Psychiatric Annals

IMPROVING THE PRACTICE OF SPLIT TREATMENT 

Legal Aspects of Split Treatment: How to Audit and Manage Risk

JoAnn E Macbeth, JD

Abstract

The core decisions and interventions made by a psychiatrist in a split treatment setting are not unlike those made in more traditional treatment settings. Nevertheless, there is a widespread perception that split treatment is associated with significantly greater risks. To help psychiatrists assess and manage the risk that such a treatment approach may entail in their practices, this article briefly summarizes the legal principles that govern the assessment and imposition of liability and discusses factors necessary for a quick risk-management audit of a practice.

SOURCES OF LEGAL EXPOSURE: LAW OF MALPRACTICE

A psychiatrist or other physician will be liable for harm suffered by a patient if it is established that he or she did not use the skill and care ordinarily used by a physician in similar circumstances, and that the harm the patient suffered was the result of this deviation from what is called the "standard of care." Most malpractice liability derives from a finding that a physician was negligent in gathering information about the patient he or she was treating, in assessing that information, or in arriving at and implementing a treatment decision.

Case law indicates that together with suicide and attempted suicide, the side effects of prescribed medication are the source of the most significant exposure for psychiatrists who prescribe medications for their patients - in any treatment setting. When a patient experiences side effects and sues a psychiatrist because of them, liability frequently depends on whether the medication that caused the side effects (1) was not indicated for the patient's disorder or condition; (2) was contraindicated because of the patient's condition or circumstances; or (3) was prescribed at an inappropriate dosage (either too high or too low).

In these and other circumstances involving the prescription of medication, liability is likely if it can be established that the psychiatrist did not take due care in either informing himself or herself by collecting the necessary information about the patient or assessing the information carefully in choosing and implementing the treatment.

The failure to collect the necessary information commonly includes the failure to (1) explore potential organic causes of symptoms; (2) personally examine the patient; (3) obtain complete and current background information about the patient's history and condition, including allergies; (4) review past and present treatment records; (5) order any indicated tests or examinations, including a full medical workup when appropriate; and (6) monitor the patient's reactions once medications have been started.

Negligence in choosing and implementing an appropriate treatment regimen may also take many forms. A review of the conduct associated with significant malpractice claims involving malpractice suggests that the exposure and liability is often avoidable. It can be the result of basic mistakes, such as putting the decimal point in the wrong place, failing to note an allergy on the patient's chart, not being familiar with the medication prescribed, not recognizing side effects when they first emerge, or failing to inform the patient about side effects and what to do if they emerge.

Turning to split treatment, its essence is the sharing of authority for the treatment of patients. Typically, nonphysician clinicians provide psychotherapy or other therapy for patients whose medications are prescribed and overseen by a psychiatrist. It is this three-way relationship - psychiatrist, patient, and nonphysician clinician - that determines the nature and the extent of a psychiatrist's legal risk and exposure when he or she prescribes medications in a split treatment context.

The American Psychiatric Association (APA) has defined the basic types of relationships that psychiatrists traditionally have had with nonphysician clinicians to help psychiatrists understand their responsibilities and obligations in these contexts.1 Although…

The core decisions and interventions made by a psychiatrist in a split treatment setting are not unlike those made in more traditional treatment settings. Nevertheless, there is a widespread perception that split treatment is associated with significantly greater risks. To help psychiatrists assess and manage the risk that such a treatment approach may entail in their practices, this article briefly summarizes the legal principles that govern the assessment and imposition of liability and discusses factors necessary for a quick risk-management audit of a practice.

SOURCES OF LEGAL EXPOSURE: LAW OF MALPRACTICE

A psychiatrist or other physician will be liable for harm suffered by a patient if it is established that he or she did not use the skill and care ordinarily used by a physician in similar circumstances, and that the harm the patient suffered was the result of this deviation from what is called the "standard of care." Most malpractice liability derives from a finding that a physician was negligent in gathering information about the patient he or she was treating, in assessing that information, or in arriving at and implementing a treatment decision.

