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WORKING WITH MEDICAL PATIENTS [ETHICS & RISK MANAGEMENT]

by William W. Deardorff, Ph.D, ABPP.


4 Credit Hours - $79
Last revised: 08/05/2014

Course content © Copyright 2009 - 2017 by William W. Deardorff, Ph.D, ABPP. All rights reserved.



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COURSE OUTLINE

 

Introduction to Course and Overview

Learning Objectives

Author Disclaimer

Liability and Malpractice in Behavioral Health Practice

Psychological Malpractice Defined

     Owing a Duty to the Patient

     Proving a Breach of Duty

     Establishment of Injury

     Proving Proximate Cause of Patient’s Injury

Areas of Liability Risks in Behavioral Health

     Practicing Medicine without a License

          Diagnosing and Treating a Medical Condition

          Interfering with Appropriate Medical Treatment

          Providing Actual Medical Treatment

     Failure to Consult, Refer, or Communicate

          Failure to Consult

          Failure to Refer

          Failure to Communicate

          Medication Issues

     Suicide and Malpractice Risk

     Duty to Protect

     Duty to Protect and HIV Positive Patients

     Confidentiality

     Psychological Evaluation

     Supervision of Trainees

     Sexual Victimization and Malpractice

          Touching, Nudity and Medical Procedures

     Billing, Collection, and Financial Issues

     Association with Physicians in “Risky” Areas of Practice

     Managed Care

Minimizing Malpractice Risks

Suggested Reading

References

 

INTRODUCTION TO THE COURSE

 

This course provides an analysis of some legal issues that may arise in the practice of behavioral health. It delineates general concepts of mental health malpractice and focuses on those high-risk areas pertinent to behavioral health.  The course also discusses licensing board complaints, which occur much more frequently than malpractice actions and can be as equally devastating professionally, financially, and personally.  Throughout the course, there is an emphasis on proactively managing risky areas of practice.  This is not done in a defensive manner, but rather methods that are designed to enhance the quality of care.

 

This course is based upon a chapter from the book, Clinical Health Psychology in Medical Settings: A Practitioner’s Guidebook, 2nd Edition (Belar & Deardorff, 2008).  This book was originally published in 1987 and is now in its third edition (second edition with APA Books).  The updated book was published by the American Psychological Association.

 

 

LEARNING OBJECTIVES

 

·         List the four elements of a malpractice action

·         Describe areas of liability risk in behavioral health practice

·         Explain why communication with other healthcare providers is so important

·         Utilize proper methods for assisting in medication management

·         Apply risk management methods for behavioral health practice

 

 

AUTHOR DISCLAIMER

 

The course reviews ways to minimize risk, but it does not provide legal advice; nor should it substitute for the assistance of legal counsel, should a practitioner encounter ethical or legal issues in his or her practice.  This course provides an analysis of some legal issues that may arise in the practice of behavioral health. 

 

This course is not a final decision on any ethical or legal subject, as all ethical and legal issues are constantly under revision and consideration.  This material is not meant as a personal or clinical consultation, nor is it meant as a substitution for contact with an ethics committee, attorney or professional consultant.  Excerpts from a variety of ethics codes are presented for illustrative purposes only.  The excerpts may not be presented in full or may be paraphrased. All ethical codes that apply to a specific issue may not be presented.  Be sure to check your actual ethical code language for precise wording or application.

 

The proper handling of any particular situation depends on the facts unique to that situation, as well as applicable ethical principles and laws. Those laws may differ from state to state and also may change with some frequency. Behavioral health practitioners who encounter ethical or legal issues in their practices should consult with a competent attorney familiar with the laws in their state.

 

 

LIABILITY AND MALPRACTICE IN BEHAVIORAL HEALTH PRACTICE

 

As discussed by Campbell and Lorandos in their classic series, Cross Examining Experts in the Behavioral Sciences (2001, pages 10-16),

 

“It is well stated in law, for example, that patients have (1) the right to psychotherapy treatment in the least restrictive environment, (2) the right to exercise informed consent to treatment alternatives, (3) the right to treatment that satisfies the standard of care, and (4) the right to expect that their therapist will act ethically”. 

 

When a behavioral health practitioner violates any of these rights, he or she is at risk for a liability claim.  In the event of a malpractice action or licensing board complaint, the professional behavior of the practitioner will be judged against the standard of care for the specialty including such things as the ethical standards, guidelines promulgated by the appropriate professional agency and expert testimony regarding accepted evaluation and/or treatment procedures.  In another course, ethical issues in the practice of behavioral health are discussed.  Since transgression of any of these principles may be grounds for a liability action of some type, this course presents what might be considered the worst possible outcome to alleged professional misconduct: that of a liability claim.  Having an understanding of malpractice and licensing complaint issues can help the behavioral health practitioner be “proactive” by practicing at or above the standard of care and implementing appropriate risk management techniques 

 

Ideally, malpractice law serves three important social functions (Klein & Glover, 1983; Reamer, 2003). First, it protects the public from professional wrongdoing by providing aversive consequences for misconduct. Second, it transfers the “loss” from one party to another whom more so deserves to pay. Third, it distributes the cost of a professional’s negligent conduct across the profession at large through insurance premiums. In these ways, the threat of malpractice provides constant pressure on professional communities to self-regulate and self-scrutinize while giving the public a mechanism to recompense when this does not occur.

 

As evidenced by spiraling medical costs, partially related to increased malpractice litigation, it appears that the social function of malpractice law has been disrupted by consumers’ propensity to initiate litigation. This may either be where negligence has occurred or, increasingly, where no negligence is ultimately determined. It might be speculated that skepticism about health care treatment and heightened angry affect over medical costs combined with an increase in the number of attorneys per capita have fostered the likelihood of malpractice litigation occurring (VandeCreek & Stout, 1993). Costs are incurred in such legal actions, even if the professional is exonerated. In the vast majority of cases, the case will be settled out of court in an effort to avoid the higher expenditures regardless of whether there was misconduct, thus reinforcing suit-filing behavior independent of the merits of the case (VandeCreek & Stout, 1993; Reamer, 2003). There is a societal cost for such freedom of action, and this is ultimately passed back to consumers.

 

Mental health professionals have not been threatened by malpractice in the same magnitude as physicians (National Practitioner Data Bank, NPDB, 2007). There are at least two reasons thought to be responsible for this finding: (1) The nature of the therapist-patient relationship helps to inhibit such action (Charles, 1993).  Even in the medical field, studies have demonstrated that the likelihood of a patient initiating a malpractice action is related to the doctor-patient relationship (Moore, Adler, & Robertson (2000). (2) In the mental health area it is difficult to prove the four malpractice standards to be described subsequently (Bernstein and Hartsell, 2004). However, along with a greater public awareness of mental health practitioners’ professional behavior (Wright, 1981), malpractice claims in mental health practice are on the increase-a trend that is continuing (Montgomery, Cupit & Wimberly, 1999;  NPDB, 2007; Stromberg & Dellinger, 1993).  As concluded by Campbell and Lorandos (2001), “In a very real way, mental health professionals have been ‘discovered’ by malpractice attorneys in the last 25 years” (page 10-80). 

 

Beyond public scrutiny of general mental health practice, those working in the area of behavioral health potentially open themselves to a myriad of new malpractice liability risks of which they should be aware (Halley, McDaniel, Bray et al., 1998; Hanson, Kerkhoff and Bush, 2005; Knapp & VandeCreek, 1981; Reamer, 2003). First, because behavioral health specialists practice in close concert with the medical profession and deal more often with physical problems,  there may be heightened liability  risks of such things as inadvertently practicing medicine without a license, failure to refer or communicate within the healthcare system, breaching confidentiality of psychological information by placing it within the medical record, legal retaliation in response to not psychologically clearing a patient for an elective medical procedure (e.g. gastric bypass or spine surgery) and being named in a lawsuit that is primarily against a physician associate.

 

Second, the nature of the therapist-patient relationship, often thought to protect the traditional psychotherapy practitioner against malpractice, can be very different in many behavioral health cases. Often, the behavioral health intervention may be limited to evaluation and/or brief treatment.  As such, an intimate, deep, long-term psychotherapeutic relationship is not developed (nor is it considered necessary for treatment gains).  Third, physical harm may be much more likely in the practice of behavioral health than in more traditional psychological treatment. This is due to the fact that, “many of your patients really are sick” (Haley et al., 1998, page 238). 

 

PSYCHOLOGICAL MALPACTICE DEFINED

 

Malpractice claims fall within two broad categories:  a professional error of commission (including misfeasance and malfeasance) or omission (nonfeasance).  In the first category, there is a claim that the practitioner carried out his or her professional duties improperly or in a fashion inconsistent with the profession’s standard of care.  This might include such things as incorrect or injurious treatment, failure to diagnose, breach of confidentiality, abandonment, etc.  There is a difference between misfeasance and malfeasance (Reamer, 2003).  Misfeasance is defined as, “the commission of a proper act in a wrongful of injurious manner or the improper performance of an act that might have been performed lawfully” (Reamer, 2003, page 4).  Examples include inadvertently disclosing confidential information or inadequate informed consent procedures.  Malfeasance is defined as, “the commission of a wrongful or unlawful act” (Reamer, 2003, page 4).  Examples include sex with a minor, embezzlement, physical assault, wrongful death, and violation of a patient’s civil rights.  

 

Malpractice suits have been generally founded in tort or contract law as opposed to criminal law. The difference is that the former pertains to acts damaging to a person whereas the latter applies to transgression against society (Bernstein and Hartsell, 2004; Reamer, 2003; Schutz, 1982). To make a successful case of malpractice, the plaintiff must prove, by a preponderance of evidence, the following four elements (Deardorff, Cross, & Hupprich, 1984; Feldman & Ward, 1979; Furrow, 1980; Gifis, 2003; Harris, 1973; Reams, 2003):

 

 

Elements of Malpractice

 

 

that the defendant/practitioner owed a “duty” to the patient,

 

that the defendant/practitioner’s behavior fell below the acceptable standard of care or that the “duty” owed to the plaintiff was breached,

 

 that an injury was actually sustained by the plaintiff, and

 

 that the defendant/practitioner’s act or omission was the proximate cause of the plaintiff’s injury.

 

 

Each element is discussed subsequently, with its implications for behavioral health practice. Each of these must be demonstrated by a preponderance of evidence. They are summarized by the 4D mnemonic: Dereliction of-Duty-Directly causing-Damages (Rachlin, 1984).

 

Owing a Duty to the Patient

 

The first of these allegations, that the practitioner owed a duty to the patient, is usually the easiest to prove (Reamer, 2003; Schutz, 1982). This basically involves proving that a professional relationship existed between the practitioner and patient; such things as a treatment contract, bill for services, or chart notes, are sufficient evidence. Related to this contract, when a professional accepts a case, he or she owes a duty to possess the level of skill to treat commensurate with that possessed by the average member of the profession in good standing in the community. This is considered the prevailing standard of care in the profession.   Furthermore this skill and learning must be applied with reasonable care (Deardorff et al., 1984; “Professional Negligence,” 1973; Zur, 2005).

 

Proving a Breach of Duty

 

To prove a breach of duty, the plaintiff must show that the practitioner’s behavior fell below the acceptable standard of care.  This might include not having proper knowledge to treat or that the knowledge was misapplied.  Of course, proving a breach of duty requires that the prevailing standard of care be fairly clearly established.   The standard of care is an important concept not only relative to liability claims but also in guiding one’s practice.  Unfortunately, many therapists do not have an understanding of the concept (Caudill, 2004).  The standard of care is the usual and customary standard of practice in the community for the same profession or discipline (Caudill, 2004; Doverspike, 1999; Williams, 2003). The standard of care is a complex construct and is not contained in any textbooks.  Rather, it is derived from six concepts (See Caudill, 2004; Williams, 2003; Zur, 2005 for a review):

 

 

Six Concepts of Standard of Care

 

       

Statutes: Each state has its own statutes (e.g. child abuse reporting laws) and a professional’s behavior will be judged against those.

 

Licensing Board Regulations:  Each state has its own set of extensive licensing board regulations that govern such things as continuing education, licensing and supervision.

 

Case Law: Case law is one of the most important aspects of standard of care.  Tarasoff is an example of case law defining a standard of care.  It is predicted that the HIPAA regulations will become the standard of care through case law (Harris, 2003)

 

Ethical Codes:  Ethical codes are an important, but controversial, aspect of standard of care.  Even though professional ethical codes technically only apply to members of the respective organization, in most liability situations they are also applied to non-members.  Since professional ethical codes are ambiguous and unclear about what kind of behaviors are mandated or prohibited (unlike case law and regulations), they are easily misinterpreted and used against the practitioner in legal proceedings.  In addition, even though the APA Ethics Code (2002) specifically states that, “The Ethics Code is not intended to be a basis of civil liability” (Introduction and Applicability) and “Whether a psychologist has violated the Ethics Code standards does not by itself determine whether the psychologist is legally liable in a court action, whether a contract is enforceable, or whether other legal consequences occur” (Introduction and Applicability), they are often used for just that purpose in liability claims (either licensing board complaints or malpractice).  This is similar to National Association of Social Workers Code of Ethics which states, “Violations of standards in this Code does not automatically imply legal liability or violation of the law.  Such determination can only be made in the context of legal and judicial proceedings” (NASW, 2008). 

