CHAPTER 86 Malpractice and Boundary Violations
THE MEDICAL LIABILITY CLIMATE
Approximately every 10 years, American medicine finds itself in the midst of a “malpractice crisis”1; the first decade of the twenty-first century has been no exception. As with the previous crises, there is ongoing debate as to the nature and cause of the crisis. Are there more lawsuits? Are the awards higher? Are insurance premiums higher because plaintiff’s lawyers are running amok and destroying medicine as we know it, or are they higher because the investment market has cooled and insurers need more dollars to fund their activities and pay dividends to their investors? Additional fundamental questions include the following: “Are premiums, relative to the overall cost of medicine and incomes, actually up at all?”2–4 and “What is the overall impact of malpractice claims on health care costs?”5,6
The responses of researchers and commentators to these highly charged questions are not always consistent with the most dire perceptions of the medical community. Contrary to the concern that every error leads to a lawsuit, only a small percentage of cases involving injury due to medical errors actually become the basis for claims or litigation,7–9 and defendants continue to prevail in the majority of cases that result in litigation, in part because a substantial proportion of those cases appear to lack merit.10 From 1956 to 1990, the number of malpractice claims for all specialties rose tenfold: from 1.5 per 100 to 15 per 100 covered physicians.11 Overall, it appears that the median malpractice award (both jury awards and settlements) doubled in real dollars between 1990 and 2001, but it has remained essentially flat since then, albeit with variation among the states.
Kilgore and colleagues12 studied the impact of various proposed tort reforms on malpractice premiums and determined that imposition of caps on malpractice damage awards resulted in significantly lower malpractice premiums. They estimated that a nationwide cap of $250,000 on non-economic damages would result in a premium savings of $16.9 billion per year. They also found that malpractice premiums had an inverse relationship with the Dow Jones Industrial Average.12 In other words, in periods of strong stock market performance, premiums went down, and in periods of weak market performance, premiums went up. This observation supports the hypothesis that insurers raise premiums in order to pay their stockholders when other investments are performing less well.
It is certainly the case that malpractice premiums have increased over the years, and that multiple causes are to blame.13 It is not at all clear, however, that malpractice premiums have increased significantly relative to other expenses. In an in-depth analysis of data from nine regions from 1970 to 2000, Rodwin and associates14 examined actual premiums paid (as opposed to advertised rates) relative to overall physician income and expenses. They found that premiums for self-employed physicians rose from 1970 to 1986, declined from 1986 to 1996, and rose thereafter. Premiums were lower in 2000 than they were in 1986, however, and other practice expenses continued to increase while spending on malpractice premiums fell from 1986 (11% of total expenses) to 2000 (7% of total expenses).14
There is no end in sight to arguments over the causes of medical malpractice litigation,7,15 the need for tort reform, and the assignment of blame for dissatisfaction with medical practice.16,17 Whether or not there is an actual crisis, or whether premiums are a relatively smaller or a larger portion of practice expenses, there is no contesting the fact that the prospect of a lawsuit and actually being sued have a major impact on the personal and professional lives of defendant physicians, and the relationships these physicians have with their patients.18–21 The threat of malpractice litigation is unlikely to diminish significantly, given the Institute of Medicine’s 1999 estimate that 44,000 to 98,000 deaths per year are due to preventable medical errors. While the personal injury system is not without its problems, hopes for a significant decrease in medical malpractice claims appear to lie with changes in how medical care is delivered, rather than on doing away with personal injury law.22
MALPRACTICE LIABILITY
A tort is an injury to another party that gives rise to a right on the part of the injured person to sue for damages.23 Personal injury or tort law embodies the principle that a person injured by the acts of another should receive compensation for the harm done. This concept dates back more than 2,000 years.24 Medical malpractice is a subset of tort law that is concerned with alleged negligence by medical professionals. Medical malpractice as a concept represents the application of tort principles to the actions of professionals, and like tort law itself, is an ancient phenomenon.24–26
There are two types of torts, intentional and unintentional.23 Both may be the subject of malpractice claims in psychiatry. Intentional torts are injuries that result from some intentional action on the part of the actor, also referred to as the “tortfeasor,” who will ultimately be the defendant if a lawsuit is pursued. In psychiatric malpractice claims, typical intentional torts are battery, assault, false imprisonment, abandonment, intentional infliction of emotional distress, and undue familiarity (i.e., sexual misconduct and other boundary violations). Each of these intentional torts is discussed later in this chapter. Unintentional torts arise out of negligent acts or omissions (e.g., misdiagnosis or failure to diagnose, failure to protect the patient from self-harm or harm to others). These are also discussed later in this chapter.
