Jon E. Grant, JD, MD, MPH

Woman loses 30 years of memories after electroconvulsive therapy

Richland County (SC) Circuit Court

A 55-year old woman with a history of depression underwent successful electroconvulsive therapy (ECT) after her husband and father died. Six months later she became depressed, and a new psychiatrist referred her to his partner for additional ECT treatments.

The partner administered outpatient ECT at a hospital daily for 10 days. The referring psychiatrist wrote in the patient’s chart that the patient experienced memory loss and severe cognitive problems during the initial ECT regimen but did not report this development to his partner and allegedly encouraged the patient to continue ECT.

After the second round of ECT treatments, the patient suffered brain damage and lost all her memories from the past 30 years—including the births of her children and her job skills—leaving her unable to work.

In court, the patient claimed ECT should be administered no more than three times a week, and the referring psychiatrist should have told his partner about the patient’s memory problems.

• The case was settled for $18,000
  

Dr. Grant’s observations

Although this case concerns ECT, the claim is based on negligence—that is, the psychiatrist did not fulfill his duty to care for the patient. The negligence claim focused on how the treatment was implemented, not whether ECT was appropriate for this woman’s depression.

ECT’s response rate ranges from 50% to 60%¹ among patients who did not respond to one or more antidepressant trials. Symptomatic improvement usually is faster with ECT than with pharmacotherapy² when ECT is administered three times per week. Mortality rates with ECT are similar to those associated with minor surgery.¹

In addition to being an effective and safe treatment for depression, ECT rarely is a basis for malpractice. One study found that only 4 (0.2%) of 1,700 psychiatric malpractice claims filed between 1984 and 1990 concerned ECT’s side effects, complications, or appropriateness.³ Few patients who receive ECT file a malpractice claim because most are satisfied with the treatment; approximately 80% of ECT patients say they would consent to ECT again.^4,5 In fact, one might consider withholding ECT from severely depressed patients grounds for malpractice.

Although safe and effective, ECT could present health risks that you need to discuss with patients. In particular, cognitive problems such as delirium and impaired attention and memory may result.¹

Cognitive impairment risk in ect

ECT’s more severe cognitive side effects stem from:

• bilateral electrode placement
  
• sine wave stimulation
  
• suprathreshold stimulus intensity
  
• administration >3 times per week
  
• large numbers of treatments, usually >20 in an acute treatment course
  
• some medications, such as lithium carbonate and anticholinergics⁶
  
• pre-existing neurologic diseases such as Alzheimer’s or Parkinson’s disease.¹
  

Among depressed patients without a known neurologic disease, the extent of global cognitive impairment before ECT may predict loss of autobiographical information.⁷ The severity of memory loss presented in this case—although rare—is not unheard of. Patients have reported losing memories of personal events in the distant past and loss of function.^8,9

The magnitude of retrograde amnesia often is greatest immediately after treatment. Patients are more likely to forget public information such as current events than personal information.¹⁰ The effects usually subside over time, and older memories are more likely to be recovered than more recent ones. ECT can cause permanent memory loss, particularly after bilateral electrode placement, suprathreshold stimulus intensity, sine wave stimulation, or large numbers of treatments—usually more than 20.

Box

 

Although ECT might impair memory, it can improve neuropsychological domains such as global cognitive status and measures of general intelligence.¹¹ Also, there is no evidence that ECT causes lasting problems in executive functioning, abstract reasoning, creativity, semantic memory, implicit memory, or skill acquisition or retention. Long-term negative effects on ability to learn and retain new information are unlikely.¹

Avoiding an ect related malpractice claim

To reduce the possibility of a malpractice claim after ECT:

• Inform the patient about the risk of cognitive side effects as part of the informed consent process (Box).
  
• Assess the patient’s orientation and memory functions before and throughout ECT. In the above case, the referring psychiatrist had a duty to inform the psychiatrist administering ECT about the patient’s memory problems and recommend decreasing or discontinuing ECT.
  
• Consider a patient’s mood state, which may influence how ECT patients rate their memory.¹² Ask about symptoms of depression. Patients with cognitive complaints such as subjective memory loss are more likely than those without such problems to have depression symptoms.¹
  
• Do not administer ECT more than 3 times per week. No evidence supports more frequent use, and daily ECT may increase cognitive problems.¹ The psychiatrist in the above case was negligent in providing a treatment frequency with no scientific support or medical rationale.
  
• Verify that the physician is qualified to perform ECT. Hospitals must ensure ECT quality and safety and should have a written plan for providing and maintaining ECT privileges.
  
• Involve the family when appropriate. Family members often care for patients during outpatient ECT. Give patients and family members literature describing ECT. Allow them time to consider the procedure, then schedule an appointment to answer questions.
  

Address patient and family concerns throughout treatment, not just before ECT. Uninformed family members may have strong negative opinions about ECT from books or movies and may instigate a malpractice action—such as a wrongful death claim if the patient dies while receiving ECT—or urge the patient to sue when complications develop. By contrast, a well-informed, supportive family might expedite the patient’s recovery and be less likely to file malpractice claims.

Woman loses 30 years of memories after electroconvulsive therapy

Richland County (SC) Circuit Court

A 55-year old woman with a history of depression underwent successful electroconvulsive therapy (ECT) after her husband and father died. Six months later she became depressed, and a new psychiatrist referred her to his partner for additional ECT treatments.

The partner administered outpatient ECT at a hospital daily for 10 days. The referring psychiatrist wrote in the patient’s chart that the patient experienced memory loss and severe cognitive problems during the initial ECT regimen but did not report this development to his partner and allegedly encouraged the patient to continue ECT.

After the second round of ECT treatments, the patient suffered brain damage and lost all her memories from the past 30 years—including the births of her children and her job skills—leaving her unable to work.

In court, the patient claimed ECT should be administered no more than three times a week, and the referring psychiatrist should have told his partner about the patient’s memory problems.

• The case was settled for $18,000
  

Dr. Grant’s observations

Although this case concerns ECT, the claim is based on negligence—that is, the psychiatrist did not fulfill his duty to care for the patient. The negligence claim focused on how the treatment was implemented, not whether ECT was appropriate for this woman’s depression.

ECT’s response rate ranges from 50% to 60%¹ among patients who did not respond to one or more antidepressant trials. Symptomatic improvement usually is faster with ECT than with pharmacotherapy² when ECT is administered three times per week. Mortality rates with ECT are similar to those associated with minor surgery.¹

In addition to being an effective and safe treatment for depression, ECT rarely is a basis for malpractice. One study found that only 4 (0.2%) of 1,700 psychiatric malpractice claims filed between 1984 and 1990 concerned ECT’s side effects, complications, or appropriateness.³ Few patients who receive ECT file a malpractice claim because most are satisfied with the treatment; approximately 80% of ECT patients say they would consent to ECT again.^4,5 In fact, one might consider withholding ECT from severely depressed patients grounds for malpractice.

Although safe and effective, ECT could present health risks that you need to discuss with patients. In particular, cognitive problems such as delirium and impaired attention and memory may result.¹

Cognitive impairment risk in ect

ECT’s more severe cognitive side effects stem from:

• bilateral electrode placement
  
• sine wave stimulation
  
• suprathreshold stimulus intensity
  
• administration >3 times per week
  
• large numbers of treatments, usually >20 in an acute treatment course
  
• some medications, such as lithium carbonate and anticholinergics⁶
  
• pre-existing neurologic diseases such as Alzheimer’s or Parkinson’s disease.¹
  

Among depressed patients without a known neurologic disease, the extent of global cognitive impairment before ECT may predict loss of autobiographical information.⁷ The severity of memory loss presented in this case—although rare—is not unheard of. Patients have reported losing memories of personal events in the distant past and loss of function.^8,9

The magnitude of retrograde amnesia often is greatest immediately after treatment. Patients are more likely to forget public information such as current events than personal information.¹⁰ The effects usually subside over time, and older memories are more likely to be recovered than more recent ones. ECT can cause permanent memory loss, particularly after bilateral electrode placement, suprathreshold stimulus intensity, sine wave stimulation, or large numbers of treatments—usually more than 20.

Box

 

Although ECT might impair memory, it can improve neuropsychological domains such as global cognitive status and measures of general intelligence.¹¹ Also, there is no evidence that ECT causes lasting problems in executive functioning, abstract reasoning, creativity, semantic memory, implicit memory, or skill acquisition or retention. Long-term negative effects on ability to learn and retain new information are unlikely.¹

Avoiding an ect related malpractice claim

To reduce the possibility of a malpractice claim after ECT:

• Inform the patient about the risk of cognitive side effects as part of the informed consent process (Box).
  
• Assess the patient’s orientation and memory functions before and throughout ECT. In the above case, the referring psychiatrist had a duty to inform the psychiatrist administering ECT about the patient’s memory problems and recommend decreasing or discontinuing ECT.
  
• Consider a patient’s mood state, which may influence how ECT patients rate their memory.¹² Ask about symptoms of depression. Patients with cognitive complaints such as subjective memory loss are more likely than those without such problems to have depression symptoms.¹
  
• Do not administer ECT more than 3 times per week. No evidence supports more frequent use, and daily ECT may increase cognitive problems.¹ The psychiatrist in the above case was negligent in providing a treatment frequency with no scientific support or medical rationale.
  
• Verify that the physician is qualified to perform ECT. Hospitals must ensure ECT quality and safety and should have a written plan for providing and maintaining ECT privileges.
  
• Involve the family when appropriate. Family members often care for patients during outpatient ECT. Give patients and family members literature describing ECT. Allow them time to consider the procedure, then schedule an appointment to answer questions.
  

Address patient and family concerns throughout treatment, not just before ECT. Uninformed family members may have strong negative opinions about ECT from books or movies and may instigate a malpractice action—such as a wrongful death claim if the patient dies while receiving ECT—or urge the patient to sue when complications develop. By contrast, a well-informed, supportive family might expedite the patient’s recovery and be less likely to file malpractice claims.

Woman loses 30 years of memories after electroconvulsive therapy

Richland County (SC) Circuit Court

A 55-year old woman with a history of depression underwent successful electroconvulsive therapy (ECT) after her husband and father died. Six months later she became depressed, and a new psychiatrist referred her to his partner for additional ECT treatments.

The partner administered outpatient ECT at a hospital daily for 10 days. The referring psychiatrist wrote in the patient’s chart that the patient experienced memory loss and severe cognitive problems during the initial ECT regimen but did not report this development to his partner and allegedly encouraged the patient to continue ECT.

After the second round of ECT treatments, the patient suffered brain damage and lost all her memories from the past 30 years—including the births of her children and her job skills—leaving her unable to work.

In court, the patient claimed ECT should be administered no more than three times a week, and the referring psychiatrist should have told his partner about the patient’s memory problems.

• The case was settled for $18,000
  

Dr. Grant’s observations

Although this case concerns ECT, the claim is based on negligence—that is, the psychiatrist did not fulfill his duty to care for the patient. The negligence claim focused on how the treatment was implemented, not whether ECT was appropriate for this woman’s depression.

ECT’s response rate ranges from 50% to 60%¹ among patients who did not respond to one or more antidepressant trials. Symptomatic improvement usually is faster with ECT than with pharmacotherapy² when ECT is administered three times per week. Mortality rates with ECT are similar to those associated with minor surgery.¹

In addition to being an effective and safe treatment for depression, ECT rarely is a basis for malpractice. One study found that only 4 (0.2%) of 1,700 psychiatric malpractice claims filed between 1984 and 1990 concerned ECT’s side effects, complications, or appropriateness.³ Few patients who receive ECT file a malpractice claim because most are satisfied with the treatment; approximately 80% of ECT patients say they would consent to ECT again.^4,5 In fact, one might consider withholding ECT from severely depressed patients grounds for malpractice.

Although safe and effective, ECT could present health risks that you need to discuss with patients. In particular, cognitive problems such as delirium and impaired attention and memory may result.¹

Cognitive impairment risk in ect

ECT’s more severe cognitive side effects stem from:

• bilateral electrode placement
  
• sine wave stimulation
  
• suprathreshold stimulus intensity
  
• administration >3 times per week
  
• large numbers of treatments, usually >20 in an acute treatment course
  
• some medications, such as lithium carbonate and anticholinergics⁶
  
• pre-existing neurologic diseases such as Alzheimer’s or Parkinson’s disease.¹
  

Among depressed patients without a known neurologic disease, the extent of global cognitive impairment before ECT may predict loss of autobiographical information.⁷ The severity of memory loss presented in this case—although rare—is not unheard of. Patients have reported losing memories of personal events in the distant past and loss of function.^8,9

The magnitude of retrograde amnesia often is greatest immediately after treatment. Patients are more likely to forget public information such as current events than personal information.¹⁰ The effects usually subside over time, and older memories are more likely to be recovered than more recent ones. ECT can cause permanent memory loss, particularly after bilateral electrode placement, suprathreshold stimulus intensity, sine wave stimulation, or large numbers of treatments—usually more than 20.

Box

 

Although ECT might impair memory, it can improve neuropsychological domains such as global cognitive status and measures of general intelligence.¹¹ Also, there is no evidence that ECT causes lasting problems in executive functioning, abstract reasoning, creativity, semantic memory, implicit memory, or skill acquisition or retention. Long-term negative effects on ability to learn and retain new information are unlikely.¹

Avoiding an ect related malpractice claim

To reduce the possibility of a malpractice claim after ECT:

• Inform the patient about the risk of cognitive side effects as part of the informed consent process (Box).
  
• Assess the patient’s orientation and memory functions before and throughout ECT. In the above case, the referring psychiatrist had a duty to inform the psychiatrist administering ECT about the patient’s memory problems and recommend decreasing or discontinuing ECT.
  
• Consider a patient’s mood state, which may influence how ECT patients rate their memory.¹² Ask about symptoms of depression. Patients with cognitive complaints such as subjective memory loss are more likely than those without such problems to have depression symptoms.¹
  
• Do not administer ECT more than 3 times per week. No evidence supports more frequent use, and daily ECT may increase cognitive problems.¹ The psychiatrist in the above case was negligent in providing a treatment frequency with no scientific support or medical rationale.
  
• Verify that the physician is qualified to perform ECT. Hospitals must ensure ECT quality and safety and should have a written plan for providing and maintaining ECT privileges.
  
• Involve the family when appropriate. Family members often care for patients during outpatient ECT. Give patients and family members literature describing ECT. Allow them time to consider the procedure, then schedule an appointment to answer questions.
  

Address patient and family concerns throughout treatment, not just before ECT. Uninformed family members may have strong negative opinions about ECT from books or movies and may instigate a malpractice action—such as a wrongful death claim if the patient dies while receiving ECT—or urge the patient to sue when complications develop. By contrast, a well-informed, supportive family might expedite the patient’s recovery and be less likely to file malpractice claims.

Man attempts suicide after telephone consultations

Kitsap County (WA) Superior Court

A 38-year-old man was hospitalized after a suicide attempt. He was diagnosed as having bipolar affective disorder and treated with lithium and olanzapine. Over the next 3 months a psychiatrist treated him, discontinued olanzapine and lithium, and started valproic acid.

Four months after the suicide attempt, the patient’s wife called the psychiatrist. The patient claims his wife told the psychiatrist he was having paranoid delusions similar to those he had experienced before the suicide attempt. The psychiatrist says the wife reported only that the patient was confused. The psychiatrist told her that her husband should resume taking olanzapine and report the results in 1 to 2 days.

Two days later, the psychiatrist received a voice mail from the patient’s wife, who reported that her husband had improved. The psychiatrist testified that he returned the call and was told that the patient was doing well. The patient denied that this call was made.

The next day, the patient concealed a knife in his briefcase, drove to a wooded area, and stabbed himself three times, lacerating his heart, lung, and diaphragm. He underwent surgery and survived.

In court, the patient argued that if the psychiatrist had evaluated him in person instead of over the telephone, the psychiatrist would have recommended hospitalization. He also alleged that the psychiatrist did not obtain informed consent before stopping olanzapine.

The psychiatrist argued that the patient gave informed consent to withdraw olanzapine and that the second suicide attempt was sudden, unpredictable, and impulsive.

• The jury decided for the defense.
  

Called-in prescription fails to prevent suicide

Unknown Massachusetts venue

A woman with a history of depression, anxiety, and difficulty following prescriptions attempted suicide and was hospitalized after she and her husband separated.

After discharge and under the care of a psychiatrist, the patient became dependent on lorazepam. When she tried to renew her lorazepam prescription but could not reach the psychiatrist, she called the pharmacy and attempted to impersonate the psychiatrist. The pharmacy did not fill the prescription and notified the psychiatrist.

The psychiatrist called the patient that evening and spoke with the patient and her minister, who was with her. The psychiatrist informed the minister that the medication would be delivered to the house if the minister paid for it, administered it to the patient, and saw her to bed. The minister agreed and followed the psychiatrist’s instructions when the medication arrived.

Later that night, the woman broke into the minister’s church and was apprehended by police. She was released after the minister assured police that the break-in was not a criminal matter.

At home, the patient called the psychiatrist again and left a voice mail. Phone records indicate that she stayed on the line for 5 minutes. The psychiatrist reported that he did not receive the message until the next day. By that time, the patient had hanged herself with a leather strap.