 

Consensus of the Professionals:  The standard of care is also established by expert witness about the consensus of other professionals practicing in the same discipline.  This can be extremely difficult to establish in a field such as psychotherapy.  However, as will be discussed subsequently, the practice of clinical health psychology is generally based upon more well-defined and empirically derived principles making consensus more likely. 

 

Consensus in the Community:  The standard of care is also derived from community norms.  As such, the standard of care might be different across various contexts such as working with specific religious groups or cultures, practicing in the military environment or Veteran’s Affairs facilities, and services in a rural area.

 

 

Outrageous actions such as beating a patient (Hammer v. Rosen, 1960), engaging in sexual contact with a patient as part of treatment (Roy v. Hartogs, 1975; Simon, 1995, 1999) or nontraditional improper treatment resulting in injury can provide a prima facie case of malpractice (Cross & Deardorff, 1987; Knapp, 1980; Reamer, 2003). One of the most widely publicized instances of improper and non-traditional treatment was a Colorado case in which a ten-year-old girl died of suffocation as part of “rebirthing” treatment for an attachment disorder.  The “treatment” included wrapping the girl in a blanket to provide the rebirthing experience.  The girl was unable to breathe and died of asphyxiation.  The treating social worker was convicted of death resulting from reckless child abuse and sentenced to 16 years in prison (See Reamer, 2003; Nicholson, 2001 for a review). 

 

Other than cases of this nature, proving a breach of duty has, historically, been difficult in an ambiguous practice such as psychotherapy; however, this situation is clearly changing.  With advancements in psychological research there has been a movement towards identifying empirically supported (“evidence-based”) treatments and using those criteria to select interventions for particular conditions (Chambles and Ollendick, 2001; Weisz, Hawley, Pilkonis, Woody, & Follette, 2000).  Many of these evidence-based guidelines are summarized in such texts as, Handbook of Assessment and Treatment Planning for Psychological Disorders (Antony and Barlow, 2002), A Guide to Treatments That Work, 2nd Ed. (Nathan and Gorman, 2002) and Social Work in Mental Health: An Evidence Based Approach (Thyer and Wodarski, 2007).  It is not inconceivable that future liability actions will rely on published guidelines to help establish the standard of care against which behavioral health practitioners’ actions will be judged.  However, national organizations such as APA have adopted policies on evidence based practice that, embrace a broader set of constructs than lists of empirically supported treatments.  As in medicine, evidence based psychological practice in psychology requires the integration of the best research evidence with the clinical expertise of the practitioner and the values/perspectives of the patient (APA, 2006).

 

In the area of behavioral health, there has been a focus on empirically based treatment interventions for many years. As discussed by Knapp and VandeCreek as early as 1981, clinical health psychologists may have to adhere to more specifiable standards of care than traditional psychologists, because the techniques used can often be more explicitly delineated. This conclusion rings true today.  Many treatments used in the practice of behavioral health arise from behavioral, cognitive, and social learning frameworks that have a strong empirical base; thus, aspects of evaluation and treatment are often more measurable than in psychodynamically oriented approaches. Examples include neuropsychological assessment, objective psychological assessment of medical conditions, behavioral observation data, and psychophysiological evaluation and treatment. 

 

As reviewed previously, the standard of care against which the practitioner’s behavior is judged in malpractice litigation is established, in part, by expert testimony (e.g. consensus of the professionals). In the past, it has been difficult to get members of a profession to testify against one another (Markus, 1965), but this is less problematic since the courts abandoned the “locality rule” (which required the expert witness to be from the same geographical area as the defendant/practitioner).  This change in court practice has had two important implications. First, it has successfully diminished the “conspiracy of silence” related to expert witness testimony (Slovenko, 1978). Second, it means that a reasonable standard of care for psychological practice may be set at the national standard instead of a community standard and that the practitioner may have malpractice liability where local standards are below those of the national level (Pope, Simpson, & Myron, 1978; Reamer, 2003).

 

This may be especially relevant for the practice of behavioral health, because it is a highly specialized and expanding area. Because there are likely to be fewer behavioral health practitioners in a community, the court would be forced to draw expert witnesses from a more national geographical territory. Therefore, the standard of care may be set commensurate with a national, rather than a local, average minimum level of practice expertise. With this in mind, “psychologists who expand their practices into this specialty should obtain appropriate training and expertise before presenting themselves to the public as specialists” (Knapp & VandeCreek, 1981, p. 680). As discussed by Schutz (1982) and Reamer (2003), if psychologists, or other behavioral health practitioners, present themselves as specialists within a general practice area, they will be held to the highest standard of care of the specialty practice.  For those presenting themselves to the public as behavioral health specialists, or as specializing in treating disorders primarily within the domain of the specialty, then the higher standard of care will apply.

  

Establishment of Injury

 

The third element the plaintiff must demonstrate is that harm or injury was suffered. Where physical harm has been sustained, it is easier to establish injury and specify monetary compensation; where the injury is emotional or psychological, it can be very difficult to establish compensation amounts (Klein & Glover, 1983; Reamer, 2003). For instance, in an example of an injured worker who had a dominate arm amputation, it would be relatively easier to estimate compensation on the basis of medical costs, physical disability, lost wages, and pain-suffering than in a psychological injury case.  Expert witness testimony is often required to help objectify a psychological injury.

 

Proving Proximate Cause of Patient’s Injury

 

The last allegation to prove is that the plaintiff’s injury was either directly caused by the practitioner’s action or a reasonably foreseeable consequence of such behavior. Where the practitioner’s behavior is not outrageous, proving this essential causal link between professional conduct and mental injury can be very difficult (Tarshis, 1972; Reamer, 2003; Slovenko, 1978). However, if the injury is physical, proof is much easier (Dawidoff, 1966; Reamer, 2003). In the practice of behavioral health, the injury is more likely to be physical, because the patient is often being treated for psychological factors affecting a physical condition. An example of this might be a behavioral health specialist encouraging a cardiac patient to engage in an inappropriate amount of exercise without medical clearance and thus inducing a myocardial infarction.

 

AREAS OF LIABILITY RISKS IN BEHAVIORAL HEALTH

 

Although most articles about psychotherapists’ liability focus on malpractice, a licensing board complaint can be just as devastating to the practitioner and is far more likely to occur.  As discussed by Welch (2002), “Most psychologists don’t really understand that their vulnerability to an unjustified licensure complaint and resulting investigation is infinitely greater than the risk of a malpractice suit” (page 3).  A malpractice suit is difficult to file and requires that the plaintiff/patient convince an attorney that there is enough merit in the case to expect recovery on a contingency basis.  On the other hand, filing a licensing board complaint requires only filling out a form (which is now usually done on-line).  For instance, in California in 2006, the Board of Psychology received 537 complaints but this resulted in only 102 investigations being opened.  Of those 102 investigations, 23 resulted in some type of penalty decision (e.g. reprimand, revocation, etc) and 36 were sent to the District Attorney for criminal prosecution.  As can be seen, only a small percentage of complaints lead to sanctions or prosecution.  However, even in the 478 cases in which the psychologist was exonerated, the practitioners had to endure the stressful process of defending against a licensing board complaint.  Similar issues apply to social workers, counselors, marriage and family therapists, and other allied healthcare professionals.  Being aware of areas of liability and risk management strategies can help the psychologist avoid the complaint altogether.  Although the following discussion is primarily related to malpractice risk, it also applies to licensing board complaints.

 

PRACTICING MEDICINE WITHOUT A LICENSE

 

One of the primary increased malpractice risks one encounters in moving from general clinical work to behavioral health involvement is practicing medicine without a license. Several authors (Cohen, 1979; Furrow, 1980; Knapp & VandeCreek, 1981; Reamer, 2003) have addressed this increased malpractice liability, and their discussions incorporated into the following. Practicing medicine without a license overlaps significantly with failure to refer, consult and communicate as discussed subsequently.

 

The practice of medicine can be generally defined as “persons who diagnose or treat disease, or who represent themselves as healers of disease” (Knapp & VandeCreek, 1981, p. 678). Although the practice of medicine is clear in such things as surgery or chemotherapy, in other areas it becomes much less definable. These less clear areas relevant to “drugless healers” (e.g., psychologists, social workers, counselors, marriage and family therapist, etc.) include diagnosing and treating patients within the bounds of one’s own discipline and not crossing over into medical practice.

 

Diagnosing and Treating a Medical Condition

 

Behavioral health specialists will often become involved in the direct treatment of a medical condition.  This is entirely appropriate when done in close collaboration with the patient’s physician.  In some situations, such as independent solo practice, ongoing communication with the patient’s physician can be difficult and often neglected by the practitioner. The following example potentially constitutes practicing medicine without a license (making a medical diagnosis) and/or failure to refer. 

 

 

Case Example

 

 

C.J. was a 37-year-old woman, who presented with a complaint of headaches that had occurred daily over the past year.  The headaches were worsening in terms of intensity, frequency and duration. The headaches were characterized by a bandlike pain encircling the head. The pain began in the suboccipital region and radiated to posterior cervical areas. C. J. reported no associated visual or gastrointestinal symptoms. She also stated that the headaches were exacerbated by “stress,” typically gaining in intensity over the course of the day. C. J. told the behavioral health practitioner that she did not have a family physician and had not had a physical exam in well over one year. The behavioral health specialist performing the evaluation diagnosed the case as stress-related muscle-contraction headaches and began a course of treatment including relaxation training, cognitive restructuring and biofeedback.

 

 

There are two problems with this case from both liability and ethical standpoints. First, C.J. had not had an appropriate medical workup related to the chief complaint. Within the practice of behavioral health, medical evaluation is almost always necessary and failure to refer or consult can be grounds for malpractice (this will be discussed subsequently). Second, she had not received a diagnosis of muscle-contraction headaches from a physician. Even though the symptom pattern was certainly suggestive of this disorder, from a legal viewpoint the behavioral health practitioners could be diagnosing a disease that would be considered within the realm of medical practice. This is because the “practitioner gave an opinion as to the origin or cause of the patient’s physical ailments” (Knapp & VandeCreek, 1981, p. 678). However, it would be perfectly appropriate for the behavioral health specialist to make a diagnosis on Axis I of the DSM-IV system (American Psychiatric Association, 1994), such as psychological factors affecting physical condition, because the practitioner would not be diagnosing the physical etiology of the problem.

 

Another problem is the legal implications of making a diagnosis on Axis III of the DSM-IV. The nonphysician (or the psychiatrist who has not done a physical workup) must be careful not to give an Axis III diagnosis that he or she is either unqualified or unprepared to make. When recording an Axis III diagnosis, I find it most prudent to state where the physical diagnosis originated (e.g., “migraine headache per the patient”; “per the medical record”; “per the referral”). One must also take care in stating the source of the physical diagnosis in the text of the evaluation report. I have often seen statements that suggested that the behavioral health practitioner was making physical diagnoses.

 

The following is another example of inappropriately diagnosing a medical condition (as being psychophysiological) and initiating behavioral health treatment:

 

 

Case Example

 

 

Dr. Descartes has just gone to an exciting seminar on mind-body treatment of back pain.  It presented the ideas of Dr. John Sarno who had recently popularized the notion of stress-related back pain. Dr. Sarno believes that stress-related back pain is caused by a person's feelings and personality. He especially emphasizes emotions of anger and anxiety. In addition, he believes that people who are likely to get stress-related back pain have a specific type of personality:  Hard-driving, responsible, self-motivated, disciplined, self-critical, perfectionistic and compulsive.  These personality characteristics interact with stressful life situations to cause the back pain. In stress-related back pain, the source of the psychological and emotional distress is not obvious to the patient. This theory explains that emotional tension or “stress” is pushed out of the person’s awareness by the mind and into the unconscious. Part of the theory also includes the idea that the person would rather be distracted by the physical pain and focus on it as opposed to the actual emotional issues which the mind perceives as more threatening. This unconscious tension from the emotional stress causes muscle tension, spasm, and pain in the low back, and elsewhere. The pain then leads the person to limit activities and become afraid of injury.  Treatment for stress-related back pain includes emphasizing the psychological and emotional factors as being the primary reason for the pain.  The treatment encourages the patients to "think psychological, not physical" when the pain occurs.

 

Just a week after attending the seminar, Dr. Descartes evaluated a back and neck pain patient (P.C.) who demonstrated the exact personality characteristics described in Dr. Sarno’s theory. P.C. was a 43 year old male business man who had been under extreme stress and had relatively recent onset of back pain, about two months.  The patient had read Dr. Sarno’s book and was sure he had stress-related pain.  He sought out Dr. Descartes for treatment.   Even though Dr. Descartes suggested a medical evaluation, P.C. did not have a family physician and was not really interested in spending the time or money to get medically evaluated; he was sure it was stress.  Given how well the patient fit the stress-related back pain “personality”, and his appearance of being healthy aside from the pain, Dr. Descartes relented and began psychological treatment.  The pain and stress management treatment progressed for quite some time.  The patient’s symptoms waxed and waned but overall continued to gradually worsen.  Even so, P.C. was committed to the behavioral health treatment approach.