Case law indicates that together with suicide and attempted suicide, the side effects of prescribed medication are the source of the most significant exposure for psychiatrists who prescribe medications for their patients - in any treatment setting. When a patient experiences side effects and sues a psychiatrist because of them, liability frequently depends on whether the medication that caused the side effects (1) was not indicated for the patient's disorder or condition; (2) was contraindicated because of the patient's condition or circumstances; or (3) was prescribed at an inappropriate dosage (either too high or too low).

In these and other circumstances involving the prescription of medication, liability is likely if it can be established that the psychiatrist did not take due care in either informing himself or herself by collecting the necessary information about the patient or assessing the information carefully in choosing and implementing the treatment.

The failure to collect the necessary information commonly includes the failure to (1) explore potential organic causes of symptoms; (2) personally examine the patient; (3) obtain complete and current background information about the patient's history and condition, including allergies; (4) review past and present treatment records; (5) order any indicated tests or examinations, including a full medical workup when appropriate; and (6) monitor the patient's reactions once medications have been started.

Negligence in choosing and implementing an appropriate treatment regimen may also take many forms. A review of the conduct associated with significant malpractice claims involving malpractice suggests that the exposure and liability is often avoidable. It can be the result of basic mistakes, such as putting the decimal point in the wrong place, failing to note an allergy on the patient's chart, not being familiar with the medication prescribed, not recognizing side effects when they first emerge, or failing to inform the patient about side effects and what to do if they emerge.

Turning to split treatment, its essence is the sharing of authority for the treatment of patients. Typically, nonphysician clinicians provide psychotherapy or other therapy for patients whose medications are prescribed and overseen by a psychiatrist. It is this three-way relationship - psychiatrist, patient, and nonphysician clinician - that determines the nature and the extent of a psychiatrist's legal risk and exposure when he or she prescribes medications in a split treatment context.

The American Psychiatric Association (APA) has defined the basic types of relationships that psychiatrists traditionally have had with nonphysician clinicians to help psychiatrists understand their responsibilities and obligations in these contexts.1 Although the theory and the reality seem to increasingly diverge, these three models are a good place to start.

In a consultative relationship, a psychiatrist consults on a limited basis with the nonphysician clinician and has no direct relationship with the patient. This is largely irrelevant in split treatment settings.

In a collaborative relationship, the psychiatrist and the nonphysician clinician share responsibility for the patient's treatment. The psychiatrist is responsible for prescribing medications and following up on physical complaints.

In a supervisory relationship, the psychiatrist is responsible for the initial diagnosis, the development of a treatment plan, and supervising and monitoring the nonphysician clinician's work. Supervisory relationships were generally the norm before the spread of managed care. As the APA guidelines suggest, the psychiatrist's responsibility and exposure in such a relationship can be extensive. The psychiatrist is legally responsible not only for his or her own treatment, but also for any harm resulting from his or her negligent supervision of the nonphysician clinician's treatment. If the nonphysician clinician practices negligently and harms the patient, the psychiatrist will be legally responsible for that harm if the patient can convince a jury that the nonphysician clinician might not have harmed him or her if the psychiatrist had supervised more carefully or competently or that some other intervention by the psychiatrist might have counteracted the harm caused by the nonphysician clinician.

In contrast, the psychiatrist's responsibility and legal exposure in a collaborative relationship should be low. He or she should have no responsibility for decisions, mistakes, and omissions of the nonphysician clinician. Thus, the nature of a psychiatrist's relationship with a nonphysician clinician is a significant determinant of the extent of exposure in a split treatment context.

As has generally been the case in the public sector, "collaboration" seems to more accurately describe the relationships between psychiatrists and nonphysician clinicians in most managed care settings. The psychiatrist's time may be split between practice settings, his or her caseload may preclude more than a cursory examination of the patient at infrequent intervals, and the nonphysician clinician may not be available when the psychiatrist is at the office. Frequently, the psychiatrist cannot supervise the nonphysician clinician.

If this is the case, the psychiatrist's responsibility and consequent exposure should be relatively low, as long as he or she prescribes with care. For several reasons, many involving the imprécisions of the legal system, the reality is different. The following are contributing factors:

1. The architects of lawsuits - lawyers, not patients - target "deep pockets," such as psychiatrists, regardless of their involvement.

2. In most jurisdictions, the "joint and several liability" system for allocating responsibility (and liability) among several defendants results in damages being allocated on the basis of the number of defendants, not on the basis of relative fault.