The patient’s family claimed that the church break-in was a new, risky behavior that warranted an in-person evaluation. The psychiatrist argued that the patient often called his office, that the tone of her message did not suggest an imminent suicide attempt, and that neither the minister nor police feared she would harm herself. The psychiatrist’s records showed numerous office visits and telephone calls regarding the patient’s medication.

The family also claimed that the patient was extremely frustrated by her lack of progress. The psychiatrist countered that the patient refused his recommendations for further treatment.

• The case was settled for $600,000.
  

Dr. Grant’s observations

There are obvious benefits to dealing with patients over the telephone. First, phone consultations can prevent unnecessary office visits or a trip to the emergency room,¹ especially when a patient needs reassurance rather than an assessment.

Second, telephone contact can help you cost-effectively track an acute or chronic illness.² A short telephone conversation can spare some patients the expense of an office visit.

Recent data³ suggest that care management and psychotherapy via telephone may improve clinical outcomes for patients taking antidepressants for depression. Physician-patient telephone calls average 4.3 minutes and very few are considered urgent, so most calls will not result in a legal problem.⁴

The above cases reflect what many psychiatrists do routinely: assess a patient and change medication without seeing the patient. Roughly 25% of physician-patient interactions occur over the telephone.⁴ In one-third of these interactions, however, the physician and patient disagree on the reason for the call.⁵ Given this rate of miscommunication, beware of potential legal trouble when communicating with patients by telephone.

 

Phone management pitfalls

Improper diagnosis and treatment. The American Psychiatric Association (APA) considers starting a patient relationship without a face-to-face evaluation unethical, but office evaluations are not required when changing an established treatment plan.⁶ APA’s ethics committee suggests that face-to-face evaluations of established patients are required only if “clinically necessary,” so use your knowledge of the patient and the call to determine clinical necessity.

The above cases appear to stem from the psychiatrists’ failure to detect the severity of the patients’ problems and to offer more intensive interventions. Two limitations of telephone conversation can increase the risk of missed diagnosis and delayed or inappropriate treatment:

• Telephone assessments tend to be rushed and not as systematic as an office evaluation.
  
• Making a thorough assessment is difficult without seeing the patient’s nonverbal cues.
  

For example, an otherwise well-kempt person’s disheveled appearance or a previously nonpsychotic person’s apparent responses to internal stimuli would raise a red flag during an in-person visit.⁷

Breach of confidentiality occurs when a physician provides confidential medical information to someone other than the patient without the patient’s consent.⁷ In one study assessing physician telephone calls, the physician spoke to the patient in only 79% of cases.⁸

Disclosing information without consent could violate the patient’s privacy. When a caller identifies himself as your patient, make sure you know who’s on the phone. If the caller requests confidential information (such as HIV test results) and you’re not sure that the caller is your patient, tell him you’ll call back or ask the patient to come to your office for the test results. If the caller is giving but not requesting information, you are not violating the patient’s confidentiality.

In the above cases, the psychiatrists discussed symptoms and treatment with someone other than the patient. In the first case, the psychiatrist violated the patient’s confidentiality by discussing the patient’s medication needs not with him but with his wife. In the bargain, the doctor did not get informed consent. The psychiatrist should have spoken directly to the patient or asked him for permission to discuss care with his wife. The patient might have been too confused to talk with the psychiatrist, leading the psychiatrist to offer different treatment recommendations.

Changing medication or dosages requires a thorough discussion of the drug’s side effects, benefits, and alternatives with the patient.

Telephone protocol for your practice

Talk to the patient directly. As stated, discussing the patient’s treatment with a spouse or someone else without the patient’s permission violates the patient’s privacy. Also, be cautious when interpreting information provided by someone else.

Speaking with the patient directly is crucial to accurate assessment. Without visual cues, the patient’s words become crucial.

During the phone call, have the patient repeat any instructions you give.⁹ This will minimize the risk for error.⁵

Document the call. In one study of psychiatrists receiving or making calls, only 45% documented the calls in the patient’s chart.²

Your defense against a malpractice suit could hinge on the thoroughness of documentation. Make sure you record:

• the date and time of the call
  
• the patient’s name
  
• the chief complaint and his or her disposition
  
• your assessment and any advice given
  
• necessary follow-up action
  
• requests for prescription refills
  
• and any symptoms that indicate that the patient should call back.⁷
  

For example, document that you told the patient to call back if certain serious symptoms result from a medication change, such as a rash after starting lamotrigine or signs of toxicity after increasing lithium. Otherwise, tell the patient you will call back.

How long you wait to call the patient depends on his or her condition. If he or she is fairly stable, you might call after 1 week; if the condition is more serious, you might call the next day.

Avoid managing high-risk patients over the phone. In the above cases, an urgent office visit or a recommendation to report to the nearest emergency room might have been prudent.

Discuss your phone policy during the initial visit. Ask the patient if you can leave a personal message and if his or her message service is private.

Also discuss whether you will charge for phone consultation. Insurance companies often consider telephone conversations “incidental” and usually do not reimburse them separately. From an ethical standpoint, you can charge the patient for such calls if you discuss payment during the initial treatment contact.⁶

Telephone calls to patients can be time-consuming. Although 86% of psychiatrists feel they should receive compensation for these calls, less than 1% do.²

Man attempts suicide after telephone consultations

Kitsap County (WA) Superior Court

A 38-year-old man was hospitalized after a suicide attempt. He was diagnosed as having bipolar affective disorder and treated with lithium and olanzapine. Over the next 3 months a psychiatrist treated him, discontinued olanzapine and lithium, and started valproic acid.

Four months after the suicide attempt, the patient’s wife called the psychiatrist. The patient claims his wife told the psychiatrist he was having paranoid delusions similar to those he had experienced before the suicide attempt. The psychiatrist says the wife reported only that the patient was confused. The psychiatrist told her that her husband should resume taking olanzapine and report the results in 1 to 2 days.

Two days later, the psychiatrist received a voice mail from the patient’s wife, who reported that her husband had improved. The psychiatrist testified that he returned the call and was told that the patient was doing well. The patient denied that this call was made.

The next day, the patient concealed a knife in his briefcase, drove to a wooded area, and stabbed himself three times, lacerating his heart, lung, and diaphragm. He underwent surgery and survived.

In court, the patient argued that if the psychiatrist had evaluated him in person instead of over the telephone, the psychiatrist would have recommended hospitalization. He also alleged that the psychiatrist did not obtain informed consent before stopping olanzapine.

The psychiatrist argued that the patient gave informed consent to withdraw olanzapine and that the second suicide attempt was sudden, unpredictable, and impulsive.

• The jury decided for the defense.
  

Called-in prescription fails to prevent suicide

Unknown Massachusetts venue

A woman with a history of depression, anxiety, and difficulty following prescriptions attempted suicide and was hospitalized after she and her husband separated.

After discharge and under the care of a psychiatrist, the patient became dependent on lorazepam. When she tried to renew her lorazepam prescription but could not reach the psychiatrist, she called the pharmacy and attempted to impersonate the psychiatrist. The pharmacy did not fill the prescription and notified the psychiatrist.

The psychiatrist called the patient that evening and spoke with the patient and her minister, who was with her. The psychiatrist informed the minister that the medication would be delivered to the house if the minister paid for it, administered it to the patient, and saw her to bed. The minister agreed and followed the psychiatrist’s instructions when the medication arrived.

Later that night, the woman broke into the minister’s church and was apprehended by police. She was released after the minister assured police that the break-in was not a criminal matter.

At home, the patient called the psychiatrist again and left a voice mail. Phone records indicate that she stayed on the line for 5 minutes. The psychiatrist reported that he did not receive the message until the next day. By that time, the patient had hanged herself with a leather strap.

The patient’s family claimed that the church break-in was a new, risky behavior that warranted an in-person evaluation. The psychiatrist argued that the patient often called his office, that the tone of her message did not suggest an imminent suicide attempt, and that neither the minister nor police feared she would harm herself. The psychiatrist’s records showed numerous office visits and telephone calls regarding the patient’s medication.

The family also claimed that the patient was extremely frustrated by her lack of progress. The psychiatrist countered that the patient refused his recommendations for further treatment.

• The case was settled for $600,000.
  

Dr. Grant’s observations

There are obvious benefits to dealing with patients over the telephone. First, phone consultations can prevent unnecessary office visits or a trip to the emergency room,¹ especially when a patient needs reassurance rather than an assessment.

Second, telephone contact can help you cost-effectively track an acute or chronic illness.² A short telephone conversation can spare some patients the expense of an office visit.

Recent data³ suggest that care management and psychotherapy via telephone may improve clinical outcomes for patients taking antidepressants for depression. Physician-patient telephone calls average 4.3 minutes and very few are considered urgent, so most calls will not result in a legal problem.⁴

The above cases reflect what many psychiatrists do routinely: assess a patient and change medication without seeing the patient. Roughly 25% of physician-patient interactions occur over the telephone.⁴ In one-third of these interactions, however, the physician and patient disagree on the reason for the call.⁵ Given this rate of miscommunication, beware of potential legal trouble when communicating with patients by telephone.

 

Phone management pitfalls

Improper diagnosis and treatment. The American Psychiatric Association (APA) considers starting a patient relationship without a face-to-face evaluation unethical, but office evaluations are not required when changing an established treatment plan.⁶ APA’s ethics committee suggests that face-to-face evaluations of established patients are required only if “clinically necessary,” so use your knowledge of the patient and the call to determine clinical necessity.

The above cases appear to stem from the psychiatrists’ failure to detect the severity of the patients’ problems and to offer more intensive interventions. Two limitations of telephone conversation can increase the risk of missed diagnosis and delayed or inappropriate treatment:

• Telephone assessments tend to be rushed and not as systematic as an office evaluation.
  
• Making a thorough assessment is difficult without seeing the patient’s nonverbal cues.
  

For example, an otherwise well-kempt person’s disheveled appearance or a previously nonpsychotic person’s apparent responses to internal stimuli would raise a red flag during an in-person visit.⁷

Breach of confidentiality occurs when a physician provides confidential medical information to someone other than the patient without the patient’s consent.⁷ In one study assessing physician telephone calls, the physician spoke to the patient in only 79% of cases.⁸

Disclosing information without consent could violate the patient’s privacy. When a caller identifies himself as your patient, make sure you know who’s on the phone. If the caller requests confidential information (such as HIV test results) and you’re not sure that the caller is your patient, tell him you’ll call back or ask the patient to come to your office for the test results. If the caller is giving but not requesting information, you are not violating the patient’s confidentiality.

In the above cases, the psychiatrists discussed symptoms and treatment with someone other than the patient. In the first case, the psychiatrist violated the patient’s confidentiality by discussing the patient’s medication needs not with him but with his wife. In the bargain, the doctor did not get informed consent. The psychiatrist should have spoken directly to the patient or asked him for permission to discuss care with his wife. The patient might have been too confused to talk with the psychiatrist, leading the psychiatrist to offer different treatment recommendations.

Changing medication or dosages requires a thorough discussion of the drug’s side effects, benefits, and alternatives with the patient.

Telephone protocol for your practice

Talk to the patient directly. As stated, discussing the patient’s treatment with a spouse or someone else without the patient’s permission violates the patient’s privacy. Also, be cautious when interpreting information provided by someone else.

Speaking with the patient directly is crucial to accurate assessment. Without visual cues, the patient’s words become crucial.

During the phone call, have the patient repeat any instructions you give.⁹ This will minimize the risk for error.⁵

Document the call. In one study of psychiatrists receiving or making calls, only 45% documented the calls in the patient’s chart.²

Your defense against a malpractice suit could hinge on the thoroughness of documentation. Make sure you record:

• the date and time of the call
  
• the patient’s name
  
• the chief complaint and his or her disposition
  
• your assessment and any advice given
  
• necessary follow-up action
  
• requests for prescription refills
  
• and any symptoms that indicate that the patient should call back.⁷
  

For example, document that you told the patient to call back if certain serious symptoms result from a medication change, such as a rash after starting lamotrigine or signs of toxicity after increasing lithium. Otherwise, tell the patient you will call back.

How long you wait to call the patient depends on his or her condition. If he or she is fairly stable, you might call after 1 week; if the condition is more serious, you might call the next day.

Avoid managing high-risk patients over the phone. In the above cases, an urgent office visit or a recommendation to report to the nearest emergency room might have been prudent.

Discuss your phone policy during the initial visit. Ask the patient if you can leave a personal message and if his or her message service is private.

Also discuss whether you will charge for phone consultation. Insurance companies often consider telephone conversations “incidental” and usually do not reimburse them separately. From an ethical standpoint, you can charge the patient for such calls if you discuss payment during the initial treatment contact.⁶

Telephone calls to patients can be time-consuming. Although 86% of psychiatrists feel they should receive compensation for these calls, less than 1% do.²

Man attempts suicide after telephone consultations

Kitsap County (WA) Superior Court

A 38-year-old man was hospitalized after a suicide attempt. He was diagnosed as having bipolar affective disorder and treated with lithium and olanzapine. Over the next 3 months a psychiatrist treated him, discontinued olanzapine and lithium, and started valproic acid.

Four months after the suicide attempt, the patient’s wife called the psychiatrist. The patient claims his wife told the psychiatrist he was having paranoid delusions similar to those he had experienced before the suicide attempt. The psychiatrist says the wife reported only that the patient was confused. The psychiatrist told her that her husband should resume taking olanzapine and report the results in 1 to 2 days.

Two days later, the psychiatrist received a voice mail from the patient’s wife, who reported that her husband had improved. The psychiatrist testified that he returned the call and was told that the patient was doing well. The patient denied that this call was made.

The next day, the patient concealed a knife in his briefcase, drove to a wooded area, and stabbed himself three times, lacerating his heart, lung, and diaphragm. He underwent surgery and survived.

In court, the patient argued that if the psychiatrist had evaluated him in person instead of over the telephone, the psychiatrist would have recommended hospitalization. He also alleged that the psychiatrist did not obtain informed consent before stopping olanzapine.

The psychiatrist argued that the patient gave informed consent to withdraw olanzapine and that the second suicide attempt was sudden, unpredictable, and impulsive.

• The jury decided for the defense.
  

Called-in prescription fails to prevent suicide

Unknown Massachusetts venue

A woman with a history of depression, anxiety, and difficulty following prescriptions attempted suicide and was hospitalized after she and her husband separated.

After discharge and under the care of a psychiatrist, the patient became dependent on lorazepam. When she tried to renew her lorazepam prescription but could not reach the psychiatrist, she called the pharmacy and attempted to impersonate the psychiatrist. The pharmacy did not fill the prescription and notified the psychiatrist.

The psychiatrist called the patient that evening and spoke with the patient and her minister, who was with her. The psychiatrist informed the minister that the medication would be delivered to the house if the minister paid for it, administered it to the patient, and saw her to bed. The minister agreed and followed the psychiatrist’s instructions when the medication arrived.

Later that night, the woman broke into the minister’s church and was apprehended by police. She was released after the minister assured police that the break-in was not a criminal matter.

At home, the patient called the psychiatrist again and left a voice mail. Phone records indicate that she stayed on the line for 5 minutes. The psychiatrist reported that he did not receive the message until the next day. By that time, the patient had hanged herself with a leather strap.

The patient’s family claimed that the church break-in was a new, risky behavior that warranted an in-person evaluation. The psychiatrist argued that the patient often called his office, that the tone of her message did not suggest an imminent suicide attempt, and that neither the minister nor police feared she would harm herself. The psychiatrist’s records showed numerous office visits and telephone calls regarding the patient’s medication.

The family also claimed that the patient was extremely frustrated by her lack of progress. The psychiatrist countered that the patient refused his recommendations for further treatment.

• The case was settled for $600,000.
  

Dr. Grant’s observations

There are obvious benefits to dealing with patients over the telephone. First, phone consultations can prevent unnecessary office visits or a trip to the emergency room,¹ especially when a patient needs reassurance rather than an assessment.

Second, telephone contact can help you cost-effectively track an acute or chronic illness.² A short telephone conversation can spare some patients the expense of an office visit.

Recent data³ suggest that care management and psychotherapy via telephone may improve clinical outcomes for patients taking antidepressants for depression. Physician-patient telephone calls average 4.3 minutes and very few are considered urgent, so most calls will not result in a legal problem.⁴

The above cases reflect what many psychiatrists do routinely: assess a patient and change medication without seeing the patient. Roughly 25% of physician-patient interactions occur over the telephone.⁴ In one-third of these interactions, however, the physician and patient disagree on the reason for the call.⁵ Given this rate of miscommunication, beware of potential legal trouble when communicating with patients by telephone.

 

Phone management pitfalls

Improper diagnosis and treatment. The American Psychiatric Association (APA) considers starting a patient relationship without a face-to-face evaluation unethical, but office evaluations are not required when changing an established treatment plan.⁶ APA’s ethics committee suggests that face-to-face evaluations of established patients are required only if “clinically necessary,” so use your knowledge of the patient and the call to determine clinical necessity.

The above cases appear to stem from the psychiatrists’ failure to detect the severity of the patients’ problems and to offer more intensive interventions. Two limitations of telephone conversation can increase the risk of missed diagnosis and delayed or inappropriate treatment:

• Telephone assessments tend to be rushed and not as systematic as an office evaluation.
  