 

After six months of treatment and worsening pain, P.C. finally decided to get a medical evaluation.  He was determined to have a spinal tumor that had metastasized from the kidney.  There was an osteolytic lesion of the L3 vertebral body resulting in a fracture that likely caused the first symptom of pain.

 

 

Although the chances of back pain being the result of a spinal tumor are rare (serious causes of back pain account for less than 1% of cases), the clinical impact is certainly significant when it occurs. Back pain is the presenting symptom in 90% of patients with spinal tumors.  In the case of Dr. Descartes, medical examination should have been required prior to initiating treatment.  Dr, Descartes’ judgment was clouded by his excitement about this new treatment approach, getting a patient that “fit” the concepts, the patient’s apparent good health, and wanting to be accepting of P.C.’s reluctance to “bother” with a medical evaluation.     

 

In my behavioral health practice, I require that a patient allow me to communicate with his or her physician throughout the course of treatment (of course, only about issues relevant to the behavioral health intervention).  If the patient will not grant a release for this type of multidisciplinary communication and collaboration, I will not accept him or her into treatment. I will discuss the importance of this issue throughout this section.

   

Interfering with Appropriate Medical Treatment

 

Beyond directly diagnosing and treating physical conditions, the behavioral health practitioner must take care not to interfere with appropriate medical treatment.  In the practice of behavioral health, the practitioner is often involved in the psychological or psychophysiological treatment of a physical problem. When the behavioral health treatment interferes or takes the place of appropriate medical treatment (without informed consent), it could be grounds for malpractice. There is a legal case history of nonphysician practitioners encouraging their patients to leave standard medical treatment and being held liable (see Cohen, 1979; Knapp & VandeCreek, 1981). Consider the following two examples:

 

 

Case Examples

 

 

B. J. was a 45-year-old man referred for adjunctive psychophysiological treatment of his borderline hypertension (HTN). He was taking dyazide, which was controlling his HTN adequately, but he was excited about learning self-control techniques, because of the aversive side effects of the medication. As the biofeedback and psychotherapy progressed, B. J. was becoming increasingly able to decrease his blood pressure while relaxing in the clinic. He incessantly asked his therapist about reducing his medication with continued successful training. The therapist suggested this was an appropriate goal, and he was encouraged to carefully experiment with lower medication dosages while monitoring his HTN with a home-monitoring unit.

 

The patient was an 82-year-old woman with congestive heart failure (CHF), who was referred for treatment of a psychophysiological disorder. The patient was on a complex medication regimen consisting of diuretics, potassium, and Valium as needed (PRN) for anxiety and sleep. The patient was seen for an evaluation and then scheduled for a psychophysiological baseline assessment. She was instructed not to take the Valium before the appointment, so that an accurate baseline assessment could be done. The patient came in the next week, having not taken any of her medications for the day. Her legs were slightly edematous due to water retention. The patient thought the behavioral health practitioner prescribed that she not take any of her medications a day before the evaluation.

 

 

These two cases present clear examples of a behavioral health specialist practicing medicine. This is not because reducing medications as the psychological techniques became more effective was an inappropriate goal, but because these treatment directives must be done by the primary physician on the basis of mutual consultation. Even more difficult decisions involve patients who are referred for treatment and are on as-needed (prn) medications. For example, the behavioral health practitioner might see a patient referred for psychophysiological treatment of his or her intractable chronic headaches who is on prn analgesic medication. Although there is no legal case history of whether a nonphysician health care practitioner can be held liable for encouraging a patient to reduce prn medications as treatment proceeds, the most prudent approach is to discuss this strategy with the physician and to document the results of this consultation.  The following is another example related to medications:

 

 

Case Example

 

 

D.J. is a 35-year-old single male auto mechanic who sustained an injury to his neck and low back during the course of his employment.  He underwent various conservative treatments without much benefit and was ultimately placed on disability from work.  Over the course of about two years his medication use increased dramatically to the following levels:   Vicodin ES (8-9 pills per day), Norco (1.5 pills, 8-9 times per day, taken with Vicodin ES), Xanax (1.5 mg, 9 times per day, taken with Norco and Vicodin), Zanaflex (4 mg, six times per day), Celebrex (200 mg per day), and Lyrica (100 mg, three to four times per day). The patient was referred by the insurance company for a multidisciplinary pain and detoxification program involving two components: medical detoxification and cognitive behavioral treatment-coping skills therapy (CBT-CST). The patient’s initial course of treatment was beneficial.  He was switched from the opioids (Vicodin and Norco) to Suboxone (buprenorphine) which was gradually tapered.  The Xanax was also being slowly tapered at a rate of about .25 mgs every two weeks.  So far, the patient had not experienced significant side effects from the Xanax taper.  Withdrawal symptoms can include panic attacks, nausea, dizziness, heart palpitations, fever, headaches, depression, insomnia, confusion, sweating, and seizures.

 

Well into the program, the patient met with the physician about every 2 weeks and the behavioral health practitioner weekly (for cognitive behavioral treatment including relaxation training).  D.J. was doing well with the treatment and was very excited when the Xanax had been finally tapered to less than 50% of his beginning original daily intake (down to about 6 mgs per day).  He discussed his enthusiasm related to his progress with his behavioral health therapist.  The patient then asked if he could now stop the medication since he had come down so much.  He wanted to focus on only using his deep relaxation exercise techniques.  The practitioner was also thrilled with the progress and told the patient that if he felt OK he could go ahead and use the relaxation techniques while taking the Xanax if he “felt the need”.  The behavioral health therapist couldn’t help but feel that the insurance company would also be happy with D.J.’s progress (ahead of schedule) and refer more patients to their program.  The patient was determined to succeed and stopped the medication completely.  D.J. suffered a seizure later that evening.

 

 

In this example, medication taper was the goal but the therapist clearly interfered with the treatment plan by suggesting the patient could stop the Xanax prematurely.  Patients will often see the behavioral health practitioner much more frequently than their physician, even within the context of a multidisciplinary program.  Patients might assume that the behavioral health specialist has the same responsibility for medical management as the physician, especially if the treatment is being done in a medical setting.  The behavioral health practitioner must take care to clarify roles, answer questions about medications appropriately, and maintain close collaboration with the physician.  

 

Related to clarifying roles, the behavioral health practitioner must be careful to ensure that the patient does not mistake him or her for a physician. If this occurs, the practitioner may be held accountable for practicing medicine if a problem arises. In many medical centers, the likelihood of this occurring is increased by the “dress code” of the institution. Behavioral health specialists on both inpatient and outpatient services often wear traditional white lab coats. This can be confusing to patients - a confusion that can be readily ascertained by the nature of the patient’s questions. In keeping with informed-consent procedures, on initial contact, it is prudent to make a concise statement about the behavioral health specialist’s realm of expertise, which helps to avoid many problems in this area.

 

Complimentary and integrative medical therapies.  Physicians are increasingly dealing with liability issues related to complementary and alternative medicine (CAM) approaches (Cohen and Eisenberg, 2002; Weiger et al., 2002).  Due to the increasing popularity of CAM approaches, this might also be an area that will impact the behavioral health practitioner.  There are two issues that pose potential malpractice liability for the behavioral health practitioner: (1) suggesting a CAM intervention that interferes with the patient’s medical treatment and (2) referring the patient to a CAM practitioner that causes injury.  The second situation will be discussed under referral issues.

 

Complementary and alternative medicine treatments are becoming more and more popular but are often unregulated.  Treatments include such things as dietary regimens, dietary supplements, vitamins, herbs, acupuncture, massage, mind-body techniques, and exercise techniques.  Many behavioral health practitioners are familiar with CAM approaches and may recommend them for their patients.  If not done appropriately, there may be a risk for increased liability.  Consider the following example.

 

 

Case Example

 

 

Dr. Remission specialized in the behavioral health interventions for patients with cancer.  He was referred a patient, J.B., who suffered from colon cancer and was on irinotecan.  Dr. Remission began treating J.B. for the side-effects of the cancer treatment, coping, and depression.  As part of the psychological treatment, Dr. Remission recommended that the patient be evaluated for a possible anti-depressant medication.  The patient was adamantly opposed stating that he desired to pursue “natural” and non-medicine methods for helping with his depression.  Dr. Remission then suggested that St. John’s wort, a popular over the counter supplement for depression, might be helpful.  J. B. thought that was a great idea and started on the supplement immediately.

 

 

Although Dr. Remission was attempting to help the patient, she inadvertently recommended a treatment that would interfere with the patient’s chemotherapy.  St. John’s wort has been shown to significantly reduce the active metabolite of irinotecan and thereby decrease its effectiveness (See Weiger et al., 2002 for a review).  In fact, many supplements (vitamins, herbs, antioxidants) can negatively impact chemotherapy and radiation treatment for cancer. The review of Weiger et al. (2002) concludes:

 

·         Supplements may alter blood levels of conventional medications through effects of metabolism

 

·         Dietary changes (e.g. grapefruit, macrobiotic diets) may alter chemotherapy drug levels

 

·         Although antioxidants may limit adverse effects of some medication, they may also diminish the medications’ anti-tumor efficacy

 

This is just one example relative to the treatment of a cancer patient and interference that could impact the medication efficacy.  There are also other areas in behavioral health practice in which interference might occur.   The behavioral health clinician must be very careful in recommending supplements or dietary changes and should do so only in close collaboration with the patient’s physician.  Communication with the physician should be appropriately documented.  Another issue arises when the practitioner becomes aware of a potentially problematic combination of treatments that he or she did not actually recommend.  For instance, in the previous example, the patient may have decided to start on the St. John’s wort on his own and then disclosed it to Dr. Remission without telling his oncologist.  Dr. Remission should encourage the patient to tell his oncologist about the herb and follow-up to ensure this was done.

 

Providing Actual Medical Treatment

 

I previously discussed the malpractice liability for making a medical diagnosis and then providing behavioral health treatment.  In that situation, medical treatment was not provided.  Another area of malpractice liability (and possibly criminal misconduct) is providing actual medical treatment.  In the case of the non-physician mental health provider, this most often involves medications.  In this section, I will present case examples of practicing medicine without a license related to directly providing medication prescriptions to patients.  In the section on failure to communicate, I will discuss medication issues while working collaboratively with a physician.   

 

The behavioral health practitioner might very well be practicing medicine without a license if he or she were to fill a prescription under a physician’s license, recommend directly to a patient to change the dose of medication, change how the medication is taken, or to stop a medication altogether. 

 

 

Legal Case Examples

 

 

In a New Jersey case as discussed in Reamer (2003, p. 99), a social worker was employed by a mental health clinic that routinely allowed the social workers to order refills of the patients’ medications.  This was done due to a shortage of psychiatrists.  The orders were completed over the telephone and the psychiatrists would later sign the prescriptions.  Social workers would also change medications and dosing. The social worker reported the activity to the State Board of Medical Examiners and the supervising psychiatrist was reprimanded.    (“Member Blows Whistle on Rx Refills” as presented in Reamer, 2003).

 

In Camden County, NJ, Mr. Panichella, a licensed counselor and owner/operator of Progressive Counseling Services admitted that from January - August, 2004, he submitted at least one prescription for Hydrocodone to a Collingswood pharmacy under the name of Dr. Peter Calafiura. An investigation by the Division of Criminal Justice - Office of Insurance Fraud Prosecutor determined that Panichella fraudulently submitted more than 75 prescriptions using Calafiura’s name. The investigation further revealed that Calafiura and Panichella worked together at Genesis Counseling in Collingswood, but that Panichella was terminated in 2003. It is charged that Calafiura did not give Panichella permission to submit prescriptions for Hydrocodone on his behalf.  The case was referred to the Board of Professional Counselors for action with respect to Panichella’s professional license and he voluntarily surrendered his license.

 

 

In these two examples, the second is certainly more extreme than the first and resulted in criminal prosecution.  In the first case, the social workers were clearly comfortable with their knowledge of psychotropic medications and may have even rationalized their behavior as acceptable.  There was a shortage of psychiatrists, the social workers spent more time with the patients, and their activity was being overseen by a psychiatrist (eventually).  The case represents the dangers in becoming too lackadaisical about one’s scope of practice especially when working with a physician who condones or even encourages such behavior.

 

FAILURE TO CONSULT, REFER, OR COMMUNICATE

 

This area of malpractice risk is closely associated with practicing medicine without a license. The behavioral health specialist is in a position of having increased responsibility for physical health. Malpractice issues can arise when this responsibility is managed in a negligent fashion not in keeping with the prevailing standard of care. 

 

The issue of behavioral health practitioners being involved with health and medical problems is being vigorously debated in state and federal legislative arenas. The concern (voiced primarily by medicine) is that these practitioners are nonmedical providers and therefore cannot accurately diagnose mental disorders, will misdiagnose physical conditions as psychological problems, will fail to recognize medical problems, and will fail to refer to physicians for needed medical care.  Some liability cases against nonphysician practitioners suggest this could be an area of liability risk for the behavioral health specialist. 

 

Failure to Consult

 

In the practice of behavioral health one cannot expect to know, or be competent, in all areas of evaluation and treatment.  Therefore, consulting with colleagues is an important aspect of providing quality and ethical care.  This is an ethical guideline that is common across all mental health disciplines and is an accepted standard of care (See the course, Ethics for Behavioral Health Practitioners in Medical Settings for a review).  Liability for failure to consult can occur in two situations (1) an act of omission in which the behavioral health practitioner should obtain consultation but does not and the patient is harmed as a result; (2) the practitioner chooses an inappropriate consultant, one who has little or no expertise in the area of concern.