Tort law serves two purposes. First, it fulfills the long-established concept that individuals who are injured by the negligent actions of others should receive compensation for the damage they have suffered. Second, the threat of liability serves as a deterrent to negligent behavior.27,28
Malpractice insurance also serves two purposes. First, it ensures that injured patients can receive compensation when they are harmed; second, it protects the defendant physician from having to pay damages personally, thus risking potential financial ruin.28 Malpractice insurance is designed to insure physicians in the event that harm results from negligence (i.e., the allegedly wrongful act was inadvertent rather than intentional).
Medical treatment also involves intentional actions, and liability may therefore arise from both intentional and unintentional acts and omissions that are part of the treatment. As a result, certain intentional acts are also covered by malpractice insurance. For example, a patient injured during a restraint, or hospitalized against his or her will, may sue for battery or false imprisonment, respectively, and the malpractice insurer will both defend the claim and pay any damage award. The same is not true if the psychiatrist punches the patient during a fit of anger, for example, as this action is outside the scope of psychiatric treatment and therefore has nothing to do with acts performed in the course of caring for the patient.29 Sexual misconduct by psychiatrists raises similar questions about what actions by psychiatrists should be considered part of the scope of treatment and therefore covered by insurance, or separate from treatment and therefore not covered by malpractice insurance, as will be discussed later in this chapter.
To establish a claim of malpractice, whether the defendant’s action was intentional or unintentional, a plaintiff (the party bringing the suit and claiming to have been injured) must prove four things.23,30 (The plaintiff may be the injured party himself or herself, or a representative of the injured party, e.g., the parent of an injured child or the executor of the estate of the deceased in a wrongful death action.) First, the plaintiff must prove that the defendant owed a duty to the injured party. All individuals owe a general duty of reasonable care, such that their ordinary behavior does not result in harm to others (e.g., drivers have a general obligation not to drive recklessly). The duty to behave in a non-negligent fashion toward a specific individual or group arises when there is a special relationship.23 Thus, while a physician does not have a specific duty to a person until a doctor-patient relationship is established, once that relationship begins the physician has a duty to perform in accordance with the standard of care of the average physician practicing in that specialty.23
In order to prove the existence of a duty, the plaintiff must establish that a doctor-patient relationship existed. Simply put, a doctor-patient relationship is established when the physician accepts responsibility for the patient’s care by becoming involved with the treatment.31 Curbside or informal consultations, or even more formal consultations, will not establish the existence of a relationship, so long as the consultant does not assume a treatment role.32–35
States differ as to whether clinicians owe a duty of care to individuals other than patients with whom they have entered into a doctor-patient relationship.36,37 Specifically, one may wonder what happens when a non-patient is injured by the actions of the clinician’s patients.36,37 This concept of duty to third parties is discussed more fully later in this chapter.