• Making a thorough assessment is difficult without seeing the patient’s nonverbal cues.
  

For example, an otherwise well-kempt person’s disheveled appearance or a previously nonpsychotic person’s apparent responses to internal stimuli would raise a red flag during an in-person visit.⁷

Breach of confidentiality occurs when a physician provides confidential medical information to someone other than the patient without the patient’s consent.⁷ In one study assessing physician telephone calls, the physician spoke to the patient in only 79% of cases.⁸

Disclosing information without consent could violate the patient’s privacy. When a caller identifies himself as your patient, make sure you know who’s on the phone. If the caller requests confidential information (such as HIV test results) and you’re not sure that the caller is your patient, tell him you’ll call back or ask the patient to come to your office for the test results. If the caller is giving but not requesting information, you are not violating the patient’s confidentiality.

In the above cases, the psychiatrists discussed symptoms and treatment with someone other than the patient. In the first case, the psychiatrist violated the patient’s confidentiality by discussing the patient’s medication needs not with him but with his wife. In the bargain, the doctor did not get informed consent. The psychiatrist should have spoken directly to the patient or asked him for permission to discuss care with his wife. The patient might have been too confused to talk with the psychiatrist, leading the psychiatrist to offer different treatment recommendations.

Changing medication or dosages requires a thorough discussion of the drug’s side effects, benefits, and alternatives with the patient.

Telephone protocol for your practice

Talk to the patient directly. As stated, discussing the patient’s treatment with a spouse or someone else without the patient’s permission violates the patient’s privacy. Also, be cautious when interpreting information provided by someone else.

Speaking with the patient directly is crucial to accurate assessment. Without visual cues, the patient’s words become crucial.

During the phone call, have the patient repeat any instructions you give.⁹ This will minimize the risk for error.⁵

Document the call. In one study of psychiatrists receiving or making calls, only 45% documented the calls in the patient’s chart.²

Your defense against a malpractice suit could hinge on the thoroughness of documentation. Make sure you record:

• the date and time of the call
  
• the patient’s name
  
• the chief complaint and his or her disposition
  
• your assessment and any advice given
  
• necessary follow-up action
  
• requests for prescription refills
  
• and any symptoms that indicate that the patient should call back.⁷
  

For example, document that you told the patient to call back if certain serious symptoms result from a medication change, such as a rash after starting lamotrigine or signs of toxicity after increasing lithium. Otherwise, tell the patient you will call back.

How long you wait to call the patient depends on his or her condition. If he or she is fairly stable, you might call after 1 week; if the condition is more serious, you might call the next day.

Avoid managing high-risk patients over the phone. In the above cases, an urgent office visit or a recommendation to report to the nearest emergency room might have been prudent.

Discuss your phone policy during the initial visit. Ask the patient if you can leave a personal message and if his or her message service is private.

Also discuss whether you will charge for phone consultation. Insurance companies often consider telephone conversations “incidental” and usually do not reimburse them separately. From an ethical standpoint, you can charge the patient for such calls if you discuss payment during the initial treatment contact.⁶

Telephone calls to patients can be time-consuming. Although 86% of psychiatrists feel they should receive compensation for these calls, less than 1% do.²

Amitriptyline toxicity kills patient

Unknown North Carolina venue

A 26-year-old woman with diabetes saw a psychiatrist to manage her depression. The psychiatrist increased her amitriptyline dosage to 300 mg nightly and over 10 months added:

• alprazolam (unknown dosage, nightly)
  
• quetiapine (400 mg bid)
  
• extended-release venlafaxine (225 mg bid)
  
• and promethazine (100 mg bid).
  

The patient also took insulin for diabetes.

Several weeks later, the woman was found dead in her home. An autopsy revealed amitriptyline toxicity as the cause of death. The medical examiner noted “a much larger concentration of the metabolite nortriptyline in the liver versus the parent drug,” suggesting a metabolism problem, rather than an overdose, caused the toxic build-up.

The patient’s estate claimed that amitriptyline was cardiotoxic at the prescribed dosage and combined with the other medications used and that the patient was not properly monitored.

• A $2.3 million settlement was reached.
  

Fatal cardiac arrest after 2 concomitant antidepressants

Gwinnett County (GA) Superior Court

A 40-year-old woman was under a psychiatrist’s care for anxiety and depression. The psychiatrist continued sertraline, which the woman had been taking, and added nortriptyline. Several weeks after the patient began taking the medications together, she had a fatal cardiac arrest.

The patient’s estate argued that:

• toxic levels of the antidepressants caused her death
  
• sertraline and nortriptyline should not be taken concurrently because one drug inhibits clearance of the other
  
• the psychiatrist should have monitored the patient to make sure sertraline and nortriptyline levels remained normal.
  

The psychiatrist argued that coronary artery disease caused the patient’s death—not the combination of medications.

The medical examiner was unable to say which condition more likely led to the patient’s death.

• The defendant was awarded $3 million. A statutory capitation reduced the award to $1.65 million.
  

Dr. Grant’s observations

As these cases demonstrate, lawsuits against psychiatrists commonly include allegations of preventable prescribing missteps and drug-drug interactions^{Off-label prescribing: 7 steps for safer, more effective treatment”).
When a patient is taking multiple medications, interactions can inhibit drug metabolism and render normal doses excessive.5 When prescribing drugs known to have adverse effects with excessive dosing, such as tricyclic antidepressants and lithium, failing to monitor serum levels could be considered malpractice. In fact, the courts view actions such as prescribing doses that exceed FDA recommendations or failing to monitor levels as prima facie evidence of negligence, requiring the psychiatrist to prove otherwise.}

Amitriptyline and nortriptyline have shown cardiac toxicity in overdose,⁶ and their serum levels increase when used with other antidepressants.^7,8 Standard of care dictates serum level monitoring particularly when you use tricyclics:

• in doses higher than recommended by the FDA (300 mg/d for amitriptyline, 150 mg/d for nortriptyline)
  
• with other drugs that affect their metabolism.⁹
  

You cannot rely on pharmacy computer programs to catch potentially important drug-drug interactions. One study found that even among pharmacies with such programs, one-third of pharmacists filled prescriptions for a dangerous medication combination.¹⁰

Box

How to prevent fatal errors. Don’t shy away from using medications that require serum level monitoring. Anticipating and monitoring drug-drug interactions becomes second nature once you’ve used these medications frequently. Plus, patients benefit from a greater array of safe and effective treatment options.

The following strategies can help you avoid mistakes and malpractice claims.^1,11

Clinical practice. Obtain a comprehensive patient history and necessary examinations before prescribing medications. See patients at clinically appropriate intervals.

Ask the patient about other medications he or she is taking, including over-the-counter medications, herbal remedies, and dietary supplements. Remind the patient to report changes in medications or new medications prescribed by another physician.

Put in place a process to obtain appropriate baseline laboratory testing and to ensure that follow-up testing is completed and reviewed. Monitoring lab results becomes particularly important in cases—such as these two—when escalating levels of certain medications can cause adverse effects.

 

Communicate with the patient’s other physicians about all the medications that are being prescribed to him and about signs, symptoms, and responses to the medications.

Educate yourself by participating in continuing education programs, discussions with colleagues, and through relevant literature. Review drug manufacturer alerts.

Patient education. Educate patients about medication instructions, including the dosage and frequency, ways to identify side effects, and what to do in the event of side effects or a bad reaction. Get informed consent.

Be aware of and inform the patient about potentially lethal side effects of misusing or abusing certain medications. Address the use of street drugs and how they interact with prescription medications; make appropriate treatment assessments and referrals for addiction and dependence issues.

Documentation. Keep thorough records of medications prescribed: dosage, amount, directions for taking them, and other instructions to the patient. Document results of laboratory testing and any decisions you make based on medication serum levels.

When using polypharmacy that increases the risk of adverse interactions, document a clear rationale in patients’ charts.

Amitriptyline toxicity kills patient

Unknown North Carolina venue

A 26-year-old woman with diabetes saw a psychiatrist to manage her depression. The psychiatrist increased her amitriptyline dosage to 300 mg nightly and over 10 months added:

• alprazolam (unknown dosage, nightly)
  
• quetiapine (400 mg bid)
  
• extended-release venlafaxine (225 mg bid)
  
• and promethazine (100 mg bid).
  

The patient also took insulin for diabetes.

Several weeks later, the woman was found dead in her home. An autopsy revealed amitriptyline toxicity as the cause of death. The medical examiner noted “a much larger concentration of the metabolite nortriptyline in the liver versus the parent drug,” suggesting a metabolism problem, rather than an overdose, caused the toxic build-up.

The patient’s estate claimed that amitriptyline was cardiotoxic at the prescribed dosage and combined with the other medications used and that the patient was not properly monitored.

• A $2.3 million settlement was reached.
  

Fatal cardiac arrest after 2 concomitant antidepressants

Gwinnett County (GA) Superior Court

A 40-year-old woman was under a psychiatrist’s care for anxiety and depression. The psychiatrist continued sertraline, which the woman had been taking, and added nortriptyline. Several weeks after the patient began taking the medications together, she had a fatal cardiac arrest.

The patient’s estate argued that:

• toxic levels of the antidepressants caused her death
  
• sertraline and nortriptyline should not be taken concurrently because one drug inhibits clearance of the other
  
• the psychiatrist should have monitored the patient to make sure sertraline and nortriptyline levels remained normal.
  

The psychiatrist argued that coronary artery disease caused the patient’s death—not the combination of medications.

The medical examiner was unable to say which condition more likely led to the patient’s death.

• The defendant was awarded $3 million. A statutory capitation reduced the award to $1.65 million.
  

Dr. Grant’s observations

As these cases demonstrate, lawsuits against psychiatrists commonly include allegations of preventable prescribing missteps and drug-drug interactions^{Off-label prescribing: 7 steps for safer, more effective treatment”).
When a patient is taking multiple medications, interactions can inhibit drug metabolism and render normal doses excessive.5 When prescribing drugs known to have adverse effects with excessive dosing, such as tricyclic antidepressants and lithium, failing to monitor serum levels could be considered malpractice. In fact, the courts view actions such as prescribing doses that exceed FDA recommendations or failing to monitor levels as prima facie evidence of negligence, requiring the psychiatrist to prove otherwise.}

Amitriptyline and nortriptyline have shown cardiac toxicity in overdose,⁶ and their serum levels increase when used with other antidepressants.^7,8 Standard of care dictates serum level monitoring particularly when you use tricyclics:

• in doses higher than recommended by the FDA (300 mg/d for amitriptyline, 150 mg/d for nortriptyline)
  
• with other drugs that affect their metabolism.⁹
  

You cannot rely on pharmacy computer programs to catch potentially important drug-drug interactions. One study found that even among pharmacies with such programs, one-third of pharmacists filled prescriptions for a dangerous medication combination.¹⁰

Box

How to prevent fatal errors. Don’t shy away from using medications that require serum level monitoring. Anticipating and monitoring drug-drug interactions becomes second nature once you’ve used these medications frequently. Plus, patients benefit from a greater array of safe and effective treatment options.

The following strategies can help you avoid mistakes and malpractice claims.^1,11

Clinical practice. Obtain a comprehensive patient history and necessary examinations before prescribing medications. See patients at clinically appropriate intervals.

Ask the patient about other medications he or she is taking, including over-the-counter medications, herbal remedies, and dietary supplements. Remind the patient to report changes in medications or new medications prescribed by another physician.

Put in place a process to obtain appropriate baseline laboratory testing and to ensure that follow-up testing is completed and reviewed. Monitoring lab results becomes particularly important in cases—such as these two—when escalating levels of certain medications can cause adverse effects.

 

Communicate with the patient’s other physicians about all the medications that are being prescribed to him and about signs, symptoms, and responses to the medications.

Educate yourself by participating in continuing education programs, discussions with colleagues, and through relevant literature. Review drug manufacturer alerts.

Patient education. Educate patients about medication instructions, including the dosage and frequency, ways to identify side effects, and what to do in the event of side effects or a bad reaction. Get informed consent.

Be aware of and inform the patient about potentially lethal side effects of misusing or abusing certain medications. Address the use of street drugs and how they interact with prescription medications; make appropriate treatment assessments and referrals for addiction and dependence issues.

Documentation. Keep thorough records of medications prescribed: dosage, amount, directions for taking them, and other instructions to the patient. Document results of laboratory testing and any decisions you make based on medication serum levels.

When using polypharmacy that increases the risk of adverse interactions, document a clear rationale in patients’ charts.

Amitriptyline toxicity kills patient

Unknown North Carolina venue

A 26-year-old woman with diabetes saw a psychiatrist to manage her depression. The psychiatrist increased her amitriptyline dosage to 300 mg nightly and over 10 months added:

• alprazolam (unknown dosage, nightly)
  
• quetiapine (400 mg bid)
  
• extended-release venlafaxine (225 mg bid)
  
• and promethazine (100 mg bid).
  

The patient also took insulin for diabetes.

Several weeks later, the woman was found dead in her home. An autopsy revealed amitriptyline toxicity as the cause of death. The medical examiner noted “a much larger concentration of the metabolite nortriptyline in the liver versus the parent drug,” suggesting a metabolism problem, rather than an overdose, caused the toxic build-up.

The patient’s estate claimed that amitriptyline was cardiotoxic at the prescribed dosage and combined with the other medications used and that the patient was not properly monitored.

• A $2.3 million settlement was reached.
  

Fatal cardiac arrest after 2 concomitant antidepressants

Gwinnett County (GA) Superior Court

A 40-year-old woman was under a psychiatrist’s care for anxiety and depression. The psychiatrist continued sertraline, which the woman had been taking, and added nortriptyline. Several weeks after the patient began taking the medications together, she had a fatal cardiac arrest.

The patient’s estate argued that:

• toxic levels of the antidepressants caused her death
  
• sertraline and nortriptyline should not be taken concurrently because one drug inhibits clearance of the other
  
• the psychiatrist should have monitored the patient to make sure sertraline and nortriptyline levels remained normal.
  

The psychiatrist argued that coronary artery disease caused the patient’s death—not the combination of medications.

The medical examiner was unable to say which condition more likely led to the patient’s death.

• The defendant was awarded $3 million. A statutory capitation reduced the award to $1.65 million.
  

Dr. Grant’s observations

As these cases demonstrate, lawsuits against psychiatrists commonly include allegations of preventable prescribing missteps and drug-drug interactions^{Off-label prescribing: 7 steps for safer, more effective treatment”).
When a patient is taking multiple medications, interactions can inhibit drug metabolism and render normal doses excessive.5 When prescribing drugs known to have adverse effects with excessive dosing, such as tricyclic antidepressants and lithium, failing to monitor serum levels could be considered malpractice. In fact, the courts view actions such as prescribing doses that exceed FDA recommendations or failing to monitor levels as prima facie evidence of negligence, requiring the psychiatrist to prove otherwise.}

Amitriptyline and nortriptyline have shown cardiac toxicity in overdose,⁶ and their serum levels increase when used with other antidepressants.^7,8 Standard of care dictates serum level monitoring particularly when you use tricyclics:

• in doses higher than recommended by the FDA (300 mg/d for amitriptyline, 150 mg/d for nortriptyline)
  
• with other drugs that affect their metabolism.⁹
  

You cannot rely on pharmacy computer programs to catch potentially important drug-drug interactions. One study found that even among pharmacies with such programs, one-third of pharmacists filled prescriptions for a dangerous medication combination.¹⁰

Box

How to prevent fatal errors. Don’t shy away from using medications that require serum level monitoring. Anticipating and monitoring drug-drug interactions becomes second nature once you’ve used these medications frequently. Plus, patients benefit from a greater array of safe and effective treatment options.

The following strategies can help you avoid mistakes and malpractice claims.^1,11

Clinical practice. Obtain a comprehensive patient history and necessary examinations before prescribing medications. See patients at clinically appropriate intervals.

Ask the patient about other medications he or she is taking, including over-the-counter medications, herbal remedies, and dietary supplements. Remind the patient to report changes in medications or new medications prescribed by another physician.

Put in place a process to obtain appropriate baseline laboratory testing and to ensure that follow-up testing is completed and reviewed. Monitoring lab results becomes particularly important in cases—such as these two—when escalating levels of certain medications can cause adverse effects.

 

Communicate with the patient’s other physicians about all the medications that are being prescribed to him and about signs, symptoms, and responses to the medications.

Educate yourself by participating in continuing education programs, discussions with colleagues, and through relevant literature. Review drug manufacturer alerts.

Patient education. Educate patients about medication instructions, including the dosage and frequency, ways to identify side effects, and what to do in the event of side effects or a bad reaction. Get informed consent.

Be aware of and inform the patient about potentially lethal side effects of misusing or abusing certain medications. Address the use of street drugs and how they interact with prescription medications; make appropriate treatment assessments and referrals for addiction and dependence issues.

Documentation. Keep thorough records of medications prescribed: dosage, amount, directions for taking them, and other instructions to the patient. Document results of laboratory testing and any decisions you make based on medication serum levels.

When using polypharmacy that increases the risk of adverse interactions, document a clear rationale in patients’ charts.

