Good practice and common sense are excellent risk-management tools to lessen liability exposure when prescribing medications. At minimum, follow these basic tenets:
- Do a thorough examination.
- Determine a valid diagnosis.
- Decide on an appropriate course of treatment.
- See your patients long enough and frequently enough to do a good job.
- Stay current with evolving standards and new technologies.
- Order appropriate lab tests and act on the results in a timely manner.
- Respond to lack of progress.
- Do not hesitate to seek consultation.
- Obtain second opinions: a second opinion is good practice and better risk management.
- Be sure your instructions are appropriate and understood when obtaining consent. Proper consent with bad instructions could be considered "constructive abandonment." Constructive abandonment occurs when the psychiatrist leaves the patient in the lurch—constructively abandons the patient—at a critical moment. Consider the psychiatrist who warns the patient about a potentially serious side effect but fails to tell the patient what to do if it occurs.
- Do not take on more cases than you can handle.
- Do not deviate from ordinary practice without a very good, articulable reason.
- Do not err by prescribing the right drug in the wrong dose or to the wrong patient.
- Do not rely on a pharmacist to catch mistakes or decipher bad penmanship.
- Never prescribe to nonpatients; if you do, you risk both civil liability and disciplinary action by your state licensing agency.
- Attend to the therapeutic alliance: patients who like their doctors are far less likely to sue them.
Liability for suicide
Patient suicide is the most frequent source of malpractice claims against psychiatrists. Yet, according to Robert Simon, MD, "Suicide risk can vary from minute to minute, hour to hour, day to day. This makes any prediction about the imminence of suicide illusory."7,8If psychiatry cannot reliably predict suicide, how can a psychiatrist be found negligent for patient suicide? The answer involves differentiating suicide prediction from suicide risk assessment. Although it is difficult to predict suicide, there is an evolving standard of care for suicide risk assessment. Thus, prediction may be illusory but risk assessment is not.
The key to an adequate suicide risk assessment is to gather necessary clinical data and identify unique risk factors. This may require a detailed interview, a review of the patient's past psychiatric records, and obtaining collateral information from the patient's family.9 In order to provide appropriate treatment and to minimize potential liability, it may be necessary to conduct this evaluation in a psychiatric emergency room or arrange for hospitalization of the patient. If a patient does not meet criteria for involuntary treatment, the psychiatrist may consider voluntary hospitalization, partial hospitalization, or more frequent office visits.
In judging acute risk, it is best to rely on objective data and not exclusively on clinical intuition based solely on experience. Modifiable and treatable risk factors need to be identified. Risk factors for suicide include expressed intent; active mental illness; and clinical symptoms such as depression, anxiety, insomnia, impulsivity, agitation, and a history of past suicide attempts. The psychiatrist should also address psychosocial factors, such as access to firearms, substance abuse, and situational stresses (eg, recent loss of a relationship, job, or housing). Protective factors, such as family support, religious commitment, and access to mental health treatment, should also be considered.10-12
Psychiatrists should not exclusively rely on a patient's statements to avoid the pitfall of being reassured when a patient denies suicidal ideation or agrees to a no-suicide contract; such statements may be misleading.13,14 High-risk patients motivated to end their lives may tell the psychiatrist what they believe the psychiatrist wants to hear.
After the threat has been assessed and a risk has been determined, a plan of action should be designed and implemented. The plan should address identified risk factors. For example, if risk factors include insomnia, access to firearms, and the need for ongoing mental health treatment, the treatment plan might include insomnia treatment, removal of the firearm from the home, and arrangements for appropriate mental heath treatment. To avoid a finding of negligence, proper documentation is crucial15; juries may conclude that if it wasn't documented, it wasn't done. Finally, psychiatrists should attend to inconsistent documentation. A malpractice attorney will have a field day if a psychiatrist's last note indicates that the patient's anxiety and suicidal ideation have abated, while the nurse or other coinvolved clinicians contemporaneously state that the patient does not sleep, paces, and continues to endorse suicidal thoughts.