Navigating the Treacherous Terrain of a Malpractice Suit With Minimum Stress and Maximum Skill: An Expert Interview With Richard L. Frierson, MD

Malpractice has become an almost inevitable aspect of practicing medicine in today’s medical climate.¹ Going through a lawsuit can be one of the most devastating events a physician will ever encounter. Although psychiatrists are less likely to be sued for medical malpractice, compared with physicians in other specialties — especially those specialties that are procedurally based — psychiatrists are not immune to medical malpractice claims.² On an annual basis, roughly 2% to 3% of psychiatrists are facing a malpractice suit (compared with 7% of physicians as a whole and 19% of neurosurgeons).³

It is therefore critical for psychiatrists to understand the most common causes of malpractice, how to proceed if they are sued, and how to prevent lawsuits. To shed light on this important topic, we spoke with Richard L. Frierson, MD, professor of psychiatry and vice chair for education and director of the Forensic Psychiatry Fellowship in the Department of Neuropsychiatry and Behavioral Science at the University of South Carolina School of Medicine. Dr Frierson is the co-editor of the book Malpractice and Liability in Psychiatry, which is to be published by Springer Publishing Company in early 2022.

Do medical mistakes always constitute malpractice?

Dr Frierson: We know that poor results can occur, even with the best possible care, therefore unsuccessful treatment does not necessarily constitute liability. All medical malpractice laws derive from the legal concept of a “tort,” which is a “civil wrong for which a remedy may be obtained, usually in the form of damages.”⁴ In the case of malpractice, there must be a legal claim of negligence that has taken place within the context of a formal physician-patient relationship, and it must be shown that the physician has not upheld a “professional” standard in the provision of care.² To demonstrate this, 4 elements must be present — sometimes referred to as the “Four Ds.” (Table 1)

Table 1 – The “Four D’s”

Duty	“Duty” begins when the physician-patient relationship is established (ie, when the physician examines, diagnoses, treats, or agrees to treat the patient). The physician is obligated to continue treating the patient, or properly terminate the relationship.   Psychiatrists may also have a duty to patients who are harmed through the action of their employees, supervisees, or trainees.
Dereliction	To establish “dereliction” of duty, a plaintiff must prove that the psychiatrist’s actions fell below an acceptable standard of care. Typically, this is demonstrated through an expert witness who testifies in a deposition and/or court. However, expert witnesses are not required when the psychiatrist is accused of egregious actions, such as sexual activity with a patient.
Damages	Even if the psychiatrist has indeed failed to provide an acceptable standard of care, the plaintiff must prove that he/she was damaged in some way by the psychiatrist’s acts or omissions. Were it not for the actions of the psychiatrist, there would be no damages.   There are 2 types of damages that can be awarded: · Compensatory, which compensate the injured patient for loss or injury (eg, economic, such as loss of employment or medical bills, and noneconomic losses such as pain or mental anguish). · Punitive, which punish the defendant for egregious, reckless, malicious, or intentional wrongdoing.
Direct Causation	The plaintiff must prove that the damages were a direct result of the psychiatrist’s negligence.

What are the most common reasons for malpractice lawsuits among psychiatrists?

Dr Frierson: The most common reason for a malpractice suit against a psychiatrist is a patient who dies from suicide. In cases not involving suicide, my experience is that poor communication with the patient and a patient’s sense of feeling abandoned are common reasons for lawsuits against psychiatrists. If you do not return a patient’s calls or the patient feels unable to reach you, especially in an emergency, that can create fertile soil for a lawsuit.

Improper medication prescribing is another key reason for lawsuits that I have seen. A common scenario I have seen is when a physician has prescribed the wrong class of medications, such as missing the diagnosis of a psychotic disorder and giving the patient an antidepressant, which might exacerbate or trigger mania or psychosis. If the patient harms him/herself or someone else during such an episode, failure to accurately diagnose the condition and prescribing the wrong agent can be grounds for a lawsuit. And related to medication prescription is prescribing the wrong dose of medication and not monitoring for medication side effects.

