Residents Advised on How to Prevent Malpractice Suits

Psychiatry residents can no longer assume that only their attending or supervising psychiatrists, rather than themselves, will be sued for malpractice, but they can take steps to ensure a positive outcome.

The best defense is documentation in medical records and good patient communication, according to two attorneys who are involved in managing The Psychiatrists' Program. They spoke at APA’s 1998 annual meeting in Toronto at a workshop sponsored by the New York State Psychiatric Association Committee of Members-in-Training.

"Psychiatrist are not held to a standard of perfection, nor are they considered negligent just because they followed a different course of treatment than the professional standard. But they must have adequately documented their clinical assessment, decision making, and treatment in the medical record," said Martin Tracy, senior vice president for compliance at Professional Risk Management Services Inc. (PRMS).

Tracy commented that the medical record is usually the first document to be examined by the plaintiff’s attorney to assess the merits of the case. Moreover, the resident’s insurance company will look at the medical records to assess whether the resident’s actions are defensible.

The outcome of a negligence case can hinge on medical-record documentation, according to Jackie Melonas of PRMS’s risk management consultation service.

A case in point was a resident who wrote a brief note in a patient’s chart upon discharge from the hospital. Although the patient committed suicide five hours later, the resident was not found to have been negligent because the note supported his oral testimony that he had assessed the patient’s suicide risk, said Melonas. However, the resident’s lengthy discharge summary, dictated after he knew the patient had committed suicide, was dismissed by the court as too self-serving.

Residents should document their psychiatric assessment in the medical records rather than recording only the patient’s comments about his or her mental status.

Melonas recounted a case in which a resident documented a paramedic’s assurances that he was not suicidal after he cut his arm. Because the paramedic worked at the hospital and was a familiar face to staff, the resident did not question his statements. The paramedic committed suicide two days later, and the resident was found to have been negligent because there was no record of a proper assessment in his chart.

Tracy advised residents never to alter a patient’s medical record by deleting information. "In some states, tampering is a criminal offense." He recommended making corrections next to the original language, followed by dating and signing them.

Tracy also warned residents against becoming involved with patients on a personal level such as borrowing money from them or lending them money, buying or selling real estate, or employing them.

Because many residents work second jobs in clinical settings, Tracy recommended having malpractice insurance that covers moonlighting. Also, if they are not covered by their employer, Tracy recommended that they buy their own malpractice insurance.

Transmitting patient information electronically poses risks for residents. For example, insurers and managed care companies regularly request and transmit patient information by facsimile, according to Ellen Fischbein, M.D., an APA Assembly representative from the Connecticut Psychiatric Society and a director of APA’s Psychiatrists’ Benefit Corporation and Psychiatrists’ Purchasing Group.

She recommended that residents have patients sign a special form allowing them to release clinical information to managed care companies by telephone, fax, or in writing.

Tracy also advised residents not to use the speed-dialing feature on fax machines because "the patient’s medical information that was intended for Blue Cross can end up at Aetna."

He reminded psychiatrists that conversations on cell telephones are not necessarily private because anyone can eavesdrop and record the conversation.

Pagers have become necessary equipment for residents, but the perils of relying on electronic equipment became clear when a satellite dish serving North America crashed for four hours in early May, said Tracy.

"Residents are obligated to reasonably discharge their duties to the patient. A jury would not look favorably on a resident who was inaccessible while on call because of a power failure and no backup plan."

This article appeared in Psychiatric News - July 3, 1998 Volume XXXIII Number 13