In the 33 years since I began medical school, psychiatric knowledge has greatly increased in depth and breadth, rendering much of what I originally was taught about diagnosis and treatment in need of revision. Critical concepts in malpractice have also been codified and studied since that time. We can now educate ourselves on the constituents of malpractice, as opposed to the vague admonitions I received in medical school to “watch out for the lawyers.”
One of the critical concepts that apply to malpractice is the standard of care. As psychiatric knowledge and practice evolve, so does the standard of care. Plaintiffs in malpractice litigation frequently allege that the standard of care was not met by the defendant physician in the treatment he or she provided. What does this really mean? And who determines what the standard of care is?
Fundamentals of malpractice
Before attempting to answer these questions, a brief review of the fundamentals of medical malpractice is in order. An easy alliterative way to remember the elements of malpractice is the 4D’s: “Dereliction (or Deviation) from Duty Directly causing Damages.”1 The duty of the physician is derived from the fact that there is a doctor-patient relationship. Within that relationship, if the physician errs, the patient must be damaged by the error, otherwise there is no malpractice. A simple example is the physician who writes a prescription for the wrong dosage of a particular medication. If this error is caught before the patient actually takes the medication, no damage is done.
Malpractice can exist only when the patient is damaged as a direct result of an action by the physician. If a patient with a psychiatric illness is hurt in a car accident—and if the damage is totally unrelated to any treatment his physician provided—there is no basis for malpractice. If, however, the patient caused the collision, and it can be proved that the psychiatric treatment was somehow responsible for the driver’s error in judgment, a malpractice action may ensue.
Whether the physician was derelict in, or deviated from, his duty to the patient is a critical point at which the concept of standard of care arises in malpractice. In essence, the plaintiff’s attorney seeks to demonstrate that the defendant physician has strayed from an acceptable standard of care. The defense attorney, on the other hand, will attempt to show that the physician’s actions were within an acceptable standard of care.2
Standard of care
Standard of care applies to all phases of the physician-patient interaction. It does not require best practice, where treatment and resources would be unlimited, but rather what the typical psychiatrist would do to render adequate care to the patient.3 Judicial opinions have defined the standard of care, such as the 1976 California case, Landeros v Flood, which stated that “a physician is required to exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill, which is ordinarily possessed and exercised by other members of his profession in similar circumstances.”4
The following are examples of standard of care questions that frequently arise in malpractice:
• Was the diagnosis correct, and how was the diagnosis made?
• Was reasonable care taken in making the diagnosis: Did the physician spend enough time examining the patient? Were appropriate tests ordered? Were necessary consultations requested and performed?
• Was a reasonable treatment plan created and explained to the patient?
• Were the risks and benefits of the proposed treatment modalities explained to the patient?
• Did appropriate follow-up occur: Specifically, were follow-up visits scheduled in a timely fashion? Did the physician determine the patient’s response to treatment? Did the physician check to see whether adverse effects had developed? Was consultation obtained on complicated matters?
A number of sources that make up the standard of care can be used to answer these questions. Certainly, DSM-IV-TR has been used to help determine the standard of care regarding psychiatric diagnosis. DSM-IV-TR cautions against its own use in forensic circumstances, but this reference is widely used, taught, and accepted for psychiatric diagnosis in the clinical setting. Therefore, DSM-IV-TR diagnostic criteria are almost always reviewed in malpractice cases that involve psychiatric diagnoses.
Data in other psychiatric texts, journals, and specific articles also form the basis for the standard of care, although some of these materials may be dated by the time they are published—particularly those that relate to treatment.5 Nevertheless, these written materials and now Web sites can be used to determine standard of care. (Web sites must be carefully scrutinized to make sure they present valid and reliable data.) Examples of Web sites that can be used in standard of care determinations are those of the American Psychiatric Association (APA) and the AMA.
State and federal legislation and guidelines are also used to determine standard of care, not so much for diagnosis as for treatment. State involuntary commitment laws, for instance, determine how long a patient may be held in a hospital against his will before some type of hearing must take place to decide how long the patient will continue to be held. Involuntary length of stay is a legal issue in this case, not to be determined solely by the psychiatrist. For extended involuntary stay, psychiatric input is usually solicited. In most states, however, there are also statutory limitations on extended involuntary length of stay. An example is the Pennsylvania Mental Health Procedures Act, which mandates an initial judicial hearing within 120 hours of an involuntary hospitalization; it allows an extended stay of 20 days if the patient is adjudicated to be in need of additional treatment.6
Another mechanism by which the state influences the treatment rendered by physicians is the various practice guidelines issued by state licensing boards. An example is the Federation of State Medical Boards’ Model Policy for the Use of Controlled Substances for the Treatment of Pain, which has been adopted by individual state medical licensing boards across the United States. Initially published in 1998 and updated in 2004, these guidelines describe the appropriate physician evaluation, treatment, patient informed consent, agreement to treatment, when to obtain consultation, what needs to be contained in the medical records, and compliance with controlled substance laws and regulations.7
Clearly, any psychiatrist involved in the treatment of pain with opioid medications needs to be familiar with these guidelines, which inform the standard of care for patients with pain diagnoses. It is important to know specific state laws/regulations and/or state licensing board requirements because the Model Policy for the Use of Controlled Substances for the Treatment of Pain may be adopted with changes by state medical boards or as laws or regulations rather than just as guidelines.
