Split Treatment: Does Managed Care Change the Risk to Psychiatrists?
by Jacqueline M. Melonas, R.N., M.S., J.D.

Ms. Melonas is Assistant Vice President of Risk Management for Professional Risk Management Services, Inc. (PRMS), administrator of the APA-endorsed Professional Liability Insurance Program.

Psychiatrists can be held liable for the acts of other professionals and nonprofessionals involved with the care of patients. This is not news to anyone practicing in the field of mental health. Liability for the acts of others in practice relationships has always been a risk. In the event of a malpractice lawsuit, the plaintiff’s attorney will seek to name all the clinicians who were connected to, or may have been connected to, the treatment of a patient during the time(s) the patient (plaintiff) alleges that he or she was injured. The plaintiff’s attorney wants to, indeed has a professional obligation to, "sue every deep pocket" and maximize "discovery," so healthcare clinicians who may have some liability should expect to be named as defendants. This means that a physician who has been involved, however remotely, in the plaintiff’s treatment can almost always expect to be named as a defendant.

Moving Beyond Traditional Relationships

Concern has increased over this liability risk as the advent and expansion of managed care has altered the traditional relationships between psychiatrists and nonmedical therapists. In particular, split treatment arrangements, where a psychiatrist provides pharmacotherapy and a nonmedical therapist provides psychotherapy, have become much more common. In such arrangements, psychiatrists frequently find that they have substantially less control over their patients’ overall treatment than they did in more traditional arrangements. As a result, psychiatrists have become increasingly aware of, and increasingly concerned about, the potential for malpractice exposure related to such relationships. Psychiatrists want to know if they will be responsible only for the part of the treatment they provide in a shared treatment relationship or whether they will be responsible for the overall treatment of the patient, even when they have limited control over the rest of the treatment.

Traditionally, malpractice law has regarded physicians as having broad authority and responsibility for patient care, no matter what the physician’s actual role in the treatment provided, and no matter what the levels of involvement of other professionals. The physician is considered the professional most responsible for overall patient care and thus bears more of the professional liability burden. Legislatures and licensing bodies have long recognized the independence of other healthcare professionals with regard to their responsibilities for patient care. The legal system has not caught up, yet.

Defining Collaborative Relationships

The American Psychiatric Association's 1980 statement, "Guidelines for Psychiatrists in Consultative, Supervisory, or Collaborative Relationships with Nonmedical Therapists," defines traditional relationships between psychiatrists and nonmedical therapists. Recently, Sederer et al. also defined these relationships and developed corresponding guidelines, specifically for prescribing psychiatrists. Shared treatment relationships, due to their potential complexities and varied natures, may not always fit into only one of these specifically defined categories, but the definitions are important tools for both psychiatrists and nonmedical therapists to use in understanding and communicating with each other and the patient about the nature and scope of the shared treatment relationship. The definitions provide guidance for the professionals and their patients in understanding the parameters of responsibility for each person in the patient- multiple provider relationship. Clarifying the relative responsibilities and expectations, as well as ongoing communication among the parties, is critical for successful split treatment that meets the standard of care and reduces liability risks.

In a malpractice lawsuit, these definitions may be used to assist in understanding the relative duties and responsibilities in a shared treatment relationship. Ultimately, however, the court and the jury will decide about the actions and/or omissions of the psychiatrist and nonmedical therapist that will be determinative of liability. They may choose to ignore the distinctions on which the professionals functioned.

Liability Analysis Remains the Same

Although the nature and configuration of practice relationships may change, the liability analysis does not change. Therefore, a psychiatrist’s actions or omissions would be subject to the same liability analysis regardless of the practice relationship.

In a medical professional malpractice lawsuit, four elements must be proven in order to find the psychiatrist liable:

a duty was owed to the patient (i.e., the plaintiff) by the physician (i.e., the defendant);
the physician breached (i.e., violated) that duty;
the breach was the proximate cause (i.e., direct cause) of the claimed injuries/damages; and
there were actual injuries/damages sustained by the patient.
The accepted standard of care is the criterion used to determine the duty that was owed to the plaintiff and if that duty was breached. Generally, the standard of care is the degree of care and skill expected of a reasonably competent physician in the same specialty acting under similar circumstances. In a medical malpractice lawsuit, medical expert witnesses must testify as to the applicable standard of care and whether or not there was a deviation from that standard.

Liability Implications

What impact do the current changes in practice relationships have on the psychiatrist's duty to the patient? None. The psychiatrist always remains responsible for ensuring that the patient receives the appropriate care. A physician’s duty to provide the standard of care emanates from the common law and from professional, ethical, and statutory/licensing responsibilities.

Psychiatrists may face conflicting responsibilities because of their unique role in determining what care a patient needs and, at the same time, complying with the cost containment requirements of the MCO. Utilization decisions by the MCO do not relieve the psychiatrist’s responsibility of providing the appropriate standard of care to the patient. Pleading difficult practice conditions or economic constraints will not be an adequate defense in a malpractice lawsuit. Psychiatric expert witnesses do not testify that cost containment considerations may preempt patient care.

The difficult question is, "What does the psychiatrist need to do in order to ensure that the standard of care is being met?"

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