The second element of a malpractice claim is dereliction of duty or negligence. It can be characterized as a departure from the standard of care that results from failure to exercise the level of diligence or care exercised by other physicians of that specialty. An error or injury does not constitute malpractice, if it occurs in the course of treatment where the physician has exercised due diligence.38,39
In order to establish this element, the plaintiff must introduce evidence of the applicable standard of care. This is perhaps the most critical element in malpractice claims, as the applicable standard varies according to the situation, the type of practitioner, and the jurisdiction. Specialists, or those who claim to have special expertise, are held to a higher standard of practice than general practitioners.23 Under the “School Rule,” practitioners who belong to a defined, recognized school of practice or belief may be judged according to the standard of practice of that school,40 although minimum standards of practice are expected of anyone who holds himself or herself out as being capable of diagnosing and treating illness.23 In the past, the applicable standard was dependent on the community in which the physician was practicing (e.g., urban physicians were held to a higher standard than were rural physicians). That rule, known as the “Locality Rule,” has gradually faded with the wide availability of journals and educational conferences, resulting in a more uniform national standard of care.41 While there has been a move toward a more national standard of practice, jurisdictions continue to differ as to whether residents and other trainees should be held to a standard of practice defined by others at that level of training, of general practitioners, or of specialists.42
The third element, causation, and the fourth element, damages, are closely tied to the first two: The plaintiff must show that the negligent behavior is the direct cause or proximate cause of actual damages.43,44 Causation in personal injury law is assessed in two ways. First, the “but-for” test is applied: “But-for the alleged negligence, would the injury have occurred?” Second, was there proximate or legal cause (i.e., was the injury foreseeable)? The test for foreseeability is whether the claimed harm was “a natural, probable, and foreseeable consequence” of negligence on the part of the actor.23
Under the doctrine of “loss of chance,” causation may also be established where the act or omission by the defendant-physician resulted in a lost opportunity for treatment and therefore subsequent harm.45–47 This scenario might occur, for example, where there is a missed diagnosis, delayed referral, or delayed treatment.48 The loss of chance rule has been rejected in professional negligence cases in some jurisdictions49 and retained in others.50
Damages can be of several types. They may be economic (such as lost value of future earnings and medical expenses arising from injuries sustained due to negligence of a physician) or they may be physical (such as the loss of a bodily function). They may also be emotional (e.g., development of psychiatric disorders or pain and suffering).51–53 Punitive damages may also be awarded, where the defendant’s behavior was so reckless as to justify imposition of added damages in recognition of gross departure from duty and also to serve as a means of deterring that defendant and other potential defendants who might act similarly in the future.54
These four elements of a malpractice claim are often referred to as the four Ds: duty, dereliction of duty, direct causation, and damages.55 If the defendant convinces the jury, or the judge in a bench trial, that all four elements have been proved by a preponderance of the evidence (i.e., that it is more likely than not to have occurred), the defendant will be required to compensate the victim for the harm suffered.23,55,56 Expert witnesses who offer their opinions on any of the four elements must testify to a “reasonable degree of medical certainty,” that is, they are confident that their opinions are more likely true than not.57
LIABILITY AND MANAGED CARE
Managed care has had a dramatic impact on the practice of psychiatry and the delivery of mental health services. Early on, psychiatrists recognized the potential liability associated with treatment decisions being influenced, and in some cases controlled, by insurers. One might ask, “Is the psychiatrist or inpatient unit liable if a suicidal patient is refused further insurance coverage for inpatient hospitalization, is discharged, and then succeeds in committing suicide?” In a word, yes. A psychiatrist’s duty to his or her patient continues, regardless of whether the patient’s insurer will continue to pay for services.58,59
The financial liability of employer-sponsored health plans for damages resulting from denial of health care benefits is significantly limited by the Employee Retirement Income Security Act (ERISA).60 ERISA contains a preemption clause that limits the possible damages from denial of care to the value of the actual benefit or service denied, thus shielding managed care plans from liability for negligence or harm resulting from denial of care. The Supreme Court made clear in Aetna v. Davila61 that ERISA applies to all covered plans, in spite of state statutes that attempt to provide state law remedies for denial of care and resultant harm. However, ERISA does not preempt state statutes that require independent third-party reviews of denials of service, according to the Supreme Court.62
SELECTED AREAS OF LIABILITY RISK IN PSYCHIATRY
Assault, Battery, and False Imprisonment
A battery is the touching of another person without consent or justification.23 An assault is an action that causes fear in the victim due to the reasonable apprehension that an unpermitted touching will occur.23 Battery and assault are intentional torts. In the setting of medical malpractice, battery claims typically arise when the clinician departs from the standard of care by providing treatment without obtaining informed consent in the absence of an emergency or other exception to informed consent.63 That is, without consent, treatment is an unauthorized touching, which legally constitutes a battery.
False imprisonment, another intentional tort, results when the tortfeasor causes the victim to have a reasonable belief that his or her movement and freedom are constrained.23,64 This can occur with confinement to a locked ward, room seclusion, or restraints. False imprisonment does not require actual physical restraint or physical confinement. A patient who reasonably believes that the door to his or her room is locked may claim false imprisonment, even if the door is not actually secured. False imprisonment can lead to liability for violation of constitutional rights, as well as personal injury liability.65 Conversely, failure to restrain or confine a patient who is at risk of self-harm or elopement may also give rise to liability.