3. Juries usually seem to respond to the totality of a patient's care rather than distmguishing among different defendants. As a result, if the total care appears inadequate, the psychiatrist is likely to be held responsible, even if his or her involvement was peripheral.

4. By tradition, the physician is the "captain of the ship" (ie, the one participant in control of all aspects of a patient's care).

5. Managed care contracts typically are drafted to modify what might otherwise be a collaborative relationship. Such contracts may explicitly or implicitly make the psychiatrist the supervisor of nonphysician clinicians, may require the psychiatrist to agree to the assumption of responsibility consistent with this kind of relationship, may include indemnification provisions that shift responsibility to the psychiatrist, or all three.

HOW TO AUDIT AND MANAGE THE RISKS OF SPLIT TREATMENT

Medication management or medical backup is provided in many different settings or circumstances. Whatever the circumstances, split treatment holds the promise of better practice and lower exposure because of the expertise that comes with specialization. For the psychiatrist, the question is when is that promise realized and when is it not? What factors - other than a psychiatrist's own skill, knowledge, and clinical experience - are associated with the filing of malpractice claims against psychiatrists and with more significant verdicts and settlements?

A review of reported and unreported verdicts, settlements, and decisions suggests several such factors. One or more are usually involved when suit is brought after an untoward clinical event, and when a verdict or sizable settlement results. A psychiatrist who wishes to assess the risk associated with a particular practice setting or circumstance should consider to what extent the answer is "yes" to each of the following 11 questions.

Does the Practice Entail the Prescription of Psychiatric Medications for All or Most Patients?

A given for split treatment, this factor is a reminder of the potential toxicity and lethality of the medications that psychiatrists prescribe every day. These medications can kill, disable, and disfigure for life, even when used properly. Mishaps involving medications are threatening to juries, the members of which want to believe that medications will help them and that nothing will go wrong if a physician does everything right. Medications figure in a high percentage of malpractice claims. Their powerful impact can be a double-edged sword.

Do Diagnoses of Severe Depression and Anxiety Predominate in the Practice?

These diagnoses account for a large proportion of patients who commit suicide. Such patients account not only for a significant proportion of suits, but also for a significant proportion of suits with strong verdicts and large settlements.

Does the Practice Treat Several Hundred oi More Patients Each Year?

Given the aspects of the legal system identified previously, it is almost certainly the case that the greater the number of patients for whom a psychiatrist is responsible, the greater his or her total malpractice exposure will be. For example, compare the total risk of a psychiatrist who is treating 25 patients who are suicidal with medications and psychotherapy two or three times a week with the total risk of a psychiatrist who prescribes medications only for patients who are suicidal and treated by nonphysician clinicians and, therefore, is able to see 250 or more such patients each year. Unless the nonphysician clinicians' therapy is significantly more effective than the psychiatrist's therapy, the risk of malpractice must be significantly greater for the latter than for the former.

Does the Practice Generally or Frequently Entail Seeing 25 or More Patients in One Day?

This factor overlaps with the prior factor, but focuses more clearly on the length of the usual interaction with the patient. The sense that shorter interactions were likely to be associated with greater risk was confirmed by the Professional Liability Insurance Program sponsored by the APA. The program recently reviewed its data to determine whether there were any factors that were associated in a statistically significant way with increased risk of liability and suit. The one factor that it could identify was seeing more than 25 patients in one day.

Is the Psychiatrist the Deep Pocket in a Treatment Situation?

Split treatment means the sharing of authority and, consequently, the loss of autonomy regarding treatment. Both the clinical and the legal risks inherent in a situation in which other professionals make decisions regarding the patient are obvious. This risk is particularly great when the psychiatrist is the deep pocket. This status can arise from several circumstances: (1) working in a system with sovereign or charitable immunity, which partially or totally protects the government or nonprofit entity, and potentially its nonphysician employees, from liability, thus leaving the psychiatrist as the one party from which a patient who is injured can recover; (2) practicing with the uninsured or the underinsured; and (3) practicing pursuant to a contract in which the psychiatrist inderrmifi.es the plan for damages "associated with" his or her treatment or agrees to be "solely responsible" for the patient's treatment.

Are There Absolute Restrictions on a Patient's Access to His or Her Psychiatrist?

