedicalEthics.aspx APA Ethics Committee Opinions latest online version cant be downloaded just now, but its at www.psych.org/MainMenu/PsychiatricPractice/Ethics/Resourc esStandards/OpinionsofPrinciples.aspx Ethics Primer (David Wahl, MD, ed.), APPI (35.95), often used by residents, but doesnt get specific. Copyright 2010, William H. Reid, M.D. 11

Other Ethics Guidelines Non-psychiatric organizations (AMA, NASW, APsycholA, ANA) Allied psychiatric organizations (AAPL, ACP, etc.) What if youre not a member of a professional organization? Copyright 2010, William H. Reid, M.D. 12 Ethics Exceptions?

Slavish attention to some versions of ethics can occasionally obscure whats important and interfere with good care, but who gets to decide? Whoever it is, he or she shouldnt be a trainee or inexperienced clinician. Trainees need to follow the rules for a long time and understand them well before they consider bending them. Copyright 2010, William H. Reid, M.D. 13 Exceptions?, continued Should psychiatrists who just do evaluations,

brief consultations, or medication checks be viewed differently from those who have more intensive or psychotherapeutic patient relationships? Should the former be treated more as the guidelines treat nonpsychiatric physicians (e.g., with respect to gifts or employing patients)? Copyright 2010, William H. Reid, M.D. 14 Exceptions?, continued With regard to patient-sex infractions, should

clinical organizations (1) continue to be rigidly zero tolerance? (2) Continue to punish all patient-sex infractions identically? (3) Ignore the passage of time or prior punishments? Why does the APA answer yes to each of the above? Copyright 2010, William H. Reid, M.D. 15 Slippery Slopes There are myriad ones, some worth watching carefully and others not (consider, for example,

simple courtesy, simple touching, small favors for patients). Pay attention to the reasons you behave as you do with particular patients, and watch for (and assess) behaviors that are exceptions to your routine. Copyright 2010, William H. Reid, M.D. 16 MALPRACTICE Copyright 2010, William H. Reid, M.D.

17 MALPRACTICE A subset of bad practice. Bad practice isnt malpractice until a court or settlement says its malpractice, but it is highly highly correlated with malpractice and puts patients at risk. We should be very concerned about bad practice, whether it becomes malpractice or not. Copyright 2010, William H. Reid, M.D.

18 MALPRACTICE, continued Some kinds of malpractice are rarely pursued in litigation; that doesn't make them any nicer. Consider sex with patients and other things that arent profitable for plaintiffs lawyers, or situations in which malpractice reform makes it hard for truly wronged patients to sue truly negligent doctors or hospitals. Copyright 2010, William H. Reid, M.D. 19

MALPRACTICE, continued Unfortunately, psychiatrists and psychotherapists can often get away with inadequate care for a long time before something really bad comes to light. That ability to cut corners (not the same as appropriate shortcuts by experienced clinicians) makes some clinicians complacent about always adhering to the standard of care. Copyright 2010, William H. Reid, M.D. 20

MALPRACTICE, continued The standard of care (which must be breached to establish malpractice) is not defined by practice guidelines, ethics principles, facility policies, or Joint Commission requirements. Those things may represent or suggest a standard of care (and are often consistent with it), but they do not determine it. Copyright 2010, William H. Reid, M.D. 21

MALPRACTICE, continued The standard of care is usually fairly broad, with more than one way to meet it. A reasonable effort to do what is necessary, or reasonable consideration of important items followed by a reasonable decision process with adequate clinical judgement, is often sufficient to meet the standard. Copyright 2010, William H. Reid, M.D. 22

MALPRACTICE, continued The SOC requires only adequate care. Excellence or good care is not the point. One permutation of this, not really an SOC issue, is a caregivers representation of excellence (e.g., advertising the best psychiatric care in town), which may increase a patient's entitlement or reasonable expectation for that doctor or facility. Copyright 2010, William H. Reid, M.D. 23

When Fudging Backfires Patients symptoms are sometimes exaggerated to justify admission or payment. Patient care may thus be less intensive than expected for the recorded admission findings. If a tragedy occurs, the record appears to show that more intensive care & closer monitoring were needed than actually occurred, which may go against the clinicians & facility in a lawsuit. This doesnt mean the admission was unjustified, but rather that the symptoms were falsely portrayed (creating ethical and legal issues). Copyright 2010, William H. Reid, M.D.

