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Legal Aspects of Consultation
Overview
Legal issues are common and acknowledged, although rarely welcomed, aspects of modern medicine. Physicians respond to these issues in various ways, ranging from denial of their existence, to resentment at the perceived intrusion into the patient care they create, to obsessive concern that can ultimately interfere with good clinical care.
Although it is true that legal issues are ever-present, and at times are the dominant concerns of patients and providers, for the most part, they exist in the background of care. When specific legal issues do arise, medical and surgical physicians often turn to the consultation psychiatrist for assistance (perhaps because the most common legal issues that arise—decision-making capacity and treatment refusal—have to do with mental functions and abnormalities of behavior). Whatever the reason, the psychiatric consultant may be drawn into a turbulent atmosphere when medical and surgical staff are confronted with a legal issue. The well-prepared consultant can be invaluable in these matters.
The first and perhaps most important service provided by the consultant is to remind the consultee that the physician's safest havens within the law are the principles of good faith, common sense, and good clinical care. To be of maximum assistance, consultants should be familiar with relevant legal concepts, and use this knowledge to diminish consultees' anxiety and help them perform their jobs. The challenge for the psychiatric consultant is to ease the burden of the consultee by providing clinical insights and legal information and to know when and how to use the input of the hospital attorney.
Medicine advanced rapidly in the 20th century and continues to do so in the 21st, giving rise to an evolving array of medico-legal issues. These issues are reflected in questions asked by residents and staff alike. How do I determine whether a patient is incompetent? If the patient is competent and making an irrational decision, does that decision have to be honored? What is my liability exposure as a consultant? If a managed care organization refuses to pay for continued hospitalization or for a patient's admission to a psychiatric facility, can the physician be held liable if the patient commits suicide? If the patient has expressed a desire to hurt someone else, what are my obligations to that third party? What obligations do I have if my patient is human immunodeficiency virus (HIV)-positive and refuses to inform his or her sexual partner?
This chapter cannot provide definitive answers to these and all the other medico-legal questions faced by general hospital psychiatrists. Rather, this chapter outlines general principles that apply in almost all jurisdictions. Because state statutes and case law vary considerably on these medico-legal matters, hospital counsel and legal representatives of medical organizations and insurers should be consulted. They are excellent sources of information about legal aspects of general hospital psychiatry.
Physicians' Rights and Obligations
Malpractice Liability
Malpractice , negligence , and liability are three terms that engender great concern and are often misunderstood. Malpractice law is a type of personal injury or tort law that concerns itself with injuries allegedly caused by the negligent treatment activities of professionals. To establish a claim of malpractice, a plaintiff (the complaining party) must prove four things. First, it must be proved that the defendant physician owed a duty to the injured party. Where the injured party is the patient, the duty is to perform up to the standards of the average physician in the community practicing in that specialty. Failure to practice in accordance with that standard, unless there is some justification, constitutes the second element: negligence. The third and fourth elements are closely tied to the first two: the negligent behavior has to be shown to have been the direct cause of actual damages. In the event that all four elements are proved, the defendant may be held liable (responsible for the damage) and ordered to pay compensation to the plaintiff, either directly or through his or her insurer. The four elements of malpractice are often summarized as the four Ds: duty, dereliction of duty, direct causation, and damages.
Malpractice liability exposure can be a concern for psychiatric consultants as well as other clinicians. Treating clinicians have the primary duty of care for the patient. Consultants, who by definition are brought in to provide advice to the treating clinicians, do not have the same duty to the patient. The consultant's duty of reasonable care is owed to the consultee, not the patient. This rule does not hold, however, where the consultant steps out of the purely consultative role and assumes direct responsibility for some aspect of the treatment relationship. For example, the consultant who evaluates a patient and then advises the treating physician that a course of antidepressant treatment is appropriate is not liable for an adverse outcome from the treatment. If, however, the consultant writes the prescription and monitors the treatment course, he or she has assumed the status of the “treating physician” and may be held responsible for any adverse outcomes.
Liability and Managed Care
Managed care and liability for injury when coverage is denied have been important issues ever since managed care arrived in force on the healthcare scene. The basic problem can be seen in this hypothetical example.
Case 1
Mr. A was admitted to the trauma unit after leaping off a bridge into the river. After open reduction and internal fixation of his bilateral femoral fractures, the psychiatric consultant saw him. Mr. A was found to be suffering from major depression as well as alcohol abuse. He was believed to be at a moderate to high risk for suicide, and suicide precautions were instituted on the floor. Mr. A was started on a course of antidepressants, but these had not yet begun to work when he was deemed surgically ready for discharge. The consultant recommended transfer to an inpatient psychiatry unit where Mr. A could undergo treatment for both his depression and substance abuse. Mr. A's mental health coverage had been carved out from his medical–surgical coverage. The utilization reviewer for his medical–surgical coverage insisted that he be discharged from the hospital and scheduled for outpatient physical therapy with visiting nurse coverage. The mental health management company sent its own psychologist reviewer to evaluate Mr. A. The reviewer agreed that Mr. A was depressed but denied authorization for psychiatric hospitalization. The reviewer opined that Mr. A was not acutely suicidal, did not need inpatient substance abuse treatment, and could be managed as an outpatient. He was given the names of the three psychiatrists in his town who were authorized under his plan and was able to get an appointment scheduled for 2 weeks after discharge. Mr. A was discharged from the hospital, over the objections of the consultant. The consultant had found that the patient was still significantly depressed and at risk of drinking again but not committable because he was not imminently suicidal. Ten days later, the visiting nurse found him hanged in his apartment. The death was ruled a suicide. Mr. A's family brought a malpractice action against the hospital, the treating physicians, the consultant, and the managed care company.
What liability does the managed care company have in a case such as Case 1 , in which the denial of care results in harm to the patient? Would the managed care company's liability supersede that of the physicians? The answers to these questions are still unclear. There have been a series of legal cases addressing these issues, and the law is still evolving. At present, there is a possibility that managed care companies may be held liable in these situations if the company exerted such control over the decision-making process that the physician's judgment was over-ridden. In other words, for the physician to avoid liability, he or she must protest the denial of care, appeal it to the highest level that the insurer provides, and take other reasonable steps to ensure the patient's safety. Depending on the facts, the liability may be assigned entirely to the managed care company, to the physician, or be shared. At present, treating physicians are regarded as independent contractors and therefore bear separate and often sole responsibility. There are policy arguments against that model, which may lead to future changes.
Whatever the policy arguments, under federal law, there are specific limits on managed care companies' liability for denial of care. Most often, decisions made by managed care organizations to limit care are subject only to limited legal remedies under the Employee Retirement Income Security Act (ERISA) of 1974. ERISA limits most employees of private companies to suing their health plans for the cost of the care denied by the managed care organization only, and not for recovery of losses that result from the denial of care or for punitive damages. ERISA's protection of managed care plans from liability for the consequences of their decisions is increasingly seen as unfair given the level of control over treatment decisions exercised by some plans. As a result, several federal court cases have eroded the prohibition on damages under the law, but these cases represent only small gains, the trend in cases has appeared to have come to a halt, there is no indication that lawmakers will amend ERISA to eliminate the preemption clause, and the Supreme Court continues to protect employer-sponsored plans from state requirements. In addition, state law efforts to hold managed care companies liable for damages have been largely unsuccessful. For the time being, in the face of bad outcomes, patients may try to shift liability to physicians and hospitals to recover losses.
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