Man taking trazodone claims he was not told about priapism risk

Unknown Massachusetts venue

A 52-year-old man saw a psychiatrist for acute anxiety, panic attacks, and difficulty sleeping. The psychiatrist prescribed the alprazolam, 0.25 mg/d, for the anxiety symptoms and one or two tablets of trazodone, 50 mg at bedtime, to aid sleep.

At follow-up 2 weeks later, the patient reported he was feeling better, and the psychiatrist increased alprazolam to 0.5 mg tid.

The next morning, the patient woke with a painless partial erection, but was unconcerned because he had experienced this in the past. The erection persisted for 2 days. On the third morning, the patient went to the emergency department because the erection had become painful.

A urologist diagnosed the patient’s condition as priapism. After less-invasive treatment measures failed, the urologist performed surgery to extract clotted blood and inserted shunts to facilitate blood flow.

The patient was transferred to another facility and prescribed pain medication and an antiandrogen hormone to diminish the erection. Within 2 weeks following surgery, a black eschar covered the entire glans penis and necrotic tissue closed the meatus. Pain, eschar formation, and necrotic tissue on the patient’s glans penis persisted as long-term complications from priapism, resulting in permanent scarring, penile disfigurement, and inability to achieve an erection or have intercourse.

The patient claimed the psychiatrist never informed him of the risk of priapism associated with trazodone and failed to recommend immediate medical attention if this condition developed.

The psychiatrist maintained that although he had no memory of informing the patient of priapism risk, it would have been his custom to do so. The psychiatrist also contended that the length of time between the patient noticing the condition and seeking medical care constituted comparative negligence by the patient.

• A $300,000 settlement was reached.
  

Errant lamotrigine course
caused fatal hypersensitivity, estate alleges

Fairfax Country (VA) Circuit Court

A 43-year-old woman sought treatment for emotional difficulties. The psychiatrist diagnosed her with bipolar type II disorder and prescribed lamotrigine. Within 5 weeks, the patient developed Stevens-Johnson syndrome and died from its complications.

The patient’s estate claimed

• that the psychiatrist misdiagnosed the patient, who the estate alleged had posttraumatic stress disorder (PTSD).
  
• that prescribing lamotrigine was inappropriate because the patient didn’t have bipolar disorder and the drug is not first-line treatment for bipolar II disorder.
  
• the psychiatrist failed to inform the patient that lamotrigine may cause hypersensitivity reactions and neglected to obtain informed consent to use the drug.
  

The psychiatrist denied the charges, but at deposition and trial the psychiatrist’s sole causation expert admitted that the patient would not have died if she had not taken lamotrigine.

• The jury awarded the defendant $3 million. This was reduced to $1.65 million because of a statutory capitation.
  

Dr. Grant’s observations

These cases raise three potential malpractice issues:

• What happens if you misdiagnose a patient?
  
• Is it OK to use a treatment that is not “first-line”?
  
• How much do you have to tell patients about potential side effects?
  

Misdiagnosis. Because mental health symptoms usually do not fall neatly into categories, there is always potential for disagreement about a given diagnosis and to diagnosis incorrectly. When does a wrong diagnosis become malpractice?

A successful malpractice claim of misdiagnosis against a psychiatrist would likely be based on:

• failure to recognize the disorder
  
• improper treatment based on the misdiagnosis
  
• resultant harm caused by improper treatment.
  

In the latter case, misdiagnosing a patient with bipolar disorder if she suffered from PTSD would not be malpractice if the psychiatric evaluation fit the standard of care (A rash proposal for treating bipolar disorder”) and toxic epidermal necrolysis, and trazodone carries a risk of priapism. These potential adverse reactions require complete disclosure to the patient before starting treatment.

To be valid in court, informed consent must be documented in the patient’s chart. One study of 30 psychiatrists treating patients with antipsychotics found that only 23% of their patients’ charts had documentation of informed consent.⁷ Without proper documentation (Table 2), negligence claims are more likely to be successful.

Informed consent is a continuous process. After each visit summarize discussions about medications you had with the patient, document his or her response to medication, and note your reasons for continuing medication.⁹

Informed consent does not shield a psychiatrist from liability. For example, if the patient’s condition does not justify the risks of a certain medication, negligence could be proven even though the patient consented to the treatment. Having consent, however, provides evidence that the psychiatrist advised the patient of consequences of possible side effects.

 

Table 2

What to include when documenting informed consent

Diagnosis
Nature and purpose of the proposed treatment
Risks   Infrequent risks that pose a significant possibility of harm   Frequent risks that pose less danger
Reasonably expected benefits
Alternate treatments, their risks and benefits
Risks of no treatment
Source: Reference 8

Man taking trazodone claims he was not told about priapism risk

Unknown Massachusetts venue

A 52-year-old man saw a psychiatrist for acute anxiety, panic attacks, and difficulty sleeping. The psychiatrist prescribed the alprazolam, 0.25 mg/d, for the anxiety symptoms and one or two tablets of trazodone, 50 mg at bedtime, to aid sleep.

At follow-up 2 weeks later, the patient reported he was feeling better, and the psychiatrist increased alprazolam to 0.5 mg tid.

The next morning, the patient woke with a painless partial erection, but was unconcerned because he had experienced this in the past. The erection persisted for 2 days. On the third morning, the patient went to the emergency department because the erection had become painful.

A urologist diagnosed the patient’s condition as priapism. After less-invasive treatment measures failed, the urologist performed surgery to extract clotted blood and inserted shunts to facilitate blood flow.

The patient was transferred to another facility and prescribed pain medication and an antiandrogen hormone to diminish the erection. Within 2 weeks following surgery, a black eschar covered the entire glans penis and necrotic tissue closed the meatus. Pain, eschar formation, and necrotic tissue on the patient’s glans penis persisted as long-term complications from priapism, resulting in permanent scarring, penile disfigurement, and inability to achieve an erection or have intercourse.

The patient claimed the psychiatrist never informed him of the risk of priapism associated with trazodone and failed to recommend immediate medical attention if this condition developed.

The psychiatrist maintained that although he had no memory of informing the patient of priapism risk, it would have been his custom to do so. The psychiatrist also contended that the length of time between the patient noticing the condition and seeking medical care constituted comparative negligence by the patient.

• A $300,000 settlement was reached.
  

Errant lamotrigine course
caused fatal hypersensitivity, estate alleges

Fairfax Country (VA) Circuit Court

A 43-year-old woman sought treatment for emotional difficulties. The psychiatrist diagnosed her with bipolar type II disorder and prescribed lamotrigine. Within 5 weeks, the patient developed Stevens-Johnson syndrome and died from its complications.

The patient’s estate claimed

• that the psychiatrist misdiagnosed the patient, who the estate alleged had posttraumatic stress disorder (PTSD).
  
• that prescribing lamotrigine was inappropriate because the patient didn’t have bipolar disorder and the drug is not first-line treatment for bipolar II disorder.
  
• the psychiatrist failed to inform the patient that lamotrigine may cause hypersensitivity reactions and neglected to obtain informed consent to use the drug.
  

The psychiatrist denied the charges, but at deposition and trial the psychiatrist’s sole causation expert admitted that the patient would not have died if she had not taken lamotrigine.

• The jury awarded the defendant $3 million. This was reduced to $1.65 million because of a statutory capitation.
  

Dr. Grant’s observations

These cases raise three potential malpractice issues:

• What happens if you misdiagnose a patient?
  
• Is it OK to use a treatment that is not “first-line”?
  
• How much do you have to tell patients about potential side effects?
  

Misdiagnosis. Because mental health symptoms usually do not fall neatly into categories, there is always potential for disagreement about a given diagnosis and to diagnosis incorrectly. When does a wrong diagnosis become malpractice?

A successful malpractice claim of misdiagnosis against a psychiatrist would likely be based on:

• failure to recognize the disorder
  
• improper treatment based on the misdiagnosis
  
• resultant harm caused by improper treatment.
  

In the latter case, misdiagnosing a patient with bipolar disorder if she suffered from PTSD would not be malpractice if the psychiatric evaluation fit the standard of care (A rash proposal for treating bipolar disorder”) and toxic epidermal necrolysis, and trazodone carries a risk of priapism. These potential adverse reactions require complete disclosure to the patient before starting treatment.

To be valid in court, informed consent must be documented in the patient’s chart. One study of 30 psychiatrists treating patients with antipsychotics found that only 23% of their patients’ charts had documentation of informed consent.⁷ Without proper documentation (Table 2), negligence claims are more likely to be successful.

Informed consent is a continuous process. After each visit summarize discussions about medications you had with the patient, document his or her response to medication, and note your reasons for continuing medication.⁹

Informed consent does not shield a psychiatrist from liability. For example, if the patient’s condition does not justify the risks of a certain medication, negligence could be proven even though the patient consented to the treatment. Having consent, however, provides evidence that the psychiatrist advised the patient of consequences of possible side effects.

 

Table 2

What to include when documenting informed consent

Diagnosis
Nature and purpose of the proposed treatment
Risks   Infrequent risks that pose a significant possibility of harm   Frequent risks that pose less danger
Reasonably expected benefits
Alternate treatments, their risks and benefits
Risks of no treatment
Source: Reference 8

Man taking trazodone claims he was not told about priapism risk

Unknown Massachusetts venue

A 52-year-old man saw a psychiatrist for acute anxiety, panic attacks, and difficulty sleeping. The psychiatrist prescribed the alprazolam, 0.25 mg/d, for the anxiety symptoms and one or two tablets of trazodone, 50 mg at bedtime, to aid sleep.

At follow-up 2 weeks later, the patient reported he was feeling better, and the psychiatrist increased alprazolam to 0.5 mg tid.

The next morning, the patient woke with a painless partial erection, but was unconcerned because he had experienced this in the past. The erection persisted for 2 days. On the third morning, the patient went to the emergency department because the erection had become painful.

A urologist diagnosed the patient’s condition as priapism. After less-invasive treatment measures failed, the urologist performed surgery to extract clotted blood and inserted shunts to facilitate blood flow.

The patient was transferred to another facility and prescribed pain medication and an antiandrogen hormone to diminish the erection. Within 2 weeks following surgery, a black eschar covered the entire glans penis and necrotic tissue closed the meatus. Pain, eschar formation, and necrotic tissue on the patient’s glans penis persisted as long-term complications from priapism, resulting in permanent scarring, penile disfigurement, and inability to achieve an erection or have intercourse.

The patient claimed the psychiatrist never informed him of the risk of priapism associated with trazodone and failed to recommend immediate medical attention if this condition developed.

The psychiatrist maintained that although he had no memory of informing the patient of priapism risk, it would have been his custom to do so. The psychiatrist also contended that the length of time between the patient noticing the condition and seeking medical care constituted comparative negligence by the patient.

• A $300,000 settlement was reached.
  

Errant lamotrigine course
caused fatal hypersensitivity, estate alleges

Fairfax Country (VA) Circuit Court

A 43-year-old woman sought treatment for emotional difficulties. The psychiatrist diagnosed her with bipolar type II disorder and prescribed lamotrigine. Within 5 weeks, the patient developed Stevens-Johnson syndrome and died from its complications.

The patient’s estate claimed

• that the psychiatrist misdiagnosed the patient, who the estate alleged had posttraumatic stress disorder (PTSD).
  
• that prescribing lamotrigine was inappropriate because the patient didn’t have bipolar disorder and the drug is not first-line treatment for bipolar II disorder.
  
• the psychiatrist failed to inform the patient that lamotrigine may cause hypersensitivity reactions and neglected to obtain informed consent to use the drug.
  

The psychiatrist denied the charges, but at deposition and trial the psychiatrist’s sole causation expert admitted that the patient would not have died if she had not taken lamotrigine.

• The jury awarded the defendant $3 million. This was reduced to $1.65 million because of a statutory capitation.
  

Dr. Grant’s observations

These cases raise three potential malpractice issues:

• What happens if you misdiagnose a patient?
  
• Is it OK to use a treatment that is not “first-line”?
  
• How much do you have to tell patients about potential side effects?
  

Misdiagnosis. Because mental health symptoms usually do not fall neatly into categories, there is always potential for disagreement about a given diagnosis and to diagnosis incorrectly. When does a wrong diagnosis become malpractice?

A successful malpractice claim of misdiagnosis against a psychiatrist would likely be based on:

• failure to recognize the disorder
  
• improper treatment based on the misdiagnosis
  
• resultant harm caused by improper treatment.
  

In the latter case, misdiagnosing a patient with bipolar disorder if she suffered from PTSD would not be malpractice if the psychiatric evaluation fit the standard of care (A rash proposal for treating bipolar disorder”) and toxic epidermal necrolysis, and trazodone carries a risk of priapism. These potential adverse reactions require complete disclosure to the patient before starting treatment.

To be valid in court, informed consent must be documented in the patient’s chart. One study of 30 psychiatrists treating patients with antipsychotics found that only 23% of their patients’ charts had documentation of informed consent.⁷ Without proper documentation (Table 2), negligence claims are more likely to be successful.

Informed consent is a continuous process. After each visit summarize discussions about medications you had with the patient, document his or her response to medication, and note your reasons for continuing medication.⁹

Informed consent does not shield a psychiatrist from liability. For example, if the patient’s condition does not justify the risks of a certain medication, negligence could be proven even though the patient consented to the treatment. Having consent, however, provides evidence that the psychiatrist advised the patient of consequences of possible side effects.

 

Table 2

What to include when documenting informed consent

Diagnosis
Nature and purpose of the proposed treatment
Risks   Infrequent risks that pose a significant possibility of harm   Frequent risks that pose less danger
Reasonably expected benefits
Alternate treatments, their risks and benefits
Risks of no treatment
Source: Reference 8

Hospitalized patient hangs himself; estate blames vacationing psychiatrist

Los Angeles County (CA) Superior Court

Police took a 34-year-old man to an inpatient psychiatric facility after they found him walking naked on a city street. The hospital admitted him on a 72-hour involuntary hold because of his suicidal thoughts, although the psychiatrist did not believe he intended to kill himself. The patient had never attempted suicide before. The psychiatrist ordered treatment with risperidone and monitoring every 30 minutes.

Two days later, at the beginning of the psychiatrist’s vacation, the hospital started a 14-day hold process. After 3 days, the on-call psychiatrist documented the patient’s refusal to communicate and take medication, but the patient denied suicidal thinking.

After 3 more days, staff discovered the patient sitting unconscious on the floor next to the toilet, with his pants wrapped around his neck and tied to a grab bar. Staff attempted cardiopulmonary resuscitation and called paramedics, but the patient was dead.

The patient’s estate claimed that the hospital and first treating psychiatrist did not take appropriate measures to prevent the suicide. It charged the hospital with negligence in failing to have a breakaway grab bar and claimed the original psychiatrist did not adequately communicate the patient’s status with the covering psychiatrist before leaving on vacation.

The defense claimed the patient was not at high risk for suicide and that the standard of care is to communicate information regarding high-risk patients to the covering psychiatrist. The original psychiatrist also claimed the patient was doing well when he left for vacation.

• The jury decided for the defense
  

Dr. Grant’s observations

Patients and their families may feel abandoned in their psychiatrists’ absence. But this absence does not legally constitute abandonment unless:

• a doctor-patient relationship exists
  
• the doctor terminates the relationship
  
• there is a need for continuing care
  
• termination lacks reasonable notice so arrangements for continuing care cannot be made.
  

Box

In this case, the first 3 conditions for abandonment are met. The psychiatrist, however, made other arrangements for continuing care by providing an on-call psychiatrist, making the fourth criterion inapplicable.

While travel is at times necessary, psychiatrists must ensure that emergency-prone patients have access to care in their absence (Box). You can delegate this responsibility to a covering psychiatrist, but choose him or her wisely. Selecting a physician you know is incapable of providing sound treatment is considered negligent. The primary psychiatrist cannot be held responsible for a substitute psychiatrist’s negligence if the choice of substitute is viewed as a competent delegation.

Hospitalized patient hangs himself; estate blames vacationing psychiatrist

Los Angeles County (CA) Superior Court

Police took a 34-year-old man to an inpatient psychiatric facility after they found him walking naked on a city street. The hospital admitted him on a 72-hour involuntary hold because of his suicidal thoughts, although the psychiatrist did not believe he intended to kill himself. The patient had never attempted suicide before. The psychiatrist ordered treatment with risperidone and monitoring every 30 minutes.

Two days later, at the beginning of the psychiatrist’s vacation, the hospital started a 14-day hold process. After 3 days, the on-call psychiatrist documented the patient’s refusal to communicate and take medication, but the patient denied suicidal thinking.

After 3 more days, staff discovered the patient sitting unconscious on the floor next to the toilet, with his pants wrapped around his neck and tied to a grab bar. Staff attempted cardiopulmonary resuscitation and called paramedics, but the patient was dead.

The patient’s estate claimed that the hospital and first treating psychiatrist did not take appropriate measures to prevent the suicide. It charged the hospital with negligence in failing to have a breakaway grab bar and claimed the original psychiatrist did not adequately communicate the patient’s status with the covering psychiatrist before leaving on vacation.

The defense claimed the patient was not at high risk for suicide and that the standard of care is to communicate information regarding high-risk patients to the covering psychiatrist. The original psychiatrist also claimed the patient was doing well when he left for vacation.

