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

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Examples of Increasing Risk

The following scenarios illustrate some ways in which shared treatment relationships can give rise to professional liability problems. The examples are a compilation of facts taken from actual claims, litigation and risk management consultations at the APA-endorsed Professional Liability Insurance Program. Identifying information has been modified.

Scenario 1. A patient reported to her prescribing psychiatrist that she felt uneasy about her relationship with her therapist, a "drama therapist." After discussing the patient’s concerns, the psychiatrist determined that the therapist may have breached sexual boundaries. In the process of investigating his duty to report the therapist’s misconduct, the psychiatrist discovered that the therapist was not licensed and, in fact, that drama therapy was not recognized or regulated in the state. The psychiatrist realized he knew nothing about the therapist’s qualifications, competence, or the therapy that was being provided.

Comment. If a lawsuit arises in this situation, the psychiatrist may bear most of the liability risk. Especially since unlicensed therapists may not be held to the same clinical and legal standards and probably do not carry malpractice insurance, the court may be looking for a way to compensate an injured plaintiff. The psychiatrist may be found to have some accountability for knowing the qualifications of the therapist, supervising the therapist and/or informing the patient. In this situation the psychiatrist was unable to evaluate the quality of care being provided to the patient.

Scenario 2. A patient refused to allow his psychotherapist to discuss his ongoing substance abuse with the prescribing psychiatrist. The psychotherapist informed the patient that sharing this information with the psychiatrist was critical to his treatment and safety. The psychotherapist ultimately terminated treatment with the patient and informed the psychiatrist that the patient refused to consent to disclosing important clinical information. When the psychiatrist confronted the patient, the patient refused to discuss the situation. Subsequently, the psychiatrist referred the patient and terminated his treatment.

Comment. Get the patient’s written consent to disclose confidential information in the shared treatment relationship before beginning treatment. If the patient will not consent to such communication, the psychiatrist and psychotherapist must decide whether they can work therapeutically with the patient. Lack of important information adversely affects quality of care and increases liability risks.

Scenario 3. A nurse practitioner contacted a psychiatric group practice requesting that a patient in psychotherapy be evaluated for possible medication management. The group’s policy was to perform a complete psychiatric evaluation before recommending any medication. The nurse practitioner objected to the need for a psychiatric evaluation. He stated that he was qualified and authorized to perform the clinical evaluation under the state advanced nurse practice laws and was only referring the patient for a limited medication evaluation. The psychiatric group stood by the policy, and the nurse referred the patient elsewhere.

Comment. To meet the standard of care, a prescribing psychiatrist must perform an evaluation in order to have adequate information on which to base clinical recommendations and treatment. Do not let others set the standard of care for you.

Scenario 4. A psychiatrist is asked by a nurse practitioner to be a supervisor. The state nurse practice act permits nurse practitioners to prescribe medications under the supervision of a physician. The psychiatrist wants to know if she is at higher risk for malpractice lawsuits if she agrees to be the nurse’s supervisor. What information should the psychiatrist have before deciding whether to enter into a supervisory relationship?

Comment. In supervisory relationships, the supervisor is directly responsible for the patient’s care and must provide the level of supervision required to make sure the standard of care is met. The psychiatrist should know and follow the requirements set out by the applicable licensing boards for this type of practice relationship. For example, New York law requires, among other things, that prescribing nurse practitioners complete pharmacology courses; obtain their own Drug Enforcement Administration number; be re-certified every three years; and establish a written practice agreement with the collaborating psychiatrist that includes provisions for emergency coverage, physician review of patient records every three months, etc. Additionally, the psychiatrist should require that the therapist has equivalent professional liability limits.

Scenario 5. The prescribing psychiatrist was confident of a therapist’s qualifications and competence and relied on her input for prescribing and monitoring the medications of several patients they treated collaboratively. When the psychiatrist’s schedule became very hectic due to the volume of patients he was seeing for medication management, he gave the therapist a supply of signed prescription pads. The psychiatrist decreased the face-to-face visits with the patient and, instead, conferred with the therapist by telephone during the patient’s psychotherapy visits and directed the therapist how to fill out the pre-signed prescription form. Subsequently, the psychiatrist and the therapist were named in a lawsuit that alleged the patient was injured due to inadequate time spent to perform a psychiatric evaluation, medication inappropriate for condition, incorrect dosage, failure to monitor drug side effects, and failure to coordinate treatment with the psychotherapist.

Comment. Not only did the psychiatrist and the therapist breach the standard of care, they violated their respective licensing board regulations and may have violated federal and/or state drug enforcement law about prescribing medications. Allegations in a malpractice lawsuit made in relation to unlawful and/or criminal acts are usually excluded from coverage under a professional liability insurance policy.

Scenario 6. The prescribing psychiatrist and the therapist did not establish a plan for communication. The psychiatrist thought it was the therapist’s responsibility to contact him. The therapist did not call. During a medication visit, the psychiatrist found that the patient’s clinical status had deteriorated, that she needed intensive clinical intervention and possible hospitalization; however, he was unsuccessful in reaching the therapist to develop a plan of care. By this time he thought the patient was at risk for suicide and should not wait to be seen at her regular psychotherapy appointment. The psychiatrist was very concerned about the potential liability risk if the patient did not receive intensive intervention and decided to terminate his relationship with the patient in order to decrease the risk.

Comment. Regardless of the difficult practice situation, patient care needs must be met. The psychiatrist cannot minimize liability by terminating with a patient who is in crisis. In fact, allegations of patient abandonment could be made against the psychiatrist. Termination of the patient-psychiatrist relationship can only be accomplished through a proper termination process that includes adequate notice, treatment options, and relevant information.

