Identifying and Reducing Professional Liability When Treating Older Adults
Actions You Can Take to Decrease Risks While Increasing Patient Safety

Jacqueline M. Melonas, RN, MS, JD and Charles D. Cash, JD, LLM, ARM

Professional Risk Management Services (PRMS), Inc in Arlington, Va, manages the Psychiatrists’ Program, the APA-endorsed professional liability program. Ms Melonas, PRMS Vice President of Risk Management, has provided risk management programs for long-term–care providers, rehabilitation faciladmissionsities, and individual health care providers. Ms Melonas has consulted, written, and spoken nationally on various health care law and risk management topics. She received her law degree from the University of Maryland School of Law, Baltimore. Mr Cash, PRMS Senior Risk Manager, received his law degree from Quinnipiac College School of Law, Hamden, Conn, and his Master of Laws in Health Law from DePaul University School of Law, Chicago. Mr Cash regularly contributes to publications and speaks at national seminars on risk management in psychiatry. He also offers risk reduction strategies to psychiatrists via the Risk Management Consultation Service. The authors report no conflicts of interest concerning the subject matter of this article.

Acknowledgment–The authors gratefully acknowledge the assistance of Marynell Hinton, MA, ARM, Senior Risk Manager, PRMS, Inc. in the preparation of this article.

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In This Special Report:

Protecting Yourself and Your Patients, by Harvey E. Dondershine, MD, JD Dynamic Therapy With Suicidal and Self-Destructive Borderline Patients, by Eric M. Plakun, MD SSRI Treatment of Children and Adolescents, by Andrew P. Levin, MD Identifying and Reducing Professional Liability When Treating Older Adults, by Jacqueline M. Melonas, RN, MS, JD and Charles D. Cash, JD, LLM, ARM

As life expectancy in this country continues to rise and as the overall population continues to age, ever greater numbers of elderly patients will require some level of psychiatric care. The complexity and challenges of caring for geriatric patients create unique needs and issues that must be addressed to ensure appropriate and effective treatment. They also, unfortunately, create unique opportunities for professional liability risk.

In this article, we examine the types of professional liability issues commonly found in lawsuits that involve older patients and explain what actions can decrease those risks while increasing patient safety.

Review of lawsuits against psychiatrists
As risk managers, we are constantly reviewing closed claims to glean trends and distill risk management advice that might be helpful. Arecent search of closed claims files from The Psychiatrists’ Program targeted cases involving patients 65 years and older. (The Psychiatrists’ Program is a professional liability insurance program for psychiatrists managed by Professional Risk Management Services, Inc. since 1986.) A total of 80 lawsuits were identified from 1993 to 2007. Thirteen(16%) of the lawsuits examined were eliminated from our analysis because no injury was identified or because the injury allegation was unclear; all of those lawsuits were dismissed by the courts.

For the remaining 67 lawsuits, the causes of loss are listed in Table 1. This information comes from initial incident reports created by claims examiners who relied on their expertise when identifying the significant patient harm or injury that was the core cause of loss in a lawsuit.

Because plaintiffs usually allege multiple acts of negligence and injuries, overlap among these categories is possible; for example, many of the falls were related to adverse drug events (ADEs). Injuries related to suicide, suicide attempts, and ADEs were a frequent injury and represent perennial risk management concerns for psychiatrists, regardless of patient age.

Falls and comorbid medical conditions resulting in injuries were the most frequent reasons that psychiatrists were sued. We anticipated an increased percentage of such suits among elderly patients compared with younger patients, but we were not fully prepared for them to account for 40% of lawsuits.

Based partly on the information gleaned from lawsuits, there is specific risk management advice related to several of these injury types.

Suicide
Statistics show that older Americans are at high risk for suicide and that the risk will continue.

•Statistics from the CDC in 2004 show that Americans 65 years and older make up 12% of the US population but account for 16% of suicide deaths.¹
• Elderly white men 85 years and older have a rate of 49.8 suicide deaths per 100,000 persons in that age group. In comparison, the rate of suicide deaths in the general population is about 11 per 100,000 persons.¹
• Recent data from the CDC found a “sustained increase in suicide rates among individuals aged 40 to 64 years.”²

• The population of seniors is expected to grow to 70 million by 2030.³

•The American Foundation for Suicide Prevention reports that “90% of people who die by suicide have a diagnosable psychiatric disorder at the time of their death” and that “studies indicate that the best way to prevent suicide is through early recognition and treatment of depression and other psychiatric illnesses.”⁴

Psychiatrists who treat geriatric patients should be aware of these trends. Therapeutic interventions require special attention to ensure the safety of older patients.

Two key areas of exposure revealed by our review are the lack of a comprehensive assessment and the lack of adequate documentation. These weaknesses present a major problem for the defense of a lawsuit. This is because expert witnesses rely heavily on the medical record documentation to support their opinions of whether the standard of care was provided by the treating psychiatrist.

From this, we learn that it is important to assess elderly patients thoroughly for suicide risk and protective factors, particularly patients with depressive symptoms. Older patients may be losing loved ones along with their physical and mental capabilities; these factors complicate both assessment and treatment planning.

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