All right. Why don't we start? Good morning. Thanks for coming out on a Sunday morning at 8 o'clock to talk about malpractice. And here again is our QR code if you want to scan that. And I'll put this up in the middle and at the end as well for people who might walk in a bit. All right. So I'm Steve Nofsinger. I'm a forensic psychiatrist and I'm the program director for the forensic fellowship at Case Western Reserve in Cleveland. And I do a fair amount of malpractice expert evaluation work through my private practice. And so through that I've seen trends and kind of patterns in malpractice cases that I want to share with you here today. To my left is Dr. Lawrence, a.k.a. Ren Belcher, who is a fellow in our forensic psychiatry fellowship. He trained at Mass General before our fellowship and is going to New York next year to run an outpatient forensic program at the Manhattan Psychiatric Center. Our third speaker was to be Dr. Alex Scott, but his wife had a baby on Wednesday and so they thought it best that he not come. So we'll be doing his slides for him. So our objectives this morning are to talk about the factors that are inherent to the outpatient setting that present a special risk of malpractice claims, to talk about the specific areas of increased malpractice risk in the outpatient setting, and to understand the steps that you can take to reduce the risk of malpractice liability. We have no disclosures to make here. All right. So most psychiatrists, when they think about psychiatric malpractice, feel like this. It's a foreign entity to them, something that they fear, don't want to have to deal with. So our job today is to give you knowledge, because knowledge is power. Knowledge of the specific types of issues that can lead to a malpractice claim will result in you being able to proactively and preemptively take steps to protect yourself from a malpractice claim, and if a claim is filed, from any malpractice liability. Just a couple teaser questions here to get our brains started this morning. Which event is most commonly linked with psychiatric malpractice litigation? Adverse drug reactions, creating a drug dependence, suicide, improper hospital discharge, or tardive dyskinesia? Any takers for this question? Suicide, right. By far and away, claims of wrongful death linked to suicide are the number one claim against psychiatrists. On average, what percentage of psychiatrists are sued for malpractice every year? 1%, 3%, 5%, 7%, or 10%? Well, the answer is actually around 3%. So psychiatrists tend to be on the low end of the frequency of claims. At a malpractice trial, which evidence is most powerful? The injured patient slash plaintiff's testimony, the physician's testimony, the attorney closing arguments, the medical record, or the cross-examination of the physician? The medical record, exactly, because it's made contemporaneously. It's very powerful in insurance companies and juries and courts place a lot of weight on what's in or what's not in the medical record. All right, there's around 42,000 psychiatrists in the U.S. in the majority practice in an outpatient setting, and leading to 30 million psychiatric encounters every year in the U.S. With every outpatient encounter, the potential for malpractice claims exist. Across all specialties, there's 85,000 malpractice claims filed every year, and males are twice as likely to be sued as female physicians. And I read one interesting statistic that of patients who experience malpractice, only about 2% actually file a malpractice claim. There's some other factors that get into why people sue. One is if they feel disrespected. They feel that the physician has not been respectful or treated them fairly. That will spur someone who feels that they've been injured to cross the threshold and file the claim. What specialties get sued and with what frequency? This was published in the New England Journal about ten years ago. This was a survey of a large insurance carrier over the course of 15 years, and there are almost 41,000 malpractice claims that they insured against across 24 specialties. And so the orange represents, and I'll summarize this on my next slide so you can see it better. The orange represents claims made with a payment, where the blue represents just any claim. So you can see that the majority of specialties, you know, had claims in blue that didn't result in a payment. Just to explain that slide, so the annual claim risk according to that study was 19% for neurosurgeons and almost that level for thoracic surgeons. The lowest group was the family medicine practitioners, pediatricians, and psychiatrists, 2.6%. So we're on the lower end. Across all specialties, 7.4% of physicians are sued every year, but only 1.6% are sued successfully. So doing the math, 78% of claims filed result in no payment. This is the amount of malpractice payments made in those 22% of cases with a payment. The orange is the median, and the blue is the mean. So for psychiatry, down towards the bottom, the median amount of payment was $50,000, and the mean was $190,000. This was either due to a jury award or a settlement. All right, so of claims filed, only 7% actually result in a trial. So most claims are dismissed pretrial. They're either dropped by the plaintiff voluntarily in the course of discovery as they learn that they don't have enough evidence to really win a trial, so they drop the case. Some cases are dropped voluntarily by the plaintiff in exchange for a financial settlement, so they're settled, and some are dismissed by the court via summary judgment. The court concludes that there's no material issue to take to a jury, and so the court orders the dismissal. Of those 7% that go to trial, 80% result in a verdict for the defense. The reason is that insurance companies, if they know that they have a bad case, they'll be interested in settling early, to get out early without going to trial. Of those cases that go to trial, they're usually very close cases where there's not enough willingness on either side to settle the case, or there's a large disagreement about the amount of money that the case is worth. Say that the defendant is willing to settle for $40,000, but the plaintiff is asking for $2 million, so there's no chance of a settlement and they would go to trial. Juries typically want to see physicians in a favorable light, so that's another strike against plaintiffs taking cases to trial that results in this 80% verdict for the defense. In terms of the amount of payoffs, or what the costs are for payouts, in 2010, $4.7 billion was paid out regarding malpractice claims. $2.9 actually went for damages to injured plaintiffs, and $1.8 billion went to defense attorneys and for cost containment. 2012, a little bit less, $3.6 billion. Look at that, 93% was due to a settlement, and only a small amount, 7%, was the result of a jury award. The highest payouts occur in some of the largest, most urban states, Florida, California, New York, et cetera. Now, the first recorded case of malpractice, at least in the English jurisdiction, was Stratton v. Swanland, a surgical case in 1374 where a surgeon repaired a patient's hand injury, and the patient was left with a deformed hand. The patient sued, claiming that the surgeon guaranteed a cure, and the ruling from the court, which kind of reflects our current standards, is that a physician is liable only if there's poor care. They're not liable for a bad outcome if the physician exercised all due care. The term malpractice comes from the Latin term malapraxis, a bad or unskillful practice by a physician coined by Sir William Blackstone, and he described three different types of malpractice, willful, negligent, or ignorant malpractice. In our current system, we think about it now as either negligence or an intentional tort, such as a boundary violation. Of course, the malpractice industry exists today, fully staffed by plaintiff and defense attorneys, insurance companies, courts, and expert witnesses. Now, it's important to note that a bad outcome does not equate with malpractice. Patients have severe, even fatal illnesses, and despite good care, patients sometimes have bad outcome. So a bad outcome does not equate with malpractice. And at a malpractice trial, the plaintiff bears the burden of proving the four elements of malpractice, the four Ds, the duty, the dereliction of duty, also known as the deviation from the standard of care, damages, and then a direct relationship between the deviation from the standard of care and the damages, also known as causation. And the plaintiff has to prove all four elements by a preponderance of the evidence. For those of you that came in a little bit late, here again is the QR code for the handout if anybody wants to take a look at that. Next, let's talk about the outpatient setting and malpractice risk. What about the outpatient setting lends itself to increased malpractice risk? Well, first is problems with the initial outpatient evaluation. Usually it's time limited. People are scheduled for 45 to 50 minutes for the initial evaluation. Who can gather a complete history of present illness, past histories, do a thorough mental status examination, and make a diagnosis and a treatment plan in that limited time? So that in and of itself sets up increased malpractice risk. How about that the initial evaluation is based only on the patient's self-report? There frequently is a lack of medical records or collateral informants or other necessary information that might be important when making a diagnosis or a treatment plan. We have the potential for the patient to spin or distort clinical information that will then cloud the diagnosis. For example, if a male presents with a chief complaint that his peers are bullying him and he's the victim of bullying, but you don't have the collateral information to know that he's actually got paranoid delusions, that the bullying is simply the product of his misperception due to his delusions, and that in the background, which you don't have access to right now, there is a history of him taking violent actions towards his perceived bulliers and at one point tried to kill his mother based on his command hallucinations. But you don't have access to that in your initial HBI because you're simply taking his self-report. So that can lead to a misdiagnosis and at least