Hello, and welcome to this CME presentation, Managing Outpatient Risk from Routine Care to High-Risk Patients. So the content in this presentation is intended solely to provide general information concerning developments in the area of risk management. It is not intended as legal or medical advice, nor does it offer or solicit for offers with respect to any insurance product. Legal or medical advice should be obtained from a qualified legal counsel or other professionals to address specific facts and circumstances and to ensure compliance with applicable laws and standards, and listeners should consult their own insurance advisors for information pertinent to the purchase of any insurance product. This content may not be reproduced or redistributed in whole or in part without the prior written consent of Allied World. This activity has been planned and implemented in accordance with the accreditation requirements and policies of the Accreditation Council for Continuing Medical Education through the joint providership of the American Psychiatric Association and Allied World. The APA is accredited by the ACCME to provide continuing medical education for physicians. The APA designates this enduring activity for a maximum of one AMA PRA Category 1 credit. Physicians should claim only the credit commensurate with the extent of their participation in this activity. No one in a position to influence course content has anything to disclose. I'm Alison Funicelli, Assistant Vice President for AWACS Services, a member company of Allied World. I provide risk management services to Allied World's medical professional liability policyholders and insured psychiatrists, psychologists, psychiatric nurse practitioners, and physician assistants. So our objectives today are to identify the most common professional liability risks and allegations associated with psychiatric malpractice claims. We're going to define and discuss factors influencing patient safety in the outpatient We're going to define and discuss factors influencing patient safety in the outpatient setting and describe strategies to identify risks, improve patient safety, and mitigate claims in an outpatient setting. So we're going to cover 10 topics in this presentation. We're going to cover psychiatric malpractice statistics, diagnosis, privacy and security issues, trauma, patient termination, informed consent and informed refusal, ADA requirements, high-risk patients, communication, and documentation. So let's start with talking about psychiatric malpractice. So what are the requirements for a plaintiff to bring a claim of negligence? So the plaintiff in the case must meet all four of the elements of negligence to be successful with their claim. So the first is duty. The plaintiff must show that a doctor-patient relationship was created, resulting in the duty of the provider to that patient. Next, the patient plaintiff must prove, usually through expert testimony, a breach in the standard of care occurred, resulting in a causal link between the breach in the care and actual damages. So what is considered the standard of care? So while it may vary from state to state, it generally means that a physician must practice with the degree of care, knowledge, and skill ordinarily possessed by other physicians in the same specialty under similar circumstances. So let's look at some malpractice statistics specifically for psychiatrists. So this was a study that was done in 2021 and then resulted in a report produced in early 2022, where in the study they looked at and reviewed specifically malpractice cases brought against psychiatrists. So taking the other category out, what were the most common types of allegations that sparked the claim? Not surprisingly, if the patient had died, that was one of the more overwhelming primary allegations. Treatment-related, poor outcome, and diagnosis were some of the others. Now also, when you see here, there's documentation, informed consent, and safety failure, and medication errors. So some of these other ones, sometimes you'll have a claim where they'll allege multiple things. So it could be a medication error that resulted in a death. It could be a claim of improper diagnosis or incorrect diagnosis. And there was an informed consent issue. So how did these claims resolve? So when they looked at the claims, they determined that 58% of them were dismissed against the psychiatrist. So no payment was made on the psychiatrist's behalf towards the settlement. And then 5% were settled before the trial began. 10% resulted in a defense verdict. 8% had the case still ongoing that they analyzed in the study. And 5% resolved some other way. Now note that there were no verdicts in this particular study against the plaintiff, where the plaintiff won the case. So actually, through a jury trial. That was kind of interesting. And how much do these settlements cost? So 50% cost under $100,000. 34% cost somewhere between $100,000 and $500,000. So that means that 84% of these cases settled for under $500,000. Now $500,000, I know, sounds like a lot of money. But in today's day and age, with sort of these runaway jury verdicts, I'm sure you've heard in the news, that's pretty astonishing, that 84% of the cases were able to be resolved for less than half a million dollars. And then you can see 6% resulted in a settlement under a million dollars. So now we're around 90% that were settled for a million or less. And then 5% were over $2 million, and then 6% had no payment. So there must have been a settlement made on behalf of another defendant with no contribution by the psychiatrist. And there was apparently in this study no settlements that were between $1 million and $2 million. So venue matters. So what do I mean by that? So a plaintiff has to file a claim in a particular county and state, unless it's a federal case, then they would have to file through a particular federal jurisdiction. But these are the venues that if you look at the study that's listed at the bottom there, they call them judicial hellholes. And these are places where every year they come up with sort of the top places that are the hardest for a defendant to win a case and are most favorable to a plaintiff. Now, they're not specific to medical malpractice, but in general, juries think generally the same, depending on the type of case, with a little bit of variation. So these are the tougher venues. So if you're practicing in Georgia or Pennsylvania, California, New York, Louisiana, West Virginia, specifically St. Louis, Missouri, New Mexico, Nevada, Rhode Island, Florida, and then Cook, Madison, and St. Clair Counties, Illinois. So these are some of your tougher venues. And again, venue can be, why