• The jury decided for the defense
  

Dr. Grant’s observations

Patients and their families may feel abandoned in their psychiatrists’ absence. But this absence does not legally constitute abandonment unless:

• a doctor-patient relationship exists
  
• the doctor terminates the relationship
  
• there is a need for continuing care
  
• termination lacks reasonable notice so arrangements for continuing care cannot be made.
  

Box

In this case, the first 3 conditions for abandonment are met. The psychiatrist, however, made other arrangements for continuing care by providing an on-call psychiatrist, making the fourth criterion inapplicable.

While travel is at times necessary, psychiatrists must ensure that emergency-prone patients have access to care in their absence (Box). You can delegate this responsibility to a covering psychiatrist, but choose him or her wisely. Selecting a physician you know is incapable of providing sound treatment is considered negligent. The primary psychiatrist cannot be held responsible for a substitute psychiatrist’s negligence if the choice of substitute is viewed as a competent delegation.

Hospitalized patient hangs himself; estate blames vacationing psychiatrist

Los Angeles County (CA) Superior Court

Police took a 34-year-old man to an inpatient psychiatric facility after they found him walking naked on a city street. The hospital admitted him on a 72-hour involuntary hold because of his suicidal thoughts, although the psychiatrist did not believe he intended to kill himself. The patient had never attempted suicide before. The psychiatrist ordered treatment with risperidone and monitoring every 30 minutes.

Two days later, at the beginning of the psychiatrist’s vacation, the hospital started a 14-day hold process. After 3 days, the on-call psychiatrist documented the patient’s refusal to communicate and take medication, but the patient denied suicidal thinking.

After 3 more days, staff discovered the patient sitting unconscious on the floor next to the toilet, with his pants wrapped around his neck and tied to a grab bar. Staff attempted cardiopulmonary resuscitation and called paramedics, but the patient was dead.

The patient’s estate claimed that the hospital and first treating psychiatrist did not take appropriate measures to prevent the suicide. It charged the hospital with negligence in failing to have a breakaway grab bar and claimed the original psychiatrist did not adequately communicate the patient’s status with the covering psychiatrist before leaving on vacation.

The defense claimed the patient was not at high risk for suicide and that the standard of care is to communicate information regarding high-risk patients to the covering psychiatrist. The original psychiatrist also claimed the patient was doing well when he left for vacation.

• The jury decided for the defense
  

Dr. Grant’s observations

Patients and their families may feel abandoned in their psychiatrists’ absence. But this absence does not legally constitute abandonment unless:

• a doctor-patient relationship exists
  
• the doctor terminates the relationship
  
• there is a need for continuing care
  
• termination lacks reasonable notice so arrangements for continuing care cannot be made.
  

Box

In this case, the first 3 conditions for abandonment are met. The psychiatrist, however, made other arrangements for continuing care by providing an on-call psychiatrist, making the fourth criterion inapplicable.

While travel is at times necessary, psychiatrists must ensure that emergency-prone patients have access to care in their absence (Box). You can delegate this responsibility to a covering psychiatrist, but choose him or her wisely. Selecting a physician you know is incapable of providing sound treatment is considered negligent. The primary psychiatrist cannot be held responsible for a substitute psychiatrist’s negligence if the choice of substitute is viewed as a competent delegation.

Vague laws and debate over use of physical restraint complicate management of dangerous patients. Restraints have historically been over-used in psychiatry, even contributing to patients’ deaths. Still, many psychiatric facilities grapple with a reluctance to use restraint versus a need to protect patients from themselves and from harming others.

The law requires use of “least-restrictive interventions” to manage patients, but clinicians cannot agree on what this term means. This article offers tips to maximize patient safety when using restraints and advice on when to use them.

Psychotic man breaks neck jumping into window

Dane County (WI) Circuit Court

A 40-year-old man was hospitalized during a psychotic episode, in which he acted out aural hallucinations.

The man—who was previously diagnosed with schizophrenia—received a dose of haloperidol, and at least two guards escorted him to a room in the psychiatric unit. While left with a nurse, he tried to smash a window. The nurse hit a panic button to summon help, but the patient climbed on top of his bed and dove headfirst into a shatterproof glass. He fractured his neck and became quadriplegic.

In court, the patient’s attorney argued that the hospital was negligent in its failure to restrain him from harming himself. The patient died shortly after the trial from complications of quadriplegia.

• The jury’s verdict, $13 million, was reduced to approximately $7 million because of a statutory capitation.
  

Dr. Grant’s observations

The legal issue here is not simply whether the staff failed to prevent the patient from harming himself. Instead, the jury believed a reasonable person could have foreseen danger to the patient, thereby deeming the hospital negligent.

I’m not suggesting that all psychotic patients be restrained to prevent litigation. This case, however, illustrates the importance of assessing patients for dangerousness and intervening appropriately. Because the patient acted out his hallucinations and required two guards to escort him to his room, one could argue that one nurse could not adequately manage this patient.

When restraints are necessary, assess and document the patient’s behavior and the reasons that necessitate restraints. In this case, for example, record that medication alone did not sufficiently calm this patient.

One-on-one verbal and behavioral interventions can be effective alternatives to seclusion and restraint (Table 1).^1,2 Predictably, patients respond negatively to restraints, preferring medication instead.⁴ When less-restrictive, behavioral, or pharmacologic measures fail, consider restraints to protect aggressive, assaultive patients.

Table 1

Possible alternatives to restraints

Allow the patient to vent his or her feelings one-on-one with staff
Offer use of a quiet area or provide privacy if patient is upset
Provide alternate activities such as relaxation therapy or art therapy
Set firm, clear limits
Offer medication
Source: Reference 3

Security personnel asphyxiate woman

Pima County (AZ) Superior Court

A 32-year-old woman with a history of psychiatric disorders was admitted to a county hospital’s psychiatric department. Several guards and security technicians held her face down on the floor for 15 to 30 minutes. The patient struggled to breathe, turned blue, then stopped breathing. She died of asphyxiation.

The estate sued both the county and the security technicians’ employer, claiming the guards were not properly trained on patient restraint.

• A $105,000 settlement with the county was reached; a confidential settlement was reached with the security employer.
  

Dr. Grant’s observations

This case shows how improper use of restraints may result in a successful lawsuit.

In 1998, the Hartford Courant ran a series of articles alleging that seclusion and restraint in a psychiatric setting led to 142 deaths across 10 years.⁵ State and federal legislation passed after the newspaper’s report has focused on protecting patients from improper use of restraints. Be aware of your state’s and hospital’s regulations. The guidelines in Table 2 reflect general policies for using restraints suggested by the Joint Commission on Accreditation of Health-care Organizations.⁶

Restraints should be used only by trained staff and for only as long as the patient is dangerous to self or others. Also assess patients who may be at increased risk for physical or psychological difficulties if restrained or secluded and consider alternate interventions. Generally, restraints should be avoided in patients with the following relative contraindications:

• pregnant
  
• history of breathing problems
  
• head or spinal injuries
  
• history of recent fractures or surgeries
  
• seizure disorder
  
• history of sexual or physical abuse.
  

In this case, these guidelines were not followed and the patient asphyxiated, suggesting improper training or blatant disregard for her welfare.

Table 2

Guidelines for proper restraint use

Ensure the restrained patient’s safety and observe him or her continuously:
Check pulse, blood pressure, and range of motion in extremities every 15 minutes while patient is in seclusion or restraints Patient must be able to rotate head freely, and his or her airway must be unobstructed at all times Do not restrict breathing by exerting excessive pressure on the patient’s back
Keep the patient as comfortable as possible
Provide frequent opportunities for eating, drinking, and elimination, and continually assess physical comfort
Assess the continuing need for restraint, and consider alternatives when possible
Source: Reference 6

 

Unmonitored suicidal man suffocates himself

Tarrant County (TX) District Court

A 26-year-old man in the suicide prevention unit of a community hospital suffocated himself using a vinyl pillowcase from his room and cellophane wrap from the hospital’s kitchen.

For more than 40 minutes before finding the patient dead, staff had not documented checking the patient’s room, which was required every 15 minutes. Paramedics documented the beginning of rigor mortis.

The estate claimed the hospital had not adequately monitored the patient despite clear indications of suicidality. In the days preceding his death, records showed a deteriorating condition related to problems with his companion, who had told him she was leaving the home they shared. He previously attempted suicide when she threatened to move out and had injured himself on similar occasions.

At the time of his death, four staff members were on duty; one claimed to have seen the patient 5 minutes before he was found. The estate contended that more than 1 hour would have been required for rigor mortis to develop.

• A settlement of $1.1 million was reached.
  

Dr. Grant’s observations

Immediately assess suicidal patients and their environment to reduce the risk of self-harm. One-on-one observation has been found to be most effective⁷ and should be required for patients with severe suicide risk. All suicidal patients should (at minimum) be visible to staff members at all times to maintain safety standards.⁷ Frequently document the patient’s location, activities, and behavior.

To ensure a safe environment for suicidal patients, identify and minimize risk factors associated with hospital settings.⁸ For example, access to cellophane wrap in this case should have been blocked. Ensure that suicidal patients cannot reach materials they could use to harm themselves such as pillowcases, drapery cords, ingestible cleaning supplies, shower curtains and rods, and breakable objects.

Vague laws and debate over use of physical restraint complicate management of dangerous patients. Restraints have historically been over-used in psychiatry, even contributing to patients’ deaths. Still, many psychiatric facilities grapple with a reluctance to use restraint versus a need to protect patients from themselves and from harming others.

The law requires use of “least-restrictive interventions” to manage patients, but clinicians cannot agree on what this term means. This article offers tips to maximize patient safety when using restraints and advice on when to use them.

Psychotic man breaks neck jumping into window

Dane County (WI) Circuit Court

A 40-year-old man was hospitalized during a psychotic episode, in which he acted out aural hallucinations.

The man—who was previously diagnosed with schizophrenia—received a dose of haloperidol, and at least two guards escorted him to a room in the psychiatric unit. While left with a nurse, he tried to smash a window. The nurse hit a panic button to summon help, but the patient climbed on top of his bed and dove headfirst into a shatterproof glass. He fractured his neck and became quadriplegic.

In court, the patient’s attorney argued that the hospital was negligent in its failure to restrain him from harming himself. The patient died shortly after the trial from complications of quadriplegia.

• The jury’s verdict, $13 million, was reduced to approximately $7 million because of a statutory capitation.
  

Dr. Grant’s observations

The legal issue here is not simply whether the staff failed to prevent the patient from harming himself. Instead, the jury believed a reasonable person could have foreseen danger to the patient, thereby deeming the hospital negligent.

I’m not suggesting that all psychotic patients be restrained to prevent litigation. This case, however, illustrates the importance of assessing patients for dangerousness and intervening appropriately. Because the patient acted out his hallucinations and required two guards to escort him to his room, one could argue that one nurse could not adequately manage this patient.

When restraints are necessary, assess and document the patient’s behavior and the reasons that necessitate restraints. In this case, for example, record that medication alone did not sufficiently calm this patient.

One-on-one verbal and behavioral interventions can be effective alternatives to seclusion and restraint (Table 1).^1,2 Predictably, patients respond negatively to restraints, preferring medication instead.⁴ When less-restrictive, behavioral, or pharmacologic measures fail, consider restraints to protect aggressive, assaultive patients.

Table 1

Possible alternatives to restraints

Allow the patient to vent his or her feelings one-on-one with staff
Offer use of a quiet area or provide privacy if patient is upset
Provide alternate activities such as relaxation therapy or art therapy
Set firm, clear limits
Offer medication
Source: Reference 3

Security personnel asphyxiate woman

Pima County (AZ) Superior Court

A 32-year-old woman with a history of psychiatric disorders was admitted to a county hospital’s psychiatric department. Several guards and security technicians held her face down on the floor for 15 to 30 minutes. The patient struggled to breathe, turned blue, then stopped breathing. She died of asphyxiation.

The estate sued both the county and the security technicians’ employer, claiming the guards were not properly trained on patient restraint.

• A $105,000 settlement with the county was reached; a confidential settlement was reached with the security employer.
  

Dr. Grant’s observations

This case shows how improper use of restraints may result in a successful lawsuit.

In 1998, the Hartford Courant ran a series of articles alleging that seclusion and restraint in a psychiatric setting led to 142 deaths across 10 years.⁵ State and federal legislation passed after the newspaper’s report has focused on protecting patients from improper use of restraints. Be aware of your state’s and hospital’s regulations. The guidelines in Table 2 reflect general policies for using restraints suggested by the Joint Commission on Accreditation of Health-care Organizations.⁶

Restraints should be used only by trained staff and for only as long as the patient is dangerous to self or others. Also assess patients who may be at increased risk for physical or psychological difficulties if restrained or secluded and consider alternate interventions. Generally, restraints should be avoided in patients with the following relative contraindications:

• pregnant
  
• history of breathing problems
  
• head or spinal injuries
  
• history of recent fractures or surgeries
  
• seizure disorder
  
• history of sexual or physical abuse.
  

In this case, these guidelines were not followed and the patient asphyxiated, suggesting improper training or blatant disregard for her welfare.

Table 2

Guidelines for proper restraint use

Ensure the restrained patient’s safety and observe him or her continuously:
Check pulse, blood pressure, and range of motion in extremities every 15 minutes while patient is in seclusion or restraints Patient must be able to rotate head freely, and his or her airway must be unobstructed at all times Do not restrict breathing by exerting excessive pressure on the patient’s back
Keep the patient as comfortable as possible
Provide frequent opportunities for eating, drinking, and elimination, and continually assess physical comfort
Assess the continuing need for restraint, and consider alternatives when possible
Source: Reference 6

 

Unmonitored suicidal man suffocates himself

Tarrant County (TX) District Court

A 26-year-old man in the suicide prevention unit of a community hospital suffocated himself using a vinyl pillowcase from his room and cellophane wrap from the hospital’s kitchen.

For more than 40 minutes before finding the patient dead, staff had not documented checking the patient’s room, which was required every 15 minutes. Paramedics documented the beginning of rigor mortis.

The estate claimed the hospital had not adequately monitored the patient despite clear indications of suicidality. In the days preceding his death, records showed a deteriorating condition related to problems with his companion, who had told him she was leaving the home they shared. He previously attempted suicide when she threatened to move out and had injured himself on similar occasions.

At the time of his death, four staff members were on duty; one claimed to have seen the patient 5 minutes before he was found. The estate contended that more than 1 hour would have been required for rigor mortis to develop.

• A settlement of $1.1 million was reached.
  

Dr. Grant’s observations

Immediately assess suicidal patients and their environment to reduce the risk of self-harm. One-on-one observation has been found to be most effective⁷ and should be required for patients with severe suicide risk. All suicidal patients should (at minimum) be visible to staff members at all times to maintain safety standards.⁷ Frequently document the patient’s location, activities, and behavior.

To ensure a safe environment for suicidal patients, identify and minimize risk factors associated with hospital settings.⁸ For example, access to cellophane wrap in this case should have been blocked. Ensure that suicidal patients cannot reach materials they could use to harm themselves such as pillowcases, drapery cords, ingestible cleaning supplies, shower curtains and rods, and breakable objects.

Vague laws and debate over use of physical restraint complicate management of dangerous patients. Restraints have historically been over-used in psychiatry, even contributing to patients’ deaths. Still, many psychiatric facilities grapple with a reluctance to use restraint versus a need to protect patients from themselves and from harming others.

The law requires use of “least-restrictive interventions” to manage patients, but clinicians cannot agree on what this term means. This article offers tips to maximize patient safety when using restraints and advice on when to use them.

Psychotic man breaks neck jumping into window

Dane County (WI) Circuit Court

A 40-year-old man was hospitalized during a psychotic episode, in which he acted out aural hallucinations.

The man—who was previously diagnosed with schizophrenia—received a dose of haloperidol, and at least two guards escorted him to a room in the psychiatric unit. While left with a nurse, he tried to smash a window. The nurse hit a panic button to summon help, but the patient climbed on top of his bed and dove headfirst into a shatterproof glass. He fractured his neck and became quadriplegic.

In court, the patient’s attorney argued that the hospital was negligent in its failure to restrain him from harming himself. The patient died shortly after the trial from complications of quadriplegia.

• The jury’s verdict, $13 million, was reduced to approximately $7 million because of a statutory capitation.
  

Dr. Grant’s observations

The legal issue here is not simply whether the staff failed to prevent the patient from harming himself. Instead, the jury believed a reasonable person could have foreseen danger to the patient, thereby deeming the hospital negligent.

I’m not suggesting that all psychotic patients be restrained to prevent litigation. This case, however, illustrates the importance of assessing patients for dangerousness and intervening appropriately. Because the patient acted out his hallucinations and required two guards to escort him to his room, one could argue that one nurse could not adequately manage this patient.

When restraints are necessary, assess and document the patient’s behavior and the reasons that necessitate restraints. In this case, for example, record that medication alone did not sufficiently calm this patient.

One-on-one verbal and behavioral interventions can be effective alternatives to seclusion and restraint (Table 1).^1,2 Predictably, patients respond negatively to restraints, preferring medication instead.⁴ When less-restrictive, behavioral, or pharmacologic measures fail, consider restraints to protect aggressive, assaultive patients.