In addition to claims of false imprisonment, the restraint process also may give rise to claims of assault and battery, as it necessarily involves (1) apprehension of touching, (2) the actual touching of the patient (generally without the patient’s consent), and (3) restriction of movement. The legal aspects of restraint of patients on a medical or surgical ward vary among jurisdictions and are beyond the scope of this chapter but have been explored elsewhere.66
Malpractice claims based on battery or false imprisonment, whether they arise in the general hospital or in psychiatric facilities, are rarely successful. Successful defense of these claims lies in demonstrating that the restraint and seclusion were clinically reasonable, that no less restrictive alternative existed, that they were carried out and documented in a careful manner, that the techniques used complied with hospital polices and procedures, and that the restraint process occurred as required by applicable laws and regulations of the jurisdiction in which it occurred.67–69
Misdiagnosis
Both failure to diagnose and erroneous diagnosis can provide a basis for unintentional tort liability, if harm results.70 As noted earlier, a medical error that results in injury does not establish negligence if it occurred in spite of practice in accordance with the standard of care or the adverse outcome was an unavoidable result that might have occurred regardless of the treatment.
Failure to Treat
This broad category of liability risk includes the failure to treat an identified condition, or providing treatment that is unproven, not generally accepted, or disproven. In the simplest cases, the patient who suffers injury because the physician failed to treat the condition can generally recover for harm suffered as a result. Harm allegedly resulting from administering treatments that are either unproven or not yet widely accepted can also be the basis for a claim.71,72 The quest for effective treatments for mental illnesses has included exploration of complementary and alternative treatments.73 Psychiatrists should be aware that all of the same malpractice issues involved in other areas of psychiatry apply here. While treatment with complementary and alternative methods is a field that has not yet attracted substantial numbers of malpractice claims, significant areas of potential risk include lack of informed consent, loss of chance, failure to treat, and fraud and misrepresentation.71,72,74,75 Psychiatry is a field in evolution, with a history of adopting apparently effective treatments that eventually declare themselves to be either unhelpful or harmful. As a result, caution must be exercised with regard to declaring certain treatments to be state of the art, and the failure to provide them as constituting prima facie evidence of malpractice.76,77
Abandonment
Abandonment, as a cause of action for malpractice, is the unilateral termination of the doctor-patient relationship without justification, leading to harm to the patient.23 In nonemergent situations, physicians are not legally obligated to treat every patient who requests care. Refusal to treat a patient on the basis of his or her race, religion, ethnic origin, or disease type (e.g., acquired immunodeficiency syndrome [AIDS]) raises ethical issues and sets the stage for liability under the Americans with Disabilities Act and state antidiscrimination statutes.78,79 The obligation is ethical, as well as legal. Even after the doctor-patient relationship has begun, the physician may choose to terminate the relationship and may legally do so if the method used is reasonable and does not unjustifiably put the patient at risk.23,55 Justifiable bases for terminating the relationship can include failure to pay, threatening behavior, repeated failure to keep appointments, noncompliance with treatment, and abuse of prescribed medication.55 Once the decision to terminate treatment has been made, the physician should notify the patient and inform him or her of available emergency services and alternative treatment options. Ideally, a specific referral can be provided. The treatment course, reasons and indications for the transfer or termination, the steps taken, and referrals provided should be documented in the record.80
Liability for the Acts of Others
Under the law of agency, as exemplified by the legal doctrine of respondeat superior (let the master answer), an employer is liable for the acts of his or her employees if they are performed within the scope of the employment. The master-servant/employer-employee relationship can give rise to vicarious liability for the acts of the employee. In psychiatry, this can become an issue in several settings, for example, supervision of students and residents, supervision of nonphysicians, and providing medication backup.81,82
In all cases of vicarious liability, there are several key issues. The first is whether the allegedly negligent and harmful action of the supervisee was within or outside the scope of his or her employment. For example, vicarious liability could arise if the supervisee injures a patient in the course of a restraint, but not if the supervisee and the patient were to get into a fight at a hockey game. The second issue is whether the supervisor’s status was that of employer or a mere advisor or consultant. In order for vicarious liability to be imposed, the alleged master must have sufficient control over the allegedly negligent actor to justify imposition of liability. Criteria include veto authority over treatment decisions, control of the amount and type of work, and hire-and-fire authority.55,81,83 Where there is vicarious liability, both the supervisor and the supervisee may be held liable.23,84 Supervisors may also be directly liable for harm that results from the action of their supervisees. For example, an attending physician may be held directly liable for harm to a patient where he or she fails to countermand the negligent orders of a resident.85
Confidentiality and Privilege
Psychiatrists have an ongoing ethical86,87 and legal88,89 duty to maintain the confidentiality of information disclosed by patients in the course of treatment, and may be held liable for unauthorized disclosure. Numerous ethical and legal exceptions exist to the requirement of confidentiality; all of these exceptions represent a balancing of the relative harms that result from maintaining or breaching confidentiality in given situations. Ethical exceptions to confidentiality tend to be permissive (e.g., “A psychiatrist may breach confidentiality….”). These exceptions tend to be commonsense in nature, but leave the discretion to the practitioner, without imposing obligations.90 The legal exceptions, found in case law, statutes, and regulations, tend to fall into two broad categories: immunity from liability for disclosure in good faith and required disclosures.
