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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Some states have mandatory reporting laws related to impaired drivers. It is important to be familiar with relevant reporting requirements. The AMA publishes The Physician’s Guide to Assessing and Counseling Older Drivers—an excellent resource for the psychiatrist.¹⁶

Capacity
Capacity is another issue that is not reflected in the survey of lawsuits, but is relevant to the geriatric population. Specifically, there may be questions about an elderly patient’s capacity togive informed consent for treatment.

The first step to addressing concerns about capacity is to complete a thorough assessment.

Additional Resources

American Association for Geriatric Psychiatry

American Medical Association

American Psychiatric Association

American Psychiatric Association Practice Guidelines. Assessment and Treatment of Patients with Suicidal Behaviors

FDA Drug Information Sheets for Consumers and Healthcare Professionals

Geriatric Mental Health Foundation

Health Care Notification Network (Secure Online Service that Delivers Urgent Patient Safety Alerts to Healthcare Providers)

National Center on Elder Abuse

The patient may need a cognitive workup, in which case, a consultation or referral to a geropsychiatrist may be in order. Treatment of an underlying cause, be it somatic or psychiatric, may eliminate the incapacity.

Psychiatrists should remember that consent from a patient who lacks the capacity to consent is no consent at all. In such cases, the patient will need a surrogate decision maker. Psychiatrists are advised to consult with a health care attorney, their malpractice carrier, or risk manager for guidance. If a patient already has a surrogate decision maker, the psychiatrist should obtain and evaluate documentation of the surrogate’s appointment and maintain it in the treatment record.

Conclusions
The cause of harm to older patients as a result of medical treatment is usually multifactorial. Increasing patient safety and quality of care requires the application of evidence-based best practices. This is also the most effective risk management. Key recommendations for all risk areas include obtaining a comprehensive assessment, engaging in effective communication, staying professionally current, having a low threshold for consultation and referral, and documenting treatment adequately.

 

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