 

 

Case Example

 

 

Dr. Bono was a behavioral health practitioner who specialized in pain management.  He received a referral from a local bariatric surgeon with a request for a pre-surgical screening prior to gastric bypass surgery.  Dr. Bono had never completed such an assessment but did not feel it could be that complicated.  Since he was not familiar with the bariatric surgery literature, he completed the same evaluation he used with pain patients.  Although there were a few issues (e.g. some depression, alcohol use, periods of non-compliance), he assumed these would resolve after the surgery and successful weight loss. He cleared the patient for surgery and did not see the need for follow-up visits.  The patient underwent the surgery but had a very difficult recovery.  Although she lost weight initially, a pattern of non-compliance, binge eating, alcohol abuse and severe depression emerged. She demonstrated a psychiatric decompensation to the point of hospitalization. She was very upset with the surgeon for doing the surgery and the behavioral health practitioner for clearing her from a psychological perspective.  She eventually brought a liability suit for damages and named all of her healthcare providers.   

 

 

There is a great deal of literature about the pre-surgical psychological risk factors for a poor outcome to a bariatric procedure as well as appropriate components of a pre-surgical screening (See Collazo-Clavell, 2006, for a review). Risk factors include such things as the presence of an Axis I or Axis II diagnosis, a pattern of binge eating, an untreated depressive disorder, alcohol or substance abuse, and non-compliance with treatments.  In cases where any of these factors are identified, various treatments will often be recommended prior to considering the surgery.  Dr. Bono did not address these issues or recommend the surgery be postponed pending appropriate intervention.  He did not seek consultation with someone competent in the area and his evaluation fell below the standard of care.  It should be noted that behavioral health practitioners are not expected to be able to predict the future. If a completely appropriate evaluation had been completed by someone experienced with this patient population, and the patient still did poorly after being “cleared”, there would be no liability.    

 

The second liability risk is when a practitioner chooses a consultant that has little or no expertise in the area of concern.  Ethical guidelines and the standard of care are nicely summarized by the NASW code (2.05b):  “Social workers should keep themselves informed about colleagues’ areas of expertise and competencies.  Social workers should seek consultation only from colleagues who have demonstrated knowledge, expertise, and competence related to the subject of the consultation.”

 

In the previous example of Dr. Bono, if he had sought consultation with one of his colleagues who was also a pain management specialist, he was still potentially acting below the standard of care.  If he simply did not have any consultation resources relative to pre-surgery screening for bariatric procedures he has two choices:  The first is to become competent through a review of the literature, reading up-to-date texts on the subject, and continuing education.  The second option is to refuse to do the evaluation and help the surgeon and patient find someone who has expertise in that area.    

  

Failure to Refer

 

Liability for failure to refer can occur in two ways, similar to failure to consult.  First, malpractice law has established that there is liability when a professional does not refer a patient to a specialist for consultation when it is clearly appropriate as determined by the prevailing standard of care.  Second, the behavioral health specialist should select referral sources that have competency and expertise in their area of practice. 

 

In the case of Russo v. Ascher (1998; discussed in Stromberg and Dellinger, 1993), a psychiatrist failed to rule out a physical cause for the patient’s symptoms. The patient was involved in 11 years of psychotherapy before the condition was traced to a brain tumor.  The psychiatrist was found negligent for not having ruled out a serious physical etiology for the presenting symptoms. In this case there was a failure to refer the patient for appropriate medical evaluation.

 

In another case (Kogensparger v. Athens Mental Health Center, 1989, as reported in Reamer, 2003 ), a mental health center had been treating a patient for “schizophrenia” even though his complaints included behavioral symptoms and discomfort in his head.  After three years of inpatient treatment, the patient had a grand mal seizure and died one week later.  An autopsy revealed a slow growing brain tumor that had likely been developing for years.  In the liability case the mental health center was found negligent for failure to refer for appropriate medical evaluation.

 

These examples can easily be extrapolated to the practice of behavioral health. If the behavioral health practitioner is treating a physical problem, it is imperative that a physician is also involved in the case, and open communication is important to discuss problems and progress. For instance, the patient may be seeing the behavioral health practitioner much more frequently than the physician. In this situation, the behavioral health practitioner may be the first to discover such things as side effects to medications or occurrence of additional physical symptoms. On the basis of the cases reviewed previously, the behavioral health practitioner may have a duty to encourage the patient to return for medical evaluation or to communicate these concerns and findings to the physician. These actions must be carefully documented which is, of course, in keeping with good clinical practice.

 

Just as it is important to make a referral when appropriate, it is also important to know your referral sources.  As discussed by Eisenberg and Kaptchuk (2002, p. 600), “Referrals can generate direct liability (the decision to refer was itself considered negligent, resulting in patient injury) and vicarious liability (the referring physician becomes legally responsible for the treating practitioner’s negligence)”.  This is unlikely to be a problem if the referral source is licensed, in good standing with the relevant state board, and appropriately competent to address the referral question.   When referring to practitioners outside traditional healthcare practice (e.g. complementary and alternative medicine), the behavioral health specialist should take extra care (See Eisenberg and Kaptchuk, 2002 for a review).  For instance, Eisenberg and Kaptchuk (2002) point out that a referral to a CAM provider could be considered a “negligent” decision if it delays or eliminates the patient’s opportunity to obtain necessary biomedical treatment.  One can imagine a scenario in which a behavioral health practitioner refers a patient to a naturopath (at the patient’s request) without making sure that biomedical evaluation had been completed.

 

Failure to Communicate

 

Negligent failure to communicate important information about a patient’s status can occur relative to (1) communicating with a public agency and (2) communicating important information to another treating professional.  The former of these situations generally involves failure to report a danger to self or others (e.g. child or elder abuse, homicidality) and will be discussed in more detail in a subsequent section.

 

Failure to communicate important information to another treating professional is illustrated in the following legal case: A psychologist failed to conduct an adequate mental status examination of the patient and then failed to adequately report any results of the evaluation to the psychiatrist also working on the case. As a result, the psychiatrist prescribed medication that “injured” the patient (Chambers v. Ingram, 1988). Stromberg and Dellinger (1993) discussed that “this case represents a good lesson in how psychologists, although they cannot usually prescribe medications, may have liability relating to the patient’s use of medications” (p. 7).

 

In the following example, failure to communicate the results of the preparation for surgery evaluation to the surgeon might be considered negligent since significant risks to the patient were identified.  The following surgery preparation evaluation was completed by the author (only excerpts are included).  In this case, the patient was referred by the patient’s surgeon for a single session of surgery preparation.  The surgery was being done on an elective basis to help with pain and function.  It was scheduled for the following week.

 

 

Case Example – Preparation for Surgery Evaluation

 

 

This is a 46-year-old single male truck driver, who sustained an injury to his low back in a motor vehicle accident.   He is scheduled to undergo spine surgery next week.  The surgery will include an anterior-posterior fusion at L4-5 and L5-S1 with the use of BMP. The patient currently complains of pain in the low back which has “changed dramatically since the injury.”  The patient stated that his symptoms have gradually worsened.  The patient will use a walker at home, four to five days out of the week.  The patient has attempted to increase his activity, but this ultimately results in an exacerbation of his symptoms. 

 

The patient reports he suffers from hypertension and has a history of gastric ulcers.  In addition, the patient did report a bacterial infection that has been going on for at least three weeks.  He reported “an open sore” underneath the testicles.  The patient was seen at Urgent Care and an antibiotic was prescribed.  However, he has not noticed any improvement.  The patient does not have medical insurance. 

 

The patient reported a history of substance abuse and chemical dependency.  He stated he has been a fairly heavy consumer of alcohol since 17-years-old.  The pattern of drinking is continuing.  The patient stated that he will currently consume 18 beers per night, three nights per week.  During this time, he will also smoke one pack of cigarettes while consuming the 18 beers.  The patient reported a history of crack cocaine use and stopped in 1995.  He stated he went through formal substance abuse treatment in 1995 which included a 60 day inpatient stay.  After the treatment, he did try AA and did well “until the injury.”  After the injury, he resumed drinking alcohol and became more isolated. 

 

The patient’s current medications include Ambien CR, Norco (eight per day), Soma (t.i.d.), and Prozac (recently discontinued).  The patient has also been prescribed Neurontin, but is not taking it.  The patient has been on Prozac for about six years.  Although he is prescribed 20 mg per day, he is actually taking 40 mg per day.  Since the patient does not currently have health insurance, he is getting the Prozac from either a family member or friends. 

 

Impressions and Recommendations:

 

Readiness for Surgery Issues.  Although the patient was referred for preparation for surgery treatment, I do have significant concerns relative to this patient’s preoperative status.  Currently, the anterior-posterior two-level fusion is scheduled for next week.  However, the patient has shared information with me that he has not shared with any of his other healthcare professionals.  Based on the following information, I strongly suggest that consideration be given for postponing the surgery until the following can be addressed.  Specifically, my concerns are as follows: 

 

Bacterial Infection: The patient reported he is suffering from some type of bacterial infection with an open “cyst” or sore underneath the testicles.  He stated that this has been going on for at least three weeks even while on antibiotic therapy.  The patient was seen one time at an urgent care center and antibiotics were prescribed.  However, this problem has not been assessed since that time.  I would assume that the patient would not be a surgical candidate until the bacterial infection is successfully resolved.  The patient does have a preoperative physical examination in the near future but he does not have health insurance. 

 

Alcohol Use: The patient does have a history of chemical dependency and substance abuse.  This has included crack cocaine, other drugs, and long term use of alcohol.  The patient has undergone inpatient chemical dependency treatment in 1995.  He was also involved in AA after that time.  The patient stated he resumed his excessive alcohol use after the injury.  As discussed in this report, he is currently consuming 18 beers at a time, approximately three nights per week.  On these occasions, he will drink beer and smoke cigarettes throughout the night beginning at about four or five in the afternoon and ending early in the morning.  Certainly, this pattern of alcohol consumption is not conducive to a successful response to spine surgery. The alcohol use should be brought under control (e.g. return to AA or actual treatment) prior to the surgery.   

 

Cigarette Use:  The report of the patient’s surgeon, Dr. Smith, indicates that he is aware of the patient’s tobacco use; however, it appears to be much more extensive than he has shared with other healthcare providers.  When the patient is not consuming alcohol, he states he will smoke three to four cigarettes per day.  However, on at least three days per week, he is smoking a pack of cigarettes as part of a single binge drinking session.  His cigarette use should be brought under control (abstinence is ideal) since this can result in a failed fusion.

 

Pre-Operative Issues.  I believe all of the above issues need to be successfully addressed prior to the spine surgery.  I am going to have the patient follow-up in two weeks.  The patient stated he is going to attempt to decrease his alcohol use over that time, however, I remain pessimistic.  I did suggest that the patient return to his AA meetings to provide a support network for decreasing and stopping his alcohol use long before the surgery.  It does appear that his high level of cigarette use is associated with alcohol. 

 

Enhancing Surgical Outcome: Postoperative Multi-Disciplinary Treatment.  If the patient ultimately undergoes the proposed surgery, a multi-disciplinary pain and functional restoration program completed postoperatively will be appropriate and essential.  This might include psychological pain management during the early stages of the patient’s postoperative recovery.  Ultimately, the patient will likely require a comprehensive multi-disciplinary pain and functional rehabilitation program.  This type of program is typically completed after a patient has completely recovered from the spinal fusion and is physically capable of a more functional restoration type of intervention.  This type of program would be developed based on the patient’s needs at that time.

 

Medications.  The patient is currently taking eight Norco per day and three Soma per day.  Given the patient’s history of chemical dependency and substance abuse issues, the patient’s pain medications should be monitored very carefully and consideration should be given for tapering them prior to the surgery.  

 

Psychotropic Medications:  The patient stated he has been on between 20 and 40 mg of Prozac for at least six years but recently stopped the medication.  Given the fact that the patient does not currently have health insurance, he had been getting the Prozac from either a friend or a relative.  He states that the Prozac has always been helpful in terms of controlling his depression.  I believe it would be useful to get the patient evaluated for re-starting the Prozac as part of the surgery preparation treatment.  This treatment should be done under the motor-vehicle accident benefits since it may be essential to enhance surgical outcome. 

 

 

In this case, the patient had signed a release of confidentiality to speak with his surgeon (this is the only way I would see such a patient).  The case was discussed with the surgeon and the surgery was postponed until the identified issues could be successfully addressed.

 

MEDICATION ISSUES

 

The area of psychopharmacology has become of great interest to more and more mental health professionals.  As such, non-physician mental health practitioners have become more knowledgeable, comfortable and assertive in working with the physicians treating their patients and making medication recommendations.  Some research indicates that psychologists have been involved in the process of prescribing psychotropic medications for quite some time (VandenBos and Wiliams, 2000).  It is now not uncommon to see a psychotherapist working in close collaboration with a non-psychiatrist physician and making medication recommendations to the physician for their mutual patient.  The issue of whether it is appropriate for a behavioral health practitioner to discuss medications with a patient, and even make recommendations to the physician, has been a hotly debated topic.  Relative to psychologists, guidelines generally stated that the practitioner can (1) suggest to a physician a particular medication to be prescribed, (2) engage in a collegial discussion with the patient’s physician regarding the medication for the condition being treated, (3) assist in monitor the patient’s response to the medication including side-effects (California Department of Consumer Affairs, Board of Psychology, “Statement on Medication). This involvement with the patient’s medication is to be done in “close collaboration” with the patient’s physician.