Neglecting to protect others if your patient poses a threat to their safety can similarly be grounds for a lawsuit. If you know your patient might harm someone else, in most jurisdictions you have a duty to warn that person and/or act to ensure that potential victim’s safety, perhaps by hospitalizing your patient. You also have a duty to report physical or sexual abuse of a child, elder, or other vulnerable adult.

These acts of omission or commission can result not only in a malpractice lawsuit but also in disciplinary action by the state medical board.

Can you speak more to disciplinary actions by the medical board?

Dr Frierson: Although rates of malpractice against psychiatrists are relatively low, compared with those of physicians in other specialties, rates of disciplinary actions by state medical boards are higher in psychiatrists.⁵

Some of the most common complaints that medical boards receive concern boundary violations. This can include financial irregularities and violations as well as sexual and romantic liaisons with patients or patients’ family members and dual relationships, such as treating a family member or being involved in a business relationship with a patient. Boundary violations can might start out seemingly innocuously, so I always encourage psychiatrists to be aware when their boundaries may be starting to slip. If you find yourself sharing personal information with your patient, take a step back and explore why this might be taking place. Patients may misconstrue this type of sharing and it may also be a step along a slippery slope to more serious boundary violations. It might help to talk to a colleague or supervisor if you find this happening. Boundary violations can happen both in person and on the internet (Table 2).

Table 2 – Online and Telehealth Professional Violations

· Online prescription without a physician-patient relationship · Inappropriate (ie, sexual) communications with patients · Misrepresenting credentials online · Violating confidentiality online · Derogatory comments about patients online · Intoxicated photographs of the psychiatrist · Discriminatory, racist, or misogynist comments online · Online communication via a non-HIPAA-compliant platform · Treating patients via telehealth in a state in which the physician is not licensed

The American Medical Association’s Council on Ethical and Judicial Affairs (CEJA) offers guidance regarding boundaries in medical practice.⁶ These include maintaining patient confidentiality and privacy in all settings: having your own internet presence protected by privacy settings to guard your own personal life from patient scrutiny or awareness, maintaining appropriate boundaries on the internet, and recognizing that your online actions can affect your career. Ethical guidelines for treating patients can be found in Table 3.

Table 3 – Ethical Guidelines

American College of Physicians Ethical Guidance for Electronic Patient-Physician Communication Aligning Expectations   American Medical Association Electronic Communication with Patients   American Medical Association Ethical Practice in Telehealth and Telemedicine   American Medical Association (CEJA) Report of the Council on Ethical and Judicial Affairs   American Psychiatric Association APA Commentary on Ethics in Practice   Federation of State Medical Boards Report of the Special Committee on Professional Conduct and Ethics

Are there any other areas that might lay a psychiatrist open to a medical board investigation or to disciplinary action?

Dr Frierson: Early in the COVID-19 pandemic, certain requirements for Health Insurance Portability and Accountability Act (HIPAA)-protected communication were suspended, due to the public emergency. During 2020, the Office of Civil Rights in the Department of Health and Human Services (HHS) indicated that they would not pursue what would otherwise be HIPAA violations.⁷ Physicians engaging in telemedicine in good faith to promote social distancing and good patient care were allowed to use less secured, nonencrypted forms of transmission such as FaceTime, WhatsApp, or Skype if no other platform was available. These regulations have changed, and providers are now required to use secure platforms. Failure to do so is an ethical and legal violation that can be subject to disciplinary action by the medical board.

Another emergency measure during the pandemic was that physicians and other health care professionals in good standing were allowed to practice even in states in which they were not licensed. This included the practice of telemedicine across state lines. Again, this was in response to the dire public health emergency. These regulatory changes have changed in some states and if you provide teletherapy to a patient in one of those states but you are not licensed in that state, you will be considered practicing medicine without a license, which lays you open to medical board disciplinary action. I know psychiatrists who have been caught off-guard by this. Updated state-by-state telemedicine regulations can be found on the website of the Federation of State Medical Boards.

Can a psychiatrist incur liability for care of a patient he/she has never seen?