it's a tough venue can be influenced by what juries tend to give, the makeup of the jury background, political pressures. You know, the states that tend to be better to have claims brought against you are the ones that have caps on damages, which these states typically do not. There was a little nuance with a couple of them, but for the most part, not much help. So what areas of potential liability exposure are there, right? So here's the most common types. So claims related to practice management, termination, you know, slash, you know, avoiding abandonment, records requests, prescribing, HIPAA privacy, mandatory reporting, writing letters, completing forms for patients, and high-risk patients. So this doesn't mean that malpractice claims in particular are brought against you in these areas. These are the areas that, some of the areas that have more potential liability exposure that you want to try to mitigate your risk. And I will tell you, as somebody that participates in our psychiatric risk management helpline, for our policyholders, these, the questions we get online, that we get through the helpline, tend to gravitate to one of these categories, or sometimes a couple of those categories. So let's start with diagnostic errors. So you can see in this slide here, diagnostic error is defined by the Institute of Medicine as a failure to establish an accurate and timely explanation of the patient's health problem or communicate that explanation to the patient. And these errors are missed opportunities to make a correct or timely diagnosis based on the available evidence. The National Academies of Science, Engineering, and Medicine report entitled Improving Diagnosis in Healthcare indicated it is likely that most of us will experience at least one diagnostic error in our lifetime, sometimes with a devastating consequence. It's estimated that 18 million diagnostic errors occur each year and account for approximately 74,000 deaths each year. Diagnostic errors account for approximately 5% of outpatient visits, and that's a conservative estimate, and about 12% of adverse hospital events. So let's talk about the diagnostic process. So diagnostic error can occur at any time during the diagnostic process, from information gathering to the treatment of the patient, and may or may not cause harm to the patient. So types of diagnostic error include misdiagnosis, delayed diagnosis or treatment, wrong diagnosis, such as when a patient is told they have one diagnosis but there's really evidence of another diagnosis. Opportunities may be missed by providers, the care team, the patient, or be due to system failure errors and delays in diagnosis, and diagnosis may be outside of the immediate control of the provider. Diagnosis is a complex process that occurs within a complex work system, and there's no easy way to fix this problem. When we look at failure-to-diagnose claims, there are some areas where we can improve practices. They include clarifying responsibilities for follow-up of abnormal clinical findings, identifying at-risk patients for better tracking and follow-up, enhancing the doctor-patient communications, and tracking follow-up on the high-risk abnormal test results. So what are some of the diagnostic error-contributing factors? These errors can be caused by both system-related and cognitive factors. Clinical judgment can be affected by the knowledge, experience, and skill of providers and the resources available to them. There may be a limited availability of specialists or diagnostic testing. There may be a lack of expertise or limited expertise in the area. There may be lack of training issues. Regarding communication and teamwork, so inadequate collaboration and communication, among the care team, consultants and patients and their families, there may be a breakdown in that communication. Care coordination, lack of care coordination among providers, playing telephone tag or lack of interoperative EHR systems, delayed ordering or follow-up of referrals and tests. And then we have human factors and clinical systems issues, so work factors such as distractions, lack of access to resources, organizational culture, such as a punitive culture in the workplace, which discourages sharing and inhibits learning, health information technology, such as lack of interoperability. And then on the patient side, we have issues regarding affordability and access to care, availability of information, resources, such as maybe patients don't have access to the Internet. There can be health literacy issues, you know, issues with understanding complex care, especially when multiple providers are involved with the care or they have a complex medical situation. The culture of the patient, you know, the patient may come from a culture where, you know, they may be more passive and they're afraid to ask questions and, you know, they don't really have the full story of what's going on with their care. And then the patient's actions, such as failure to follow treatment recommendations or complete ordered tests. So what are some risk mitigation strategies, you know, ways you can reduce liability related to diagnosis? So clinical judgment is the leading cause of misdiagnosis. The majority is related to assessment, clinical reasoning, and knowledge gaps. To help mitigate risk regarding diagnostic issues, provide device-based clinical decision support tools, such as order sets and databases that provide diagnostic information. Use simulation or other diagnostic-based education and training. Give timely diagnostic performance feedback, which can help providers to adjust mental models for diagnosis based on real-world similar cases. And utilize team-based diagnosis. Engagement between the physician, advanced practice providers, nurses, therapists, and patients can help reduce risk. Look at the scope of the practice. Make sure that the licensed and unlicensed staff are practicing within the scope of practice and license, and update the staff job descriptions. The level of supervision required for advanced practice professionals varies state to state and has been rapidly changing. Check your state's medical board and the licensed professional's board for updated requirements. Patient factors. So, again, consider that health literacy. Engage with the patient. Ask the patient open-ended questions, such as, what questions do you have instead of do you have any questions? Provide instructions verbally and in writing. Have the patient do teachback of the information so that you can make sure that they're understanding what you're telling them. Hardwire the workflow and documentation regarding testing, follow-up, and appointments into the electronic health record. Notify