Legal Concerns: A Powerful Determinant of Therapist Behavior
Consider the following case example from one of the author’s recent expert witness testimony:
A 42-year-old man is referred by family members to a psychiatrist for counseling because of increasingly frequent talk about killing himself. He has recently completed a messy divorce and reports that he has been drinking two to four beers per night to help calm himself down. He reports that he has little social interest and mainly spends his time at home ruminating about his divorce. He indicates that his thoughts frequently turn to vivid and specific images of loading his handgun, putting it in his mouth, and pulling the trigger. He reports feeling a greater sense of peace when thinking about suicide. He reports that he does have a handgun at home, and it is loaded. He reports that 5 years ago, after a particularly bad marital dispute, he took an overdose of 30 aspirin but took himself to an emergency room before any physical damage occurred. It occurred to him at that time that he did not want to die; now, he is not so sure. He reports that he has tried everything he can think of to feel better but believes that most of his subsequent efforts to correct his life will fail.
After diagnosing the patient as severely depressed, the psychiatrist initiates a phased-in prescription of trazodone 300 mg/day. A no suicide contract is secured from the patient and the patient agrees to give his guns and ammunition to a neighbor. This action is confirmed by the patient at the next visit 3 days later. The psychiatrist feels at this time the patient could not be involuntarily committed; the patient does not want to be hospitalized and reports feeling somewhat better. Vegetative signs of depression are improving. A third appointment is scheduled 3 days later. The patient calls and cancels the appointment, stating he is going back to work. He accepts a new appointment 5 days later. On the phone, he reports feeling much better; vegetative signs are much improved. That night, he does not return home and his wife calls the psychiatrist, who recommends that she contact the police. The next morning the patient is found in his pickup dead from a gunshot wound, the gun having been purchased the day before. The widow sues the psychiatrist and the associated physicians’ group, claiming that the patient should have been involuntarily hospitalized, that the psychiatrist should not have accepted a no suicide contract from a patient with a mental disorder and that the psychiatrist should have made contact with the patient’s friends and family about the treatment plan. Each of these actions or omissions failed to safeguard the patient, causing the suicide.
This case was settled by the defendant’s insurance company for several hundred thousand dollars, without going to trial. This occurred despite a deposition process in which the plaintiff’s expert witnesses admitted that the community standard of care had been followed. One expert even testified that he did not work with suicidal patients and had not for several years! Debriefing with the defendant’s attorneys revealed that the insurance company had calculated the costs of putting on a trial, compared that to the cost of settlement, and decided the difference did not favor going to trial.
Legal concerns come from a variety of directions, but two predominate. The first concern arises from the dictates of state statutes that almost invariably require involuntary hospitalization of a patient who is assessed as an imminent threat to commit suicide. If commitment steps are not followed in such situations, the therapist is potentially liable for damages that could accrue from the patient’s future actions. To make matters worse, this can be a legal double bind. A lawsuit is possible if there is failure to hospitalize given the presence of generally accepted suicide risk indicators. On the other hand, there is the growing potential of civil rights lawsuits from patients who are detained and later claim they never met commitment criteria. These suits are potentially more troublesome because they correctly take suicide risk prediction and assessments of dangerousness to task.
Once involuntary treatment is initiated, another dilemma arises. Performing legally required treatment is certainly not the same as performing good treatment. There is often a discrepancy between what is stated in the law for social control and what seems the best and most appropriate clinical way to approach the problem. Hospitalization is usually addressed in the state laws as a prescribed treatment, yet it is clearly of equivocal value for the suicidal patient. In some patients, it may elevate suicide risk, especially for the longer term, by decreasing their sense of autonomy and efficacy.