a treatment plan that doesn't address the real issues. Hospital lengths of stay are declining, resulting in patients presenting for their initial assessment in a more acute state. On the flip side of that, the closure of inpatient psychiatry facilities makes it more difficult to hospitalize patients in need of admission, which increases malpractice risks for the outpatient practitioner. Mental psychiatry, who knows? Is it accurate, reliable? What's missing in the video encounters? Subtle issues about affect and about the treatment relationship and kind of encouraging that in order to encourage disclosure by the patient. Limited or no access in the outpatient setting to some necessary tools to make accurate diagnosis, such as psychological testing or rating scales. The fact that psychiatrists are used mainly for medication management, seeing people for 15 to 20 minute office visits every 8 to 12 weeks, leaves little chance to update or to amend the initial history of present illness, which actually was not thorough in the first place. Little chance to update the diagnosis and treatment plan that can then cause important information to be missed. Likewise, the same points are the product of infrequent outpatient visits. Seeing someone every 8 to 12 weeks leaves little chance to update all these different factors here. Isolation of the practitioner with no established relationships with consultants, such as psychology or neurology or some specialties like a geropsychiatrist or an addiction psychiatrist. People who practice in a rural setting sometimes work beyond the scope of their training because there's no one else there to do child psychiatry or addictions or geriatrics. I see this quite a bit in my review of cases, is that psychiatrists sometimes are not familiar with the legal issues that they should be, such as their duty to protect third parties, i.e. their jurisdiction's Tarasov statutes. Also, the legal standards for commitment or for informed consent. Some psychiatrists don't feel comfortable doing comprehensive suicide or violence risk assessments that can then lead to a bad outcome and a malpractice claim. Duty is the first element of the four Ds of malpractice and that flows from the doctor-patient relationship. There's different types of duties we can discuss, moral and ethical duties, but we're really concerned about a legal duty. How is a legal duty established? Generally, one person does not owe any kind of legal duty to any other person unless they have a special relationship with that person. If they have a special relationship recognized in the law, then that may convey upon one or both parties certain legal duties. The law recognizes all different types of special relationships that then place duties on one or more parties. The doctor-patient relationship is one of those recognized special relationships. Duties flowing from a doctor-patient relationship include things that you're all familiar with. The duty of confidentiality, the duty to breach confidentiality when there's some greater public interest at stake, such as in child abuse or elder abuse or certain infectious disorders, some diseases. The duty to take certain steps to protect third parties from your patient's violence, i.e., your Tarasov duty flows from the doctor-patient relationship. Of course, then, the duty to assess and treat the patient in accordance with the standard of care. In most cases, it's very obvious that the doctor-patient relationship has been established with this duty, but in some cases, it's not so obvious and courts have to interpret then whether there is a duty or not. Courts have held on the left here that if a physician has been requested but has not agreed to evaluate a patient, then no doctor-patient duty has been created. Likewise, if we're doing an independent medical examination, there is only a very limited duty towards that patient. Basically, you have to deal with any kind of emergency situation and to not harm the patient in the course of doing the IME examination. The courts have held that there is or a likely duty in the situations on the right that if you do a curbside consultation to a colleague, let's say an internal medicine specialist you see in a social setting asks you about advice about how to deal with a patient, and you give that advice, you've created then a doctor-patient relationship with that patient even though you've never seen or spoken with the patient. Giving advice in a non-medical setting, let's say you're again in a social situation and someone asks you about their own mental health or even physical health concerns and you offer advice, you've created a doctor-patient relationship with them and then have the corresponding duties. Then certainly supervision of trainees, even if you never see the patient, creates a duty between you and the patient. Let's look at the timeline of a malpractice claim. An event happens. We'll call that the index event. Let's say it's a suicide. The complaint is then filed by the plaintiff's attorney within the time period called the statute of limitations. That's usually one year from when the event happens or that the plaintiff has knowledge that the event has happened. Attached to that complaint has to be an affidavit of merit from an expert in that same specialty who has reviewed the case and opined that there's been a breach of the standard of care. Typically then the doctor being sued has 30 days to respond. Their response will be very brief, just to deny all the claims in the complaint. This opens the period called discovery where both sides, plaintiff and defense, seek to exchange information to discover what the facts are. The first step in that then is the disclosure of medical records. At some point then, fact witnesses will be deposed and then at that point then the information is turned over to the experts from both sides who will evaluate the matter, looking at medical records and the depositions. They will write their reports with their opinions and then be subject to their own deposition. At some point then the defense will make a motion for dismissal via summary judgment. The plaintiff will object to that and respond. The court will make a ruling and if the case is not dismissed then it goes to pre-trial discussions and the settlement discussions get more serious at that point. As I mentioned before, only about 7% actually make it to a trial. That's just a brief summary of the timeline of a malpractice action. And now we'll turn things over to Dr. Belcher. »» All right, good morning everyone. Thanks for waking up with us. So we're going to talk now about some specific areas of liability that come up in the outpatient setting. We're going to kind of name all the ways that we can get in trouble. This is going to be a little scary, kind of some gotcha feelings maybe. But don't worry, after we enumerate all of the problems, Dr. Nofziger is going to tell us how to work protectively to reduce the risk of coming into some trouble. And then let me just give a disclaimer that as we talk about this, we're certainly not suggesting that anyone changes any clinical practice. Ultimately you're going to do what's best for the patient. But just to highlight areas that are relatively more likely compared to not to come up in a malpractice claim. So let me begin by making a distinction between two legal concepts. So the first is the complaint or the allegation. And the second is the legal cause of action, which is related to the idea of damages. So a complaint is what someone says you did wrong. They might say, you prescribed me the wrong medication, or you caused my loved one to commit suicide, or you didn't prevent my loved one from committing suicide when you had an opportunity to. Those could be legitimate complaints. And then a lot of complaints are not legitimate. I don't like the magazines in your office, I want Vogue, you've only got Glamour, and that's why my depression never got any better. So something like that could be brought up. The good news is it's very unlikely to lead to a successful claim. Now the legal cause of action is the grounds for bringing the allegation to the court. And in most cases it hinges on negligence. So that's an act of omission or commission, so something you either did or didn't do that unintentionally led to some kind of compensable harm. So negligence is unintentional. When malpractice covers unintentional torts, we'll touch on a couple areas where a mistake could actually be willful, and in that case would importantly not be covered by malpractice insurance. And then remember also what Dr. Nossinger told us, two strangers don't owe anything to each other, but a doctor-patient relationship is a special relationship where the patient can be compensated for some harm at the hand of the physician. Now some of the specific ways that those can turn into compensation include things like wrongful death, psychological and physical pain and suffering, exacerbation of an underlying mental disorder. So someone could try to quantify that. There are other expert witnesses who will be hired to estimate potential financial correlates or values to exacerbation of an illness or to lost wages from someone who passes away. And then loss of consortium. So that's the monetary compensation that people are owed for the loss of a partnership or intimacy that you get if you lose a spouse. So let's just remind ourselves what Dr. Nossinger already told us, the four D's. You have a claim if you suffered actual harm as a direct result of someone's negligence, which is to say the dereliction of their duty. So my example about how someone files a suit because their depression is worse because of your magazines, that would be unlikely to get anywhere because there's no direct relationship between your office magazines and their worsening depression. So a more prescient takeaway is that you can't be sued for a near-miss. So in a near-miss, no harm occurs. So you can't be sued for that. Okay. So now let's just go over some of the most important specific areas that come up in malpractice in the outpatient setting. So there are a lot. But the two that account for the most claims, we've kind of alluded to this, fall under the umbrella of suicide-related issues and medication-related issues. And then there are level of care-related issues, meaning either failure to hospitalize or improperly forcing someone to be hospitalized, misdiagnosis, which means a number of different things and often but not always overlaps with medication issues, long-term treatment that's very relevant to the outpatient setting, so claims related to improper retention or management of things that only arise in a prolonged treatment, coordination of care issues involving collateral and interdisciplinary teamwork. Breach of confidentiality, very important. Whenever a third party is introduced, a family member, an employer, some sort of public agency or insurance plan, et cetera. »» So he's talking about the various claim areas. We're going to go through these here specifically then. Okay. Suicide and attempted suicide, as we mentioned before, is number one claim against psychiatrists. 