Dr Frierson: There are a couple of scenarios in which this might happen. One is if the psychiatrist is providing supervision to another provider, such as a trainee or employee (eg, PA [Physician’s Assistant], NP [Nurse Practitioner], or other professional). This is particularly relevant because recent data from the National Center for Health Workforce Analysis shows a growing trend of the use of these midlevel providers in psychiatric settings.⁸ It is important for psychiatrists to familiarize themselves with the requirements — which differ from state to state — for working with or supervising these providers and for supervising trainees, such as residents and medical students. And make sure you are hands-on in your supervision. Know the skillset of the person you are supervising, look at their charting, how they handle situations and their clinical skills, and remain involved and aware.

The other scenario that sometimes comes up is the “curbside consult.”⁹ In this scenario, 1 specialist offers another an informal opinion about a patient. Since the complexity of the case is likely greater — which is why the provider is requesting input from a colleague to begin with — there is greater potential for error. Potential legal risks involve giving inappropriate advice, offering advice without all the facts, and having one’s name recorded in the chart by the consulting physician. Although there are some jurisdictions in which an implied treatment relationship may thus be established,⁸ most courts view this as a service to a medical colleague rather than providing care to a patient.

Nevertheless, to mitigate any potential legal liability, I recommend that psychiatrists avoid giving specific treatment advice regarding a patient he/she has never seen or examined and only speak about hypothetical patients. Try to keep curbside consults brief and simple and consider a formal consultation structure if you see the consult is becoming complex. Additionally, ask that your name not be recorded in the patient’s medical record.

What can psychiatrists do to reduce their risk of liability?

Dr Frierson: While there are no guarantees that you will never be sued, there are certainly measures that you can take to reduce your risks. Keep abreast of developments in your specialty through participating in CME activities and reading journals. Thoroughly explain and document all of your decisions — not only what you are doing, but what your rationale is for doing it. Why are you prescribing a given medication? This is important in general, but especially if you are using an agent off-label. Explain how you reached your diagnoses and what dosages you are prescribing. Detail the patient’s symptoms and mental status and do so legibly. If a lawsuit takes place, you should not go back and correct your notes to make them more legible, so the best thing to do is to use a computer or typewriter so that they are legible to begin with. Assess suicide and/or homicide risk at every encounter in patients with mood disorders and document your assessment.

One of the most vulnerable times for patients is during transitions of care, for example when a patient is being moved from an outpatient to inpatient unit, being discharged from the hospital back to home or to a stepped-down care setting, transferred to another facility, or changing care to another provider. I’ve seen many lawsuits take place when poor outcomes, such as suicide, have occurred due to faulty communication or inadequate follow-up.

How do psychiatrists’ malpractice suits tend to work out? Do psychiatrists typically have to pay hefty damages?

Dr Frierson: Between 2009 and 2014, the average medical malpractice paid claim against psychiatrists was $269,870 ($315,265 today), with over half of claims involving a patient’s death, and both economic and noneconomic damages being awarded.¹⁰ As of 2020, 23 states passed laws limiting noneconomic damages. A recent report published by the American Medical Association reviews the current state of damages in the United States in general.¹¹

What are the steps and components of a malpractice lawsuit and how long does the process typically take?

Dr Frierson: Malpractice lawsuits are complex procedures with multiple steps and can typically take a long time. One study of 10,000 malpractice claims found that the mean time required to close a malpractice claim was 19 months — roughly 11.6 months for nonlitigated claims and 25.1 months for litigated claims.¹² However, I have seen cases that can take several years, depending on whether the case settles or goes to trial, depending on the complexity of the case and the lawyers, and numerous other factors. Courts were closed during the pandemic, and now there is a backlog of cases, which may prolong the process even further. The rules of civil procedure vary from jurisdiction to jurisdiction, but there is a common basic process of components and steps, which can be found in Table 4.