Most hospitals and associated systems have risk management departments whose chief concern is to reduce the threat of successful lawsuits. These departments have not been overly successful, but the risk management business continues to thrive. For example, many hospitals via policy will not discharge or give a pass to a patient who admits to being suicidal. This can create a pretext of good risk management in which the patient is encouraged to lie about his or her real state of mind. Ironically, negligent death suits are raised regardless of whether the inpatient site did or did not assess prepass or predischarge suicidality. Staff can be sued for either not assessing or incorrectly assessing. The message is this: Do not mistake good risk management for good treatment.
The second predominant legal concern comes from the fear of potentially disastrous legal consequences arising from the suicide of a patient. Many clinicians fear that no matter what they do, they will be blamed and legally pursued in such a circumstance. They may be right. Many lawsuits have been launched with a scant basis for negligence. The tactic in these suits seems to be to cast a very broad net, looking for the proverbial “deep pocket,” and hoping that the entity (usually an insurance company) will settle out of court. Most negligence suits cite one or more of the following causes: 1) failure to properly assess suicidal potential, 2) failure to take adequate measures to safeguard the patient, and 3) failure to perform appropriately aggressive treatment of the patient’s condition.
Often, these cases are settled out of court for economic reasons. The settlement relates to the cost of putting on a trial versus the amount sought (i.e., if the costs of trial are deemed greater than the cost of agreement). If negotiations reduce the gap to an acceptable level, the insurance company will settle rather than risk, even if unlikely, a large jury settlement. Many clinicians still do not understand this settlement mentality; they see the court action as an opportunity to be vindicated. A settlement can therefore leave the clinician with mixed feelings: relief that the suit is over and a simultaneous belief of being found guilty. The message is this: In malpractice matters, the American legal system is no longer a pure justice system. Economic concerns can become paramount. Our best advice is to remember that in the litigious climate in the United States, lawsuits can happen anytime and for any reason. You may not be able to keep from being sued, but you can increase your chances of a successful defense. Think clearly and document your thinking. If you do not write it down, it did not happen. Have a reasonable treatment plan and stick with it. If you are worried about malpractice suits, increase your malpractice insurance. The following five steps are all indicative of good practice and therefore proactively address legal concerns.
| 1. | Document suicidality. This is discussed elsewhere in our book. Make sure you ask the right questions and document the answers. Ask about diagnosis, ask about substance abuse, and ask about suicidality. In the majority of cases in which we have been asked to give expert testimony, the major problem has been failure to document assessment, not the assessment activity itself. | ||||
| 2. | Do ongoing assessment. Once the problem has been identified, explicitly assess the condition and its response to treatment in each progress note. Again, failure to document can be a major problem. | ||||
| 3. | Prepare to be assertive. In your notes, state what you did and why you did it. Document your thinking. In addition to writing this down, make sure the patient understands what you are doing and why you are doing it. If other family members are involved, take the same approach with them. This is a proactive measure. Individuals who have been informed of your course of actions and have had a chance to agree or disagree are much less likely to drag you into court. | ||||
| 4. | Document your concerns about the totality of treatment and the actions you have taken to build a system of care for your patient. Stress the involvement of other appropriate disciplines and members of a social support system. Document your actions in putting together a competent social support system. Suicidality, if it occurs, is probably not going to happen in your office. It is going to happen out in the world. If you recognize this and are working with your patient and the social support system to take positive measures, you are demonstrating that you are conducting good systemic treatment. | ||||
| 5. | Explicitly cover your decision to hospitalize or not. This is covered in Chapter 8 of this book. It is most important that you document your thinking in this regard. | ||||
Although it is inherently absurd to assume that a self-inflicted act such as suicide can be caused by the actions of another, this is “reality” as defined by the American legal system. In the final analysis, the legal system is based on the interpretation of broad statutes. One way to begin reducing the volume of litigation is to sponsor laws that better define what types of psychiatric outcomes can by definition be related to negligence. Moving suicide into the realm of nonculpability would much more accurately represent the nature of the act itself and specifically honor the fact that the mental health profession does not currently possess the technology for accurate prediction or prevention of the act.