13% of claims according to PRMS. So we can all agree that psychiatrists are not mind readers. We can't tell the future. We cannot predict who will commit suicide and that's not the standard that we should be held to. So we have a duty though to conduct a good faith suicide risk assessment whenever there is a triggering event that tells us that suicide risk is an issue. And then to convert the results of that risk assessment into the patient's treatment plan. So lawsuits can be filed either for a number of issues that come up in the context of suicide. So failing to screen for suicidal thoughts in the initial psychiatric evaluation. I think we'd all agree that we were taught in medical school that any initial psych evaluation, any initial mental status needs to have some very brief screening for suicide risk, such as inquiring about suicidal ideation. Another area of malpractice claim can come up whenever there is an indication upon screening of increased suicide risk, but the practitioner then failed to either recognize that or failed to do a comprehensive suicide risk assessment. This is a very common issue in suicide cases. Or that they attempt to do a suicide risk assessment, but do a poor quality job at it. They don't ask about the right factors. And then that they fail to transfer the results of that suicide risk assessment into the patient's treatment plan. So for example, acknowledging severe depression and hopelessness, but then failing to address it in the treatment plan with no medication for depression, or failing to hospitalize someone whose risk assessment indicates they're at high risk for suicide. Even a patient at face value, their denial of suicidal ideation can come up as a claim in suicide cases. Because we all know that in patients who are truly suicidal, they may view their psychiatrist as an adversary and not disclose to them their suicidal thinking, because they know the psychiatrist will take steps to prevent them. So for that reason, psychiatrists should not rely on the patient's denial only, but look at other data, objective data, behavior, response to treatment, et cetera. Failing to develop a safety plan comes up in a criticism by plaintiff's attorneys, that if you have either someone who's been discharged from the hospital or an outpatient, you have to give them a safety plan to tell them what to do should their condition worsen. And some attorneys try and bring in, well, you should have told the family about the patient's risk. Well, there certainly is confidentiality issues that apply here. But if the patient is willing to involve the family, then it makes sense to involve the family in the safety plan as long as the patient is signed to release. Failing to hospitalize comes up in malpractice claims. So either to commit someone involuntarily if they decline a voluntary admission, or to offer someone a voluntary admission when the circumstances warrant it. And the critical issue, as Dr. Belcher points out in the slide here, is what's the least restrictive treatment setting to address the patient's risk issues? On the flip side of that, though, we have lawsuits when someone is committed involuntarily, but they don't actually meet their state's criteria for involuntary commitment. So we get cases of false imprisonment. Now, generally, there's a good faith immunity clause in states' statutes regarding civil commitment that as long as the psychiatrist believes or has reason to believe that the person is committable, then they can't be sued. So the only successful claims is when the psychiatrist knew the person was not committable, but still filled out the paperwork and had them be hospitalized against their will. Misdiagnosis comes up. So thinking that someone has an anxiety disorder when they really have an underlying psychotic disorder, and then the actual diagnosis is not treated appropriately. And that can come from having a poor database, not looking at the past records, not doing testing when it's indicated, or other factors that would lead to a misdiagnosis. Medication. There's a long list of factors that can come up in claims for medication issues. Prescribing the wrong kind of medication. Use my earlier example, prescribing an anti-anxiety medication when the person was psychotic and needed an antipsychotic. Prescribing the wrong dose, either a dose that was too low to achieve any therapeutic effect or prescribing a toxic dose when the patient has an adverse reaction. Prescribing contraindicated medications, the classic one as you know is Demerol with a MAOI, resulting in a hypertensive crisis, and there's other ones as well. Prescribing a medication that's contraindicated in a medical condition. So for example, someone with severe emphysema, prescribing a high dose of a benzodiazepine that will suppress the respiratory drive can cause obviously some harm and be the topic of a malpractice claim. Failing to monitor, either failing to monitor for side effects or failing to monitor for blood levels. And of course, the major one for antipsychotics is failing to monitor for tardive dyskinesia. Polypharmacy is another medication claim. Prescribing several agents in the same class or prescribing for example, three antipsychotics with two benzos and a mood stabilizer where the patient has serious side effects. Prescribing in the face of an allergy kind of speaks for itself. Prescribing lethal doses of dangerous medications to suicidal patients. So the classic is given a three-month supply of a tricyclic antidepressant in someone who's suicidal. Prescribing off-label without getting informed consent. You know, we prescribe off-label all the time. But you have to tell your patient that this is not an FDA-approved indication in order to get their informed consent. And then creating a drug dependence without getting the patient's informed consent. So for example, prescribing Xanax or other benzodiazepines and not informing the patient, you know, long-term use of these, this can lead to a drug dependence. »» Forgive me. Thank you for your grace. »» So an open and shut issue, allergies. We have to ask. There's sort of no way. Oh, you've already mentioned that. Yeah. All right. We'll move on. Okay. So the classic side effect that comes up in cases is tardive dyskinesia. And it's an interesting one. We had a case earlier this year in which a plaintiff alleged that his psychiatrist failed to tell him about TD when he started Zyprexa years ago. Failed to assess for it systematically, failed to identify for it at the first presentation and address it when the symptoms were obvious. But the doctor prevailed at trial because the medical record indicated, as well as her testimony, that she did do all of those things. Okay. So let me talk about a really great legal case, one of my favorites. I'm sort of an analytically-oriented person. But this case, which seems to on the surface come down on that, is still really fascinating. So in 1980, a nephrologist who was a patient was admitted to the Chestnut Lodge in Maryland. And that was a psychoanalytically-oriented hospital. He stayed for a prolonged period of time, several months, and was treated with psychoanalysis for his depression. He eventually left, not much better. I think he was there for several months, went somewhere else, and he took antidepressants. Lo and behold, quickly got better. So he sued the Chestnut Lodge and says, you know, you didn't tell me that there was an alternative way to get better. You treated me with psychoanalysis, you didn't offer me, I think a tricyclic is what he ended up getting that really helped him. And it gets to the point that we can't just offer what we like. We have to offer the standard of care. It's perfectly fine to have an orientation, a preference, a style, and it's perfectly fine to specialize. But you know, people need to know what the options are that are relevant to the illness that they're presenting with. And so if you don't offer that treatment, I think we're obliged to make sure that people at least know what the options are and where they could get them. Okay, now outpatients can certainly carry some violence risk. Psychosis, if you're sort of thinking about how do you titrate your patients on who potentially carries some violence risk, you know, psychotic patients are toward the top of the list. And in particular, people who have paranoid delusions and people who have command auditory hallucinations. Those are kind of the two things that put them in a different bucket of non-trivial risk. Now, the first thing to remember when we're thinking about violence risk is that there's no generally accepted tool or method to predict violence accurately. But the standard of care is that we have to make a good faith effort to address risk of violence by making a risk assessment, using our judgment, and with whatever dynamic risk factors that we identify, addressing them. So we all remember Tarasoff. Just to remind you the facts of the case, Prajanda Padar was a student at UC Berkeley, you know, just across the bay here. And he was very infatuated with a woman named Tatiana Tarasoff. He was in therapy at the UC Berkeley Student Counseling Center. And he revealed to his psychologist that he had thoughts of harming her. He ended up actually killing her. And that created what we now know as the standard for Tarasoff, that if a clinician in the course of their professional duty learns that a patient has a specific thought of harming another individual who's identifiable, and you think that there's a