patients of both normal and abnormal results. The no news is good news notification system is now a dangerous practice and is pretty passe now. You should be notifying your patients even when they have normal test results. Next, let's talk about privacy and security. So, it's important to maintain professionalism and avoid boundary crossing when using social media, email, and text. These platforms have become very casual. As part of your practice policies and informed consent process, patients should be given information that explains when it is appropriate and not appropriate to use email and text. For example, these platforms should not be used for emergencies. Patients also need to understand the timeframe in which emails and texts will be responded to. For example, you may have a policy that you'll respond to emails and texts within 24 hours or 48 hours. Avoid using and friending patients on all social media platforms, such as Facebook, Twitter, and LinkedIn. Explain to the patient that the use of these platforms blurs the provider patient relationship. Patients should be given the right to opt out of the use of email and text at any time. Staff should be instructed on the appropriate and inappropriate use of social media and how it may affect your business practice. Patients should sign off on their understanding of the practice. HIPAA-compliant patient portals are a good way to safely exchange information with patients. Platforms have the capability of e-signing documents is also a plus. Again, explain to the patient the expected response time for communications through the portal and that although cybersecurity measures are in place, there is no 100% way to guarantee that a cyber breach will not occur. Each state has its own regulations regarding the privacy of minors. We recommend you check your state regulations for the age a person can consent for treatment, and that age may vary depending on the type of treatment, such as mental health treatment or pregnancy. Some states also allow minors of a certain age to consent to the release of their medical records. Even if your state regulation is that parents and guardians have the right of access to their child's medical records under the age of 18, whenever possible, the provider should obtain consent from the parents to allow the child to have some level of confidentiality, especially for mental health treatment. For minors with legally separated or divorced parents, be sure to obtain the custody agreement stating which parent or both parents can have access to the patient's protected health information, or PHI, as well as who has medical decision-making power and, therefore, who has the right to consent to treatment. With regard to technology, make sure portable devices, I'm sorry, such as laptops, cell phones, and tablets are encrypted and password protected. If possible, have the ability to remotely wipe data for devices that are lost or stolen. Now, if you're going to have a system where you have an IT person or a professional that can remotely wipe data from that device, make sure that you have a backup somewhere. And then staff should be provided with the facility or patient's device policy. So what are some risk mitigation strategies for privacy and security? Respect patient confidentiality, use encryption, obtain informed consent for the use of emailing and texting, allow patients to opt out of their use, maintain boundaries and professionalism. Do not friend your patients on social media. Use HIPAA-compliant platforms. This applies to telemedicine platforms and patient portal systems, et cetera. Obtain a business associate agreement for all vendors who have the potential to access HIPAA-protected information, even if the vendor states they will not access the information. Use of cell phones and tablets. Should be encrypted and password-protected. Again, ideally, if the device is discovered lost or stolen, the ability to remotely wipe the data from that device. These devices should be used as medically necessary and not to be used for both personal and professional use to avoid HIPAA violations. Office policies and procedures related to HIPAA and confidentiality should be created and signed by the staff, acknowledging that they will comply. So the next topic is health data privacy. So patients have the right of access under the HIPAA Privacy Rule to their medical information. The Privacy Rule generally requires HIPAA-covered entities to provide individuals, upon request, access to their protected health information, or PHI. There are exceptions and extra protections for information contained, for example, in psychotherapy notes. Now, not everybody uses psychotherapy notes. They are not the same as progress notes. Psychotherapy notes are usually and generally contemporaneous notes that the provider writes down during a visit with their patient and are maintained separate from the medical record and are primarily really just used personally for the provider. And they need to be either maintained in a separate physical folder, if they're handwritten, or in a separate tab in the electronic health record that only you have access to. And I encourage anyone not familiar with the provisions of the use of psychotherapy notes and the extra protections they enjoy if they're kept separate, I recommend you Google HHS.gov and then psychotherapy notes, and you'll get a link to additional information. Providers are required to provide the requested information in a timely fashion, which, in general, if the state doesn't say anything specifically under HIPAA, then you need to release the information upon a patient's request within 30 days. However, note that there are some states as strict as 15 days, from which you must release a patient's medical information if they ask. And patients under HIPAA also have the right to view their records, the original copies, at your office within five days of request. But if they want copies, you have anywhere from 15 to 30 days, depending on your state. Health and Human Services Office for Civil Rights is responsible for enforcing the privacy and security rules, and providers not in compliance can receive fines and penalties. If you deny access under a permissible reason, so if a patient's allowed to have their records and you deny the request, and it violates HIPAA or state law, you must provide a written explanation and then turn over the aspect of the records that you are willing to provide. So if there's an aspect of the records you have a very good reason why you're not going to provide, you have to at least provide a reason for why you're not producing them, and then you need to release the records that you don't have an issue