Transcript 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.
• That’s 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 req’ts
• 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.
• That’s 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.
• That’s 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/Resour
cesStandards/PrinciplesofMedicalEthics.aspx
• APA Ethics Committee Opinions – latest online version
can’t be downloaded just now, but it’s at
www.psych.org/MainMenu/PsychiatricPractice/Ethics/Resour
cesStandards/OpinionsofPrinciples.aspx
• Ethics Primer (David Wahl, MD, ed.), APPI (35.95),
often used by residents, but doesn’t 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 you’re 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 what’s important and
interfere with good care, but who gets to decide?
• Whoever it is, he or she shouldn’t 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 isn’t malpractice until a court or
settlement says it’s 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 aren’t 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 caregiver’s 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 doesn’t 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, thirdparty/”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 they’ve 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 doesn’t 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 don’t 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