reason why that actually could lead to harm, that we have to act upon that. Now, this is an area that varies by state in terms of, you know, what qualifies as something that you have to warn, and then what do you do? So make sure that wherever you are, that you're familiar with your state statute. It usually lays out, like, for example, in Ohio, you know, the standard tells us exactly when is a threat severe enough. It has to be explicit, identifiable. We have to have reason to believe that they could actually carry out the threat. So for example, if, you know, they're going to harm the president, well, that's a little bit less likely to think that they would actually be able to do that. And so we could think that maybe that wouldn't qualify. And then it also gives us four options for how to discharge the duty. So check your state statute on what the language is for that. Okay. So long-term treatments. You know, outpatient work is often long-term. People might treat someone for, you know, decades. Let's say a patient has a clear change in clinical condition, but the treatment plan doesn't adjust to new information, that is potentially an area of liability. We could also be faulted for not seeing someone frequently enough. You know, if we have someone who we treat for many, many years and we're only seeing them, I don't know, what would be totally egregious, every other year or something like that. We could be faulted for failure to refer to a psychotherapist, a psychiatric subspecialist, a neurologist, et cetera. And medical issues. So these do come up, especially in the outpatient setting. You know, a lot of people that we treat have comorbid medical issues or may develop them. The classic example that would lend itself to a lawsuit would be something like you have an elderly person who becomes increasingly cognitively impaired. And let's say that you happen to know that they had a fall, but in your mind, you know, you have your anchoring bias and you think maybe this is, you know, worsening depression or a neurocognitive disorder and you miss that it's actually a subdural hematoma from their fall, you know, that would be a sort of classic example of where we are expected to maintain some degree of our white coat, you know, our medical training. Another example would be someone who develops lithium-induced hypothyroidism. This happens. We know it. You know, the standard of care would be to send someone to an endocrinologist. The standard of care would not be to sort of manage that in-house. Improper psychotherapy, you know, there are hundreds of evidence-based psychotherapies. Only a very egregious error is going to be something that would cause you a problem. So you know, if you've — Dr. Nufsinger found something that truly was in this vein, you know, essentially sex with your therapist. So that would be grounds for malpractice. And then boundary violations on the nose, you know, this boils down to a patient being exploited for the psychiatrist's benefit or gratification rather than the patient's. So it defies professionalism. The clear example we all know, the categorical prohibition of sexual activity. But there are other scenarios that are a little bit more of a gray area, you know, employing a patient, having an improper social relationship with a patient. And it's worth mentioning that malpractice policies treat sexual activity as an intentional tort. Okay. So sexual activity, boundary violations, not covered by malpractice. Those would be something that we are on our own with. Abandonment. So sometimes we have to end treatment. You know, we're not obliged to treat anyone who's disruptive or threatening, who doesn't pay, who makes the treatment unsafe for some reason by virtue of their own behavior. But we also have an obligation to give ample notice of termination to sort of make sure that they know what the alternatives are. And then importantly, to address an emergency. So this is an area where something could come down to a lawsuit is if you were in the process of terminating with someone and you didn't address their emergent concern. Breach of privacy, we're all familiar with this clinically. We don't have to belabor it. But as a reminder, it could be grounds for a malpractice suit if information is negligently released. And if it's purposefully released, that would be another example of an intentional tort. So if you go to the news media about your patient, that is not going to be covered by malpractice insurance. That's going to be something that you could even get claimed for defamation of character or something like that. But those cases do exist. So wrapping up this section, many of the areas that we've touched on involve informed consent as a bedrock of either protection or liability. So the crux of the legal issue can come down to the question of, did we properly consent a patient for a risk that is inherent in a given treatment? So just as a reminder, back to basics for all of us, informed consent includes the information that we share with the patient, some indication to believe that they're competent to make that decision. We don't have to formally assess this in everyone by any means. But we should be reasonably satisfied that they're competent. And then voluntariness. So some areas that could come up where the information you provide to a patient is alleged to be inadequate would be, for example, the case that I mentioned about tardive dyskinesia where that patient sued his psychiatrist saying you never told me that my Zyprexa could cause tardive dyskinesia. Lo and behold, 15 years later, he's got tardive dyskinesia. And so it's very important to tell them. And then as Dr. Nossinger is going to tell us, but, you know, shocking preview, write it down that you've told the patient about these side effects. And then the standards used for assessing informed consent vary state by state. The one that we're most familiar with is the reasonable medical practitioner model, which is that you have to tell someone what another reasonable doctor would have told them. But it's worth also knowing that there's another standard called the materiality of the information standard which says that you have to provide information that the patient would want to know. So you can just sort of keep that in mind as you're consenting patients for new medications. All right. And I think I will put up this QR code just real fast again. I saw some people came in. Back up here a bit. Now Ren, I did part of your slides, you have to do part of my slides. All right. So there's the QR code. And, you know, it's interesting doing this malpractice work. You get some interesting stories. You mentioned about a boundary violation case. So I had one time a psychiatrist who was a sleep specialist. He had a big office practice with a number of staff he employed. So he employed two twin sisters as his office staff, all the while treating them both with medication for their ADHD. So we had this dual relationship of patient and employee. And this psychiatrist was married and had a couple of kids. But he developed a love interest in one of the women and so he pursued her romantically and she rebuffed him. He had many of their medication visits in the local Applebee's at the bar. And finally he fired her whenever she would not succumb to his sexual advances. So we had both malpractice and an employment case. But the point is that most of these boundary violation cases are pretty egregious. And again, they're always interesting stories. And I was also reminded of another one case here. It's kind of interesting, the informed consent, they're not informing the person, the patient of the risk of stopping their treatment. It's a famous case out of North Carolina called the Wendell Williamson case. Now he was a second year law student at University of North Carolina at Chapel Hill in treatment with a psychiatrist named Dr. Myron Lipskin. And during the second year of law school, had a psychotic episode and received some medication. I believe he was on Navane, a first generation antipsychotic, and the psychosis resolved. Wendell went home for the summer between the second and third year of law school and at home he stopped taking his Navane. Came back in the fall, did not reestablish contact with a psychiatrist. His psychosis reemerged and he wound up opening fire downtown Chapel Hill with a rifle and killed two people. Charged with two counts of murder. He was eventually found to be not guilty by reason of insanity. This was one of the first cases where an insanity acquittee sued his treating psychiatrist, you know, because it just usually doesn't happen. And the jury found for the plaintiff, and they awarded several hundred thousand dollars. It was later reduced on appeal, but the point was that the court, the case was that the psychiatrist supposedly did not warn him of the risk of stopping his antipsychotic medication with the resultant return in his psychosis and increased risk for violence. Just an interesting case there. All right, well, what can we do to reduce the risk of a successful malpractice claim in the outpatient setting? I think in the abstract we promised 30 different tips, but we're going to give you more than you paid for this morning. We're going to give you 50 tips. So I'm going to go through them here. Some of this is pretty basic and some is a little bit more nuanced, but number one, always screen for suicide risk in your mental status examination. And I realize this is very basic, but you'd be surprised at what some people do or don't do. So I'm just bringing this to your attention. So missing patients at risk for suicide upon the initial screening. Number two, always conduct, when indicated, a comprehensive suicide risk assessment. So you don't need to do a comprehensive risk assessment on every patient that crosses your threshold, but when there is indications of increased risk, that should trigger you to do a comprehensive suicide risk assessment. And what kind of factors should trigger a comprehensive risk assessment? Well, either current or recent suicidal thinking or passive death wish, a recent attempt, or other self-injurious behavior, or other indicators of their illness that would indicate there would increase risk, such as severe depression, hopelessness, et cetera. If you do this comprehensive risk