with. Before you go down that road, though, if you're in one of these situations, it's really best if you work at a facility to talk to your risk manager or general counsel, or if you're an outpatient provider, you know, and you have your own practice, or you work in a private practice, you know, to consult a risk management professional or an attorney. Besides providing information on why you are declining the request, there are other steps you must take. So you have to review the information with the patient. You need to, again, tell them why you're denying the request. The patient has a right to appeal the denial, and again, there's very, very specific steps, and I won't get into all of them now, that covered entities under HIPAA have to provide and follow when you're denying access to records. So next, let's talk about termination, and when I mean termination, I mean, you know, terminating a patient from your care or a patient terminating services with you. So here's, like, sort of the steps to follow. So there's many reasons why a physician may need to terminate a patient-physician relationship, right, so the termination may be necessary because of frequently canceled and missed appointments. It could be failure to comply with your treatment recommendations that are adversely impacting your ability to deliver care within a reasonable standard. It could be that you have the inability to meet the patient's expectation. It could be for nonpayment of services, or there could be the development of a conflict of interest. For example, a psychiatrist doesn't realize that they're treating multiple family members, and they may not be able to continue to do so once that's discovered. There are grounds for immediate termination of a patient without notice, and that includes when a patient is exhibiting violence or threats towards the healthcare professional. If there are situations where the records have been altered and false information has been provided by a patient, so, like, a patient maybe is, you know, doing things using your name, like signing off, like trying to get prescriptions by using your name or, you know, fabricating letters and documents with your name. If a patient is exhibiting certain types of criminal activity that may be carried out against your practice, for example, you have a break-in by a patient into your office and sexual advances by a patient. So, how do you avoid an abandonment claim and wrongful termination risks but still want to be able to terminate the patient from your practice? So, you need to create policies and procedures and guidelines for your practice for termination in accordance with your state regulations, and they will help you maintain a consistent practice, avoid abandonment, and provide a defense in the event there is a malpractice claim or a licensing board complaint. Know your state's regulations and ethics guidelines regarding termination, and they can usually be found on your licensing board's website. Address the problem with the patient first before terminating, if possible, to allow the patient opportunity to correct the problem. Do not terminate a patient who's in the midst of a crisis. Stabilize the situation first and then refer the patient for a higher level of care. Provide a refill if you're terminating the patient. Provide 30 days of meds so that they have time to find a new provider, if it's appropriate, right? We don't want patients to crash on their meds, so we want to make sure that, if it's possible, to give them a 30-day supply. Now, you might be terminating them because they're abusing their meds and you're not going to give them more. And they could also, you could refer them maybe to their PCP who might be able to bridge them with their prescriptions until they find a new psychiatrist. And if you continue to keep renewing refills but you've terminated care, basically, each time you do the refill, you're reestablishing care, so we want to avoid that situation. We want to notify the patient with enough notice for the patient to find another physician. In most states, the minimum requirement is 30 days. And during that time, you can continue to see the patient or you could just be available for emergency care, someplace that they have to be able to call, like you, in the event that they need some care until they find a new provider or 30 days, whichever happens first. Send a written notification of the termination, stating that it's effective, say, 30 days from the date of the letter. You got to put a reason in there for the termination. You want to save a copy of the letter in the file. Now, I always recommend you send two copies of the letter. You could send one certified mail, one regular mail. If you have a secure patient portal, you can refer the patient to the portal to find the letter, and then you could do a regular-mailed one. So there's different ways. If you're going to use email and it's a HIPAA-protected email system and you have a read-receipt capability so you know when they opened the letter, then you would have proof just sort of the same as getting that green card back from the post office if you send something certified mail. So I always recommend send copies, two copies of the letter, two different ways so we can easily assume they've gotten it, or you could certainly hand one copy to the patient and then you're good. We have to give the patient referrals. Now, you can give referrals to specific people, but if this is a patient you're terminating because they're a problem for you, they're probably going to be a problem for somebody else. So to avoid referring our problem patients to our friends and colleagues, we might want to refer them to places they could go to get lists of names of providers. For example, you may say, contact your health insurer. They have a list of in-network providers. You know, Psychology Today has psychiatrists. Maybe the county mental health department. There's different places they can go to get lists of names, and they can also see if they're, again, at least for the prescriptions, their PCP may be willing to bridge them until they find a new provider. Now, if you're terminating them because they need a higher level of care, you may instead be saying you need residential care or a partial hospitalization program or something. So you may be referring them to specific program options. Documentation is important. So you want to make sure the medical record discusses, has the documentation to support the discussion with the patient about the termination, has a copy of that letter in it, and you want to have everything in your documentation objective, right? We don't want to put anything in there that's disparaging about the