Whether a given exception falls into the immunity for disclosure or mandatory disclosure category depends on the nature of the exception and the jurisdiction. For example, as is discussed in depth in Chapter 83, all 50 states in the United States have statutes that designate a range of professionals as mandated reporters who are obligated to report suspected child abuse or neglect to state social service agencies. Many states also require reporting of known or suspected abuse or neglect of the elderly or disabled. In recent years, a number of states have also begun requiring physicians and others to report known or suspected cases of domestic violence to law enforcement or designated agencies.91
Of all the exceptions to confidentiality, perhaps the best known involves the duty to protect third-parties from the violent acts of patients. This duty exists in some, but not all, jurisdictions.36,37,92 The rationale for the duty to act to protect third-parties was set forth in the California court’s decision in Tarasoff v. Board of Regents,93 in which the court held that psychotherapists have a duty to act to protect third-parties where the therapist knows or should know that the patient poses a threat of serious risk of harm to the third-party. The court addressed the balancing issue and noted, “The Court recognizes the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy. But this interest must be weighed against the public interest in safety from violent assault.”93
Liability for failure to breach confidentiality resulting in harm to third-parties did not originate with Tarasoff; preceding and subsequent cases have imposed liability on physicians for failing to disclose an individual’s infectious disease status where others were subsequently infected.94–97 Human immunodeficiency virus (HIV)/AIDS poses special problems in this regard, as some states have common law or statutory obligations to breach confidentiality to protect third-parties, as well as prohibitions against disclosing HIV-positive status without written permission.98 As with many other legal issues, the jurisdictions vary with regard to the duty to disclose HIV-positive status to a spouse.99,100
A substantial number of states have enacted statutes that address the duty to protect third-parties.37,101 Some states have eliminated the duty altogether, while others limit its scope. Those states that have statutes generally limit the situations under which the duty may arise, for example, a specific threat to an identifiable third-party or a known history of violence on the part of the patient and a reasonable basis to anticipate violence. They also provide that the duty is fulfilled by taking certain steps (such as hospitalizing the patient, warning the potential victim, or notifying law enforcement). Finally, the statutes relieve the clinician of liability to the patient for good faith breaches of confidentiality, and some immunize the clinician from liability for failing to take steps to protect.