 

The behavioral health practitioner often has a critical role in medication management (psychotropic and otherwise) for several reasons.  One of the most important is that the frequency and duration of time the behavioral health practitioner spends with the patient will far exceed the average eight minute office visit spent with the physician.  As discussed by Preston and Ebert (1999) there are several issues that can arise:

  

 

Medication Management Issues

 

       

Therapists are informed by the patient about side effects that may interfere with compliance

 

Patient may tell their therapist about embarrassing information they are reluctant to tell their physician

 

Inadequate adherence to medication regimen

 

The patient discontinuing the medication without telling his or her physician

 

The emergence of breakthrough symptoms

 

The therapist becomes aware of substance abuse issues in a patient being treated with addictive medications

 

The patient is not responding adequately to the medication

 

 

The following are a few examples that I have experienced in the practice of pain management that required communication and collaboration with the patient’s physician:

 

 

Medication Management Issues: Case Examples

 

 

The patient was prescribed up to 5 Norco per day by his primary treating physician to be taken as-needed for pain.  The patient was taking all 5 at night to help with sleep

The patient’s physician was not aware of this pattern of use and was continuing to refill the medications since he never took more than prescribed. 

 

The patient was prescribed Wellbutrin by her physician and was taking it at night.  She complained of sleep disruption to the physician and was then prescribed Ambien.

The physician did not know the patient was taking the Wellbutrin at night, which can cause sleep disruption.

 

The patient had been prescribed Oxycontin (20 mg, bid) for chronic pain.  The patient felt it was too strong and had been breaking the pills in half.

Oxycontin is a time release opioid and the pills should never be broken or chewed.

 

The patient was on a therapeutic dose of an SSRI along with Buspar (an anxiolytic that also has serotonin effects).  She read an article that St. John’s wort was also good for depression and started on the herb. The patient began to show signs of a serotonin syndrome. 

The symptoms were discussed with the patient and her physician immediately alerted.

 

The patient was taking gabapentin (Neurontin) which is an anti-convulsant used for neuropathic pain.  It was prescribed to be taken daily.  The patient was taking “as-needed” and told her physician it was not helpful.

This does not represent an adequate trial of the medication since it is to be taken daily.  The physician was already considering other medications based upon the fact that the gabapentin “didn’t work”.

 

The patient was seeing two physicians for his pain problem; his family doctor and a pain specialist.  From his family doctor he was getting a prescription for 4 Vicodin per day.  From his pain physician he was getting a prescription for 5 Norco per day.  He was getting the medications from different pharmacies and only using his insurance to get reimbursed for one of the prescriptions.  Because he was using 9 pain pills per day, he was concerned about liver function and stopped his Lipitor without telling his physician.

The danger of taking medications in this manner was discussed with the patient and he was instructed to immediately schedule an appointment with his physician.  A progress note was dictated and sent to both physicians (the patient was told beforehand and a release had already been obtained at the beginning of treatment).  After discussing the case with both physicians, further treatment was contingent upon the patient getting medication from only one physician and one pharmacy.  Random drug testing was implemented by the pain physician.

 

The patient was on fairly high doses of pain medication for long term opioid maintenance.  Even so, the patient had not had liver function tests for over two years.

This issue was discussed with the patient and he was encouraged to talk with his family doctor about blood work.  The progress note was also cc’d to the physician.  In practice, it is not uncommon to have patient on long term medications without regular laboratory work.

 

 

In all of these cases, the behavioral health practitioner may have been liable if there was a failure to communicate or address the medication issues.

 

On the basis of case law involving other nonphysician health care professionals being sued for practicing medicine without a license, certain recommendations for behavioral health practice can be given:

 

 

Working with Medical Patients

 

       

When providing psychological treatment for medical patients, be sure and work closely with the medical specialist.

 

In appropriate cases, a joint treatment plan (medical and behavioral health) should be established (preferably in writing and signed by the patient).  The plan should be explicitly stated to the patient, so that he or she understands which aspects of treatment will be handled by each professional.

 

When a self-referred patient seeks treatment for a problem involving a physical complaint, a medical evaluation and appropriate communication releases should be insisted upon before treatment ensues.  If the patient refuses to a release of confidentiality allowing the behavioral health practitioner to collaborate with the physician, one should strongly consider not taking the case.

 

The behavioral health practitioner should communicate and consult (verbally and in writing) with the primary physician on a periodic basis, so that both medical and psychological treatments can be jointly adjusted as appropriate. These consultations should be documented.

 

 

SUICIDE AND MALPRACTICE RISK

 

Whenever a suicidal patient presents to a mental health professional, action must be taken to prevent self-harm.  If a suicide risk evaluation falls below the standard of care (failure to diagnose) or if suicidal threats are not taken seriously (duty to prevent harm) the practitioner may be liable in a malpractice action stemming from the patient’s suicide (Bernstein & Hartsell, 2004; Deardorff et. al., 1984; Packman & Smith, 2006a, 2006b; Reamer, 2003).  Malpractice cases involving suicides by individuals being treated on an outpatient basis are on the rise (Bongar, Maris, Berman & Litman, 1998; Jobes & Berman, 1993; Packman & Smith, 2006a).  According to Baerger (2001), 20% of psychologists and 50% of psychiatrists will lose a patient to suicide during their careers.  The largest number of lawsuits brought against psychiatrists, and the largest monetary settlements, are related to post-suicide claims of negligence (Baerger, 2001).  Among psychologists insured by APA’s Insurance Trust, patient suicide ranked sixth among claim categories but second in terms of percentage of total costs (Baerger, 2001).

 

The suicidal patient may present a special risk for the behavioral health practitioner working in a medical setting. Unlike traditional outpatient practice, behavioral health practitioners are more likely to evaluate suicidal patients in the emergency room and as medical inpatients. Thus, the evaluation and diagnosis of suicidality must be done rapidly and, typically, outside the context of a longer-term treatment relationship. The behavioral health practitioner must be familiar with the assessment of the suicidal patient and precautionary measures that are appropriate (See Bongar, 2002; Simon & Hales, 2006, for review).  An excellent resource is the Basic Suicide Assessment Five Step Evaluation (B-SAFE) developed by the Joint Commission on Accreditation of Healthcare Organization (Jacobs & Brewer, 2004; JCAHO, 2007). When a therapist follows accepted evaluation and diagnostic procedures and these do not reveal suicidality in a patient who subsequently commits suicide, there are no grounds for malpractice (Baker v. United States, 1964; Baerger, 2001; Hogan, 1979 Porter v. Maunnangi, 1988). As concluded by the court in a recent case, “a doctor is not a . . . guarantor of the correctness of his diagnosis; the requirement is [merely] that he use proper care and skill. . . . The question is not whether the physician made a mistake in diagnosis, but rather whether he failed to conform to the accepted standard of care” (Schuster v. Aztenberg, 1988; Stromberg & Dellinger, 1993). 

 

In addressing the process of evaluating and managing the suicidal patient, the reader is directed to three excellent articles published as a special section in Professional Psychology: Research and Practice (Joiner, Walker, Rudd & Jobes, 1999; Kleepies, Deleppo, Gallagher & Niles, 1999; Rudd, Joiner, Jobes & King, 1999); To protect oneself against malpractice or liability claim, the behavioral health practitioner should be familiar with the prevailing standard of care for evaluation and management of these patients.

 

It is beyond the scope of this chapter to present detailed suicide risk management strategies, and these have been discussed elsewhere as previously referenced.  Packman and Smith (2006b) outline these as follows:

 

 

Suicide Risk Management Strategies

 

 

Document, Document, Document.  There is a saying in legal circles that, “If it isn’t written down, it didn’t happen”. Be sure and document interactions, consultations, professional judgments and the “why’s and why not’s” in treatment decision-making.

 

Consult.  One should consult with colleagues who have experience with suicidal patients.

 

Know Legal and Ethical Responsibilities.  Being familiar with legal and ethical responsibilities helps the clinician recognize risk before it becomes liability.

 

Know the Risk Factors of Suicidal Patients.  Clinicians must know what the literature says about suicidal risk factors to exercise sound clinical judgment. For instance, relative to the clinical health psychologist, patients with physical conditions of malignant neoplasms, HIV/AIDS, peptic ulcer disease, kidney failure requiring hemodialysis, pain syndromes, functional impairment including organic brain injuries, diseases of the nervous system (especially multiple sclerosis and temporal lobe epilepsy), or any chronic medical illness are at increased risk for suicide (Jacobs, 2007).

 

Obtain Risk Assessment Data and Adequate History.  A thorough clinical assessment of elevated suicidal risk must be completed consistent with evidence based research and the standard of care.  Guidelines such as those discussed in Joiner et al. (1999) and elsewhere (see previous references) should be followed.  Suicide risk should be re-assessed on a regular basis.

 

Determine Diagnostic Impression.  Be sure and provide an accurate diagnosis consistent with the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV, 1994).  Resist the temptation to “underdiagnose” as this is legally risky and not an advisable risk management procedure.

 

Determine Your Competence.  Be aware of your own proficiency in working with a suicidal patient.  Take whatever steps are necessary to ensure adequate evaluation, treatment and follow through with the patient (e.g. consult, on-going education, refer).

 

Involve the Family.  It is often important to involve the patient’s family in the evaluation and treatment process.  If appropriate, family involvement can increase the effectiveness of the intervention and protect the clinician from litigation (Bongar, 2002).

 

 

If a practitioner determines a patient to be suicidal, precautionary measures such as involuntary or voluntary commitment for observation may have to be invoked; although, in some cases, using sound clinical judgment, the suicidal patient may be most appropriately managed on an outpatient basis. As long as the standard of care is commensurate with community standards and the treatment decision is in the best interests of the patient, there would be no grounds for negligence (see Bongar, Maris, Berman, & Litman, 1992, 1998 for a review). If a patient is already in the hospital on a medical-surgical unit, other special issues arise. These include determining specific suicide precautions that must be taken and making sure the staff carries them out.

 

Determination of the suicide precautions that must be taken is guided by a thorough assessment and evaluation of the patient. As discussed in the B-SAFE Guidelines (JCAHO, 2007), the monitoring of a suicidal patient includes a range of frequency of observation from constant (1:1) to every 30 minutes, as well as addressing safety needs related to the physical environment and access to methods of self-injury.  The guidelines specifically state that, “suicidal patients on medical units are in less controlled, therefore, higher-risk physical environments; safety is increased by providing closer observation, often 1:1 with a sitter” (Jacobs, 2007, page 13).  Suicide precautions must be specified precisely in written form either in the progress notes or in the doctor’s orders section of the chart (depending on hospital guidelines). The behavioral health practitioner must keep in mind that the staff is a nonpsychiatric one and, hence, they are generally not accustomed to implementing such procedures. The practitioner must also be prepared to deal with the staff’s emotional response to the suicidal patient. On medical-surgical units, where saving life is the primary goal, the staff will often express anger and frustration toward a suicidal patient in indirect ways (e.g., not administering pain medications on time or not speaking with the patient).

 

In making sure that the staff carries out the suicide precaution orders, the behavioral health specialist would be wise to initiate a staff intervention aimed at education and open communication about exactly what precautions are being taken, who is responsible for carrying them out, and what to do if problems arise. Of course, all information should be documented in the medical or nursing record. One must be particularly careful that adequate communication occurs across different nursing shifts. Where this is done inadequately, negligent professional behavior may be found if litigation were to occur.  The following are examples of suicide precautions to be used on an inpatient medical unit:

 

 

Suicide Precaution Examples

 

 

Assessment of medical stability completed

 

Assess the physical environment, focusing on controlling patient access to methods of self-injury

 

One-to-one constant staff observation and/or security

 

Supervised bathroom, unit restriction, and restriction to public areas

 

Elopement precautions

 

Precautions against common forms of suicide (hanging, suffocation and jumping)

 

Body/belongings search

 

Administration of psychotropic medications to reduce agitation and/or application of physical restraints as clinically indicated

 

 

An excellent method for developing critical thinking relative to practice issues is to be aware of how one’s actions, or lack thereof, might stand up to legal cross examination in the event of a liability claim (either malpractice or licensing board complaint).  This approach can be applied to any practice issue or decision that confronts the behavioral health practitioner.  An example of actual guidelines used by lawyers for cross-examining assessment of suicide risk can be found in the following example (adapted from Campbell and Lorandos, 2001).  It should also be remembered that when a practitioner’s behavior is measured against the standard of care, it is primarily the clinical record that will be examined.  The practitioner’s interview or cross-examination will only carry weight to the degree that the answers are corroborated in the record.  As such, one can conceptualize the liability process as weighing the patient’s word against the clinical record (Zur, 2005).  This underscores the importance of documentation. 