patient because the patient at some point may read these records and other providers may read these records. So if someone's noncompliant with care, you're just going to put, you know, discuss with patient. Noncompliance with care is resulting in, you know, less than therapeutic results, and therefore you're, you know, terminating them and referring someplace else. And then it's a good idea when you give them their letter, their termination letter, that you also attach a copy of a release of information form that they can sign so that their new provider, they can give it to the new provider, they can sign it, and then they can get their record sent to their new provider. And then if the patient is terminating with you, they no longer want to have care with you, they tell you they're either firing you or whatever, they don't think they need care anymore, whatever, just send a letter. This is to confirm that you are no longer receiving, you've decided to no longer receive services, and then do the same thing. I'll be available for 30 days, here's your refill prescription if appropriate, here's places you could go to find a new provider. And then if you have a patient that just sort of like stopped coming, it's always a good idea to alert them if they're no longer going to be part of your practice. You know, this is to advise you that since you haven't made an appointment in the last six months, three months, whatever your policy is for your practice, therefore I assume you have found care elsewhere. You know, if you would like a copy of your records transferred to a new provider, you know, here's a release of information form. And again, with all of these pieces of advice I'm giving you throughout this presentation, regardless of the topic, when in doubt, ask a practice attorney, you know, someone familiar with healthcare law, and or a risk management professional. It could be a risk manager that's at a facility where you work, or it could be a risk manager that's affiliated with your malpractice carrier. All right, next we're going to talk about informed consent and informed refusal. So there are requirements to obtain a patient's informed consent, right? They're established by medical and professional codes of ethics, federal and state statutes, regulations and case law, and accreditation standards. Physicians are legally obligated to provide the patient with the information needed to make an informed decision when that information affects their well-being, regardless of whether the patient asks for the information or not. The scope of what is required is measured on the needs of the patient to make the informed decision. So some things may be a longer discussion, some things may be a shorter discussion. Also depends on the health literacy of the patient. Are they understanding what you're explaining to them? In the event of a malpractice claim or licensing board complaint, documentation of the informed consent discussions will help to establish whether proper informed consent was provided. It's important to distinguish that consent is not a process, it's a process that's being used It's a process, not a form, right? It's not a one and done. There may be times throughout the care that you may need to have an informed consent discussion. So first, it could be what the treatment plan is. Later on, it may be for certain medication issues, or maybe now you're gonna prescribe a medication with a black box warning or off-label use, so you need a separate consent for that or a controlled substance. We wanna get away from just having one blanket informed consent. Anything I might do for you is covered, right? I mean, we don't wanna do that. There are certain situations where you should have a separate informed consent. Consent most often includes multiple discussions, as I just said, with the risks, benefits, and alternatives discussed. And it's important for providers to not let your personal beliefs and preferences prevent the patient from making an objective informed decision. And it's important for providers to be aware not to unduly influence or coerce a decision by a patient or the patient's surrogate. There are four required elements for informed consent that must be discussed with the patient. So I'm gonna go over these. The four are, one, the nature of the proposed treatment and or procedure, which is the purpose of the treatment. The risks and hazards of the treatment, that is especially true for prescribing of substances using experimental treatment, black box warnings, or prescribing of off-label use. The alternatives to the treatment, as I mentioned before. Are there alternatives? What are the risk benefits of each? And then generally, the anticipated benefits of the treatment that you're recommending. Informed refusal. So patients with the capacity for decision-making always have the right to refuse treatment. Documentation of patient refusal of recommended care and treatment is imperative to providing a defense to a lack of informed consent claim. So what should be documented in an informed refusal? The patient's stated reason for refusal. Ask the patient to repeat back the information. Make sure the patient knows the consequences of refusing and to ask them if they would sign an informed refusal document. They may or may not, but in this document, they refuse to sign it. The use of audiovisuals or multimedia things such as brochures may help explain information if they're just unclear and they're not really understanding what they are refusing. If the patient refuses to have a test or recommended treatment, the documentation of refusal should include a statement of the patient's refusal, the reasons for the refusal, discussion of the consequences of refusal, and emphasize that the patient understood that the risks of refusing care and testing. Obtain the patient's signature, like I just said, if possible. Note, if the refusal is a monetary issue, like for example, if they say, I can't afford this treatment anymore, you know, that might be an easy fix. Maybe there's something you can do or there's maybe a medication that you could prescribe that might be cheaper, or you might just be able to say, hey, I still think you need this treatment, but here's a clinic that provides it cheaper. So again, we need to understand why someone's refusing because sometimes it can be fixed. If you're a private pay out-of-network provider, maybe the patient needs an in-work network provider, then they'd be able to afford it because they're just paying a copay. Maybe there's issues with them coming to and from your office, and maybe telehealth would be appropriate. So again, understanding the refusal is important because it may be something