The variations among jurisdictions in the law regarding the duty to protect can lead to much confusion. Clinicians are advised, as a basic matter, to become familiar with the standards in the jurisdictions in which they practice. It is important to remember that the duty represents an exception to confidentially, which is recognized in all jurisdictions as being of paramount importance in clinical care, and that any breach of confidentiality must be justified and reasonable. It should be limited to disclosure of the minimum amount of information necessary to serve the purpose in question. Thus, even in jurisdictions in which there is a duty to protect third-parties or efforts to protect are made permissible by statute, the clinician should first take steps that will protect the third-party without disclosing confidential information (e.g., arranging for hospitalization). Only where absolutely necessary to prevent harm should the patient’s clinical information be disclosed to the intended victim or police. The effort to prevent harm to the third-party, including the decision to share information, should be regarded as a clinical intervention, with every effort made to engage the patient in the effort to avoid harm to others and the adverse consequences to himself or herself.102
Other exceptions to confidentiality include statutory provisions that allow disclosure of clinical information in pursuit of the civil commitment process, bill collection, and defense of malpractice claims. It is also accepted that a reasonable amount of information may be disclosed when applying to admit or transfer a patient to a hospital. For example, the Massachusetts psychotherapist patient privilege statute is typical in its exceptions to the obligation to maintain confidentiality.103
Passage of the Health Insurance Portability and Accountability Act (HIPAA) of 1996,104 and its implementation in 2003, have caused considerable concern for psychiatrists. HIPAA was originally designed to ensure that individuals with preexisting illnesses would continue to be eligible for health insurance coverage if they changed employers and to increase the ease of transmission of medical information among authorized users.105 However, in this law, Congress went far beyond this initial purpose, drafting legislation that led to the promulgation of new rules for how health information must be managed.
HIPAA imposes a number of requirements on practitioners, health plans, and institutions, and there have been a number of misconceptions about these requirements and their impact on patient care.106 Many psychiatrists and other mental health professionals were initially concerned that HIPAA would prohibit breaches of confidentiality that were required by state law, thus raising the specter of having to choose between liability under HIPAA and under state law. In fact, there are more similarities with preexisting confidentiality rules than differences. Even more, HIPAA expands situations in which protected health information may be released without specific consent by the patient. As with traditional rules, HIPAA calls for disclosure of the minimum amount of information necessary to fulfill a specific need when confidentiality is to be breached, even with consent.
With regard to concerns about Tarasoff and related dangerousness situations, the HIPAA Privacy Rule107 allows for disclosure of protected health information without the specific consent of patients in 16 different situations related to the good of the public. Among the 16 are disclosures required by law or public health authorities, reporting of abuse and neglect, reports to law enforcement, infectious disease reporting, and disclosures to avert serious and imminent harm to individuals. Thus, the rules regarding breaches of confidentiality for safety purposes are largely unaffected by HIPAA.
Before HIPAA, in order for a physician or health care entity to release information, a patient’s expressed informed consent was generally obtained. In the interest of promoting efficiency in the health care system, HIPAA expressly changed this practice for covered health care providers who release information for treatment, payment, and health care operations purposes. Under HIPAA, covered entities (including physicians) may disclose a patient’s protected health information for these three purposes without specific consent for the release of information provided that the patient has been notified of the new HIPAA rules through a Privacy Notice. It is important for individual providers to determine whether they are covered by HIPAA in order to bring their practices into compliance with HIPAA. In general, physicians performing “certain electronic transactions” are subject to HIPAA; the main triggering transaction is electronic billing.104–106
It should be noted that HIPAA sets a minimum standard for privacy protection; where state statutes and regulations provide greater protections for privacy, they override HIPAA. Finally, physicians are not subject to direct civil actions by patients under HIPAA. Enforcement of HIPAA is strictly a function of the Office of Civil Rights (OCR) of the Department of Health and Human Services. Thus, concerns that a patient will file an action under HIPAA are unfounded. However, patients are left to their longstanding civil remedies for breach of confidentiality under state statutes and common law. Violations of HIPAA can result in escalating civil and criminal penalties, depending on the nature of the violation and the frequency. To date, criminal prosecutions have been limited to prosecution for stealing credit card data from a patient.108 At least initially, enforcement of the Privacy Rule is likely to be for corrective rather than punitive action where violations have occurred in good faith.
Among the most relevant provisions of HIPAA for psychiatrists is the distinction between general psychiatric records and psychotherapy notes. Under HIPAA, psychiatric records are generally treated the same as general medical records.105 This treatment is a departure from pre-HIPAA practices in many states. The practical implication of this change is that patients are entitled to a copy of their medical and psychiatric records. Patients are also granted the explicit right to request changes in the record. Whether or not the applicable staff person amends the contested information, the involved correspondence becomes part of the record.
