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.
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.
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.
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.
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.
Psychiatrists should understand and be knowledgeable about current intervention techniques and professional standards and guidelines for treatment of older patients. Several of the organizations listed in the reference section offer guidelines for the treatment of older patients.
One surprise finding from this review was the number of psychiatrists who were sued because of patient falls. Falls triggered 20% of the lawsuits we reviewed. Falls are common among older adults and can cause serious injury and death.11 Psychiatrists who treat older patients should be aware of this significant health concern and focus on patients’ clinical needs in this area. There may prove to be a relationship between falls, ADEs, and comorbidities.
Patients should be assessed for comorbidities that might increase their risk for falls. A low threshold for referral to other appropriate providers is probably in order. Two examples from the CDC are yearly eye examinations for older patients and a review of medications to reduce or prevent adverse effects and interactions.11 The use of minimum effective dosages of potentially sedating medications is good clinical practice, particularly with patients at risk for falls.12
Patients and significant others should be counseled and warned about the risk of falls as part of the informed consent process. Patients may need to take steps to “fall proof” their homes.
Every state provides for involuntary hospitalization. The criteria usually stipulate that the individual must bementally ill and constitute a danger to himself or others. Some states have additional bases for involuntary admission of individuals, such as those who are gravely disabled.
Lawsuits regarding involuntary hospitalization are relatively rare. Allegations tend to fall into 2 types:
• Legal processes or procedures were not followed.
• Admission was based on a faulty evaluation.
There are several actions psychiatrist scan take to reduce this risk:
•Know and follow the appropriate legal procedures when effectuating patients’ involuntary admissions
•Carefully assess patients who are candidates for involuntary hospitalization.
•Consult with a colleague. Consultation can be invaluable, especially when a standard is vague or when it is not clear that the individual meets the standard.
•Thoroughly document the assessment and the procedures followed.
It goes without saying that involuntary hospitalization should only be used for patient care purposes.
Addressing and reporting elder abuse and neglect
Elder abuse and neglect have been recognized as major public health problems.13 Assessment and appropriate intervention are key factors for good clinical care and, therefore, good risk management. The American Psychiatric Association recommends a comprehensive biopsychosocial assessment of the victimized or neglected older person.13 Psychiatrists should focus on the clinical needs of the patient and be prepared to refer to other specialists.
One aspect of intervention may include reporting to authorities. More than half of the states have some form of elder abuse and neglect reporting law. The risk management in this area is straightforward: know the appropriate state’s law regarding reporting obligations. The National Center on Elder Abuse offers state-specific resources.
The issue of driving while impaired is a consideration with older patients, both as it relates to the normal aging process and to the prescription of sedating medications. Although not reflected in the survey of lawsuits, risk managers see this issue as an emerging trend.14
As always, good clinical care and risk management involves assessment, patient education, and good medication choices.15 When there is concern about possible impairment, it may be necessary to refer the patient to a specialist to explore the underlying basis of the impairment and to treat it.
When impairment is a result of a medication adverse effect, use of the minimum effective dosage of the medication might be helpful. Whether the impairment is the result of a medication or an underlying medical condition, the patient should be counseled as part of the informed consent process about the risks of driving and be advised not to drive while impaired.
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 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.
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.
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.
1. Centers for Disease Control and Prevention.Webbased Injury Statistics Query and Reporting System (WISQARS). www.cdc.gov/ncipc/wisqars. Modified November 18, 2008. Accessed November 19, 2008.
2. Unutzer J. Clinical practice. Late-life depression. N Engl J Med. 2007;357:2269-2276.
3. Daly R. Alarm sounded about failure to address elderly suicides. Psychiatr News. 2008;43:8.
4. American Foundation for Suicide Prevention. Facts and Figures: National Statistics, 2006. http://www.afsp.org/index.cfm?fuseaction=home. viewpage&page_id=050FEA9F-B064-4092- B1135C3A70DE1FDA.Accessed November 19, 2008.
5. U.S. Pharmacopeia. Fourth annual report on medication errors in U.S. hospitals. Released November 18, 2003.
http://vocuspr.vocus.com/VocusPR30/Newsroom/Query.aspx?SiteName=uspharm&Entity=PRAsset&SF_PRAsset_PRAssetID_EQ= 73209&XSL=PressRelease&Cache=False.Accessed November 18, 2008.
6. Joint Commission Journal of Quality and Patient Safety: USP Medication Safety Forum. Medication errors involving geriatric patients. J Qual Patient Safety. 2005;31:233-238.
7. Gurwitz JH, Field TS, Harrold LR, et al. Incidence and preventability of adverse drug events among older persons in the ambulatory setting. JAMA. 2003;289: 1107-1116.
8. Rossi MI,Young A, Maher R, et al. Polypharmacy and health beliefs in older outpatients. Am J Geriatr Pharmacother. 2007;5:317-323.
9. Milne D. Dementia assessment should include cardiovascular issues. Psychiatr News. 2005;40:43-48.
10. Feil D,Weinreb J, Sultzer D. Psychiatric disorders and psychotropic medication use in elderly persons with diabetes. Ann Long-Term Care. 2006;14:39-47.
11. Centers for Disease Control and Prevention. Fatalities and injuries from falls among older adults- United States, 1993-2003 and 2001-2005. MMWR. 2006;55:1221-1224.
12. Tinetti ME. Clinical practice. Preventing falls in elderly persons. N Engl J Med. 2003;348:42-49.
13. American Psychiatric Association. Position statement on elder abuse, neglect, and exploitation. Am J Psychiatry. 1995;152:820.
14. Coombes v Florio. SJC-09869 (Mass. 2007). www.suffolk.edu/sjc/archive/2007/SJC_09869.html. May 8, 2007. Accessed November 18, 2008.
Evidence Based References
Loebel JP. Completed suicide in late life. Psychiatr Serv. 2005;56:260-262.
Tinetti ME. Clinical practice. Preventing falls in elderly persons. N Engl J Med. 2003;348:42-49.
• American Association for Geriatric Psychiatry (AAGP): www.aagponline.org
• American Medical Association (AMA): www.ama-assn.org
• American Psychiatric Association (APA): www.psych.org
• American Psychiatric Association Practice Guidelines. Assessment and treatment of patients with suicidal behaviors; 2003: www.psychiatryonline. com/pracGuide/pracGuide Topic_14.aspx
• FDA drug information sheets for consumers and healthcare professionals: www.fda.gov/cder/drug/ DrugSafety/DrugIndex.htm
• Geriatric Mental Health Foundation: www.gmhfonline.org
• Health Care Notification Network (secure online service that delivers urgent patient safety alerts to healthcare providers): www.hcnn.net
• National Center on Elder