24 Allegations That Malpractice Carriers See Most Often Related to things that cause lots of damage, and often also to what is covered, rather than to actual frequency of events. The majority involve suicide and attempted suicide (suicide itself plus large portions of other categories). See next section for less common, but notable, "causes of action." Copyright 2010, William H. Reid, M.D.

25 Common Psychiatric Claims 2000-2009 (Thanks to Donna Vanderpool, Psychiatric Risk Management Services, Inc.) Incorrect treatment (41%) Suicide/attempts (17%) Drug reaction (14%) (includes all medication & prescribing issues) Incorrect diagnosis (6%) Copyright 2010, William H. Reid, M.D.

26 UNCommon Psychiatric Claims 2000-2009 (Thanks to Donna Vanderpool, Psychiatric Risk Management Services, Inc.) Unnecessary commitment (4%) Undue Familiarity (3%) Breach of confidentiality (3%) Improper supervision (patient and staff) (2%) Under 2%: forensic practices, boundary violations, abandonment, lack of consent, third-party/Tarasoff, administrative practices, premises liability WHY ARE THESE PERCENTAGES SO LOW? . . .

Copyright 2010, William H. Reid, M.D. 27 Why are these percentages so low, even though some of the items are heavily stressed in training, guidelines, and rules? (Feel free to choose more than one) Are they less common than we assume? (perhaps because theyve been successfully taught) Are they less important to patients?

Are they less important in general than assumed? Are they less likely to cause significant damage? Are they less remunerative to lawyers & plaintiffs? Copyright 2010, William H. Reid, M.D. 28 Suicide-related Claims: Failure to Take reasonable steps to ensure patient safety (broad; the law loves the word reasonable) Constantly observe when indicated) Search for & remove dangerous objects (shoelaces, firearms, drugs, some clothing)

Mitigate inpatient physical dangers (e.g., fixtures, locks, esp. in closed rooms) Copyright 2010, William H. Reid, M.D. 29 Suicide-related, continued: Failure to Develop a comprehensive treatment plan Hospitalize or keep in hospital long enough Communicate adequately to other clinicians (current & downstream, including jails) Communicate adequately with family

(not to delegate responsibility) Copyright 2010, William H. Reid, M.D. 30 Suicide-related, continued: Failure to Understand that no-harm contracts are very unreliable Adequately consider ECT Adequately use & manage medications (including allowing for response time)

Provide/assure/offer adequate follow-up Copyright 2010, William H. Reid, M.D. 31 Suicide-related, continued: Failure to Document your decisions and care thoroughly What you did. What you found. What you considered & how you considered it. Why you did what you did (your judgement).

Good documentation of your assessment and judgement processes is probably your best defense against being sued for malpractice (and it reminds you of important clinical points). Copyright 2010, William H. Reid, M.D. 32 Patients Over 65 2008 PRMS study 33% of allegations were related to alleged adverse effects of medications

20% to injury from falls (often allegedly related to medication effects) 20% to injury from a comorbid (general medical) condition 18% to suicide (a smaller portion than in other age groups interesting, but may be higher) Copyright 2010, William H. Reid, M.D. 33 Tragedies I See Most Often Forensically (including in peer-review, generally filtered by lawyers, licensing boards, or quality improvement processes)

Suicide-related Assaults in facilities (hospital, residential care) Death/Injury in restraint/seclusion (hospitals, RTFs, nursing homes, jails) Danger to others (from assault or accident related to illness) Copyright 2010, William H. Reid, M.D. 34 What I See: Suicide-related events

(all of the above, plus) Not recognizing & adequately managing risk. Inadequate ongoing assessment & treatment. Inadequate precautions for new/unfamiliar pts. (Default must be to err on the side of caution.) Premature discharge or decrease in precautions. Copyright 2010, William H. Reid, M.D. 35

What I See: Suicide, cont. Discharge or decrease in precautions without good evidence of lasting positive change. Lower quality of care related to lack of insurance (after accepting the patient for care). Too little time spent with patient. (especially phone prescribing or failing to examine personally when one doesnt know the patient) Copyright 2010, William H. Reid, M.D. 36

