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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Suicide risk and protective factors should be addressed with patients, their family, and other care providers (which may include staff at long-term–care facilities, etc) and a plan formulated and implemented to improve patient safety. Carefully document the assessment, treatment plan, and also the steps that were taken to enhance protective factors and address risk factors.

During a lawsuit resulting from a patient suicide, the expert witnesses representing each side in the litigation will assess the treating psychiatrist’s actions and give an opinion about whether the treatment provided met or fell below the standard of care. Table 2 summarizes the factors that are likely to be evaluated.

Medications
Older patients are particularly vulnerable to ADEs. Among the factors that increase the risk are comorbid medical conditions, multiple health care providers/prescribers, polypharmacy, the physiological changes of aging, and (in some cases) poor nutrition and hydration.

Studies by the United States Pharmacopeia (USP) demonstrate the scope of the problem of hospital medical errors.

•A study in 2002 found that 55% of the reported fatal medication errors in hospitals involved patients older than 65 years.⁵
•AUSP study that included 2 years of data, 2002 to 2003, from a national medication error reporting program for hospitals stated that “[g]eriatric patient errors represented nearly 40% of the 202,476 error cases that reached the patient.”⁶
•Other studies have found a significant proportion of serious, preventable medication errors and inappropriate polypharmacy among older patients in ambulatory settings.^7,8
•Our review of lawsuits against psychiatrists by patients 65 years and older found that many included ADEs. (See also Falls below.)

Critical to effective risk management for reducing ADEs is a thorough understanding of both the medications to be prescribed and the patient’s unique clinical status. It is more challenging than ever to stay current about prescription drugs given the amount of information being produced, the speed at which it develops, and because (in some instances) there is conflicting and/or incomplete information.

Consider formal or informal consultation and/or referral to a specialist in geriatric psychiatry/psychopharmacology as needed. Such steps can be helpful in demonstrating that the standard of care was met should the treatment be challenged.

Understand and be aware of both the medications and the types of errors (omission, improper dose/quantity, wrong drug) with a high potential for problems.⁷

Before prescribing, consider possible medical causes for the behaviors that are being medicated. Evaluate environmental stressors and possible nonpharmacological interventions that may be used in place of or in conjunction with medication. This approach requires collaboration and communication with other health care professionals, family members, and care providers.

Informed consent discussions are imperative. Effective communication about medications provides an opportunity to engage in ongoing dialogue among clinicians, the patient, and (when appropriate) the patient’s family. Building these relationships increases the likelihood of adherence to the treatment plan and decreases risk to both the patient and the psychiatrist.

Comorbidity
Older patients being treated for psychiatric issues are likely to have medical problems as well. Psychiatrists must assure that the patient’s clinical needs are being met—including assuring the assessment of and treatment or referral for treatment of medical problems.⁹ Indeed, some patients’ psychiatric symptoms may improve with treatment of their medical conditions, whereas some patients’medical conditions may worsen.¹⁰ Key risk management strategies are engaging in a thorough assessment, communication with other providers, and staying current with treatment approaches.

A thorough assessment is always crucial for successful treatment. Psychiatrists must be cognizant of patients’ medical problems as well as psychiatric problems. A low threshold for referral to a colleague for a diagnostic workup and/or treatment of medical problems is good clinical risk management. Communication between and among other providers is necessary to deliver coordinated, effective care and treatment.

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