 

The following cross-examination references the article “Scientizing and routinizing the assessment of suicidality in outpatient practice” (Joiner et al., 1999) in which seven domains of suicide risk are delineated: previous suicidal behavior, the nature of current suicidal symptoms, precipitant stressors, general symptomatic presentation including hopelessness, impulsivity and self-control, other predispositions, and protective factors.   This example cross-examination is adapted from a resource text for attorneys, Cross Examining Experts in the Behavioral Sciences (Campbell & Lorandos, 2001, pages 10-88 to 10-91).

  

 

Cross-examination of Suicide Risk Assessment

 

 

Your profession generally subscribes to the premise that the best predictor of future behavior is past behavior, Correct?

 

Suicide “ideators” are identified as individuals who think about suicide, but have not overtly attempted it, Correct?

 

Accordingly, the literature frequently differentiates between those individuals who have engaged in multiple suicide attempts, those with one attempt, and suicide “ideators”, Correct?

 

Individuals who have attempted suicide on two or more occasions present a much greater risk of compared to single attempters or ideators, Correct?

 

While assessing the patient in this case, did you ascertain how many previous times he had attempted suicide?

[Foundational questions completed here establishing that the information in peer-reviewed journals is generally recognized and accepted by the field, and that the psychologist has a professional obligation to be familiar with such information]

 

The journal Professional Psychology: Research and Practice is a generally recognized and accepted, peer-reviewed journal in your field, Correct?

 

And a 1999 article by Joiner and his colleagues published in Professional Psychology: Research and Practice titled “Scientizing and routinizing the assessment of suicidality in outpatient practice”, might be relevant to your opinions in this case, Correct?

 

Please consider these comments from the 1999 article by Joiner and his colleagues:

 

….two main factors summarize the factor space of suicidal symptomatology.  The factors were labeled ‘resolved plans and preparation’ and ‘suicidal desire and ideation’

 

Now, my question: You accept “resolved plans and preparation,” and “suicidal desire and ideation,” as factors corresponding to suicidal symptomatology, Correct?

 

You have not published anything in a peer-reviewed journal necessitating that we reconsider the position of Joiner and colleagues in this regard, Correct?

 

You cannot cite anything in a peer-reviewed journal necessitating that we reconsider the position of Joiner and colleagues, Correct?

 

In accordance with Joiner and his colleague, you agree that “resolved plans and preparation” corresponds to a patient who possesses that courage to make an attempt, Correct?

 

And in accordance with Joiner and his colleagues “resolved plans and preparation” indicates that patients feel they can carry through with an attempt, Correct?

 

And in accordance with Joiner and his colleagues, “resolved plans and preparation” indicates that a patient has the means and opportunity available for an attempt, Correct?

 

And in accordance with Joiner and his colleagues, “resolved plans and preparation” indicates that a patient has developed a specific plan for an attempt, Correct?

 

And in accordance with Joiner and his colleagues, “resolved plans and preparation” indicates that a patient has experienced a significant intensity and duration of suicidal ideation, Correct?

 

You have not published anything in a peer-reviewed journal necessitating that we reconsider the position of Joiner and colleagues in this regard, Correct?

 

You cannot cite anything in a peer-reviewed journal necessitating that we reconsider the position of Joiner and colleagues, Correct?

 

Please consider these comments from the 1999 article by Joiner and his colleagues:

 

“Our view is that the resolved plans and preparation factor is pernicious; accordingly, anyone who displays its symptoms should be designated as at least a moderate risk for suicide”

 

Now, my question: You agree with Joiner and his colleagues indicating that “resolved plans and preparation” factor creates a pernicious risk of suicide, Correct?

 

You have not published anything in a peer-reviewed journal necessitating that we reconsider the position of Joiner and colleagues in this regard, Correct?

 

You cannot cite anything in a peer-reviewed journal necessitating that we reconsider the position of Joiner and colleagues, Correct?

 

In this case, what did you do to assess the “resolved plans and preparation” factor?

 

Please consider further comment by Joiner and his colleagues in their 1999 article

 

“Specifically, intensity and duration of ideation load onto the resolved plans and preparation factor…”

 

Now my question: You agree that “intensity and duration of ideation” refer to the intensity and duration of suicidal ideation, Correct?

 

And if “the intensity and duration” of suicidal ideation load onto the resolved plans and preparation factor, this means that the more intense and the longer the duration of suicidal ideation, the greater the risk of suicide, Correct?

 

In this case, what did you do to assess the intensity and duration of the patient’s suicidal ideation?

 

And you did not document an assessment of the intensity and duration of the patient’s suicidal ideation, Correct?

 

 

 

This structure of questioning is continued for all of the important risk factors for suicide including stressful life events, diagnostic status, living situation, employment status, health status, presence of hopelessness, chaotic family history, impulsivity, substance use, etc.

  

DUTY TO PROTECT

 

Increasingly, mental health professionals are being held responsible for protecting the public from violent acts of their patients. The duty-to-protect doctrine received great publicity in the case of Tarasoff. Regents of University of California (1976), a case with which all mental health professionals should be familiar (see DeMatteo, 2005; Gostin, 2002; Kamenar, 1984; VandeCreek and Knapp, 2002).  In the Tarasoff decision (1976) the California Supreme Court stated that when “a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger” (Tarasoff 551 P.2d 330-50 [1976])  The court’s ruling means that although there may be no special relationship between a therapist and victim, the relationship between a therapist and patient is sufficient to impose special legal responsibility on the therapist for the patient’s actions if the therapist knows the patient poses a serious threat or the therapist negligently fails to predict such dangerousness (Southard & Gross, 1983). The court’s ruling also stated that where a danger to others exists, the confidential doctor-patient relationship must yield.

 

The Tarasoff ruling was only binding in California but duty to protect doctrine has been adopted by a majority of states (DeMatteo, 2005; Reisner, Slobogin and Rai, 2004). Tarasoff has been modified in subsequent cases.  In Thompson v. County of Alameda (614 P.2d 728 [Cal. 1980]) the California Supreme Court held  that Tarasoff only applied when there was a specific threat  against a clearly identifiable victim.  The  Hedland v. Superior Court (669 P.2d 41 [Cal.1983]) ruling held that a therapist could be liable if the victim was foreseeable even if not readily identifiable.  Most states have followed the specific threat against a readily identifiable victim but some states have rejected the Tarasoff doctrine altogether (e.g. Virginia and Washington, See DeMatteo 2005 for a review).

 

The Ewing v. Goldstein appeal case (15 Cal. Rptr. 3d 864 [Cal. Ct. App. 2004]) heard by the California Court of Appeals held that a communication from a patient’s family member constitutes “patient communication” that can potentially trigger a therapist’s duty to protect (See DeMatteo, 2005 for a review).  The decision overturned a lower court decision that the therapist did not have a duty to warn since there was no direct communication from the patient of Dr. Goldstein (rather, it was from the patient’s father).  The appeals court refused to address the issue of whether communication from another third party could trigger a duty to protect.  As discussed by DeMatteo (2005), “therapists must still determine whether a patient’s threat is credible, serious, and directed at a reasonably identifiable person, but they may need to make these often-difficult determinations based on second-hand information” (p. 20). DeMatteo (2005) states that the Ewing decision is only binding in California but may be adopted by courts in other jurisdictions.  It should be noted that a California bill (AB 733) went into effect in 2007 and was originally designed to nullify the Ewing v. Goldstein effect on Tarasoff.  However, as discussed by Faltz (2006) the version of AB 733 that was ultimately passed “does not change the effect of the Ewing decision” (page 31).   Psychologists should continue to act in accordance with the Ewing decision.   

 

Since Tarasoff and Ewing, there has been much confusion in the mental health professions as to the specific implications of these rulings. Relative to Tarasoff, Schindler (1976) noted that the courts offered no practical guidelines to follow. Southard and Gross (1983) and others (Beigler, 1984; Kamenar, 1984; Monahan, 1993; Quinn, 1984; Reamer, 2003; VandeCreek & Knapp, 2001; Wettstein, 1984) provide a thorough discussion of the misunderstanding surrounding the Tarasoff decision while articulating the responsibilities of therapists related to the duty to protect.  Briefly, this case is often cited as “duty to warn,” but the actual court decision was based on a “duty to care” or to protect. The courts did not rule that warning potential victims was a reasonable course of action in all cases but rather that the therapist is to take “reasonable care” to protect the potential victim (Knapp, 1980; Southard & Gross, 1983). Protective action may involve many different possibilities.

 

There is much concern that the courts are extending the “duty to protect” related to the prediction of dangerousness, beyond what the scientific level of the profession is capable of delivering (DeMatteo, 2005; Goodstein, 1985; Gostin, 2002). A therapist’s best defense is careful documentation, clinical reasoning, and consultation. Of course, these behaviors are all consistent with sound clinical practice.

 

The behavioral health practitioner working in a hospital setting has a difficult task related to assessment and management of homicidality. He or she is most likely to be confronted with a Tarasoff situation while consulting to the emergency room or in the assessment of injured patients. Questions regarding perceived causation of the injury and possible motives for revenge are important. However, the behavioral health practitioner will usually not have had a previous relationship with the patient, thus adequate assessment is often difficult. In these situations, hospitalization may be used more frequently.

 

Three general principles can be gleaned from Tarasoff and subsequent cases (Knapp and VandeCreek, 2001; VandeCreek and Stout, 1993). These include (1) foreseeability of harm, (2) identifiability of the victim, and (3) the ability of the therapist to protect the potential victim. First, the courts have not found liability when therapists could not have foreseen the danger. Second, the courts have generally found that there is no liability if the potential victim is not identifiable. Third, the courts have generally found that the therapist need only take fairly easy and reasonable steps to warn the potential victim, to fulfill the duty. Thus, the guidelines presented by Southard and Gross (1982; Figure 7.1), with the modification taking into account the Ewing decision, are still applicable.

 

DUTY TO PROTECT AIDS AND HIV POSITIVE PATIENTS

 

The acquired immune deficiency syndrome (AIDS) is caused by the human immunodeficiency virus (HIV). AIDS is an epidemic and presents a special issue related to the duty to protect within the context of a psychotherapeutic relationship. Specifically, what is the psychologist to do if a patient discloses that he or she is HIV positive and also has a sexual or needle-sharing partner who is not aware of the infection? This issue may be more likely to confront clinical health psychologists because of their closer association with the medically ill.

 

The question is whether the situation above entails a necessary invocation of the Tarasoff duty to protect. The Tarasoff decision was based on long-standing precedents involving physicians’ duty to warn third persons about infectious diseases (see Gostin, 2002; Knapp & VandeCreek, 2001; Knapp & VandeCreek, 1990; Totten, Lamb, & Reeder, 1990, for review). As such, legal precedent for a duty to warn in HIV cases antedates the Tarasoff decision. Still, one is not expected to invoke the duty to warn in every case of a patient disclosing HIV-positive status and also having uninformed persons within his or her psychosocial environment. The breaking of confidentiality in fulfilling the duty to warn must be done with caution after careful consideration of many factors, just as in Tarasoff cases.

 

Legal guidelines for the duty to protect in HIV positive cases have been developed in many states. It is beyond the scope of this discussion to review each state’s guidelines, if they actually exist in a particular state. In addition, these guidelines are often changing rapidly. Knapp and VandeCreek (1990; 2001) provided a useful presentation of these issues as well as general guidelines for the duty to protect in HIV-positive cases. They take into account such things as the three general Tarasoff guidelines as applied to the HIV positive case, how to assess the level of risk the HIV positive patient is posing, and clinical management of the HIV dangerous patient. They conclude that psychologists should be aware of state law, consult with colleagues, consult with legal authorities, and document the decision-making process, to deal with these cases in a sound clinical and legal fashion.  Other excellent resources include APA Public Interest Directorate, Major HIV/AIDS Topics and Issues at http://www.apa.org/pi/aids, Reamer (1991), Dickson (2001), and Woods, Marks, & Dilley (1990). 

 

CONFIDENTIALITY

 

Confidentiality is a standard of professional conduct that requires the practitioner not to discuss or disclose information about a patient to anyone.  Communication between patient and psychotherapist within the context of a professional relationship is considered confidential and this has been established in the Ethics Code, legal statutes, and case law (American Psychological Association, 2002; Bersoff, 1995; Koocher and Keith-Spiegel, 1998; Reamer, 2003). As with traditional psychological treatment, the behavioral health practitioner is mandated to breach confidentiality under special circumstances (e.g., endangerment to others, child abuse, elder abuse, or endangerment to self). However, inadvertent breaches of confidentiality can occur (e.g. not securing records, cell phone conversations, internet communication, etc).  Where there is an inappropriate breach of confidentiality, it is grounds for malpractice (Berry v. Moench, 1958; Furniss v. Fitchett, 1958; See also Koocher and Keith-Spiegel, 1998; Reamer, 2003 for a review).  As discussed previously, it is anticipated that case law related to the management of confidential patient information will be shaped by the HIPAA regulations.

 

The practice of behavioral health can present special problems related to confidentiality. One issue has to do with how much information related to the patient’s psychological status, history, and condition should be disclosed to the referral source, which is often the primary-care physician with whom the clinician is working closely in the management of the patient.  In many multidisciplinary practices, release of confidentiality for all treating professionals is required before a patient will be accepted into the treatment.  In some cases, if a patient is unwilling to give consent to all practitioners to share and discuss information, he or she may not be accepted into treatment.  This is due to necessity of multidisciplinary communication for the treatment to be effective.  Even the sole clinical health psychologist might require a confidentiality release to coordinate care with the patient’s physician prior to accepting a case for treatment.     