HIPAA does recognize that some psychiatric records, defined as “psychotherapy notes,” deserve special protection; however, the provision for these notes is narrow. Psychiatrists, under HIPAA, are given discretion regarding release of psychotherapy notes to patients. However, certain specific requirements must be followed in order for information in the medical record to qualify for the protection of psychotherapy notes. Specifically, the notes must be kept separate from the patient’s medical record. Even if kept in a separate psychotherapy record, specific types of information are not subject to the psychotherapy notes exclusion; these include medications prescribed, test results, treatment plans, diagnoses, prognosis, and progress to date.105,107 It should be noted, however, that psychotherapy notes are considered as part of the medical record in the event that a subpoena is received for medical records in the course of litigation.
Psychotherapist-Patient Privilege
A concept related to confidentiality is that of testimonial privilege. The distinctions between confidentiality and privilege are as follows: Confidentiality is an ongoing obligation on the part of the clinician to maintain the privacy of information shared during the course of treatment. Privilege is the patient’s right to prohibit the treater from answering requests to share clinical information about the patient in administrative or judicial proceedings. Under English common law, an important origin of law in most jurisdictions in the United States, the court was felt to be entitled to “everyman’s evidence,” and there were no restrictions on who could be called to testify. Over time, it came to be recognized that important societal purposes were served by preserving the confidentiality of relationships such as attorney and client, husband and wife, priest and penitent, and doctor and patient.109–111
The existence of the psychotherapist-patient privilege does not serve as an absolute bar to testimony or disclosure of records by the treater. First, the patient must raise the privilege and bar the disclosure of information. While clinicians may choose to raise the privilege on behalf of the patient,112 in most cases failure on the part of the patient to raise the privilege, and certainly the patient’s request that the records and testimony be provided, leaves the clinician with no recourse. Second, there are a number of exceptions to the privilege, established by statute in most jurisdictions. The statutes in New York and Massachusetts are typical.103,113 Chief among these is that the patient waives the privilege by putting his or her mental status into issue, for example, by claiming emotional distress damages in a civil case or raising an insanity defense in a criminal matter. In some, but not all, jurisdictions there is a “dangerous patient” exception. Under this exception, physicians may breach confidentiality and ultimately testify at criminal proceedings if the patient’s statements indicate that there is a serious and imminent threat of harm that can only be avoided if the therapist discloses the information.114 The existence of this privilege has raised concerns about continued erosion of confidentiality in the treatment of mentally ill individuals.115
Suicide
Although suicide is not a common occurrence, psychiatrists and other mental health clinicians are frequently concerned about their potential liability should a patient commit suicide. While suicide is an unfortunate event, it is not grounds, per se, for a psychiatrist to be held liable for malpractice. As with other negative outcomes, a treater is only liable for malpractice if the bad outcome occurred due to the treater’s negligence. Clinicians should familiarize themselves with principles of risk assessment for the suicidal patient and with prevailing legal requirements for managing suicidal patients in the jurisdictions in which they practice. Assessment and management of the suicidal patient is addressed in Chapter 53.
BOUNDARY VIOLATIONS
Of all the interactions between psychiatrists and patients that can lead to legal liability, boundary violations are among the most painful and damaging for patients, psychiatrists, and their families. Boundary violations are behaviors that involve an inappropriate departure from the accepted doctor and patient roles, as defined by societal and professional standards. They are the end point of a continuum of behavior that begins with the fiduciary duty of physicians to act only in the interests of the patient,116 rather than in their own interests, and end with the ultimate transgression, sexual involvement with a patient. Several studies involving disciplinary actions before state medical boards have demonstrated that psychiatrists are significantly more likely than other physicians to be disciplined for sexual relationships with patients.117
There is a large body of literature that attempts to categorize the types of boundary violations and their precipitants. In general, boundary violations are conceptualized as a progression of departures from expected roles, some of which are benign and appropriate when viewed in the treatment context and some of which lead caregivers down a “slippery slope” toward patient exploitation and abuse of trust.118–121 On the benign end of the spectrum are so-called “boundary crossings,” which are deviations from traditional psychiatric practice that do not harm the patient and are at times used to advance therapeutic purposes.122 Examples of such deviations include offering emergency assistance to a stranded or disabled patient, or attending a wedding or other ceremony when clinically appropriate for the patient.123–125 In contrast, “boundary violations” are deviations from a professional role that take advantage of the inherent power asymmetry in the physician-patient relationship for the gratification of the caregiver’s needs.