assessment, make sure and transfer the results of that into your treatment plan. So at the end of that risk assessment, and we can have a whole hour and a half talk on how to do a risk assessment, but that's beyond the scope of our talk today. But at the end of that risk assessment, you should have certain dynamic risk factors that can be intervened via treatment, such as depression, substance use, psychosis, psychosocial stressors. And all those should have a corresponding intervention in the treatment plan. Here's an example. This has got an inpatient component, but I think it tells a story. This is a real case. So this is a 48-year-old man with depression and anxiety, and he was in the HMO. So he had an outpatient psychiatrist, and he told his psychiatrist that he was having thoughts intended and had a plan to commit suicide. Outpatient psychiatrist appropriately hospitalized him. Inpatient psychiatrist on the inpatient setting, due to their business setup there. The inpatient psychiatrist was aware of the reason for admission, but the suicidal thinking, plan and intent. And over the course of the 10-day hospitalization, no suicide risk assessment was ever done. The patient was diagnosed with major depression and was given various one- or two-day trials of antidepressants and anti-anxiety medications, but the patient always complained of side effects. I can't tolerate X, Y, or Z, to the point where the psychiatrist became very frustrated with the patient, labeled him as a somaticizer, said some negative things about him in the medical record, discharged him home on no medications, and a few days post-discharge, we had a suicide. So pretty obvious the errors there, right? There was obvious indications of increased suicide risk, no comprehensive risk assessment, no dealing with the risk factors in the treatment plan, and then diagnosing major depression, but then not prescribing the appropriate treatment. So that case settled early. We talked about this before. Do not rely solely on the patient's denial of suicidal thinking, intent, or plan, but instead recognize the patient will view you as an adversary, and so look for objective signs of clinical improvement. You can certainly place some weight on their denial, don't reject it altogether, but don't rely on that exclusively. Look for improvements in sleep and appetite, and on the inpatient side, their participation in activities and things like that. Develop a workable, accessible safety plan. Tell the patient what to do should your condition worsen. Call 911. Call the suicide hotline. Come to the hospital. Come to the ED. Call the inpatient service. Call the on-call doctor. And as I mentioned before, if the patient is willing, then involve the patient's family in the safety plan. We sometimes see suicides where the family has no idea that the patient is at risk for suicide. The psychiatrist knew about it and was taking steps to deal with it, but the family says, I had no idea this was going on. I would have never left him home alone. And so if the patient is willing to agree to it, to involve the family in the discussions so they're knowledgeable about the patient's risk and what to do should the patient's condition worsen. Do not ignore some of these especially ominous risk factors. Things like depression, a recent attempt, global insomnia, severe anxiety, and hopelessness. Use DSM criteria to justify your diagnoses that will protect you well in the event of a lawsuit. And that diagnosis should then drive your treatment plan. Hospitalize, obviously, when appropriate. And know your jurisdiction's criteria for civil commitment. And do not improperly commit patients. We kind of went over that. And this closely mirrors the suicide discussion we just had. Always screen for homicidal ideation on any mental status examination. And if there are indicators of increased violence risk, do a comprehensive violence risk assessment. And then transfer the results of that into the treatment plan. And triggers for a violence risk assessment would include a recent or current homicidal thinking or plan or threat or a recent violent act or indicators of paranoia, mania, or hallucinations. Know and use your jurisdiction's duty to protect statute. And as we mentioned here, the Tarasov case just took place across the bay in 1969. And most states, I think about 40 states have got, either through case law or statutory law, have got Tarasov duties. Medication. So select the appropriate class of medication. Conform to dosing guidelines. Avoid contraindicated medications. Monitor for adverse drug reactions and monitor blood levels where available. We do see litigation around this area. And I have an example coming up here shortly here. Go to a polypharmacy. Do not prescribe lethal doses of medications to persons at elevated suicide risk. Obtain informed consent for off-label prescribing and prescribe, as Dr. Belcher described in the Osharoff v. Chestnut Lodge case, prescribe when indicated. And this is a real case as well. A 38-year-old woman who had, in the past, multiple admissions for mania with psychosis, but had been treated successfully in the outpatient setting for seven years for the diagnosis of bipolar disorder. And she was initially started on ciprazidone by one psychiatrist. He retired, care was transferred to a second psychiatrist, and her dosage range was gradually quadrupled from 80 milligrams daily to 160 twice daily. Now the max dose is 160 a day, so she was on 320 a day. And her bipolar actually did very well over those seven years. She didn't have any exacerbations of her illness. But unfortunately, one day, her husband came home and found her dead in bed. And at autopsy, she had myocarditis. There were bottles of ciprazidone full of pills in the bathroom. And for post-mortem, blood levels of ciprazidone were in the low therapeutic range. It's a real case. Knowing that the four Ds apply here, anyone want to comment if this was a case of malpractice? Ciprazidone 320, a death? Right. Causation is lacking here. Because while it certainly is a deviation from the standard of care to prescribe double the dosage here, there's a real question about was it the causal link in the death, both because of myocarditis and also the low blood level post-mortem. There are questions about whether the post-mortem levels reflect real levels during life. this case settled because the attorney said he didn't want to take it to trial on causation. That if there's a deviation from your standard of care, even if causation is suspect, he didn't want to take that risk and go to trial on that. We'll get to your question at the end here. Let's get through this and we'll get to your question afterwards. Long-term treatment. So on a regular basis, update the diagnosis and treatment plan as best as you are able. See the patient with sufficient frequency and refer when appropriate to these different specialties. Whenever there is an indication of a condition that needs, for example, a neurology consultation or your patient has got diabetes and it goes to their primary care physician. Be alert to any new physical conditions or evolving and worsening conditions and rule out underlying medical diagnoses. We see people with subdurals. We've had a couple of cases where people had recent colonoscopies and then had ruptured colons and that wasn't recognized. Within that though, practice within your scope of expertise and training. So I think most of us feel comfortable continuing somatic medications that have been started by specialists or primary care, but to initiate treatment for a non-psychiatric condition probably going out a bit on a limb. Informed consent. So as Dr. Belcher mentioned, we have to give our patient information about our prescribed treatments, sufficient information so that they can truly give informed consent and advise the patient then of the risks and benefits of both treatment and the Williamson case, the risk of stopping their treatment. Other violations, obviously do not employ or exploit your patient or cross other boundaries. Do not stop treatment abruptly. Refer or transfer care to a trusted colleague and deal with any emergencies in the interim. Maintain confidentiality, obviously. And this is a big one here. As I mentioned before, only about 2% of people who suffer a complication actually file a malpractice claim. So treat people, their patients and families with respect and that will lower your malpractice risk. Patients are generally forgiving in the event of an error. I put here 10 different points on documentation because documentation is critical in protecting you in the event that a claim is filed. So two things are on a collision course here. Just like the Titanic and the iceberg were on a collision course, the medical record and the malpractice claim are on a collision course as well. Because what is in the medical record will collide sometimes violently with the plaintiff's claims in a malpractice case. What is in the medical record has a huge impact on the outcome of the case. Likewise, what is not in the record, what is missing will also have possibly a huge impact on the outcome of a malpractice lawsuit. So the big question here is, how is the medical record used in a psychiatric claim here? It comes out during the course of discovery as I mentioned before here. So what is in the medical record will be analyzed very carefully and it has high impact on the outcome of the case because it is written contemporaneous to the events. So written before the bad outcome has happened, written before the lawsuit has been filed. So juries and insurance companies place great weight on what is in or what is not in the medical records. It also provides corroboration for the deposition testimony and trial testimony of the various players in a case. The medical record will be scrutinized very closely by attorneys, paralegals, by the malpractice insurance company, the defense and plaintiff experts and ultimately by the jury. Now plaintiff's lawyers love this statement and I would argue most people don't agree with this. If it isn't written down, it didn't happen. That's a case that plaintiff's attorneys try and make. A lot of things happen that's not written down. It's very obvious. But if it is written down, it's very powerful evidence. So I would encourage you to document critical decisions