 

Even with HIPAA, the patient file in large medical centers is relatively open to other professionals on the staff.  This, of course, presents problems for confidentiality of psychological services. Many departments of psychiatry and behavioral sciences maintain separate records, a policy that provides more control over access. One procedure that can be used for responding to a referral involves writing a detailed intake evaluation for your own records and then excerpting relevant parts to comprise a more general evaluation to be sent back to the referral source. In most cases, this general report is also sent to the medical chart. The evaluation that is sent to the referral source is more symptom focused and treatment plan oriented. It does not include a detailed family history, particularly sensitive information, or a DSM-IV diagnosis. This practice is in keeping with the ethical standards of relevant professional groups:

 

·         Psychologists include in written and oral reports and consultation, only information germane to the purpose for which the communication is made (APA Ethical Standard 4.04). 

 

·         When confidential information is released to a third party, the clinical social worker will ensure that the information divulged is limited to the minimum amount required to accomplish the purpose for which the release is being made (CSWA Ethical Standard IIIb)

 

·         In all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed (NASW Ethical Standard 1.07c).

 

·         When circumstances require the disclosure of confidential information, only essential information is revealed (ACA Ethical Standard B.2.d).

 

·         Information may be shared only to the extent necessary to achieve the purpose of the consultation (AAMFT Ethical Standard 2.6).

 

Psychological material even of this general nature should be released only with the patient’s knowledge and consent. In many large health care systems, complete confidentiality cannot be promised, and the limits of confidentiality must be outlined to the patient in the informed-consent procedure. 

 

Inpatient psychological treatment of medical patients presents problems with confidentiality similar to those above, as well as others. A major problem is how much information to document in the unit chart, which is perhaps more widely read than clinic charts. It is most prudent to follow the guidelines presented above in recording the most general and necessary information in the medical chart. It should be kept in mind that the psychological-behavioral information recorded in the unit chart can often affect how the staff interacts with the patient. When there is information particularly relevant to the treatment of the patient but not appropriate to put in the medical chart, conveying the information verbally to the necessary health care professionals is indicated. However, the fact that the patient’s care was discussed should be documented in the medical chart.

 

Problems with confidentiality also occur when there is a release for medical information to an outside source and psychological treatment progress notes or evaluations have been recorded in the medical chart (either inpatient or outpatient). General medical releases of information forms are not sufficient to release psychological information, even when this information appears in the medical record. This may appear obvious, but in large medical systems, this issue is often overlooked. If the standard medical-information release does not specify psychological information, it is important that the medical records department take appropriate precautions (such as “blacking out” psychological progress notes when copying medical records). It may ultimately be the behavioral health practitioner’s responsibility to be sure this is done.

 

PSYCHOLOGICAL EVALUATION

 

Psychological evaluation has been an area in which psychologists have been more likely to get sued for malpractice, and this pattern has continued (VandeCreek & Stout, 1993; Wright, 1981; Montgomery et al., 1999). The typical scenario is that the recommendation resulting from the psychological evaluation causes the patient-client to initiate a malpractice complaint concerning misuse of the test or test data. Wright (1981) concluded that in “most instances the filing of the grievance is a retaliatory expression of disappointment because something that the client wanted was denied or the client felt himself or herself to have been presented unfairly” (p. 1490). Stromberg and Dellinger (1993) discussed that the courts have generally not been sympathetic to these suits because they understand that they are often of a retaliatory nature. Still, even the process of being faced with a malpractice action or licensing board complaint can be traumatic for the practitioner, and everything reasonable should be done to avoid it.

 

Behavioral health specialists, practicing within the limits of their specialty, would probably not be involved in areas of psychological evaluation that have more frequently resulted in malpractice litigation. These areas include evaluations for employment decisions (hiring, firing, and promotion), child custody issues, and probation. However, behavioral health specialists are involved in psychological evaluations related to medical treatment or disability decision making which may have increased malpractice risks (e.g., neuropsychological assessment, evaluation for inpatient pain programs, workers’ compensation assessments related to occupational injury, or evaluation for some type of surgery such as spine surgery, penile prosthesis, organ transplantation, gastric bypass, etc.).  For instance, if a patient is denied access to a treatment program or surgery, or is given the opportunity for an alternative treatment that is more appropriate but not desired by the patient, a malpractice suit could be precipitated.  In initiating the suit, the patient can deny the validity of the findings and express disagreement with the recommendation. Consider the following case example:

 

 

Case Example

 

 

The patient was a 60-year-old married man who was referred for psychological screening in conjunction with evaluation for a penile prosthesis. For the past 5 years, the patient had suffered from erectile dysfunction, which had precluded sexual intercourse. Medical evaluation had shown that blood flow and hormonal studies were within normal limits and that no physical etiology could be established. Nocturnal erections during sleep were intact. The patient was not informed about the implications of the psychological evaluation relative to his surgery nor about the feedback process before being interviewed. The psychological evaluation revealed there were a number of significant marital problems at the time of the onset of the sexual dysfunction. In addition, the patient had been involved in an extramarital affair about which he felt very guilty. Recommendations included a course of behavioral sexual dysfunction therapy and marital counseling. The results of the evaluation were given to the surgeon, who subsequently met with the patient and gave him feedback as to the treatment decision. The patient stated adamantly that he was not interested in psychotherapy, that the problem was physically based, and that he wanted it resolved with the prosthesis. The patient brought a malpractice suit against the surgeon and the psychologist, stating that he was denied the surgical procedure based on unjustifiable reasons.

 

 

Of course, behavioral health practitioners should not formulate recommendations resulting from evaluations based on attempting to avoid a malpractice suit. However, in the preceding example, the professionals made several errors in handling the informed consent, which may have contributed to the patient’s ultimate legal action. In general, the ways to minimize the risk of malpractice stem from what would be considered sound clinical practice, regardless of the malpractice issues:

 

 

Risk Management and Evaluation

 

 

Informed Consent.  The patient should be fully informed about the nature of the evaluation; for instance, who requested it, who will receive copies of the results, where the results will be documented (psychiatric or medical chart), the ramification of the results, and who will pay for it. After receiving information on the evaluation process, some check of the patient’s understanding should be conducted, and then consent for the evaluation should be obtained.

 

Discuss Evaluation Results.  After the evaluation, some discussion of the findings should be completed with the patient. This may occur before or after consulting with the referring physician depending on the case, the behavioral health practitioner’s role as a consultant, and the relationship between the practitioner and the physician. This feedback session with the patient should include an opportunity for the patient to discuss his or her reactions to the results and to ask any questions about “where do we go from here?” Often, when there is a treatment team involved, it is advisable for the team or various members of the team (e.g., the physician and behavioral health specialist) to meet with the patient simultaneously for feedback. In doing this, all questions that the patient may have can be addressed while reducing the risk of miscommunication or misinformation.

 

Use Tests in a Valid Manner.  Third, as suggested by Wright (198l) and others (Rogers, 2003), evaluation instruments should be given in the manner in which they were standardized, and in keeping with the standards for psychological testing.

 

Document.  Careful documentation of informed-consent procedures, findings, the patient’s response to the feedback session, consultation to the referral, and so forth is necessary.

 

 

Although the recommendations from psychological evaluations are not always in keeping with patient desires, these guidelines can help reduce the risk of “retaliatory” or successful malpractice actions without having to equivocate evaluation results to the point of uselessness.

 

SUPERVISION OF TRAINEES

 

The behavioral health specialist working in a supervisory capacity must be aware of increased malpractice liability. As the area of behavioral health expands, increasing numbers of practitioners will be seeking supervision. In general clinical work, ethical issues related to supervision have been articulated in the literature as well as in the relevant ethical principles (Falender & Shafraske, 2004; Koocher & Keith-Spiegel, 1998). It is essential for supervisors to be aware of ethical and legal aspects of supervision beyond their theoretical orientation and teaching skills (Falender & Shafraske, 2004; Harrar, VandeCreek, & Knapp, 1990). Certainly, one of the most important principles is that the behavioral health supervisor be competent to supervise in the specific area of practice. The following discussion assumes such a competence. Also, the supervisor is expected to know the skill level of the supervisee and gauge assignment of tasks and supervision accordingly (Falender & Shafraske, 2004; VandeCreek & Stout, 1993). Certainly the supervisee should possess the appropriate educational background and personal characteristics relevant to general practice prior to being given more responsibility and independence in a specialized area such as behavioral health. Harrar et al. (1990) summarized the duties and responsibilities of the supervisor as follows:

 

·         The supervisor should have sufficient knowledge of each patient to be able to develop and monitor effective treatment plans and countersign written reports.

 

·         The supervisor should be available for emergency consultation and direct contact with patients.

 

·         The supervisor should not supervise more trainees than can be responsibly managed.

 

Conceptually, the most important thing for the supervisor to bear in mind is that “the relationship of an assistant to a licensed professional is, legally, akin to an ‘extension’ of the professional himself” (Cohen, 1979, p. 237). Although, both parties must understand that the trainee should not function so that the public would be led to believe that he or she is a fully licensed professional or expert specialist if that is not the case.  Another issue is that the amount of supervision must be based on the needs of the supervisee and the patient (Cohen, 1979; Falender & Shafraaske, 2004; Pope, 1990). The supervisor is frequently confronted with this issue in training institutions. As Pope (1990) pointed out, it is important that the needs of the institution or the training rotations do not supersede those of the patient. Setting up a structured schedule of supervision is reasonable, and commonly practiced, but it should be flexible enough to accommodate clinical issues or problems as they arise. In addition, the needs of the patient and the supervisee must be constantly monitored and addressed.

 

Related to schedules of supervision, a record of the supervisory activity should be kept. This is most easily done in the patient’s chart and need not be done at every supervisory session. Rather, the supervisor should periodically document that there is agreement with the supervisee’s diagnostic formulation and treatment plan. This guideline should also be followed if the trainee is doing inpatient work and charting in the medical record. In fact, most medical facilities require the supervisor to countersign all charted information.

 

The recommendations listed above afford increased legal protection for the supervisee as well as the supervisor. Although the supervisory relationship creates supervisor liability for the professional behavior of his or her trainees, the supervisee is not totally absolved of responsibility in malpractice action. Thus, documenting supervision times and following the previously suggested guidelines offer protection of both parties and provide for more high-quality supervision. It should always be kept in mind that, “courts have generally followed the principle ‘What has not been written has not been done’ ” (Harrar et al, 1990, p. 38).

 

SEXUAL VICTIMIZATION AND MALPRACTICE

 

Although sexual misconduct is not unique to the area of behavioral health practice, no discussion of ethical and malpractice issues would be complete without addressing this area. Sexual misconduct always accounts for a high percentage of malpractice claims and licensing board complaints (Pope & Vasquez, 2007).   It accounts for the largest costs in malpractice expenses and is generally excluded from coverage in most malpractice insurance policies. As discussed by Belar and Deardorff (2008), clinical health psychologists (and any behavioral health practitioner) may be more often associated with other disciplines (e.g. Medicine), which have different ethical and legal guidelines on sexual relationships with patients and ex-patients. As Stromberg and Dellinger (1993) discussed, “one court explained that therapist-patient sex incurs liability while that sex between lawyer and client, minister and parishioner might not, because only the first professional group offers ‘a course of treatment and counseling predicated upon handling the transference phenomenon’ (Simmons v. United States, 1986; Stromberg & Dellinger, 1993, p. 8). This court decision makes it clear that it is important to not be influenced by guidelines for behavior of other disciplines.

 

Other important court decisions give further instruction in this area (See Reamer, 2003 for a review). First, the initial consent of the patient to a sexual relationship will not be a defense against a later malpractice claim. Second, the courts have generally not accepted the argument that the sexual relationship was consensual.  Third, even in the case of sex with a former patient, the courts do not easily accept the view that the therapy relationship has ended. In fact, many malpractice cases involve patients’ claims that they were harmed by the sexual relationship that started after treatment termination (Reamer, 2003).  All current mental health professional ethical standards provide guidelines in this area that are in keeping with many state laws.

  

Touching, Nudity and Medical Procedures

 

As discussed by Belar and Deardorff (2008, p. 131), “When working with medical-surgical patients, the clinical health psychologist is likely to encounter special boundary issues that are not as salient in traditional outpatient services.”

 

The issue of touching, nudity and medical procedures may be more relevant to the behavioral health specialist than in other areas of mental health practice.   Behavioral health practitioners may find themselves in situations not typical of the usual psychotherapy setting (Belar and Deardorff, 2008).  Consider the following examples:

 

·         The behavioral health specialist was completing rounds with the medical team.  As part of the rounds, the physician examined patients which required them to partially disrobe

 

·         A patient being seen on an inpatient basis was in a great deal of pain and suffering.  She grabs the hand of the behavioral health specialist while they are talking.   She seems to relax as he holds her hand.

 

·         The behavioral health practitioner provides biofeedback training as part of his treatment.  He is treating a much younger female patient using EMG biofeedback training for mid and upper back pain. To place the electrodes she must unbutton her blouse and expose her mid to upper back.