we can fix for them. Next, let's talk about ADA regulations, right? So these are regulations regarding the Americans with Disabilities Act. So this is a federal rights law that prohibits discrimination against people with disabilities. So healthcare organizations and providers that provide services to the public are covered by this ADA requirement. So when a patient meets a protected class under the ADA, and you can look up what those protected classes are, the provider must make reasonable modifications to office policies and procedures in order to carry out treatment. You need to use effective communication the patient can understand. And when necessary, you may need to use a medical interpreter. And it could be because a person is deaf or blind, or English is maybe not their native language. If you have somebody that English is not their native language and you do not speak proficiently the language that they speak, and there may be issues because you're not sure they're fully understanding the care you're providing because they don't speak English at all or well, then you are required at your expense to get an interpreter who is proficient in that language. And there are lots of services out that you can contract with when you need to, but you can't turn away a patient because they can't speak English. And again, that would be at your practice's expense. And we want to avoid using family members because especially with mental health, we don't want the patient or the family member to be embarrassed conveying information back and forth about private, sensitive information. And you may need to determine what's the best way to convey information. Is it better for them to just read it in writing? Is it better auditory? Will they do better with hearing it? So again, we need to make sure we're not discriminatory and we're trying to work around the person's disability issues and still provide good care. So let's talk about high-risk patients for a minute. So this is generally your suicidal patients or violent patients. So when you have a situation where if a patient has a serious suicide attempt with significant injury or sadly completes suicide, and let's say the family brings a claim against the provider or institution, the courts look at several things. So the first thing is foreseeability. So just because somebody, just by the way, somebody has, you have a situation where someone has an unfortunate outcome or a poor outcome or unexpected outcome, doesn't mean in and of itself it's malpractice. So these are the things we want to think about at least for our suicidal and homicidal type patients. Foreseeability, could the psychiatrist have predicted the suicide or violent behavior? Was there sufficient evidence to identify risk of harm? Let's look at causation. Did the psychiatrist do enough to protect the patient and third parties if they were aware of these suicidal or homicidal tendencies? Was there something that the psychiatrist did or did not do that caused the resulting harm? Was depression or suicide risk adequately assessed? And same thing with violence towards others. And no outcome of suicide in and of itself, like I said, results in liability. And when you're documenting a risk assessment of a patient, a suicide risk or violence towards others, we don't want to just document in the chart no SI slash HI for no suicidal ideation or homicidal ideation, because let's say you got sued several years later, they're gonna say, well, what supports that, that you wrote that? What was backing it? So again, we don't need to write like paragraphs of information. I mean, some folks do use a specific risk assessment tool, but if not, we just need to have a couple of sentences to support why you determine this patient is not suicidal or violent. So if a patient calls you and is suicidal or decompensating and heading into crisis, you wanna let the person know that you're gonna be calling 911 and doing a wellness check if possible, right? You can also direct them to call 988, the crisis helpline. You can ask the patient to go immediately to the emergency department. You can ask in most states, not all though, there are some states you can't ask if the patient has access to a weapon. If you know a patient has access to a weapon, let the authorities know what they're walking into. Calling 911 for the patient will get emergency services to the patient's door faster than maybe instructing them to go to the ED. Now, while adults usually have the right to decide whether or not to go to the hospital or stay at the hospital if they're a danger to self or others, you've met your obligation by at least calling to have the ambulance or wellness check go to their house and assess them. And then they'll decide whether or not the patient, if they're refusing to go, needs to be admitted against their will. Call the patient's emergency contact, right? We wanna also have, if you have a patient that's chronically suicidal or has been acutely suicidal for a while, having a safety plan, we don't wanna use one of those like safety contracts with them, they're not gonna help you in a defensive case. I mean, you might use one, but they're not, that's not gonna get you off the hook. So you just have to have a good safety plan with the patient. Checking back periodically with the patient, how are they doing? Documenting any advice or actions in the patient's response in the chart. And then office practices and clinics should have policies for managing suicidal patients. So make sure the patient's not left alone if they're in your office feeling this way, right? We don't wanna just have them sitting alone in a room. We don't want to have a sitter with them that hasn't been properly trained with sitting with them. Consider the scope of the practice of that person that's the watcher. This is especially true for inpatient facilities. And then, again, it should be somebody who is properly trained in dealing with high-risk patients. So next we have communication. And communication is a key part in treating patients and a great tool in attempting to mitigate risk. So these communication breakdowns, right? That's where do things go wrong? Communication breakdowns can occur between providers or between the provider and the patient. So 57% of medical malpractice cases involving communication breakdown are due to provider-to-provider communication. It could be between you and another specialist that the patient is seeing. It could be between you and the patient's therapist or one of those advanced practice person that's also treating the patient. 