Will Your Clinical Records Support You in Court?

You've just heard that one of your patients was involved in a criminal act (eg, a shooting, hit and run, etc) and is blaming the psychopharmacological treatment you provided for his actions.

Quickly-what do you do?

Charles Scott, MD, Professor of Clinical Psychiatry at the University of California, Davis, posed this question to attendees of the symposium “Psychiatric Prescribing: Medicine, Malpractice, and Mayhem” at the American Psychiatric Association in San Francisco.

It’s not a far-fetched scenario. In 2001, Chris Pittman shot and killed his grandparents, set their house on fire, and attempted to drive off in the family SUV. The police caught up to Pittman after the SUV got stuck in mud; Pittman at first claimed a black man had killed his grandparents and kidnapped him, but then later admitted to the crime. His defense attorney argued that he should not be held responsible for his actions, as they were a direct result of the antidepressant sertraline (Zoloft). The jury was not convinced, and Pittman was sentenced to 30 years for the crime.¹

The best defense is an offense, and Scott said a clinician’s notes and clinical records should document and defend treatment decisions. With this in mind, Scott shared 3 key things every patient record should include to support treatment strategies and defend a clinician, if needed.

First and foremost, clinicians should review patient history, and record and document such. Does the patient have a history of impulsivity, agitation/movements, psychosis, or mood swings? If this is properly documented, then lawyers cannot claim these behaviors are associated with the newly prescribed treatment. Similarly, it is important to note if the patient had failed to respond to other treatments, whether he/she is currently taking any other medications, and if there is a history of substance use.

Next, records should include baseline information before treatment initiation, Scott explained. Include physical observations. Is the patient fidgety? Squirmy? Administer and record results of AIMS as well. Mental status exam results also should be included in this section. What is the patient’s affect, mood? Is the patient organized/disorganized? The patient’s suicidality, including past attempts, should also be evaluated and documented. Scott recommended the Columbia-Suicide Severity Scale (available at: http://cssrs.columbia.edu/) to assist in this endeavor.

Finally, Scott said it is important to document informed consent. Risks should be explained to patients when treatment is initiated and anytime treatment is changed or adjusted. As necessary, addiction risk of off-label use should be discussed. Scott said it can be useful to share the package insert with patients and suggested using treatment guidelines for monitoring. All of these steps should be appropriately documented in the record.

Finally, Scott said the record should include subjective and objective monitoring. Assess for possible side effects, and so note. If the patient has experienced a reaction of any kind, Scott said it is important to note what was done and why. Similarly, he said it is important to monitor for depression, suicidality, psychosis, and mania (including sleep quality and quantity, energy levels, and motor activity).

So, in the previously posed hypothetical scenario, all that is needed is to gather your records. If your notes are subpoenaed, make sure it is legally appropriate to release the notes, Scott advised. And when it comes time to testify, keep in mind that whatever you say becomes part of the court record and can be used in future civil cases. Be thoughtful and honest in responding to questions, but keep to the facts that are supported by your clinical notes, Scott noted.