and your reasoning underlying those critical decisions. This is a famous plaintiff's lawyer in Cleveland, Tim Misny. His famous statement is, I'll make them pay. So I want to talk about documentation a bit. When you're in the moment with the patient or closely thereafter doing your documentation, it's important to be able to anticipate areas of potential liability, to know what they are and then to document in the moment proactively in a fashion that will protect you. So you should think, in that moment, what if there's a bad outcome and I'm sued? What would I want the medical record to say? And so write it down in the moment, be able to anticipate that. We're all familiar with the soap note, and this actually is a very good model for protecting yourself in a lawsuit. So to record the subjective data, the objective data, the assessment and the plan. And I sometimes ask myself, you know, why don't people do this? I read these records that are, you know, sketchy or missing important information. I think it's because people just think either one, that there won't be a bad outcome or that you're not at risk for a malpractice claim. They're just not on their radar screen. So they kind of put their head in the sand like this person here is. So again, medical records should be thorough and honest, non-prejudicial, don't talk badly about your patient, should be appropriate to your discipline, talk about things within your area of expertise and be timely. So let's say you discharge someone from the hospital, it's a suicide, one week post-discharge, but you don't take your discharge summary until four weeks later. So that discharge summary is going to carry zero weight with a jury because it was made, you know, after you knew the bad outcome. So if you do things timely, then you'll preserve the contemporaneous value of those medical records. Again, those records avoid statements that are simple conclusions, but instead explain your reasoning. Don't just write, patient is at low risk for suicide. Explain why. You know, patient is at low risk of suicide because of factors, you know, one through ten and explain your reasoning. Likewise, explain your rationale for diagnoses using DSM criteria and your important and critical decisions such as your decision to hospitalize people or not hospitalize people or to discharge them from the hospital or to discontinue suicide precautions in the hospital because those are kind of critical points that will be analyzed if there's a bad outcome. Also use professional judgment and illustrate that in the medical record. So liability, well, you can be protected from liability if you show that you've used professional judgment. Even if your judgment was wrong, the fact that you analyzed the issue can go a long way in showing that you met the standard of care. But if you don't use professional judgment whatsoever, like in the first example that I gave you of the inpatient psychiatrist who never once did a suicide risk assessment on a man whose whole reason for admission was suicide risk, she used no professional judgment and liability there was a slam dunk. Who knows what this statute is called? It's called the kiss of death. What's the kiss of death in medical malpractice cases? If you falsify or destroy medical records, it's called spoilage. But if you modify them post-event, that is a slam dunk and a kiss of death in a malpractice claim. If you are sued, most people are obviously very upset, but just stay calm. Call the insurance company. Don't discuss it with anybody except your attorney and the insurance company because if you do, that person can be deposed about what you told them. Don't over personalize it. Realize this is the cost of doing business. Three percent of us get sued every year. So if you're in practice for 30 years, you're going to likely have at least one lawsuit. Be patient. Realize that most claims take about two years to come to their conclusion. It's not an overnight thing. So again, don't over personalize. Try not to feel inadequate and just keep moving forward. All right, Dr. Belcher. talk, this is a section that was originally written by Dr. Scott's new dad who's unable to make it. So I'll be giving this in instead. But let me just emphasize that this is very much his research and experience and his work product. So supervision is really baked into the way that we train and the way that we practice. But it's kind of a nebulous concept clinically and legally. It involves varying degrees of advising, instructing, monitoring, or controlling the actions of people who deliver some kind of mental health care. And it applies to a lot of different people. So of course residents and fellows are supervised, but nurse practitioners and physician assistants are supervised. Some depending on the practice setting, sometimes therapists are supervised by psychiatrists in a split treatment. And then what's not on here but is also true is that attendings can be supervised if they go and pay for supervision, if you can get supervision sort of from a colleague. So all of these are an example of a way in which we can assume some liability in the name of a doctor-patient relationship even if we haven't necessarily met the patient. So a few key principles. The first is a supervising psychiatrist can be named in a lawsuit either because they were actually negligent in supervising the trainee or simply because they were vicariously liable under the principle of what's called respondat superior. So respondat superior is a concept in law that the captain of the ship is responsible for everyone else essentially. So even in situations where the attending psychiatrist's name is not being used for billing or for attestation, it is reasonable to expect that a supervisor would be named in a lawsuit. And so likewise, even if the supervision is completely adequate, sometimes there'll be a claim that the non-physician's work is part of the psychiatrist's business. Even if there's no wrongdoing, they can end up getting named. And I'll say that that part of it where the trainee and supervision is part of the work business of the psychiatrist, that comes up more with nurse practitioners and physician assistants than it does with residents. Usually residents are not seen as sort of agents of the attending psychiatrist in the same way. But of course, the deeper financial limits of the attending psychiatrist's insurance policy are one incentive to have them named in a case. So under the umbrella of negligent supervision, a lawsuit could allege that supervision was careless or inadequate in some way, that would be an act of omission, or that the supervisor instructed a supervisee to do something that was grossly incorrect, an act of commission. We've mentioned the Tarasov case three times now. There was an interesting sort of wrinkle in the Tarasov case about supervision, where originally the therapist who was actually seeing Mr. Poddar did report him to the police in Berkeley, the campus police, and said he was having thoughts of hurting Tatiana Tarasov. And the supervisor, who was a psychiatrist, the medical director of the clinic, actually instructed the therapist under his supervision to destroy the record and to tell the police that, you know, nothing to see here, there is no obligation. So that was an error where the supervisor actually told the trainee to do something that was totally incorrect. Supervision administration just basically means failure to follow whatever statutory or institutional policies are in place for supervision. So you know, for example, in a residency program there may be some institutional policy about how frequently the supervisor and the resident are supposed to meet. So you know, in terms of reducing risk with non-physician supervision, the recommendations that have been promoted in the literature are things like verifying the education, training, licensing, credentialing, employment history, and so on, of anyone that you're supervising. You know, some sort of common sense things. Probably not a good idea to supervise a relative or a close friend. Probably not a good idea because that would establish a dual relationship where your judgment could be called into question. And then, you know, sometimes it's helpful, different institutions have made this a requirement where, you know, if you sign your name to bill for something, you can specify what your involvement was. You know, I saw the patient with the nurse practitioner, or I reviewed the chart, or I spoke on the phone. And that can make it more clear sort of what your actual arrangement was. Malpractice insurance, definitely they're going to want to know of any supervision arrangements. And then Dr. Tom Gutile, famous forensic psychiatrist, he wrote a paper, basically what he calls the seven C's, which are the different elements of working with someone in a split treatment. So this was originally written with regard to a psychiatrist who was in, you know, doing the medications for someone while a therapist was doing the psychotherapy. But it applies really well to a supervision relationship also. So the first C is clarity. We all know that unclear arrangements are asking for trouble. It's important to be clear with what the roles, functions, coverage during absences are going to look like, to sort of have some written expectation about what the supervisee is expected to do independently versus what requires consultation. Just better to have all of that clearly laid out. And then ideally, it would be clearly laid out in writing in some form of a contract. Now that's really talking about if you have a nurse practitioner or physician assistant who's sort of acting as your agent, that's where a contract would be particularly helpful. Probably not required in a residency training program. Communication speaks for itself. Contact, you know, we spoke to that a little bit already. It's important to have some kind of frame. Ideally a suggestion would be regular contact on a scheduled frequency and then some availability of supervision consultation in between regularly scheduled visits. Consent, so there have been some cases that address this. It's pretty cut and dry in the law's eyes that patients ought to know sort of when they're seeing someone who's being supervised, if it's a nurse practitioner that has a supervision arrangement