Table 1

Possible alternatives to restraints

Allow the patient to vent his or her feelings one-on-one with staff
Offer use of a quiet area or provide privacy if patient is upset
Provide alternate activities such as relaxation therapy or art therapy
Set firm, clear limits
Offer medication
Source: Reference 3

Security personnel asphyxiate woman

Pima County (AZ) Superior Court

A 32-year-old woman with a history of psychiatric disorders was admitted to a county hospital’s psychiatric department. Several guards and security technicians held her face down on the floor for 15 to 30 minutes. The patient struggled to breathe, turned blue, then stopped breathing. She died of asphyxiation.

The estate sued both the county and the security technicians’ employer, claiming the guards were not properly trained on patient restraint.

• A $105,000 settlement with the county was reached; a confidential settlement was reached with the security employer.
  

Dr. Grant’s observations

This case shows how improper use of restraints may result in a successful lawsuit.

In 1998, the Hartford Courant ran a series of articles alleging that seclusion and restraint in a psychiatric setting led to 142 deaths across 10 years.⁵ State and federal legislation passed after the newspaper’s report has focused on protecting patients from improper use of restraints. Be aware of your state’s and hospital’s regulations. The guidelines in Table 2 reflect general policies for using restraints suggested by the Joint Commission on Accreditation of Health-care Organizations.⁶

Restraints should be used only by trained staff and for only as long as the patient is dangerous to self or others. Also assess patients who may be at increased risk for physical or psychological difficulties if restrained or secluded and consider alternate interventions. Generally, restraints should be avoided in patients with the following relative contraindications:

• pregnant
  
• history of breathing problems
  
• head or spinal injuries
  
• history of recent fractures or surgeries
  
• seizure disorder
  
• history of sexual or physical abuse.
  

In this case, these guidelines were not followed and the patient asphyxiated, suggesting improper training or blatant disregard for her welfare.

Table 2

Guidelines for proper restraint use

Ensure the restrained patient’s safety and observe him or her continuously:
Check pulse, blood pressure, and range of motion in extremities every 15 minutes while patient is in seclusion or restraints Patient must be able to rotate head freely, and his or her airway must be unobstructed at all times Do not restrict breathing by exerting excessive pressure on the patient’s back
Keep the patient as comfortable as possible
Provide frequent opportunities for eating, drinking, and elimination, and continually assess physical comfort
Assess the continuing need for restraint, and consider alternatives when possible
Source: Reference 6

 

Unmonitored suicidal man suffocates himself

Tarrant County (TX) District Court

A 26-year-old man in the suicide prevention unit of a community hospital suffocated himself using a vinyl pillowcase from his room and cellophane wrap from the hospital’s kitchen.

For more than 40 minutes before finding the patient dead, staff had not documented checking the patient’s room, which was required every 15 minutes. Paramedics documented the beginning of rigor mortis.

The estate claimed the hospital had not adequately monitored the patient despite clear indications of suicidality. In the days preceding his death, records showed a deteriorating condition related to problems with his companion, who had told him she was leaving the home they shared. He previously attempted suicide when she threatened to move out and had injured himself on similar occasions.

At the time of his death, four staff members were on duty; one claimed to have seen the patient 5 minutes before he was found. The estate contended that more than 1 hour would have been required for rigor mortis to develop.

• A settlement of $1.1 million was reached.
  

Dr. Grant’s observations

Immediately assess suicidal patients and their environment to reduce the risk of self-harm. One-on-one observation has been found to be most effective⁷ and should be required for patients with severe suicide risk. All suicidal patients should (at minimum) be visible to staff members at all times to maintain safety standards.⁷ Frequently document the patient’s location, activities, and behavior.

To ensure a safe environment for suicidal patients, identify and minimize risk factors associated with hospital settings.⁸ For example, access to cellophane wrap in this case should have been blocked. Ensure that suicidal patients cannot reach materials they could use to harm themselves such as pillowcases, drapery cords, ingestible cleaning supplies, shower curtains and rods, and breakable objects.

Worker claims therapist disclosed confidential information

Cook County (IL) Circuit Court

A public works employee in Illinois received psychotherapy through his city’s wellness program. After the man left his position, he claimed in court that the treating therapist met with his former co-workers, disclosed his receipt of therapy to them, and told them he was unstable and capable of harming himself or others. The former employee argued that the disclosures violated Illinois law, caused him emotional distress, and made him unable to trust mental health professionals.

The defense denied that the therapist had violated the law or had made any disclosures. Instead, the defense argued that the co-workers—not the therapist—had voiced concern about the plaintiff. The defense maintained that the co-workers were confused about who had discussed the plaintiff, and that the therapist had not discussed him.

• The jury found for the defense.
  

Dr. Grant’s observations

The courts have recognized and protected the fundamental importance of confidentiality in the therapist/patient relationship.^{How to avoid ‘foreseeable’ harm,” Current Psychiatry, March 2005, at www.currentpsychiatry.com).}

Here, the request for consultation might suggest that an honest error in judgment occurred—the psychiatrist was simply puzzled by the patient’s medical symptoms. Although several doctors failed to diagnose NMS, shouldn’t the psychiatrists have been able to diagnose it?

NMS is a side-effect risk of atypical and conventional neuroleptics,^{Pearls: Identifying NMS with FEVER,”).}

The psychiatrists in this case did not conform to the standard of care, and consulting with another doctor did not absolve them of liability.

Worker claims therapist disclosed confidential information

Cook County (IL) Circuit Court

A public works employee in Illinois received psychotherapy through his city’s wellness program. After the man left his position, he claimed in court that the treating therapist met with his former co-workers, disclosed his receipt of therapy to them, and told them he was unstable and capable of harming himself or others. The former employee argued that the disclosures violated Illinois law, caused him emotional distress, and made him unable to trust mental health professionals.

The defense denied that the therapist had violated the law or had made any disclosures. Instead, the defense argued that the co-workers—not the therapist—had voiced concern about the plaintiff. The defense maintained that the co-workers were confused about who had discussed the plaintiff, and that the therapist had not discussed him.

• The jury found for the defense.
  

Dr. Grant’s observations

The courts have recognized and protected the fundamental importance of confidentiality in the therapist/patient relationship.^{How to avoid ‘foreseeable’ harm,” Current Psychiatry, March 2005, at www.currentpsychiatry.com).}

Here, the request for consultation might suggest that an honest error in judgment occurred—the psychiatrist was simply puzzled by the patient’s medical symptoms. Although several doctors failed to diagnose NMS, shouldn’t the psychiatrists have been able to diagnose it?

NMS is a side-effect risk of atypical and conventional neuroleptics,^{Pearls: Identifying NMS with FEVER,”).}

The psychiatrists in this case did not conform to the standard of care, and consulting with another doctor did not absolve them of liability.

Worker claims therapist disclosed confidential information

Cook County (IL) Circuit Court

A public works employee in Illinois received psychotherapy through his city’s wellness program. After the man left his position, he claimed in court that the treating therapist met with his former co-workers, disclosed his receipt of therapy to them, and told them he was unstable and capable of harming himself or others. The former employee argued that the disclosures violated Illinois law, caused him emotional distress, and made him unable to trust mental health professionals.

The defense denied that the therapist had violated the law or had made any disclosures. Instead, the defense argued that the co-workers—not the therapist—had voiced concern about the plaintiff. The defense maintained that the co-workers were confused about who had discussed the plaintiff, and that the therapist had not discussed him.

• The jury found for the defense.
  

Dr. Grant’s observations

The courts have recognized and protected the fundamental importance of confidentiality in the therapist/patient relationship.^{How to avoid ‘foreseeable’ harm,” Current Psychiatry, March 2005, at www.currentpsychiatry.com).}

Here, the request for consultation might suggest that an honest error in judgment occurred—the psychiatrist was simply puzzled by the patient’s medical symptoms. Although several doctors failed to diagnose NMS, shouldn’t the psychiatrists have been able to diagnose it?

NMS is a side-effect risk of atypical and conventional neuroleptics,^{Pearls: Identifying NMS with FEVER,”).}

The psychiatrists in this case did not conform to the standard of care, and consulting with another doctor did not absolve them of liability.

Can a psychiatrist legally and safely prescribe medication to reduce pain and, if so, when? How can a psychiatrist avoid a negligence charge if the patient commits suicide after discharge?

This article offers answers to those questions.

Methadone prescription for pain blamed for overdose death

Richmond (VA) Circuit Court

The patient had been receiving psychiatric treatment for approximately 1 year and also sought care for chronic pain during that time. The psychiatrist prescribed a pain medication and advised the patient to find a physician specializing in pain management, which the patient did.

Later, the patient and her husband told the psychiatrist during an emergency visit that no other physician was willing to treat her pain and requested pain medication. The psychiatrist viewed this request as possible drug-seeking behavior but considered the incident a crisis. She gave the patient a 2-week prescription of methadone for both pain and withdrawal.

Five days later, the patient’s husband found her dead; her autopsy showed a high level of methadone and two other medications.

The plaintiff’s estate claimed that the psychiatrist was negligent and that the patient died from methadone intoxication. The defense argued that the prescription was appropriate, and that amitriptyline, which the patient also had been taking, caused the sudden cardiac arrest that led to her death.

• The jury found for the defense.
  

Dr. Grant’s observations

A physician can prescribe any medication for a legitimate purpose. When prescribing outside your psychiatric expertise—such as medication for this patient’s chronic pain—the following recommendations can help you prevent a negligence claim:

• Document your physical examination. Assess the physical and psychological aspects of a pain condition before treating it. Then document the condition and the rationale behind your treatment choice based on the medical assessment.

If you are uncomfortable examining and diagnosing a medical condition, avoid prescribing pain medication. Instead, refer the patient to a physician specializing in pain management.

• If prescribing pain medication, document the type, location, and severity of pain. Also document your discussion of pain management options with the patient, and ask about previous pain-reduction interventions.

• Assess type, quantity, and frequency of prescription drug use as well as illicit drug and alcohol use. Order urine and serum toxicology tests if you suspect or need to document substance abuse.

As in this case, refer patients with chronic pain to their primary care physicians or to another specialist for appropriate pain management. Pain reduction may require psychological and behavioral interventions (such as cognitivebehavioral therapy, relaxation therapy, hypnosis, biofeedback, stress management, educating patients and their families about pain management) as well as physical therapy, anesthetic treatments, or surgical evaluation.¹

• Assessing pain in the ER. A different level of chronic pain assessment may be necessary in the emergency room, and the law recognizes that resources—such as information from other providers—are limited in the ER.² In this case, the patient reported that no one was willing to treat her, and the psychiatrist feared she was seeking a prescription for illicit use. In such cases, consider contacting the patient’s previous pain specialist or hospitalizing the patient if you fear he or she will go into withdrawal.

Plaintiff: Premature discharge caused alcohol-related suicide by drowning

Lucas County (OH) Common Pleas Court

The patient, age 41, had a longstanding, treatment-refractory alcohol use disorder.

He was admitted to the hospital after he was dismissed from a halfway house; upon admission, his blood alcohol level was 0.41%.

When assessed by a psychiatrist several days later, the patient showed suicidal behavior. The psychiatrist evaluated him three additional times. After the final visit, the patient renounced suicide, and the psychiatrist decided that he had improved. The patient’s discharge was planned—with aftercare housing and outpatient program particiption arranged—and he left the hospital in a taxi.

Three days later, the patient was found dead in a creek. An autopsy showed that the patient died by drowning and that his blood alcohol level was 0.32%. The death was ruled a suicide secondary to excessive alcohol consumption.

The plaintiff—the patient’s estate —charged that the psychiatrist was negligent in discharging the patient from the hospital and claimed that lack of a post-discharge recovery plan made the suicide likely.

The defense argued that the patient’s history of suicide attempts was known and that a discharge plan—which included housing and participation in an outpatient program—was in place before he was discharged.

• The jury found for the defense.
  

Dr. Grant’s observations

Many factors associated with managed care—such as cost-containment policies that shorten hospital stays, shorter visits that limit opportunity to develop a therapeutic alliance with patients, and limited ability to communicate with patients—have increased the risk of malpractice suits alleging premature discharge of patients who later kill themselves.³

 

To avoid such a suit:⁴

• Document the patient’s risk factors for suicide as well as specific suicidal thoughts and methods expressed, extent of planning and action taken toward a suicide attempt, access to means, and response to prior therapeutic interventions.

• Explain in your notes why specific risk factors were ruled out. This supports the conclusion that you properly assessed the patient.

• Obtain a proper history of the patient’s current illness. Understanding how a patient’s substance use is affecting his mood may influence plans for care after discharge.

• Do not rely solely on a patient’s statements about suicidality. Document information from other sources (old records, previous providers, or family members) and note that you tried to contact collateral sources or get permission to talk with the patient’s family

• Arrange outpatient services that focus on substance addiction (for example, support groups such as Alcoholics Anonymous [see], and therapy with an addictions specialist). Schedule timely visits for therapy and medication management. A medical follow-up may be needed if health concerns are associated with a mental health issue. A patient may need to be placed in a sober house or residential facility if he cannot stay sober on his own.

Can a psychiatrist legally and safely prescribe medication to reduce pain and, if so, when? How can a psychiatrist avoid a negligence charge if the patient commits suicide after discharge?

This article offers answers to those questions.

Methadone prescription for pain blamed for overdose death

Richmond (VA) Circuit Court

The patient had been receiving psychiatric treatment for approximately 1 year and also sought care for chronic pain during that time. The psychiatrist prescribed a pain medication and advised the patient to find a physician specializing in pain management, which the patient did.

Later, the patient and her husband told the psychiatrist during an emergency visit that no other physician was willing to treat her pain and requested pain medication. The psychiatrist viewed this request as possible drug-seeking behavior but considered the incident a crisis. She gave the patient a 2-week prescription of methadone for both pain and withdrawal.

Five days later, the patient’s husband found her dead; her autopsy showed a high level of methadone and two other medications.

The plaintiff’s estate claimed that the psychiatrist was negligent and that the patient died from methadone intoxication. The defense argued that the prescription was appropriate, and that amitriptyline, which the patient also had been taking, caused the sudden cardiac arrest that led to her death.

• The jury found for the defense.
  

Dr. Grant’s observations

A physician can prescribe any medication for a legitimate purpose. When prescribing outside your psychiatric expertise—such as medication for this patient’s chronic pain—the following recommendations can help you prevent a negligence claim:

• Document your physical examination. Assess the physical and psychological aspects of a pain condition before treating it. Then document the condition and the rationale behind your treatment choice based on the medical assessment.

If you are uncomfortable examining and diagnosing a medical condition, avoid prescribing pain medication. Instead, refer the patient to a physician specializing in pain management.

• If prescribing pain medication, document the type, location, and severity of pain. Also document your discussion of pain management options with the patient, and ask about previous pain-reduction interventions.

• Assess type, quantity, and frequency of prescription drug use as well as illicit drug and alcohol use. Order urine and serum toxicology tests if you suspect or need to document substance abuse.

As in this case, refer patients with chronic pain to their primary care physicians or to another specialist for appropriate pain management. Pain reduction may require psychological and behavioral interventions (such as cognitivebehavioral therapy, relaxation therapy, hypnosis, biofeedback, stress management, educating patients and their families about pain management) as well as physical therapy, anesthetic treatments, or surgical evaluation.¹

• Assessing pain in the ER. A different level of chronic pain assessment may be necessary in the emergency room, and the law recognizes that resources—such as information from other providers—are limited in the ER.² In this case, the patient reported that no one was willing to treat her, and the psychiatrist feared she was seeking a prescription for illicit use. In such cases, consider contacting the patient’s previous pain specialist or hospitalizing the patient if you fear he or she will go into withdrawal.

Plaintiff: Premature discharge caused alcohol-related suicide by drowning

Lucas County (OH) Common Pleas Court

The patient, age 41, had a longstanding, treatment-refractory alcohol use disorder.

He was admitted to the hospital after he was dismissed from a halfway house; upon admission, his blood alcohol level was 0.41%.

When assessed by a psychiatrist several days later, the patient showed suicidal behavior. The psychiatrist evaluated him three additional times. After the final visit, the patient renounced suicide, and the psychiatrist decided that he had improved. The patient’s discharge was planned—with aftercare housing and outpatient program particiption arranged—and he left the hospital in a taxi.

Three days later, the patient was found dead in a creek. An autopsy showed that the patient died by drowning and that his blood alcohol level was 0.32%. The death was ruled a suicide secondary to excessive alcohol consumption.

The plaintiff—the patient’s estate —charged that the psychiatrist was negligent in discharging the patient from the hospital and claimed that lack of a post-discharge recovery plan made the suicide likely.

The defense argued that the patient’s history of suicide attempts was known and that a discharge plan—which included housing and participation in an outpatient program—was in place before he was discharged.

• The jury found for the defense.
  

Dr. Grant’s observations

Many factors associated with managed care—such as cost-containment policies that shorten hospital stays, shorter visits that limit opportunity to develop a therapeutic alliance with patients, and limited ability to communicate with patients—have increased the risk of malpractice suits alleging premature discharge of patients who later kill themselves.³

 

To avoid such a suit:⁴

• Document the patient’s risk factors for suicide as well as specific suicidal thoughts and methods expressed, extent of planning and action taken toward a suicide attempt, access to means, and response to prior therapeutic interventions.