Table 4 – The Litigation Process in Medical Malpractice Cases

Plaintiff files summons and complaint with court and defendant	The complaint generally outlines: ·The alleged acts of the case ·The alleged specific acts that constitute damages ·The specific damages that resulted The summons and complaint also: ·Establish jurisdiction ·Establish parties involved
Defendant must file an answer	The answer contains a point-by-point response to all of the allegations contained in the summons and complaint. The answer must be filed within a certain required period of time.
Process of discovery begins	Both parties obtain facts and information about the case from each other through several means: · Production of documents · Interrogatories (written questions formally put to one party by the other) · Deposition of witnesses involved in the case (usually starting with the parties and fact witnesses, followed by expert witnesses and causation and damages experts)
The parties may negotiate a settlement	Over 90% of medical malpractice cases settle out of court. Typically, settlements involve lower damages than jury trials. Like jury awards, out-of-court settlements must be reported to the National Practitioner Data Bank.
If the malpractice claim does not settle, the case goes to trial	Components of the trial include: · Jury selection · Opening arguments · Plaintiff’s case (including expert testimony) · Defense case · Closing arguments · Jury deliberations · Verdict · Judgment

You mentioned settling a case vs litigation. Can a defendant choose not to settle if he or she doesn’t want to?

Dr Frierson: There are different types of malpractice insurance and when you purchase your policy, it is a good idea to read the fine print. Some policies give the insurance company the right to settle or not settle without the physician’s permission, while others require the physician’s permission and are not allowed to settle if the physician opposes it and wants to proceed to trial. Some policies require an arbitration process if there is a disagreement between the insurance company and the physician who is being sued.

Is it advisable to get your own attorney if you are sued?

Dr Frierson: Some physicians, especially in procedural-based specialties, do prefer to hire their own attorneys, but any physician — including a psychiatrist — might consider doing so, since an attorney retained by you will have his or her first obligation to you and not to the insurance company that employs them.

What should a psychiatrist do after an adverse event has taken place?

Dr Frierson: The most important starting point is the well-being and welfare of your patient, so your first step is to consider immediate clinical interventions, as appropriate. You should also discuss the adverse event with the patient, if appropriate, and/or with the patient’s family.

It is very important to report the adverse event to your professional liability insurance carrier or supervisor — if you are in a hospital or employment setting — rather than hope it will “just go away.” This gives them a head’s up that something has taken place and they can weigh in on what further action, if any, should be taken. You should consider whether the treatment relationship with the patient can continue, or whether care should be transferred to another clinician.

What should a psychiatrist do if he/or she is being sued?

Dr Frierson: The first thing to do is to immediately involve your professional liability insurance carrier and make yourself available to the attorney that the insurance carrier appoints throughout the process. Do not respond yourself or contact the plaintiff, the plaintiff’s attorney, the court, or tribunal.

Remember that you are an expert in psychiatry. You are a highly trained professional and it is up to you to educate your attorney on the medical and psychiatric issues in the case. If you have made a mistake, such as prescribing the wrong dose or missing a comorbid condition in the patient, tell the attorney honestly. At the deposition and the trial, answer only the questions you are asked without volunteering information. Make sure you prepare thoroughly for the deposition and/or the trial with your attorney so you know what you are going to say. I have heard some colleagues liken it to preparing for a board certification examination.

Plan to be present at the entire trial from the initial voir dire (seating of the jury) to the verdict. This shows you to be concerned and dedicated.

I can’t emphasize enough that you should never alter the patient’s medical record. This includes making any changes, even those that might be considered appropriate or proper under different circumstances, such as rewriting illegible entries or entering corrections.

How can psychiatrists get through the stress of a malpractice lawsuit?

Dr Frierson: Although your attorney will instruct you not to talk to other people about the litigation, this might increase your sense of loneliness and isolation. If you talk to a trusted friend and colleague, you can do so without going into details about the case itself, which would not be advisable. Getting professional help might be advisable. Some insurance companies offer psychological help for physicians going through a lawsuit.¹³ Try to engage in as much self-care as you can and things that give you comfort and emotional support. Our upcoming book has a chapter devoted to self-care during a malpractice lawsuit. Additional tips for self-care can be found in Table 5.