Traditionally associated mainly with underfunded public systems, such restrictions on access are now more common. The psychiatrist may be available at an outpatient clinic only a few hours a week or only after a set number of days, no matter what the development or crisis. Nonphysician clinicians make decisions in the interval. Thus, the psychiatrist may never learn, and have the opportunity to respond to, critical facts (eg, emerging side effects, warning signs of suicidality, and changes in medical condition). Nonphysician clinicians will make the treatment decisions, but something goes wrong, the psychiatrist is likely to be included in any subsequent suit. The trist, perhaps unknowingly and unintentionally, may have assumed the role of supervisor, or may be brought in by an attorney creative in identifying other allegedly negligent decisions and interventions.

Do Practice Circumstances Facilitate (or at Least Permit) the Formation of a Significant Relationship With the Patient or the Patient's Family? Or, Is Such a Relationship Unlikely Because of the Infrequency of Treatment Sessions, the Discontinuity Between Professionals, the Length of Sessions, or the Nature of Interaction?

Studies of malpractice (ie, negligent treatment) on the one hand and malpractice suits on the other show that there is little overlap. If only patients who have suffered harm as a result of, or in connection with, treatment are considered, most patients who have received negligent treatment do not sue and most patients who decide to sue have not received negligent treatment.

Many factors may contribute to this outcome. However, one that runs through reports of claims encompassing both those in which a suit was ultimately filed and those in which it was not seems to be the nature of the psychiatrist's relationship with the patient or, where appropriate because of the age or the condition of the patient, the patient's family. Patients seem to infrequently sue psychiatrists they feel connected with and whom they feel have cared about them. It may be that when patients feel that they know their physicians, and that their welfare is important to their physicians, they may find it difficult to entertain the possibility that their physicians have acted with less than optimal care and skill. Although a suit might be instituted if such malpractice were clear, a patient would be more unlikely to agree that the physician be included simply because of his or her deep-pocket status.

To Do His or Her lob Well. Is the Psychiatrist Dependent on Nonphysician Clinicians Who Are Inadequate in Discipline. Licensure, Experience, or All Three?

Practicing effectively in split treatment contexts is likely to require that the psychiatrist depend on nonphysician clinicians to deal with patients professionally, monitor their conditions, inform him or her about side effects and other changes in conditions or life circumstances, and identify emerging issues. When the psychiatrist chooses nonphysician clinicians and integrates them into his or her practice, he or she can make certain that such reliance is realistic. However, in other split treatment contexts someone else, who may not be a physician, decides what credentials are necessary for the nonphysician clinician, who, in turn, decides when patients will see the psychiatrist, provides psychotherapy or counseling, or reviews and reads test results.

The implications for the psychiatrist are profound if these decisions are not made wisely. The undertrained, inexperienced, and unskilled nonphysician clinician can create great clinical risk for the patient and personal exposure for the psychiatrist. Laboratory results may not be understood, or even read; nonphysician clinicians may not appreciate the significance of family information about a patient who is suicidal; minor complaints or changes in appearance may not be appreciated as early signs of serious side effects; and restrictions may be lifted by an inexperienced nonphysician clinician following normal program protocol. If harm results, the psychiatrist will be on the front line.

Must the Psychiatrist Rely on Professionals He or She Does Not Know, Has Not Had the Opportunity to Assess, and With Whose Strengths, Predisposition, and Blind Spots He or She Is Not Familiar? Or. Is the Psychiatrist Forced to Rely on Anonymous, Changing, Generic Professionals He or She Does Not Know and Cannot Trust and Who May or May Not Act Appropriately?

A psychiatrist who knows the nonphysician dinicians on whom he or she depends knows their strengths, what they are more likely to miss, and to what they need to be alerted. The nonphysician clinicians will have informed themselves of the psychiatrist's wishes, preferences, and idiosyncrasies. The psychiatrist and the nonphysician clinicians are likely to be able to communicate more efficiently and reliably Having practiced in tandem with nonphysician clinicians in connection with many patients, the psychiatrist will know whether the nonphysician clinicians will recognize important side effects of a medication without additional prompting, whether the nonphysician clinicians will tell the psychiatrist if they feel that they are over their head and need assistance, whether the nonphysician dinicians know what to look for without repeated reminders, and what it means when the nonphysician clinicians report something or fail to report something. This can be the difference between successful treatment and a significant occurrence and resulting malpractice liability.