or if it's a resident. So you know, someone, whether it's the trainee or the supervisor should make sure to tell the patient that that's part of the arrangement. Comprehensive view of the case speaks to a need for the supervisor to be aware of what's actually happening. So it doesn't have to be an excruciating detail, but it could be a problem if in deposition, if a case were to go to have a lawsuit or a claim and the supervisor had no familiarity whatsoever with the case, that would be a problem. Credentialing, I think this has more to do with the practice of business, but this is things like making sure that you have a copy of the license and the professional credentials of anyone that you're supervising. So supervision in residency, it takes a number of forms. There's the attending who sees the patient with the resident. There's the attending who staffs the patient after the visit. There's the attending who is on call overnight. There's the therapy supervisor who probably never sees the patient but hears about the case on a regular basis. All of them constitute some kind of liability. So even when you haven't met the person and you've discussed the case, and as Dr. Nossinger mentioned earlier, kind of analogous to a curbside consultation, the courts have held that there is liability there because you're giving medical advice essentially. In general we talked about how the resident is not an agent of the supervisor and that provides some degree of protection. But remember, the supervisor may be in the best financial position to provide compensation for the damages that could come up. And that's one of many reasons why they could be named in a suit. The main point with reducing risk in resident supervision, there's been a little bit in the literature about this. It's just sort of knowing where the resident is in their training and being able to customize your guidance to that level so that you're not assuming that they know something that they don't. Any information that you get from the institution or from the resident themselves is going to put you in a better position to customize your teaching and oversight. With regard to wrapping up for the supervisory relationship, supervisory relationships are based on communication and trust. Everyone has to understand the arrangement, including the patient. There has to be definitely some documentation about the nature of the interaction between the supervisor and the supervisee, so a running log of sort of when you've met and what you talked about and what advice you might have given a supervisee, and then just knowing in general that supervisors are typically named in malpractice suits if it's a trainee or a non-physician who is the primary clinician. There's our code again if anyone wants the handout. All right, questions? Any questions? Please use the microphone. What percentage of psychiatrists get sued? About 3% per year. My question is about patient compliance. As the majority of my people that I consider highest risks are the ones who don't come for the follow-up, who don't take the medication, if you have a patient that you do an evaluation for who never comes back to see you or discontinues care, at what point is your duty to them absolved or have you seen cases like that brought to the psychiatrist after the patient failed to follow up or follow the recommendations? Right. So you have this doctor-patient relationship that kind of goes on and it's unclear when it ends if the patient stops coming in. So you can take an explicit step to end it by writing them a termination letter and putting that in the medical record, obviously a copy of it. So then that will end that duty and any potential for liability. I have another question about abandonment. So when the public health emergency was lifted, I think a lot of us were left with patients that we were seeing via telehealth in states where we maybe don't hold a license. So I practice in New York and there's patients that live in New Jersey and Connecticut, for example. And it's always been something of a scramble to try and find those patients, doctors, licensed in those states. So I know this is kind of all up in the air for everybody at the moment, but what's the distinction between sort of duty of care to the patient on an ongoing basis versus abandoning them? Any thoughts? Do you want me to take that, Wren, or do you want me to take a stab at it? This is, I think, an emerging area for everyone. We're all trying our best, right, with telepsychiatry. And if you don't have a license, I know that it's incumbent upon us to have a transition. I don't have any particular wisdom on that. Have you seen a case that's addressed it yet? I have not seen a case on that. I don't think it's abandonment unless you kind of fire the patient summarily and say, you know, you didn't pay your bill, we're not dealing with you anymore, or, you know. So I think what you're talking about more gets to the first question of the patient's kind of loss to follow up, where is your duty? And that applies to telehealth if you can't locate these patients. So I think as long as you demonstrate a good faith effort to try and locate them or, again, send a letter to the last known address just to terminate the duty, I think you'd be, that'd be well served. And it's more about liability if you continue to track some state where you don't have a license. Yeah, I wouldn't do that. No. So in that case, you should just let the patient go. Well, but, so what changed before? Was it that? So basically under the waiver, under the public health emergency, we were allowed. I gotcha. So basically under the public health emergency, we were allowed. There was a lot of wiggle room, if you like. I see what you're saying now. Whereas now, that's all gone as of May the 11th. So I think we're all just in this limbo at the moment. Was there a grace period in order to either achieve licensure or to make referrals? Yeah, some individual states basically said that they will kind of waive, you know, their restrictions and just allow people to treat patients wherever they may be. But as of May the 11th, when the emergency was lifted, and these have been kind of phasing out gradually over time over the last year anyway, and it varies by state, but it's just all of a sudden, no one really knows where we are. So it's like this liability potential for practicing in a state where you're not licensed versus just letting the patient go because there's often few doctors accepting patients in those states. Right. Yeah, it sounds like it's a new area and a new area for case law to develop. I see a question in the back there. Thanks. Hi. Thanks. Very interesting talk. I'm a psychiatrist working in Canada, and we have a little bit of a different medical legal defense setup. I wondered in the US about how often people are relying on the standards produced by their regulatory bodies. So for instance, in this previous example, in the different provinces in Canada, our College of Physicians and Surgeons of whatever province sets a standard for reasonable telehealth, for example, and it speaks to practicing out of province. Is virtual care enough? Do you have to have some ability to see the person in person when needed? And as long as you're following your regulatory body guidelines, they set the standard of care, then your care could be defensible. So I'm wondering, it's very tied into what you're talking about right now, and what is a reasonable standard of care. In Canada, it's dependent on expert opinion, but the experts are peers. So whatever a reasonable family physician or neurologist or psychiatrist would do in a setting in which you're working. Right. So I think what you're talking about is that the standard of care generally across most areas is set by the profession itself through an amalgam of practice patterns, textbook chapters, CME material. You can't go to one certain place and find what's the standard of care on something. But do you have practice guidelines? Well, but practice guidelines don't set the standard of care either. In fact, most practice guidelines say up front there's a disclaimer. This should not be construed as the practice or as setting the standard of care. Now, there are some exceptions to that, and I think one is what you mentioned. If there's some kind of regulatory guideline or rule, some kind of agency rule in this telehealth, that's a good example of that. The other only exception I can think about is the Tarasov issue. That's set not by the profession, but it's set by either state appellate law or state statute. Okay. So I won't keep you much longer, but I'm thinking about maybe the medical professional aspects of medicine, not necessarily the clinical standard. For instance, medical record management, telehealth, patient communication, privacy. Are there any kind of legislative guidelines that physicians are meant to meet? I think some of those encompass different areas. So for example, documentation is not a standard of care, because what's in the medical record is not going to lead to the damages, whereas privacy is. So that is governed by the standard of care. That's interesting. Very different in the two countries, thank you. I wanted to ask about the statute of limitations for a malpractice case. I'm under the impression that it's three years. Correct me if I'm wrong, and is there any exceptions to that? It differs from state to state and from specialty to specialty. So in Ohio, we have one year, again, from when the plaintiff, when the damage occurred or they became aware of the damage, but that can be extended by writing a six-month letter to the defendant saying, we're going to invoke our six-month extension. For other states, it's longer. And then for other specialties, so for example, pediatrics and OB, it can be 18 or 20 years. Yeah, for psychiatry. For psychiatry, yeah. Again, I can tell you about Ohio, it's one year, but I can see where other states might have it be a bit longer, it certainly wouldn't be 18 years. Thank you. Hi. I had a question around abandonment and patient payments, especially in the outpatient setting where naturally patients will wait until the day of their appointment, they're out of medications and they haven't been seen in a while and call and say, I can't pay or I won't pay or I refuse to pay. And you