• Explain in your notes why specific risk factors were ruled out. This supports the conclusion that you properly assessed the patient.

• Obtain a proper history of the patient’s current illness. Understanding how a patient’s substance use is affecting his mood may influence plans for care after discharge.

• Do not rely solely on a patient’s statements about suicidality. Document information from other sources (old records, previous providers, or family members) and note that you tried to contact collateral sources or get permission to talk with the patient’s family

• Arrange outpatient services that focus on substance addiction (for example, support groups such as Alcoholics Anonymous [see], and therapy with an addictions specialist). Schedule timely visits for therapy and medication management. A medical follow-up may be needed if health concerns are associated with a mental health issue. A patient may need to be placed in a sober house or residential facility if he cannot stay sober on his own.

Can a psychiatrist legally and safely prescribe medication to reduce pain and, if so, when? How can a psychiatrist avoid a negligence charge if the patient commits suicide after discharge?

This article offers answers to those questions.

Methadone prescription for pain blamed for overdose death

Richmond (VA) Circuit Court

The patient had been receiving psychiatric treatment for approximately 1 year and also sought care for chronic pain during that time. The psychiatrist prescribed a pain medication and advised the patient to find a physician specializing in pain management, which the patient did.

Later, the patient and her husband told the psychiatrist during an emergency visit that no other physician was willing to treat her pain and requested pain medication. The psychiatrist viewed this request as possible drug-seeking behavior but considered the incident a crisis. She gave the patient a 2-week prescription of methadone for both pain and withdrawal.

Five days later, the patient’s husband found her dead; her autopsy showed a high level of methadone and two other medications.

The plaintiff’s estate claimed that the psychiatrist was negligent and that the patient died from methadone intoxication. The defense argued that the prescription was appropriate, and that amitriptyline, which the patient also had been taking, caused the sudden cardiac arrest that led to her death.

• The jury found for the defense.
  

Dr. Grant’s observations

A physician can prescribe any medication for a legitimate purpose. When prescribing outside your psychiatric expertise—such as medication for this patient’s chronic pain—the following recommendations can help you prevent a negligence claim:

• Document your physical examination. Assess the physical and psychological aspects of a pain condition before treating it. Then document the condition and the rationale behind your treatment choice based on the medical assessment.

If you are uncomfortable examining and diagnosing a medical condition, avoid prescribing pain medication. Instead, refer the patient to a physician specializing in pain management.

• If prescribing pain medication, document the type, location, and severity of pain. Also document your discussion of pain management options with the patient, and ask about previous pain-reduction interventions.

• Assess type, quantity, and frequency of prescription drug use as well as illicit drug and alcohol use. Order urine and serum toxicology tests if you suspect or need to document substance abuse.

As in this case, refer patients with chronic pain to their primary care physicians or to another specialist for appropriate pain management. Pain reduction may require psychological and behavioral interventions (such as cognitivebehavioral therapy, relaxation therapy, hypnosis, biofeedback, stress management, educating patients and their families about pain management) as well as physical therapy, anesthetic treatments, or surgical evaluation.¹

• Assessing pain in the ER. A different level of chronic pain assessment may be necessary in the emergency room, and the law recognizes that resources—such as information from other providers—are limited in the ER.² In this case, the patient reported that no one was willing to treat her, and the psychiatrist feared she was seeking a prescription for illicit use. In such cases, consider contacting the patient’s previous pain specialist or hospitalizing the patient if you fear he or she will go into withdrawal.

Plaintiff: Premature discharge caused alcohol-related suicide by drowning

Lucas County (OH) Common Pleas Court

The patient, age 41, had a longstanding, treatment-refractory alcohol use disorder.

He was admitted to the hospital after he was dismissed from a halfway house; upon admission, his blood alcohol level was 0.41%.

When assessed by a psychiatrist several days later, the patient showed suicidal behavior. The psychiatrist evaluated him three additional times. After the final visit, the patient renounced suicide, and the psychiatrist decided that he had improved. The patient’s discharge was planned—with aftercare housing and outpatient program particiption arranged—and he left the hospital in a taxi.

Three days later, the patient was found dead in a creek. An autopsy showed that the patient died by drowning and that his blood alcohol level was 0.32%. The death was ruled a suicide secondary to excessive alcohol consumption.

The plaintiff—the patient’s estate —charged that the psychiatrist was negligent in discharging the patient from the hospital and claimed that lack of a post-discharge recovery plan made the suicide likely.

The defense argued that the patient’s history of suicide attempts was known and that a discharge plan—which included housing and participation in an outpatient program—was in place before he was discharged.

• The jury found for the defense.
  

Dr. Grant’s observations

Many factors associated with managed care—such as cost-containment policies that shorten hospital stays, shorter visits that limit opportunity to develop a therapeutic alliance with patients, and limited ability to communicate with patients—have increased the risk of malpractice suits alleging premature discharge of patients who later kill themselves.³

 

To avoid such a suit:⁴

• Document the patient’s risk factors for suicide as well as specific suicidal thoughts and methods expressed, extent of planning and action taken toward a suicide attempt, access to means, and response to prior therapeutic interventions.

• Explain in your notes why specific risk factors were ruled out. This supports the conclusion that you properly assessed the patient.

• Obtain a proper history of the patient’s current illness. Understanding how a patient’s substance use is affecting his mood may influence plans for care after discharge.

• Do not rely solely on a patient’s statements about suicidality. Document information from other sources (old records, previous providers, or family members) and note that you tried to contact collateral sources or get permission to talk with the patient’s family

• Arrange outpatient services that focus on substance addiction (for example, support groups such as Alcoholics Anonymous [see], and therapy with an addictions specialist). Schedule timely visits for therapy and medication management. A medical follow-up may be needed if health concerns are associated with a mental health issue. A patient may need to be placed in a sober house or residential facility if he cannot stay sober on his own.

When a psychiatrist is sued for negligence, the legal system asks, “Did the doctor depart from the standard of care, and—if so—did that departure proximately cause the harm?” To determine proximate cause, the legal system then asks whether the harm was a “reasonably foreseeable” result of the negligent act.

Inadequate evaluation leads to patient’s suicide, plaintiff alleges

Dallas County (TX) District Court

In 1997, 1 year after suffering a stroke, a 56-year-old man was admitted to a rehabilitation center and seen by a psychiatrist for depression. In February 2000, the patient died after jumping from the center’s fifth-floor window.

The patient’s estate charged that the psychiatrist was negligent and did not adequately evaluate or treat the patient. The defense disputed the charge.

• The jury found for the defense.
  

Dr. Grant’s observations

In this case, the psychiatrist presumably assessed the patient, determined whether he was depressed, and made appropriate treatment interventions. Three years later, the patient killed himself.

Although 3 years passed between the consultation and the suicide, under the law an intervening act that is the reasonably foreseeable result of negligence does not break the causal chain. For example, if the psychiatrist told the patient he needed no treatment and did not need to follow-up with another clinician, the causal chain arguably would still exist. Thus, proper care, not time, will prevent such a suit.

To win a negligence case, the plaintiff must show that the psychiatrist’s actions proximately caused the harm. In order to defend your treatment decisions, document and discuss with the patient:

• the diagnosis and illness severity
  
• possible illness course based on patient history and the illness in question
  
• the need to monitor mood symptoms
  
• basis for treatment recommendations
  
• the possible need for continued treatment and to arrange follow-up care.
  

Plaintiff: Improper treatment caused fatal altercation

Cuyahoga County (OH) Court of Common Pleas

A man in his early 30s was admitted to the hospital’s psychiatric unit for depression, mood disorder, and adjustment disorder secondary to myasthenia gravis. He was estranged from his wife, who was dating another man. The treating psychiatrist discharged the patient after 5 days.

Approximately 40 hours after discharge, the patient went to the other man’s home and confronted him about his relationship with the patient’s wife. The two men then fought, and the other man fatally shot the patient. During the fight, the patient stabbed the other man in the neck with a knife; this man required care and subsequently developed a scar.

The other man and the patient’s estate charged that the psychiatrist did not appropriately evaluate and treat the patient. They claimed that a more thorough evaluation would have resulted in continued hospitalization and prevented the fight.

The defendant argued that the evaluation was thorough, that the discharge met the guidelines of appropriate care, and that the patient posed no risk to himself or others when he was discharged.

• The jury decided for the defense.
  

Dr. Grant’s observations

This case raises the clinically difficult issue of assessing a patient’s danger to self or others and whether this danger is reasonably foreseeable. Although Hughes reports that 17% of psychiatric emergency room patients are homicidal,¹ the American Psychiatric Association notes that 2 of 3 predictions of patient violence are wrong.²

In Tarasoff v Regents of the University of California, the California Supreme Court ruled that clinicians must warn potential victims of, and protect them from, a patient’s intent to harm.³ You should become familiar with the Tarasoff-type legislations in your state. But even if the patient shows no violent intent, the possibility of future violence cannot be ruled out.

During admission, assess and document an inpatient’s risk of violence.⁴ Factors that may increase a depressed patient’s risk of becoming homicidal include:

• past violence
  
• current substance abuse
  
• psychopathy
  
• having suffered physical abuse as a child
  
• violent thoughts.^4-6
  

If sexual infidelity, real or fantasized, precipitated the depression—as it might have in this case—a depressed patient may be at increased risk for homicide.

Check the patient’s records for a history of recurrent violence. Culling this information from the chart is necessary because:

• past violent behavior may predict future violence
  
• patients rarely reveal homicidal thoughts or behavior spontaneously.⁶
  

Knowing a patient’s violent past may aid in treatment. For example, you might order a longer hospitalization or establish more-intensive outpatient services focusing on avoiding aggression and violence. Make sure that follow-up care meets the patient’s needs after discharge.⁷

A psychiatrist may be found negligent after a patient’s violent act if the violence was foreseeable. However, after having seen the patient for 5 days in an inpatient setting, the psychiatrist in this case apparently could clearly document that the patient was not dangerous to himself or others before discharge.

When a psychiatrist is sued for negligence, the legal system asks, “Did the doctor depart from the standard of care, and—if so—did that departure proximately cause the harm?” To determine proximate cause, the legal system then asks whether the harm was a “reasonably foreseeable” result of the negligent act.

Inadequate evaluation leads to patient’s suicide, plaintiff alleges

Dallas County (TX) District Court

In 1997, 1 year after suffering a stroke, a 56-year-old man was admitted to a rehabilitation center and seen by a psychiatrist for depression. In February 2000, the patient died after jumping from the center’s fifth-floor window.

The patient’s estate charged that the psychiatrist was negligent and did not adequately evaluate or treat the patient. The defense disputed the charge.

• The jury found for the defense.
  

Dr. Grant’s observations

In this case, the psychiatrist presumably assessed the patient, determined whether he was depressed, and made appropriate treatment interventions. Three years later, the patient killed himself.

Although 3 years passed between the consultation and the suicide, under the law an intervening act that is the reasonably foreseeable result of negligence does not break the causal chain. For example, if the psychiatrist told the patient he needed no treatment and did not need to follow-up with another clinician, the causal chain arguably would still exist. Thus, proper care, not time, will prevent such a suit.

To win a negligence case, the plaintiff must show that the psychiatrist’s actions proximately caused the harm. In order to defend your treatment decisions, document and discuss with the patient:

• the diagnosis and illness severity
  
• possible illness course based on patient history and the illness in question
  
• the need to monitor mood symptoms
  
• basis for treatment recommendations
  
• the possible need for continued treatment and to arrange follow-up care.
  

Plaintiff: Improper treatment caused fatal altercation

Cuyahoga County (OH) Court of Common Pleas

A man in his early 30s was admitted to the hospital’s psychiatric unit for depression, mood disorder, and adjustment disorder secondary to myasthenia gravis. He was estranged from his wife, who was dating another man. The treating psychiatrist discharged the patient after 5 days.

Approximately 40 hours after discharge, the patient went to the other man’s home and confronted him about his relationship with the patient’s wife. The two men then fought, and the other man fatally shot the patient. During the fight, the patient stabbed the other man in the neck with a knife; this man required care and subsequently developed a scar.

The other man and the patient’s estate charged that the psychiatrist did not appropriately evaluate and treat the patient. They claimed that a more thorough evaluation would have resulted in continued hospitalization and prevented the fight.

The defendant argued that the evaluation was thorough, that the discharge met the guidelines of appropriate care, and that the patient posed no risk to himself or others when he was discharged.

• The jury decided for the defense.
  

Dr. Grant’s observations

This case raises the clinically difficult issue of assessing a patient’s danger to self or others and whether this danger is reasonably foreseeable. Although Hughes reports that 17% of psychiatric emergency room patients are homicidal,¹ the American Psychiatric Association notes that 2 of 3 predictions of patient violence are wrong.²

In Tarasoff v Regents of the University of California, the California Supreme Court ruled that clinicians must warn potential victims of, and protect them from, a patient’s intent to harm.³ You should become familiar with the Tarasoff-type legislations in your state. But even if the patient shows no violent intent, the possibility of future violence cannot be ruled out.

During admission, assess and document an inpatient’s risk of violence.⁴ Factors that may increase a depressed patient’s risk of becoming homicidal include:

• past violence
  
• current substance abuse
  
• psychopathy
  
• having suffered physical abuse as a child
  
• violent thoughts.^4-6
  

If sexual infidelity, real or fantasized, precipitated the depression—as it might have in this case—a depressed patient may be at increased risk for homicide.

Check the patient’s records for a history of recurrent violence. Culling this information from the chart is necessary because:

• past violent behavior may predict future violence
  
• patients rarely reveal homicidal thoughts or behavior spontaneously.⁶
  

Knowing a patient’s violent past may aid in treatment. For example, you might order a longer hospitalization or establish more-intensive outpatient services focusing on avoiding aggression and violence. Make sure that follow-up care meets the patient’s needs after discharge.⁷

A psychiatrist may be found negligent after a patient’s violent act if the violence was foreseeable. However, after having seen the patient for 5 days in an inpatient setting, the psychiatrist in this case apparently could clearly document that the patient was not dangerous to himself or others before discharge.

When a psychiatrist is sued for negligence, the legal system asks, “Did the doctor depart from the standard of care, and—if so—did that departure proximately cause the harm?” To determine proximate cause, the legal system then asks whether the harm was a “reasonably foreseeable” result of the negligent act.

Inadequate evaluation leads to patient’s suicide, plaintiff alleges

Dallas County (TX) District Court

In 1997, 1 year after suffering a stroke, a 56-year-old man was admitted to a rehabilitation center and seen by a psychiatrist for depression. In February 2000, the patient died after jumping from the center’s fifth-floor window.

The patient’s estate charged that the psychiatrist was negligent and did not adequately evaluate or treat the patient. The defense disputed the charge.

• The jury found for the defense.
  

Dr. Grant’s observations

In this case, the psychiatrist presumably assessed the patient, determined whether he was depressed, and made appropriate treatment interventions. Three years later, the patient killed himself.

Although 3 years passed between the consultation and the suicide, under the law an intervening act that is the reasonably foreseeable result of negligence does not break the causal chain. For example, if the psychiatrist told the patient he needed no treatment and did not need to follow-up with another clinician, the causal chain arguably would still exist. Thus, proper care, not time, will prevent such a suit.

To win a negligence case, the plaintiff must show that the psychiatrist’s actions proximately caused the harm. In order to defend your treatment decisions, document and discuss with the patient:

• the diagnosis and illness severity
  
• possible illness course based on patient history and the illness in question
  
• the need to monitor mood symptoms
  
• basis for treatment recommendations
  
• the possible need for continued treatment and to arrange follow-up care.
  

Plaintiff: Improper treatment caused fatal altercation

Cuyahoga County (OH) Court of Common Pleas

A man in his early 30s was admitted to the hospital’s psychiatric unit for depression, mood disorder, and adjustment disorder secondary to myasthenia gravis. He was estranged from his wife, who was dating another man. The treating psychiatrist discharged the patient after 5 days.

Approximately 40 hours after discharge, the patient went to the other man’s home and confronted him about his relationship with the patient’s wife. The two men then fought, and the other man fatally shot the patient. During the fight, the patient stabbed the other man in the neck with a knife; this man required care and subsequently developed a scar.

The other man and the patient’s estate charged that the psychiatrist did not appropriately evaluate and treat the patient. They claimed that a more thorough evaluation would have resulted in continued hospitalization and prevented the fight.

The defendant argued that the evaluation was thorough, that the discharge met the guidelines of appropriate care, and that the patient posed no risk to himself or others when he was discharged.

• The jury decided for the defense.
  

Dr. Grant’s observations

This case raises the clinically difficult issue of assessing a patient’s danger to self or others and whether this danger is reasonably foreseeable. Although Hughes reports that 17% of psychiatric emergency room patients are homicidal,¹ the American Psychiatric Association notes that 2 of 3 predictions of patient violence are wrong.²

In Tarasoff v Regents of the University of California, the California Supreme Court ruled that clinicians must warn potential victims of, and protect them from, a patient’s intent to harm.³ You should become familiar with the Tarasoff-type legislations in your state. But even if the patient shows no violent intent, the possibility of future violence cannot be ruled out.