Whether or not a given action or event represents normative, acceptable behavior, a boundary crossing or a boundary violation depends on its nature and its context. At one end of the spectrum are boundary violations that are egregious and clear. The American Psychiatric Association’s Annotated Principles of Medical Ethics simply and specifically states, “Sexual activity with a current or former patient is unethical.”87 Arguments for time limitations on the prohibition of physician-patient sexual relations, such that a doctor and patient could enter into a relationship after a waiting period following termination of the treatment relationship, have been rejected. As of 2002, 24 states and the District of Columbia have criminalized psychotherapist-patient sexual involvement.126 Many nonsexual boundary transgressions are also clearly inappropriate, such as taking financial advantage of patients, employing patients in addition to treating them, or using patients to gratify narcissistic or dependency needs.125
There are, however, some situations that require flexibility with regard to the physician’s role and an appreciation of the therapeutic context. For example, whereas business and social interactions with a patient are to be avoided in most contexts, the psychiatrist practicing in a rural area may have little choice but to encounter the patient at community functions or frequent the patient’s retail store.123 Similarly, while gift giving and receiving124 is a relatively common phenomenon in medicine, in psychiatry, this practice has greater impact and meaning. Whether or not it constitutes “grist for the therapeutic mill” or a boundary crossing depends on how it is handled. The danger implicit in unaddressed boundary crossings is that they may lead to a more significant boundary violation.
Breaching boundaries in psychiatric treatment can result in multiple sanctions and sources of liability. Patients may bring civil actions for malpractice, based on the caregiver’s delivery of negligent care. In this vein, medical malpractice insurers have resisted indemnification of alleged sexual misconduct, arguing that such conduct is both intentional and unrelated to the treatment. Interpreting the language of the insurance contracts strictly, and seeking to ensure that injured patients were not left without compensation, a number of courts held that such misconduct represents negligent handling of the transference and countertransference, and was thus subject to malpractice coverage.127,128 Under current policies, coverage for the defense of such charges is generally provided, but insurers may specify that they will not be responsible if the physician is found liable. In addition to malpractice claims, boundary violations can result in the revocation of professional licensure, expulsion from professional societies for breach of ethical codes, and even criminal prosecutions in some jurisdictions.
REDUCING MALPRACTICE RISK
In the quest to reduce malpractice risk, the clearest and most impossible solution would be to avoid all errors. Setting aside the impossibility of such an occurrence, the findings of Studdert and associates10 that up to one-third of claimed injuries were not the result of medical error exposes the reality that even error-free practice does not completely immunize the practitioner against litigation. In addition to careful practice, a number of measures can be taken that effectively reduce malpractice risk. In-depth coverage of these measures cannot be accomplished adequately in this space, but general principles are worth noting. First, while individual practice behaviors are a key to reducing risk, it is important to recognize the impact of organizational and systemic issues on error rates.22 Second, there is convincing evidence that physicians with poor communication skills run an increased risk of malpractice claims, while those who engage in shared decision-making, follow good informed consent practices, and represent a humanistic face run less risk of lawsuits.129–135 Third, increasing attention has been given to the role of apology, and acknowledging error, as a means of sustaining the doctor-patient relationship in the event of an adverse outcome.136–141 Fourth, maintaining a good clinical record, with documentation of all clinical activities (e.g. diagno-sis, clinical decision-making, informed consent, medication changes, suicide risk assessment), is critical in defending any claims that may arise subsequently. The absence of a note in the record leaves the defendant clinician in the uncomfortable position of having to convince the fact-finder that he or she did, in fact, carry out the appropriate assessments and behaved in a reasonable fashion, even though there was a bad outcome.55 Fifth, psychiatrists should avoid the tendency to “over-legalize” the doctor-patient relationship, for example, asking patients to sign waiver and consent forms for minor changes in treatment. Such actions convey the wrong message about the relationship by indicating defensiveness on the part of the physician. Forms can be important as documentation, but do not replace the sharing of information that is so important to the therapeutic relationship. Finally, the value of consulting with colleagues when faced with clinical dilemmas cannot be overestimated. The maxim “Never worry alone” is well worth heeding, especially in the most difficult and uncomfortable clinical dilemmas, such as potential boundary issues.55,142
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