know that they need to be continued on these medications, however, they refuse to pay, probably will not pay. We've heard conflicting things from different attorneys all over the place of whether you should see them, should send refills, what you should do in those scenarios. I was curious to see your take on handling those situations. Can you do that? I think, so you're balancing how much do you have to address the emergency, which is, oh my God, I've run out of my whatever, versus are you obligated to continue treating someone who isn't paying the bills? The answer to that is absolutely no. If the patient doesn't pay, you don't have to keep seeing them, it's just a matter of how can you, as sort of professionally as possible, get them elsewhere. And I think it's probably, I don't know what an attorney would say, but maybe my inclination is to have some sort of temporizing plan, like here's a supply of your medication, but just so you know, I can't treat you anymore because, and that's perfectly fine, that's not abandonment, because it's a business relationship and they have to pay their bills. Just to give you kind of a similar case, I was involved with in Kentucky a couple years ago, and I guess this also illustrates that juries can come back with judgments notwithstanding a standard of care. We had a man who had severe physical pain, he had some physical issues, was on high dose opiates, of course he ran out early, tried to get an early refill from his pain management physician, they wouldn't see him early, wouldn't prescribe a refill early, and he wound up committing suicide in the parking lot of the pain management physician. And it was clear that they had followed the standard of care, yet the optics of this case were so terrible, the jury came back with a $7 million reward against the pain management physicians. So you have to be aware of the optics as well, is the point here. Hi. I'm an addiction psychiatrist and I give injections. I give Vivitrol in the gluteal muscle and I give Sublocade in the abdomen. And I'm in solo private practice, I don't have a staff, and recently, and I also work in a clinic and I give the injections in my office there. And I work alone and a colleague, non-addiction psychiatrist recently said to me, oh, aren't you afraid that the patients are going to accuse you of sexual misconduct? Which never occurred to me, it's never happened, I've been in practice for 40 years, I haven't been giving injections for 40 years, but I wondered if you could say something about this, if there are precedents for that, how people handle that. It's never come up and it never occurred to me, but I just, after she said that, it did occur to me. So I just wondered if you had precedents for that, how people handle that, et cetera. Thank you. Yeah, well, these things do come up. You know, people have misperceptions all the time. I know that, for example, with OBGYN and pain management that sometimes have policies about having, you know, a staff member in the room. So yeah, I don't have a staff. That would be protective, so I think you'll have to kind of think this through. I know many addiction psychiatrists do exactly what I do. No one has ever said anything about that at all. I never heard anyone say that they were accused of that. So what do you think about that? Well, it's hard to know what a plaintiff is going to do. So I guess the question is, if someone would accuse you of that, what steps would you use in your defense, and is there anything you can do proactively now in advance to protect yourself? Right. So what do you say? I'm putting it back on you. Oh, well, no, I think the most important thing is to have a very good doctor-patient relationship going forward, you know, in advance. Okay. But let's say there's an unhappy patient, for whatever reason, and they make up an allegation, what would you want to see in either your policies or your medical record that would protect you? I don't have a good answer, I'm just saying it's something to think about. Yeah, I mean, some of these patients I've been treating for years and years, you know, we have a very good relationship. So I don't know, I don't know what more I can do except, you know, have a good faith relationship with them, going back for many years. So I don't know. Or maybe a Medline search, you know, is there anything published on this? I don't know. I could imagine, I mean, I'm shooting from the hip, but, you know, maybe if you really wanted to have an extra layer of protection, you could have the patient sign something that say, you know, part of my practice involves touching your gluteus muscle in order to make this injection, and, you know, you'll have to balance, is that protective? I don't know. Versus is that going to be really weird for you to do for someone that you've been treating for multiple years? And one thing you said that potentially is also protective is that you said that you know other addiction psychiatrists that do it, exactly. Yeah. So then, you know, that's... It's standard. It's standard. Right. So that, you know, that's helpful. Or, I mean, weigh the risks and benefits of joining a group practice and having other people around. Yeah, I wouldn't do that. It's something to take into consideration. It's, like I said, it's standard. Okay. It's 9.34. We'll take a couple more, and then we'll stop. Sir. Hi. My question is about telemedicine and sort of connectivity, and just running into some problems, and I'm sure other people have this, too, of some patients, you know, you start an appointment, it'll drop connection, or they'll say, oh, I couldn't get the thing to work with the EHR, Zoom, or whatever. Is there anything we can do to protect ourselves from that? Because I can't necessarily say, well, you didn't make the appointment because they were trying to, and then they want the refill on their Klonopin, and, you know, it gets a little muddy in there. I was just wondering what your thoughts on that are. I think there are certain expectations that are perfectly reasonable for us to lay out, and one that makes me think of this, it's related, is I was in a consultation group a couple years ago, and someone said that they had a patient who insisted on doing therapy while driving, and, you know, that, I think it's really incumbent on us to say, you can't do that. You know, you have to be in a place where you can focus on the work, kind of like you have to pay your bills, and so I think that it's reasonable if someone has an internet issue to say, you know, let's reschedule for when you have better internet. I really need to be able to understand what you're saying in order to treat you safely, so I think that's an area where, you know, we have some leeway, and it's perfectly reasonable for us to say, be directive, and say, call me back when you have a cell phone signal. That's my take on it. Thank you. Sir. Thank you. You have already mentioned this, but if you can please clarify a little more. For those patients who don't keep follow-up appointments, and, you know, you're a busy practice at different places, you don't keep a track who is not following up, and for how many months, and you're worried that one day you'll get sued, so when you recognize that they have been not following up, do you write them a letter just saying that that relationship has been terminated, or you can say that please make an appointment so that we can decide about future course, whether to terminate or not? And the third is, some of my colleagues say, when you write a termination letter, you should give them a month-month refill of the medication. Now the medications need to be adjusted on an ongoing basis. You cannot make a blanket statement like that. Please clarify. Thank you. Yeah. Well, I think you can do a couple steps to protect yourself. One is, if the noncompliance with appointments is a pattern, you know, to address it when they do come in, and to document that in the medical record that you had a discussion about that, but then I think if they're not coming back in, you can send them a letter saying, you know, if you fail to come back in in 30 days or 60 days or whatever, then, you know, we'll have considered your case closed, and then you can send a final termination letter as well saying you have not made an appointment, so your case is closed, and you can put in there some referral sources, you know, if you decide you want to seek treatment again, you can either contact us or here's the local mental health agency or whatever, and put in there also if you're, do you find yourself having an emergency, obviously, call the hotline, call 911 and go to ED, et cetera. So I think all those things will serve to protect you. Final question. Yeah. Hi. I'm boarded in interventional pain management and psychiatry. So I've been sued interventional, which most people have. The question is now in psychiatry, as a lot of people in here have seen, we get asked to prescribe benzodiazepines, which may be appropriate. Patients who either are put on opiates by pain management or by their primary care or vice versa, they're put on benzodiazepine like Ambien by their primary care and they're on opiates. So when we see this problem, you know, we discuss it with the patient, but are we protected in any way by that discussion? Even though it's in violation of standard of care or the FDA recommends not combining benzos and opiates. Can you comment on protecting ourselves when that is appropriate? Well, I think I would focus on the coordination of care between what you're doing and what the other prescriber is doing and get a release and have a discussion with the other prescriber. That's what I would do. And do you have any thoughts about that? Yeah. This is a tricky area because there are some statutes on it also. Like I know in Massachusetts, for example, you know, a year or two ago, they had a specific, like a notice to all prescribers about benzos and opioids. So it is kind of in the attention right now. I don't think it had any statutory guidelines in particular, but, you know, of course documenting that you've had a frank conversation about the risks probably goes a long way. Can you give the Q&A, maybe? Sure. All right. Well, thanks so much. And we'll be up here for any additional questions.

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