During admission, assess and document an inpatient’s risk of violence.⁴ Factors that may increase a depressed patient’s risk of becoming homicidal include:

• past violence
  
• current substance abuse
  
• psychopathy
  
• having suffered physical abuse as a child
  
• violent thoughts.^4-6
  

If sexual infidelity, real or fantasized, precipitated the depression—as it might have in this case—a depressed patient may be at increased risk for homicide.

Check the patient’s records for a history of recurrent violence. Culling this information from the chart is necessary because:

• past violent behavior may predict future violence
  
• patients rarely reveal homicidal thoughts or behavior spontaneously.⁶
  

Knowing a patient’s violent past may aid in treatment. For example, you might order a longer hospitalization or establish more-intensive outpatient services focusing on avoiding aggression and violence. Make sure that follow-up care meets the patient’s needs after discharge.⁷

A psychiatrist may be found negligent after a patient’s violent act if the violence was foreseeable. However, after having seen the patient for 5 days in an inpatient setting, the psychiatrist in this case apparently could clearly document that the patient was not dangerous to himself or others before discharge.

Self-proclaimed ‘exorcist’ claims he was improperly committed

Court of claims (NY)

In response to a 911 call, police arrested a man who, the caller said, was trying to choke and stab an individual. Upon his arrest, the man claimed that he was an exorcist. He justified his attack by alleging that his victim was a medium for demons and spirits.

The suspect was taken to a psychiatric hospital; staff decided that he endangered himself and others and should be committed. During his commitment, he was restrained and forcibly given medication.

The man later sued the hospital for intentional infliction of emotional distress and malpractice. He charged that the hospital denied him the right to a court hearing after he was admitted.

The court dismissed the case. The court noted that the plaintiff did not present expert testimony to support his emotional distress claim.

Dr. Grant’s observations

Involuntary commitment. Although the standards for involuntary commitment vary from state to state, some general principles apply.

A patient who endangers himself or others may be held for varying periods until a court hearing can be arranged. State law determines how long someone can be held before a court-ordered commitment. Although the patient has a right to a court hearing, the state is not obligated to conduct that hearing sooner than is determined by state law. Clinicians need to learn the laws governing involuntary commitment in the states in which they practice.

Patients who are involuntarily committed are not required to accept treatment, however. Competent adults generally must give informed consent to treatment, but this rule is usually suspended in an emergency. When a patient is a danger to self or others, that person can be restrained and medicated against his or her will for as long as the emergency lasts. In such cases, the clinician should clearly document:

• indications for using restraint and forced medication (include a detailed assessment of the patient’s dangerous behaviors)
  
• the patient’s response to previous behavioral approaches or treatments
  
• grounds for believing that the patient’s refusal of other interventions is clearly a product of the illness.
  

Emotional distress. A patient who alleges that an action has caused emotional harm faces limitations on the ability to recover damages. These limitations are based on the belief that people may fabricate emotional damages. Courts therefore require that an expert witness—usually a psychiatrist or psychologist—testify about the emotional damages. Without an expert witness, such cases may be dismissed for inability to establish a claim.

Patient: psychiatrists planted false memories, gave wrong diagnosis

Green County (WI) circuit court

A 55-year-old woman was seen in a hospital clinic’s weight-loss program and developed anxiety symptoms as she reached normal weight. Her psychologist assigned her to read a book about surviving incest, which focused on repressed memories that surface during recovery. The woman then received hypnosis from a psychiatrist who was not trained as a hypnotist.

During the hypnosis sessions, the patient reported “remembering” past instances of abuse that she had not previously recalled. The psychiatrist guided her to relive or reenact one event, in which she reported remembering being anally raped. The patient became more depressed and required hospitalization. Another psychiatrist, who took over the case when the first psychiatrist left the clinic, diagnosed the patient as having multiple personality disorder.

The patient later questioned the diagnosis and came to believe that her treatment had been inappropriate and that the memories had been planted. The patient, once a registered nurse, is now disabled.

In court, the jury heard:

• charges of negligence against the treating physicians on behalf of the woman and her son, who was briefly treated by the original psychiatrist
  
• charges that neither the psychiatrists nor the clinic obtained informed consent before treating the woman or her son.
  
• The jury decided for the physician, clinic, and hospital on all charges.
  

Dr. Grant’s observations

This case involves several complex and controversial areas in psychiatry: recovered memory, multiple personality disorder, and use of hypnosis. Although the jury found for the physician, clinic, and hospital, these areas provide fertile ground for lawsuits, many of which are successful.

The case involved two distinct legal causes of action:

• negligent care
  
• lack of informed consent.
  

Negligence is defined as not following the “standard of care.” Recovered memory, hypnosis, and multiple personality disorder lack a clear standard of care and are potential legal minefields for any clinician. Sound clinical practice, however, may reduce some cause for concern.

Recovered memory. The veracity of recovered memory has been vigorously debated.¹ Because the credibility of recovered memory cannot be established, the clinician should clearly state in the chart that the past incident the patient reports during therapy may not have happened. The clinician also must avoid imposing his or her beliefs on the patient (such as assuming that patients with eating disorders have been sexually abused) or advocating for action on the patient’s part.

 

Hypnosis used to recover memories of abuse may be particularly complex legally.² A clinician using hypnosis may jeopardize therapeutic disinterest by interjecting suggestions—often without realizing that he or she is doing so.

To avoid negligence claims, clinicians should stay within their areas of competence when treating patients. If hypnosis is deemed clinically necessary, a clinician not trained in hypnosis should refer the patient to a certified clinical hypnotist.

Multiple personality disorder is included in DSM-IV-TR as dissociative identity disorder, but approximately one-third of psychiatrists question whether this is a legitimate diagnosis.³ Clearly documenting the basis for this—or any—diagnosis may help the clinician avoid a lawsuit or defend against a negligence charge.

Informed consent. Failure to inform patients about the risks associated with recovered memories is one of the most common allegations against clinicians in recovered memory cases.

Canterbury v. Spence, the landmark case of informed consent, offers some guidance. The court found that the clinician must provide reasonable disclosure of:

• therapy alternatives open to the patient
  
• goals expected to be achieved
  
• the risks involved with recovering memories.⁴
  

“Reasonable disclosure” refers to all information that a reasonable person might want—such as a proposed treatment’s risks and benefits, alternate treatments and their risks/benefits, and the risks/benefits of no treatment—before accepting or declining a procedure or medication.

Some have proposed that clinicians should disclose the risk of recovering false memories of sexual and physical abuse before starting treatment.⁵ The clinician should then clearly document this disclosure.

Self-proclaimed ‘exorcist’ claims he was improperly committed

Court of claims (NY)

In response to a 911 call, police arrested a man who, the caller said, was trying to choke and stab an individual. Upon his arrest, the man claimed that he was an exorcist. He justified his attack by alleging that his victim was a medium for demons and spirits.

The suspect was taken to a psychiatric hospital; staff decided that he endangered himself and others and should be committed. During his commitment, he was restrained and forcibly given medication.

The man later sued the hospital for intentional infliction of emotional distress and malpractice. He charged that the hospital denied him the right to a court hearing after he was admitted.

The court dismissed the case. The court noted that the plaintiff did not present expert testimony to support his emotional distress claim.

Dr. Grant’s observations

Involuntary commitment. Although the standards for involuntary commitment vary from state to state, some general principles apply.

A patient who endangers himself or others may be held for varying periods until a court hearing can be arranged. State law determines how long someone can be held before a court-ordered commitment. Although the patient has a right to a court hearing, the state is not obligated to conduct that hearing sooner than is determined by state law. Clinicians need to learn the laws governing involuntary commitment in the states in which they practice.

Patients who are involuntarily committed are not required to accept treatment, however. Competent adults generally must give informed consent to treatment, but this rule is usually suspended in an emergency. When a patient is a danger to self or others, that person can be restrained and medicated against his or her will for as long as the emergency lasts. In such cases, the clinician should clearly document:

• indications for using restraint and forced medication (include a detailed assessment of the patient’s dangerous behaviors)
  
• the patient’s response to previous behavioral approaches or treatments
  
• grounds for believing that the patient’s refusal of other interventions is clearly a product of the illness.
  

Emotional distress. A patient who alleges that an action has caused emotional harm faces limitations on the ability to recover damages. These limitations are based on the belief that people may fabricate emotional damages. Courts therefore require that an expert witness—usually a psychiatrist or psychologist—testify about the emotional damages. Without an expert witness, such cases may be dismissed for inability to establish a claim.

Patient: psychiatrists planted false memories, gave wrong diagnosis

Green County (WI) circuit court

A 55-year-old woman was seen in a hospital clinic’s weight-loss program and developed anxiety symptoms as she reached normal weight. Her psychologist assigned her to read a book about surviving incest, which focused on repressed memories that surface during recovery. The woman then received hypnosis from a psychiatrist who was not trained as a hypnotist.

During the hypnosis sessions, the patient reported “remembering” past instances of abuse that she had not previously recalled. The psychiatrist guided her to relive or reenact one event, in which she reported remembering being anally raped. The patient became more depressed and required hospitalization. Another psychiatrist, who took over the case when the first psychiatrist left the clinic, diagnosed the patient as having multiple personality disorder.

The patient later questioned the diagnosis and came to believe that her treatment had been inappropriate and that the memories had been planted. The patient, once a registered nurse, is now disabled.

In court, the jury heard:

• charges of negligence against the treating physicians on behalf of the woman and her son, who was briefly treated by the original psychiatrist
  
• charges that neither the psychiatrists nor the clinic obtained informed consent before treating the woman or her son.
  
• The jury decided for the physician, clinic, and hospital on all charges.
  

Dr. Grant’s observations

This case involves several complex and controversial areas in psychiatry: recovered memory, multiple personality disorder, and use of hypnosis. Although the jury found for the physician, clinic, and hospital, these areas provide fertile ground for lawsuits, many of which are successful.

The case involved two distinct legal causes of action:

• negligent care
  
• lack of informed consent.
  

Negligence is defined as not following the “standard of care.” Recovered memory, hypnosis, and multiple personality disorder lack a clear standard of care and are potential legal minefields for any clinician. Sound clinical practice, however, may reduce some cause for concern.

Recovered memory. The veracity of recovered memory has been vigorously debated.¹ Because the credibility of recovered memory cannot be established, the clinician should clearly state in the chart that the past incident the patient reports during therapy may not have happened. The clinician also must avoid imposing his or her beliefs on the patient (such as assuming that patients with eating disorders have been sexually abused) or advocating for action on the patient’s part.

 

Hypnosis used to recover memories of abuse may be particularly complex legally.² A clinician using hypnosis may jeopardize therapeutic disinterest by interjecting suggestions—often without realizing that he or she is doing so.

To avoid negligence claims, clinicians should stay within their areas of competence when treating patients. If hypnosis is deemed clinically necessary, a clinician not trained in hypnosis should refer the patient to a certified clinical hypnotist.

Multiple personality disorder is included in DSM-IV-TR as dissociative identity disorder, but approximately one-third of psychiatrists question whether this is a legitimate diagnosis.³ Clearly documenting the basis for this—or any—diagnosis may help the clinician avoid a lawsuit or defend against a negligence charge.

Informed consent. Failure to inform patients about the risks associated with recovered memories is one of the most common allegations against clinicians in recovered memory cases.

Canterbury v. Spence, the landmark case of informed consent, offers some guidance. The court found that the clinician must provide reasonable disclosure of:

• therapy alternatives open to the patient
  
• goals expected to be achieved
  
• the risks involved with recovering memories.⁴
  

“Reasonable disclosure” refers to all information that a reasonable person might want—such as a proposed treatment’s risks and benefits, alternate treatments and their risks/benefits, and the risks/benefits of no treatment—before accepting or declining a procedure or medication.

Some have proposed that clinicians should disclose the risk of recovering false memories of sexual and physical abuse before starting treatment.⁵ The clinician should then clearly document this disclosure.

Self-proclaimed ‘exorcist’ claims he was improperly committed

Court of claims (NY)

In response to a 911 call, police arrested a man who, the caller said, was trying to choke and stab an individual. Upon his arrest, the man claimed that he was an exorcist. He justified his attack by alleging that his victim was a medium for demons and spirits.

The suspect was taken to a psychiatric hospital; staff decided that he endangered himself and others and should be committed. During his commitment, he was restrained and forcibly given medication.

The man later sued the hospital for intentional infliction of emotional distress and malpractice. He charged that the hospital denied him the right to a court hearing after he was admitted.

The court dismissed the case. The court noted that the plaintiff did not present expert testimony to support his emotional distress claim.

Dr. Grant’s observations

Involuntary commitment. Although the standards for involuntary commitment vary from state to state, some general principles apply.

A patient who endangers himself or others may be held for varying periods until a court hearing can be arranged. State law determines how long someone can be held before a court-ordered commitment. Although the patient has a right to a court hearing, the state is not obligated to conduct that hearing sooner than is determined by state law. Clinicians need to learn the laws governing involuntary commitment in the states in which they practice.

Patients who are involuntarily committed are not required to accept treatment, however. Competent adults generally must give informed consent to treatment, but this rule is usually suspended in an emergency. When a patient is a danger to self or others, that person can be restrained and medicated against his or her will for as long as the emergency lasts. In such cases, the clinician should clearly document:

• indications for using restraint and forced medication (include a detailed assessment of the patient’s dangerous behaviors)
  
• the patient’s response to previous behavioral approaches or treatments
  
• grounds for believing that the patient’s refusal of other interventions is clearly a product of the illness.
  

Emotional distress. A patient who alleges that an action has caused emotional harm faces limitations on the ability to recover damages. These limitations are based on the belief that people may fabricate emotional damages. Courts therefore require that an expert witness—usually a psychiatrist or psychologist—testify about the emotional damages. Without an expert witness, such cases may be dismissed for inability to establish a claim.

Patient: psychiatrists planted false memories, gave wrong diagnosis

Green County (WI) circuit court

A 55-year-old woman was seen in a hospital clinic’s weight-loss program and developed anxiety symptoms as she reached normal weight. Her psychologist assigned her to read a book about surviving incest, which focused on repressed memories that surface during recovery. The woman then received hypnosis from a psychiatrist who was not trained as a hypnotist.

During the hypnosis sessions, the patient reported “remembering” past instances of abuse that she had not previously recalled. The psychiatrist guided her to relive or reenact one event, in which she reported remembering being anally raped. The patient became more depressed and required hospitalization. Another psychiatrist, who took over the case when the first psychiatrist left the clinic, diagnosed the patient as having multiple personality disorder.

The patient later questioned the diagnosis and came to believe that her treatment had been inappropriate and that the memories had been planted. The patient, once a registered nurse, is now disabled.

In court, the jury heard:

• charges of negligence against the treating physicians on behalf of the woman and her son, who was briefly treated by the original psychiatrist
  
• charges that neither the psychiatrists nor the clinic obtained informed consent before treating the woman or her son.
  
• The jury decided for the physician, clinic, and hospital on all charges.
  

Dr. Grant’s observations

This case involves several complex and controversial areas in psychiatry: recovered memory, multiple personality disorder, and use of hypnosis. Although the jury found for the physician, clinic, and hospital, these areas provide fertile ground for lawsuits, many of which are successful.

The case involved two distinct legal causes of action:

• negligent care
  
• lack of informed consent.
  

Negligence is defined as not following the “standard of care.” Recovered memory, hypnosis, and multiple personality disorder lack a clear standard of care and are potential legal minefields for any clinician. Sound clinical practice, however, may reduce some cause for concern.

Recovered memory. The veracity of recovered memory has been vigorously debated.¹ Because the credibility of recovered memory cannot be established, the clinician should clearly state in the chart that the past incident the patient reports during therapy may not have happened. The clinician also must avoid imposing his or her beliefs on the patient (such as assuming that patients with eating disorders have been sexually abused) or advocating for action on the patient’s part.

 

Hypnosis used to recover memories of abuse may be particularly complex legally.² A clinician using hypnosis may jeopardize therapeutic disinterest by interjecting suggestions—often without realizing that he or she is doing so.

To avoid negligence claims, clinicians should stay within their areas of competence when treating patients. If hypnosis is deemed clinically necessary, a clinician not trained in hypnosis should refer the patient to a certified clinical hypnotist.

Multiple personality disorder is included in DSM-IV-TR as dissociative identity disorder, but approximately one-third of psychiatrists question whether this is a legitimate diagnosis.³ Clearly documenting the basis for this—or any—diagnosis may help the clinician avoid a lawsuit or defend against a negligence charge.

Informed consent. Failure to inform patients about the risks associated with recovered memories is one of the most common allegations against clinicians in recovered memory cases.

Canterbury v. Spence, the landmark case of informed consent, offers some guidance. The court found that the clinician must provide reasonable disclosure of:

• therapy alternatives open to the patient
  
• goals expected to be achieved
  
• the risks involved with recovering memories.⁴
  

“Reasonable disclosure” refers to all information that a reasonable person might want—such as a proposed treatment’s risks and benefits, alternate treatments and their risks/benefits, and the risks/benefits of no treatment—before accepting or declining a procedure or medication.

Some have proposed that clinicians should disclose the risk of recovering false memories of sexual and physical abuse before starting treatment.⁵ The clinician should then clearly document this disclosure.