55% of the communication breakdowns involve the provider-to-patient communication. Now, communication errors may involve face-to-face conversations, electronic exchanges, or clinical notation and interpretation via the patient's medical records, so people reading each other's notes, maybe on a collaborative team. Now, remember, you know, email and text, and we want to try to avoid having detailed conversations with patients and text, but, you know, emails, we can't always get the flavor and understanding always of what someone is saying and how they're feeling through an email. So we have to be aware of that. Communication breakdowns between providers includes miscommunication regarding the patient's condition. That's about 26% of the breakdowns. Poor documentation, 12% of the time, and failure to even read the medical records and what other providers are doing, 7% of the time. And then provider-to-patient communication breakdowns include inadequate informed consent. We talked about that before, about 13% of the time. Unsympathetic responses to patient complaints, about 11% of the time. Inadequate education regarding medications, about 5% of the time. Incomplete follow-up instructions, 4%. Communication of test results, and again, no or wrong results were given to the patient, 4% of the time, and then there could be a language barrier, which occurs, creates about 4% of miscommunications between provider and patient. So what are some of the factors that affect communication? So our healthcare system is fragmented in ways that can put patients in the outpatient setting at risk. So it's important to recognize and identify where communication failures occur in your facility. So this slide lists some of the factors that affect communication and where you may look to find where communication breakdown is occurring at, whether it's in your office or in the facility. So for example, distraction, people are being distracted, there's noise, again, those health literacy issues for the patient, language barriers, culture issues, the style of the communication being used, hierarchy issues amongst the providers. Cares transitions and handoffs, right? If a patient, if you're the hospital, if you're the inpatient provider, is there a safe handoff to the outpatient person that's going to take over the care? We can't just assume that whoever their outpatient provider was before is going to take them back because maybe they're outside the scope of what that provider can do for that patient now, and vice versa. Discontinuity of care, misunderstandings, lack of or incomplete information being communicated back and forth, workload issues, and then lack of a teamwork or culture of safety. So what are some risk mitigation strategies we can use when it comes to communication? So as you can imagine, risk mitigation, especially related to communication, can be like sort of a topic unto its own, but we're trying to, in this presentation, hit all the highlights of different ways to decrease risk in your practice. So number one, we want to create a culture of safety, and this needs to start at the leadership level and all the way down the organization. Every member of the team, whether they're a licensed provider or not, should be understanding and participating in a culture of safety. There are different types of healthcare professionals that are taught to communicate in different ways. So we want to use structured communication tools to improve communications so that everyone is speaking the same language. For example, I went to a risk management seminar some years ago, and it was done by, the presenters were former naval pilots, right? When people are pilots, they have a certain way they communicate with the tower, with other people, so that everybody understands the same thing. So I talk in a certain way, and when I do it that way, everybody understands, there's no misunderstanding what I'm saying and what they're telling back to me. So the same thing should be true for you. Everyone should understand in the form of communication what each person is meaning. There shouldn't be not left to, you know, well, I'm just assuming what I think they meant, right? That's when we get into trouble. Using teach-back techniques, we talked about that before, where you explain something to a patient and they recite it back to you so that you can make sure that they're understanding what you're saying as opposed to you saying, do you understand what I explained to you? And they go, oh, yeah. And there may be reasons why they just say, oh, yeah, maybe they think they understood, maybe they're embarrassed to ask. We want to reduce distractions. We want to make sure that we're present when we're talking to patients and not acting like we're distracted in particular, because patients, if they feel rushed and they don't have time to ask questions, are going to get annoyed, and they may find a reason to bring a claim against you. Even if the claim has no value and has no validity to it, it's still the stress and headache of having to go through and defend something that may have been avoided. Again, that health literacy. And then we're going to kind of head towards the end of this presentation and talk about documentation, because I wouldn't be a good risk manager if I didn't incorporate documentation somewhere. So following the practices related to documentation is one of the most important key ways that a defense attorney can defend a malpractice claim or a licensing board complaint. So let's talk about documentation in psychiatry. So the following are some of the critical areas that should be thoroughly documented and which may minimize litigation involving the treatment of, in particular, let's talk about suicidal and violent patients. We talked earlier about documenting a suicide screening. Juries may consider suicide as one of the worst possible outcomes for a patient, and they may presume that if a suicide screening was conducted and documented, then maybe the outcome would be different. So if we've already done that and documented that, maybe they'll understand that it was maybe unavoidable under the circumstances and that good care was still provided. Decision-making. We want to document the decision-making process and underlying treatment decisions are important aspects to minimizing litigation and building an effective record. Caregivers and clinicians should document the actions they took and why, as well as actions that were considered but disregarded and why. This type of documentation may help demonstrate reasonable clinical judgment to a jury in the event of a patient suicide. Consultations, interactions, and professional judgments should be included in the patient's record. Consultations, and I mean formal consultations, not like the, hey, Joe, I just have a quick question. Like, what