Table 5 – Self-Care During a Malpractice Suit

· Resist the urge to self-isolate. · Seek the help of a psychiatrist, psychologist, social worker, or member of the clergy. · If you are so depressed or anxious that the negative thoughts won’t stop, or if you have persistent insomnia, anhedonia, or are unable to eat, consider short-term use of medication. But do not prescribe for yourself. Seek professional help and have the physician write a prescription for you. · Avoid the use of substances such as alcohol as a means of coping. · Consider engaging in activities that nurture your physical, emotional and/or spiritual health and promote relaxation, such as exercise, yoga, mindfulness meditation, or similar activities. · Seek support from your family. Many attorneys say that it is acceptable to talk to family members about your emotions, while avoiding medical details of the case. · Try to find enjoyable activities that will distract you from the stress.

Some physicians find the experience of going through a malpractice suit so traumatic that they contemplate Some physicians find the experience of going through a malpractice suit so traumatic that they contemplate suicide.¹³ If you find yourself contemplating suicide, call 911 or reach out to the National Suicide Hotline or the Physician Support Hotline, where you can anonymously talk to a fellow physician about what you are going through. 

Table 6 – Resources for Suicidality

National Suicide Prevention Lifeline 800-273-8255

Physician Support Line 888-409-0141

References

1. Michelin DP. Overcoming the stress of malpractice litigation: solutions to help physicians stay healthy and engaged. The Doctors Company. Date: October 2017. Accessed: January 10, 2022. https://www.thedoctors.com/articles/overcoming-the-stress-of-malpractice-litigation-solutions-to-help-physicians-stay-healthy-and-engaged/.

2.  Frierson RL, Joshi KG. Malpractice law and psychiatry: an overview. Focus 2019; 17:332–336. doi:10.1176/appi.focus.20190017

3.  Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011 Aug 18;365(7):629-36. doi: 10.1056/NEJMsa1012370

4. Garner BA, ed. Black’s Law Dictionary, 8^th ed. St. Paul, MN; West Group, 2004.

5. Reich J, Schatzberg A. An empirical data comparison of regulatory agency and malpractice legal problems for psychiatrists. Ann Clin Psychiatry. 2014 May;26(2):91-6. PMID: 24812648.

6. Code of medical ethics: patient-physician relationships. AMA-Assn.org. Accessed: January 17, 2022. https://www.ama-assn.org/delivering-care/ethics/code-medical-ethics-patient-physician-relationships. 

7.  Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency. HHS.gov. Reviewed: January 20, 2021. Accessed: April 10, 2020. https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html.

8.  Behavioral health workforce projections, 2016-2030: psychiatric nurse practitioners, psychiatric physician assistants. BHW.HRSA.gov. Accessed: December 14, 2021. https://bhw.hrsa.gov/sites/default/files/bureau-health-workforce/data-research/physician-assistants-2018.pdf.

9.  Kreichelt R, Hilbert ML, Shinn D. Minimizing the legal risk with ‘curbside’ consultation. J Healthc Risk Manag. 2008;28(1):27-9 doi.org/10.1002/jhrm.5600280105

10.  Schaffer, AC, Jena, AB, Seabury, S, Singh, H, Chalasani, V, Kachalia, A. Rates and characteristics of paid malpractice claims among US physicians by specialty, 1992-2014. JAMA Int Med. 177(5):710-718. doi:10.1001/jamainternmed.2017.0311

11.  Medical Liability Reform Now! (2021) AMA-ASSN.org. 2021. Accessed: January 15, 2022. https://www.ama-assn.org/system/files/2020-05/mlr-now.pdf.

12.  Jena AB, Chandra A, Lakdawalla D, Seabury S. Outcomes of medical malpractice litigation against US physicians. Arch Intern Med. 2012 Jun 11;172(11):892-4. doi:10.1001/archinternmed.2012.1416

13.  Sheridan A. You are not alone: ten strategies for surviving a malpractice lawsuit. Perm J. 2016;20(3):16-004. doi:10.7812/TPP/16-004