Clinical practice guidelines authored by expert workgroups in recognized medical organizations such as the APA are also used to clarify questions of standard of care.8 Most practice guidelines contain the caveat that each patient’s care must be tailored to his unique needs, which requires the physician’s specific clinical judgment. Nevertheless, the very existence of such guidelines—which are the consensus recommendations of experienced practitioners—indicates that there are universal physician practices that should be followed for particular diagnostic entities.
Although evidence of a third party may be excluded as hearsay in the courtroom, clinical practice guidelines are usually admitted under the learned treatise exception to the hearsay rule.2 A treating psychiatrist would want to be familiar with the practice guidelines regarding diagnosis. If a treating psychiatrist wishes to diverge from clinical practice guideline recommendations, then it is important to document the specifics of how and why a particular treatment was chosen. It is also helpful to include in the patient’s medical record a reference to an authoritative source as the basis for the alternative treatment.
Policies and procedures
Hospital policy and procedures are also used as part of the determination of standard of care. As an example, the hospital where I admitted inpatients had a standard practice in which every newly admitted psychiatric patient had to be checked at least every 15 minutes. Of course the option to tighten those checks or give one-on-one supervision also existed. If a physician chose to admit a psychiatric patient and ordered less frequent checks, the specific reason had to be written in the chart. Generally, even if the danger to self or others was low, most psychiatrists admitted patients with the standard checks, and then advanced them as needed with input from the nursing staff.
Deviation from standard policies and procedures increases the physician’s risk of liability; one can expect increased scrutiny of such practices. An article in The Philadelphia Inquirer noted that a local hospital was under tight government scrutiny for inadequate checks of psychiatric patients by staff in its crisis center after a patient, who was in isolation and who was supposed to have been viewed on a video monitor, committed suicide.2 Supervising government agencies will look at a facility’s policies and procedures for the treatment of acutely suicidal patients, specifically regarding the level and type of supervision that is appropriate to keep such a patient safe.
While managed care policy and procedures are influential on psychiatric practice, caution must be used when interpreting them as standard of care. Policies and procedures that involve managed care and outpatient clinics may be primarily designed for cost-containment because mental health resources are limited.9
The psychiatrist needs to know how policies and procedures are derived for the organizations where they are employed. An example from my own experience at a not-for-profit psychiatric clinic is the time allotted for the initial psychiatric evaluation: to maximize the number of patients seen by the psychiatrists, the standard at that clinic was 30 minutes. The clinic’s business administrator (someone with no medical or nursing background) had made that decision, and the clinicians were following this rule. If a psychiatrist works for an organization that has policies and procedures that are below the standard of care, the psychiatrist is obligated to discuss them with the clinical and business administrators of the organization. Documentation of such discussions may be useful as well.
There are a number of determinants of standard of care, which include court opinions, hospital policies and procedures, psychiatric literature, and state and federal guidelines. The standard of care concept is an important constituent of psychiatric malpractice because it is used to determine whether a physician has been derelict or has deviated from his duty to the patient. Practicing psychiatrists must be familiar with the constituents of standard of care to improve patient treatment and to decrease the risk of malpractice litigation.
2. Recupero PR. Clinical practice guidelines as learned treatises: understanding their use as evidence in the courtroom. J Am Acad Psychiatry Law. 2008;36:290-301.
3. Simon R. Standard-of-care testimony: best practices or reasonable care. J Am Acad Psychiatry Law. 2005;33:8-11.
4. Landeros v Flood, 17 Cal3d 399, 551 P2d 389, 131 Cal Rptr 69 (Cal 1976).
5. Meyer D, Simon RI. Psychiatric malpractice and the standard of care. In: Simon RI, Gold LH, eds. The American Psychiatric Publishing Textbook of Forensic Psychiatry. Arlington, VA: American Psychiatric Publishing; 2004.
6. Some Frequently Asked Questions About the Pennsylvania Mental Health Procedures Act of 1976. Montgomery County Emergency Services Web site. http://www.mces.org/302FAQs.html. Accessed August 21, 2009.
7. Model Policy for the Use of Controlled Substances for the Treatment of Pain. Federation of State Medical Boards of the United States Web site. http://www.fsmb.org/pdf/2004_grpol_Controlled_Substances.pdf. Accessed August 19, 2009.
8. Professional Risk Management Services (PRMS). Treatment Guidelines vs Standard of Care. Psychiatric News. August 17, 2007;42(16):20. http://pn.psychiatryonline.org/cgi/content/full/42/16/20. Accessed August 17, 2009.
9. Paul R, Lockey C, Hall RCW, Bursztajn HJ. Practice management: managing risks when practicing in three-party care settings. Psychiatric Times. February 3, 2009. http://www.psychiatrictimes.com/display/article/10168/1371129?verify=0. Accessed October 26, 2009.