Is the Psychiatrist Required to Prescribe Medications, Approve Treatment Plans, or Both Without an Adequate Opportunity to Assess the Patient?

Surprisingly, it is not unheard of for psychiatrists to be asked to sign treatment plans or thirdparty payment forms or even to prescribe medications for patients whom they have never seen, whose charts they may not have reviewed, and whom they may not have heard discussed in a team meeting. This is a recipe for liability. Such actions are generally taken to indicate assumption of responsibility for the patient and his or her treatment. Once that occurs, the psychiatrist is required to act with care. Almost by definition, it will be difficult to establish that care has been taken in arriving at and implementing a treatment decision if the psychiatrist has never even seen the patient.

Is the Practice Setting One in Which the Psychiatrist May Not Have the Information Needed to Practice Competently and Safely?

A failure of information can result from several system characteristics. The psychiatrist may lack the authority to order tests and obtain records. The system may be so disorganized that the information exists within the system but is not available to the psychiatrist when it is needed (eg, laboratory results may not be filed, requests for expedited analysis may never be noted, inexperienced personnel may not understand the necessity of forwarding important information to the psychiatrist, and ever-changing support staff may not be familiar with the system of record keeping). Information may be available to the nonphysician clinician, who may not recognize the need to give it directly to the psychiatrist and may depend on the system to bring it to the psychiatrist's attention in the usual course. However this failure occurs, the psychiatrist cannot make optimal treatment decisions without information, and both harm and liability may result. Although this should not be the psychiatrist's fault, as discussed earlier, there is a strong likelihood that he or she will be included if legal action is pursued.

CONTROLLING THE RISK OF SPUT TREATMENT

Psychiatrists can employ several risk-management strategies.

First, psychiatrists should familiarize themselves with the operations and routines of all practice settings. It is important to determine whether information is likely to be accurate and complete. Staffing, expertise, and the authority of those on whom psychiatrists will depend should be considered and additional steps should be implemented if appropriate.

Second, consideration should be given to weeding out the most problematic practice sites. It should be determined whether the risks of each are acceptable, particularly regarding staff turnover, support staff screening, peer review procedures, and credentials of key staff members. Before practicing in a new setting, psychiatrists should ask about opportunities for consultation and staff interaction, find out about system immunities and the insurance of nonphysician clinicians, and make decisions accordingly.

Third, careful coordination with nonphysician clinicians who have greater access to patients is critical. They should be informed what information the psychiatrist considers critical about a particular patient and what he or she wants to review and when. It is important to make clear what information about changes in the patient's condition needs to be communicated immediately and what can wait. The strengths, disciplines, and styles of particular nonphysician clinicians should be considered. A system may use them interchangeably; a psychiatrist cannot. The nonphysician clinician should be given details of a particular medication regimen (eg, potential side effects and the anticipated interval before the medication may be effective), and the information should be updated as appropriate.

Fourth, psychiatrists should familiarize themselves with system review and appeal procedures to be able to react quickly when necessary. These procedures should be used when appropriate, even if it may appear futile to do so. Following the procedures can provide protection in the event of serious harm to the patient.

Fifth, a supervision or consultation schedule should be set with reference to a particular patient. More frequent interaction will be necessary for some patients, even with the same nonphysician dinician. If this requires exceptions to limitations, they should be requested and any denials should be appealed. Documentation of all such steps is critical.

Sixth, a schedule for personal assessment of the patient should also be set with reference to his or her condition, status, and treatment. Cookiecutter schedules are difficult to defend. It may be necessary to negotiate with the system and to appeal if negotiations are not successful.

Finally, psychiatrists should be extremely careful not to issue an insurance policy to a managed care organization or other system. It is important to review proposed contracts carefully and not to mdemnify by accident. It may be possible to negotiate problematic clauses out of the contract. When in doubt about the meaning of contract language, a brief consultation with experienced counsel is an important precaution.

REFERENCE

1. American Psychiatric Association. Guidelines for psychiatrists in consultative, supervisory, or collaborative relationships with nonmedical therapists. Am J Psychiatry. 1980;137:1489-1491.

10.3928/0048-5713-20011001-08

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