The Risk Management Process

How does one reduce the risk of malpractice exposure in shared treatment relationships? A good place to start is by using the 4-step risk management process.

STEP 1: Identify risks
STEP 2: Analyze risks
STEP 3: Manage risks
STEP 4: Evaluate

STEP 1. Identify Current and Potential Risks

Example: A psychiatrist, Dr. Smart, is considering whether to sign a contract with an MCO to provide medication management for patients who will be referred by the MCO to various nonmedical therapists for psychotherapy. Before signing, the psychiatrist wants to determine how this contract might affect her professional liability risk. Two of the risks that she identifies are

a. The MCO will pay only for 15-minute medications management visits.

b. The psychiatrist has no control over which psychotherapist the patients will be referred to.

STEP 2. Analyze the Identified Risks

Dr. Smart knows that the time needed to provide adequate medication management will vary depending on the severity of illness in the patient population she will be treating, the medications prescribed, an individual patient’s clinical status, and other variables. She gets additional information from the MCO about procedures for requesting additional time for these visits and the criteria for granting exceptions to the 15-minute limit. She talks to colleagues who have contracted with this MCO to find out what their experiences have been when asking for exceptions.

Dr. Smart gets the list of psychotherapists to whom the MCO refers patients, as well as its policies and procedures for credentialling and privileging psychotherapists. The MCO refers to a small group of psychotherapists, who are licensed, have educational degrees of masters’ level or above, and are required to meet yearly continuing education requirements. Dr. Smart worked with several of the psychotherapists previously at a community mental health center.

STEP 3. Manage the risk by accepting, avoiding/preventing, minimizing, or transferring it.

Dr. Smart decides she is willing to accept the potential risks in 15-minute medication management visits. It is her assessment that the MCO will be reasonable in giving exceptions based on the patient’s status. Further, she is willing to spend additional time with a patient as needed, without being reimbursed. She has decided to do this to meet the needs of the patients and in order to get the business.

Dr. Smart wants to minimize the risk of no control over which psychotherapist the patients are referred to, so she asks the MCO to agree to send the patients she sees for medication management only to the psychotherapists she knows professionally. The MCO agrees.

STEP 4. Evaluate

After six months Dr. Smart, will review a) the MCO’s response to requests for extended time to provide adequate medication management, and b) how much unreimbursed time she is spending to do medication management. Her review will provide information for evaluating her level of risk. For example, the MCO has not provided additional time to see patients with complicated treatment and medication plans when requested and has not been responsive to her appeals. Dr. Smart can decide to see patients within the MCO time limitations and accept the risk that the standard of care is not being met; she can decide to see the patients and not be reimbursed for the time; she can decline to renew her contract with the MCO, etc.

Additionally, Dr. Smart will evaluate the collaborative relationships with the psychotherapists. In this example she is satisfied with the level of communication she has with the psychotherapists, so she decides no adjustments are needed to this part of the agreement with the MCO.

Obviously, risk evaluations of actual situations are much more complicated than the example above. The example demonstrates, however, that psychiatrists can use the risk management process as a tool in identifying, analyzing, and managing the liability risks in shared treatment relationships.

Does Shared Treatment Increase the Malpractice Risk?

The elements for increased liability risk are present in these relationships, but each individual situation must be evaluated to understand its particular risk profile. The risk analysis must evaluate the risks inherent in the treatment of the particular patient (What are this patient’s clinical needs?), coupled with an evaluation of the risks presented by the shared relationship (How does the split treatment complicate/increase problems in meeting the standard of care for this patient? Are there ways to manage those risks so that you are satisfied that patient care needs are being met?)

Risk management seeks to improve the quality of care provided to patients and to reduce legal liability. The best risk management strategy is to pursue quality care that is in the patient’s interest. Coordination and communication with nonmedical therapists are essential to providing good treatment.

The author acknowledges with appreciation the contributions to this article by Marynell Hinton, M.A., and Joan Breckenridge, R.N., J.D.

References
Liability for the Actions of Others, in Legal and Risk Management Issues in the Practice of Psychiatry, by JE Macbeth, AM Wheeler, JW Sither. Washington, DC, American Psychiatric press, 1994, pp. 1-31, 38.

Divided Treatment in the Managed Care Arena: Legal and Ethical Risks, by J Lazarus, J Macbeth, N Wheeler. Psychiatric Practice and Managed Care, March/April, 1997.

General Guidelines for Psychiatrists Who Prescribe Medication for Patients Treated by Nonmedical Psychotherapists, by PS Appelbaum. Hospital and Community Psychiatry, 42:281-282, 1991.

Guidelines for Psychiatrists in Consultative, Supervisory, or Collaborative Relationships with Nonmedical Therapists. American Psychiatric Association. American Journal of Psychiatry 137: 1489-1491, 1980.

Guidelines for Prescribing Psychiatrists in Consultative, Collaborative, and Supervisory Relationships, by L Sederer, J Ellison, and C Keyes. Psychiatric Services, 49:1197-1202, 1998.

Divided Treatment: Legal Implications and Risks, by J Macbeth, in Pharmacotherapy & Psychotherapy: Collaborative Treatment, edited by M Riba and R Balon. Washington, DC, American Psychiatric Press, 1999. (Includes an extensive discussion of liability risks and recommendations for controlling risks.)

The APA-endorsed Psychiatrists' Professional Liability Program provides a Risk Management Consultation Services Helpline to its participants to assist them in decreasing the risk of professional liability in their practice and enhancing the quality of patient care. For more information, call 1-800-245-3333, ext. 389. This article appeared in Psychiatric Practice and Managed Care, Vol. 5, May/June 1999

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