 

Although most studies suggest that most therapists touch their clients in a non-sexual manner, the issue of touching patients as part of the psychotherapeutic relationship is a hotly debated issue.  Viewpoints on non-erotic touch as being therapeutic ranges from traditional psychotherapy ideologies which dictate that any touch beyond a handshake is contraindicated to treatments such as Reichian Therapy which utilizes a body-oriented approach to healing (see Zur and Nordmarken, 2009, for a review).  It should be noted that none of the ethical codes of the major mental health organizations prohibit appropriate touch (e.g. APA, NASW, ACA, AAMFT, CASW).

 

The issue of touch (and partial nudity) within a risk management and malpractice discussion involves situations in which a behavioral health practitioner engages in non-erotic touch (e.g. handshake, handholding, hug, applying electrodes for biofeedback) or is faced with partial nudity as part of treatment (e.g. biofeedback, in the hospital) and the patient interprets it as erotic.  As discussed by Zur and Nordmarken (2009).

 

Clients, sometimes independent of therapists’ intentions, construct the meaning of touch.  For example, light touch on the arm by a therapist  meaning to be supportive and affirming, or it may be perceived as hostile, intrusive, controlling and disrespectful….A therapist’s hug, meant to be supportive, may be experienced as affirming and calming, or as overwhelming, intrusive or as sexual harassment.

 

As discussed by Zur (2007), the meaning of touch can only be understood within the context of the patient, the treatment relationship, and the treatment setting.  The research on touch in psychotherapy may help guide the behavioral health therapist.  In general, the longer the therapeutic relationship, the better the therapist can understand how the client/patient might perceive touch and decide to use it or not.  Also, non-erotic touch is more likely to be misperceived as erotic or abusive if the patient suffers from a borderline personality disorder or other severe condition.  Lastly, the issue of touch must be understood from the patient’s perspective especially if the behavioral health practitioner is working in a medical setting.  If the behavioral health practitioner is perceived as more of a healthcare provider (similar to a physician), than non-erotic touch that is meant to be supportive may be misconstrued as erotic.  This is simply due to the fact that most physicians and other healthcare providers (at least in Western Medicine), do not engage in such actions.  For them, touch is only for biomedical reasons.

 

Behavioral health interventions are often short term (relative to psychotherapy), giving the practitioner less time to judge personality factors that may impact how the patient perceives touch.  If the behavioral health practitioner is working is a medical setting, the patient may have different expectations about touch relative to other situations.  Given these factors, the use of non-erotic touch by the behavioral health practitioner should be done only after taking into account all important factors (e.g. the setting, the patient, the treatment relationship, etc.).

 

BILLING, COLLECTION, AND FINANCIAL ISSUES

 

Countersuits related to fee collection represent an area of increased malpractice risk (Bennett, Bryant, VandenBos & Greenwood, 1990).  Behavioral health practitioners can avoid many problems in this area by making clear arrangements with patients in advance (Bernstein & Hartsell, 2004). This should be done in writing as part of the informed-consent process. In their article entitled, “Legal and Ethical Issues in Billing Patients and Collecting Fees,” Knapp and VandeCreek (1993) discussed guidelines for effectively managing this aspect of clinical practice. Their guidelines will be summarized here.

 

First, the behavioral health practitioner should keep in mind that he or she is “under no obligation to accept all patients who request service” and that “psychologists may refuse to accept any patient for any reason, including the perception that the patient is unable or unwilling to pay for services” (Knapp & VandeCreek, 1993, p. 25). Many ethical principles encourage practitioners to contribute a portion of their professional time for little or no compensation, and this might include seeing patients on a reduced or no-fee basis. This is a choice to be made by the practitioner. In certain cases, deciding not to accept a patient into one’s practice for the above reasons may actually avoid anti-therapeutic problems, which could occur if treatment were to ensue.

 

Second, the behavioral health practitioner should use a written informed consent procedure that includes financial information among other things. The form should include financial information as well as other information such as description of treatment, cancellation policy, limits of confidentiality, duty to warn, emergency contact information, consent to treatment, among other things.  This is in keeping with various ethical standards and legal suggestions (Bernstein & Hartsell, 2004; Stromberg & Dellinger, 1993; VandeCreek & Stout, 1993).  Financial information to be addressed in the form should include fees, insurance billing, notification that insurance may not cover all of the charges, expected payment schedules, interest charges on balances, and collection procedures. Not allowing the bills to accumulate can help avoid problems at a later date. If an account is turned over to collection, the behavioral health practitioner must first give the patient notification and opportunity to make restitution.

 

Obtaining informed consent related to financial issues can be particularly challenging for the behavioral health practitioner who sees a patient in the hospital. Physicians do not commonly address these issues when they do inpatient consultations and treatment. In our experience, it is awkward (and usually countertherapeutic) to walk into a patient’s room for a first-time consultation and present a detailed consent form to be signed before beginning. In these cases, the informed-consent procedure may be done over several sessions, and the patient may be asked if he or she has questions about the financial arrangements. In addition, the practitioner may want to be more understanding in dealing with any subsequent financial issues that arise for patients seen under these circumstances.

 

ASSOCIATION WITH PHYSICIANS IN “RISKY” AREAS OF PRACTICE

 

Although we are not aware of any case law, behavioral health practitioners who are associated with “risky” areas of medical practice may be vulnerable to being named in a malpractice action if one is initiated against the treating physician.  As an example, long-term opioid maintenance is sometimes used to treat appropriate patients with chronic non-cancer pain but this treatment approach is not without controversy (See Harden, 2002, for a review).  Per the medical standard of care, this treatment should be multidisciplinary and include the services of a behavioral health practitioner (See the Pain Management course III for a review of these issues).   The screening criteria for selection and management of patients for this type of treatment is very specific; however, in practical settings many patients are receiving long-term opioid treatment who are either not appropriate for the intervention (e.g. history of substance abuse, lack of compliance with non-medicine pain management treatments, getting medications from multiple doctors, etc.) or are being medically managed inappropriately (e.g., not being seen on a frequent basis, lack of random drug screens, lack of opioid maintenance contract, etc.).  The literature has demonstrated that patients in this type of treatment are at increased risk for overdose and death (Franklin, Mai, Wickizer, Turner, Fulton-Kehoe, & Grant, 2005).  As such, the behavioral health practitioner might be named in a malpractice lawsuit along with the treating physician if a patient were to die from an overdose (accidental or not) and a wrongful death lawsuit was initiated.  We are aware of at least one case in which all the physicians at a multidisciplinary chronic pain program were named in a suit of this nature, but the behavioral health practitioner was not sued since she was not involved in that particular case.  However, had she been seeing the patient as well, she would have undoubtedly been targeted in the lawsuit.  This demonstrates how liability lawsuits will often “cast a broad net” if the patient’s attorney believes there may be contributory negligence and additional damages can be pursued.

 

This underscores the importance for behavioral health practitioner to be aware of the “practice style” of any physician with whom they associate in a more formal practice setting.  We believe other areas of increased risk might include screening for gastric bypass, spine, cosmetic or other usually elective surgery.  This might especially be the case in the area of gastric bypass and plastic surgery, which are now being marketed aggressively to the public as a quick and easy means to weight loss and “beautification”, respectively.  When this type of marketing occurs, one is likely to see a number of cases that are not appropriate for surgery.  The behavioral health practitioner working in this area might be vulnerable to legal action in cases where the patient is screened out (sued for not allowing the surgery that the patient desired) or where the patient is cleared for surgery, undergoes the procedure, and is dissatisfied with the results (sued in conjunction with the physician for damages from the surgery).  Any behavioral health practitioner who practices in higher risk medical areas should be very cognizant of the standard of care (both psychological and medical) and the practice style of the physicians with whom he or she has associated.    

 

MANAGED CARE

 

Health care reform and managed care is impacting virtually all aspects of psychological practice, including that of behavioral health. Managed care relates to malpractice issues in two important ways (Stromberg & Dellinger, 1993). First is whether the “standard of care” under managed care is measured differently than fee-for-service care that is not subject to limitations dictated by the insurance company (e.g., number of sessions, reimbursement “allowance” etc.). The argument is that if a patient is enrolled in a health plan that reimburses at a lower rate or has limited psychological treatment benefits, then the therapist should not be liable for providing a lower quality of care or terminating the treatment after the “allowed” number of sessions. According to Stromberg and Dellinger (1993), the courts have not recognized any lower standard of care based on insurance coverage or managed-care guidelines. The same rules (ethical and legal) apply for all patients regardless of these issues (Koocher & Keith-Spiegel, 1998). Of course, the behavioral health practitioner can deal with such things as a limited number of allowed treatment sessions in an effective manner by being aware of such issues for each patient at the beginning of treatment, using informed-consent procedures, and anticipating other options if necessary.

 

If the standard of care level being set by the managed care company is unacceptable and results in injury, the company along with the practitioner can be held liable (Wickline v State of California, 1986; See Koocher & Keith-Spiegel, 1998; Newman & Bricklin, 1991 for a review).  This issue began in the courts with the Wickline v. California (1986) decision, in which the plaintiff suffered the loss of her leg because of the failure of the health plan to provide treatment. Subsequent legal cases (e.g., Wilson v. Blue Cross of California, 1990) have reaffirmed that “when a treating physician makes a decision to discharge a patient because an insurance company refuses to pay benefits, either or both may be liable if their conduct was a substantial factor in bringing about the harm” (Stromberg & Dellinger, 1993, p. 13). Stromberg and Dellinger (1993) concluded that the practitioner should at least provide services on an emergency basis regardless of payment and “energetically seek approval for additional services the patient genuinely needs” (p. 13).  Appelbaum (1993) and others (Koocher & Keith-Spiegel, 1998) provide further guidelines to limit ethical and legal liability within a managed-care system. These include a duty to appeal adverse decisions by the insurance company, a duty to disclose to the patients the economic implications of their managed-care plan and its possible impact on treatment, and a duty to continue treatment under certain circumstances even if benefits have been exhausted. Of course, all actions related to dealing with the managed-care system should be documented in writing.

 

Haas and Cummings (1991) present considerations to take into account before becoming involved in a particular managed-care system. These include consideration of the following questions:

 

·         How much does the plan intrude into the patient-provider relationship?

·         What provisions exist for exceptions to the rule?

·         Are there referral resources if patient needs should exceed plan benefits?

·         Does the plan provide assistance or training in helping the provider to achieve treatment goals?

·         Are there ways in which the plan is open to provider input?

·         Do plans clearly inform their policyholders of the limits of benefits?

 

Undoubtedly, malpractice issues related to managed care will continue to arise as these systems become more complex and patients and clinicians are increasingly influenced by these pressures.

 

MINIMIZING MALPRACTICE RISKS

 

Several authors have formulated guidelines for minimizing the malpractice risks (Soisson, VandeCreek, & Knapp, 1987; Stromberg & Dellinger, 1993; VandeCreek & Stout, 1993; Welch, 2003). These can be summarized as follows:

 

 

Minimizing Malpractice Risks

 

 

Maintain accurate records of patient care and carefully document appropriate information. Remember, in legal action it is the patient’s word against the clinical record.

 

Obtain written informed consent in writing of billing procedures, treatment plans, circumstances under which confidentiality must be breached, etc. 

 

Ensure that all practitioners remain current in knowledge and skills in their areas of practice (commensurate with the standard of care).

 

Coordinate patient treatment with other disciplines involved in the case with appropriate releases of information (e.g. physicians).

 

Honor patient rights to confidentiality and privilege.

 

Be thorough in assessment of patients, especially where suicide and homicide may be potential factors.

 

Avoid dual relationships with patients and ex-patients.

 

Accept only as many patients as can be carefully treated.

 

Terminate treatment carefully and for the proper reasons.

 

Exercise caution with new modalities of treatment and systems of managed care.

 

 

Taking these suggestions seriously and implementing them in everyday practice will not only help avoid any malpractice action but also improve the quality of care.

 

SUGGESTED READING

 

Bernstein, B. E. & Hartsell, T. L.  (2004). The portable lawyer for mental health professionals, 2nd ed.  Hoboken, New Jersey: John Wiley & Sons. 

 

Campbell, T. & Lorandos, D.  (2001). Cross examining experts in the behavioral science.  Danvers, MA: West Group.

 

Knapp, S., & VandeCreek, L. (1993).  Legal and ethical issues in billing patients and collecting fees. Psychotherapy, 30, 25-31.

 

Law and Mental Health Professionals series for individual states.  Published by the American Psychological Association.

 

Lifson, L. E. & Simon, R. I.  (1998). The mental health practitioner and the law: A comprehensive handbook.  Cambridge, Massachusetts: Harvard University Press.

 

Reamer, F.G.  (2003).  Social work malpractice and liability, 2nd ed.  New York: Columbia University Press.

 

VandeCreek, L., & Knapp, S. (2001). Tarasoff and beyond: Legal and clinical considerations in the treatment of life-endangering patients. Sarasota, FL Practitioner’s Resource Series.

 

www.reidpsychiatry.com   

 

Ziskin, J. (2000). Coping with psychiatric and psychological testimony, Vol. I-III (with 2000 Supplement).  Los Angeles: Law and Psychology Press.

 

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