What I See: Suicide, cont. Relying on assessments & communications by inadequately trained or qualified persons (e.g., some screeners) Failure of primary care physicians to obtain psychiatric consultation or referral (esp. for knowable suicide risk & medication issues). Lack of information, including relying inappropriately on the patient himself/herself. Copyright 2010, William H. Reid, M.D. 37

What I See: Suicide, cont. Inadequate documentation (e.g., details of events and your decision process). Inadequate monitoring, etc., of special or VIP patients (esp. clinicians, therapists). Inadequate monitoring for treatment response (especially antidepressant medication effects). Copyright 2010, William H. Reid, M.D. 38

What I See: Suicide, cont. Inadequate risk management plans within the Treatment plan and problem list (e.g., rote or vague objectives such as pt. will deny suicidal thoughts or pt. will no longer be suicidal). Inappropriate completion of close monitoring logs & checklists. Copyright 2010, William H. Reid, M.D. 39 For a more detailed discussion of

suicide risk assessment, recognition, management, and mitigation (both clinical and forensic aspects), feel free to click on the Suicide Risk link at the top of www.reidpsychiatry.com. Copyright 2010, William H. Reid, M.D. 40 What I See: Patient assaults on patients Patients are a vulnerable class of people. Psychiatric hospitals, residential facilities, and ERs

(acute & crisis care units in particular) are known to routinely contain unpredictable, aggressive, and/or predatory patients. Those facilities have a duty to protect patients from foreseeable harm and to prevent them from harming others. Foreseeability is not the same as predictability (think of big potholes). Copyright 2010, William H. Reid, M.D. 41 What I See:

Injury/death in restraint/seclusion Often separate from suicide. Includes tragedies in hospitals, RTFs, nursing homes, and jails. Inadequate observation and clinical inattention are common findings. Seizure, aspiration, dehydration, injury from the restraint apparatus, vulnerability to abuse. Copyright 2010, William H. Reid, M.D. 42 Allegations I See Occasionally

Sex with patients. Failure to know caregiver or environment before referring a patient. (e.g. to a counselor/therapist or jail) Assault/abuse/neglect by facility staff. Failure to obtain specialist consultation (e.g., for altered sensorium, inpatient injury, diagnosis/treatment of general medical conditions) Copyright 2010, William H. Reid, M.D. 43

Allegations I see occasionally, cont. Medication-related damage (e.g., failure to monitor condition [lithium, olanzepine, Risperdal Consta], adverse reactions [seizures, dyskinesias, sudden death]) Failure to consider ECT Injury/death after eloping (not always from a hospital) Copyright 2010, William H. Reid, M.D.

44 Allegations I Rarely See (but can be important) Lots of smoke many people ask about them. Not much legal fire. Copyright 2010, William H. Reid, M.D. 45 Allegations I Rarely See Confidentiality issues, unauthorized

communication. Inappropriate hospitalization or wrongful commitment. Inadequate consent (but I dont see kids). Misdiagnosis or erroneous treatment per se (associated with simple lack of improvement). Copyright 2010, William H. Reid, M.D. 46 Allegations I rarely see, cont.

Failure to warn or protect (state precedents). Polypharmacy. Record alterations by physicians or nurses. Boundary issues except sex with patients. Inadequate termination procedures. Copyright 2010, William H. Reid, M.D.

47 Allegations that Licensing Boards Often See Boundary/sex/familiarity issues Physician impairment (mostly drugs & alcohol) Illegal prescribing Incompetent practice; treatment failure

Smaller things, like records problems & lack of timely response to patients Even smaller things, like patient complaints of rudeness & inconvenience Copyright 2010, William H. Reid, M.D. 48 Why do licensing boards see a different skew of bad practice allegations? They exist for a different purpose than lawyers and civil courts. Much of what they review is not profitable for

plaintiffs lawyers & plaintiffs, and/or not covered in insurers contracts. Copyright 2010, William H. Reid, M.D. 49 Reducing Malpractice Risk (and thus risk to patients)

Communicate clearly with patients & families. Attend carefully to suicide risk. Understand prescribing. Affiliate with reputable colleagues & facilities. Be very careful with email and online aspects of practice. Attend a malpractice risk-reduction seminar. Copyright 2010, William H. Reid, M.D. 50 QUESTIONS & DISCUSSION

Did I mention the tip jar beside the back door? Copyright 2010, William H. Reid, M.D. 51

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