do you do with patients in this situation? That's sort of those informal curbside consults. But when you have a formal consultation, it should be documented in the chart, whether you're asking someone to do it for you, like you're asking for the consult or you're the person being the consultant. Or if you're not sharing the same medical record because you're in different practices, then, you know, writing, you know, and documenting in writing what the consultation is recommending. Communications with other caregivers and with the family or significant others should also be documented. When the patient or others have been given specific instructions, say, for example, about firearms or other weapons, this communication should be noted in the record. Again, I caution you, though, some states don't allow you to ask those types of questions, so you just need to be familiar with your state regs. Remember, asking if a patient has access to firearms, you know, is state-dependent. As you know, confidentiality is the patient's right not to have communications that are given in confidence disclosed to outside parties without their consent. This right of a patient's demanding who exactly can and can't have their information is not absolute. It's the overwhelming majority of times the patient has the right to control that, but it's not 100%. So in order to balance the tension between confidentiality and acting in a patient's best interest, it's important to be aware of HIPAA as well as the legal rules within your state concerning confidentiality. And again, you know, laws may vary from state to state. But if you have a patient that's actively suicidal and you're not sure if you could talk to a family member but you have an emergency contact, it's better to contact that emergency contact person because we'd rather defend a potential HIPAA violation when we were concerned about someone's immediate safety or the patient doing something potentially violent to somebody else. And again, remember, you have mandatory reporting requirements in most states, so you may be required to report if someone is, if your patient is threatening harm to somebody else. In order to minimize liability, it's important to develop a policy on breaching confidentiality and when you may have to use it. For example, you're treating a minor and they say something that may require CPS reporting, right? You may be a mandatory reporter. You're going to have to do it. So at the outset, discuss your practice or facilities policy with when there may be times you may have to disclose information that they are not consenting to have disclosed. Again, if you have questions on whether you can breach confidentiality under the circumstances, ask a healthcare lawyer or a risk management professional, and they can help you if time is not immediately of essence. An informed consent should be documented. It should reflect the education process undertaken regarding those risks, benefits, and alternatives and not just done in a conclusory way. On the previous slide, we listed risk assessment as an area needing documentation. I want to just go through some specifics about what should be included and how the assessment should be documented. So patient's history, including likelihood for suicide risk, past suicide attempts, past violence, as well as present or current suicide risk factors, substance abuse history, if allowed, weapon ownership, and if not, if not, if not, history, if allowed, weapon ownership and access, you know, should be documented. In addition, specific questions and any follow-up questions asked of you should be documented. A patient may not be a reliable source of information regarding their suicidal thoughts and intentions. So thus, where possible, providers should indicate in the record that he or she did not rely solely on the patient's statements. Perhaps you have permission to speak to another family member. Important things to document. Assessment as to the specific threats made by a patient. Assessment as to the identity of any foreseeable victim. Assessment as to the patient's ability to follow through with the threat. In addition, patients may often be unreliable when choosing whether they need hospitalization. Providers in these situations should document a description of the thought process regarding involuntary hospitalization, evidence that the provider carefully recommended hospitalization in a way designed to convince the patient to go, evidence that the provider enlisted the help of family members to convince the patient to come to the office or to go to the hospital, and evidence that the provider explored the possibility of less restrictive measures. If, you know, is there something else that you could do in lieu of involuntary admission? You may not have a choice, but, you know, were there other things that you could consider? And you could also certainly ask for a second opinion or a consult. And again, if you do that and it's formal, you should be documenting it. So here are some resources that you can get, some additional reading that some of the presentation information was taken from. You know, I recommend you look at the information that's produced by the American Psychiatric Association. If you belong to your state's district branch of the APA, they have information, depending on what state you're in, depends on how deep the resources are, but your licensing board or medical or state medical society may have information. There's information on the Federation of State Medical Boards website. So these are all places you could go to get information. And certainly, again, those risk management and healthcare lawyers have resources and information to help you. You don't have to reach out to them when you have a problem or a situation. You may just say, hey, I have a question, or do you have information about, or any ideas about, you know, if I have a particular situation in the future, how I may handle it. So, you know, you don't have to wait until there's a problem to contact a healthcare lawyer or a healthcare risk manager. So thank you for listening to this CME presentation. Remember, in addition to one CME that you'll get for this, if you aren't insured with the APA-endorsed program through the American Professional Agency, you can also qualify for one risk management credit towards the three credits needed for your risk management discount on your renewal premium. I'd like to thank you very much for participating in this program. Thank you.

outpatient risk management

psychiatry

professional liability risks

psychiatric malpractice claims

communication

documentation

negligence in malpractice cases

state regulations

confidentiality