OVERVIEW

Definitions

A medical malpractice action is a lawsuit brought by a patient against a physician or other medical provider in order to receive financial compensation for injury sustained by the patient or, in the case of suicide, their survivors, due to negligent medical care. Malpractice actions also serve to deter physicians from unsafe medical practice and to exact corrective justice.¹ There are four basic elements of a malpractice suit (often referred to as the four D’s):

Duty: There is an existing doctor/patient relationship.
Dereliction: The medical provider engaged in negligent care.
Damages: The patient experienced a bad or undesired outcome.
Direct Causation: Were it not for the negligent care of the provider, the patient would not have experienced damages.

General Principles

Malpractice claims are most common among procedurally-based specialties such as surgery, obstetrics/gynecology, otolaryngology, urology, and orthopedics. Pediatricians and psychiatrists are the least likely to be sued.² The vast majority of malpractice claims are dismissed or decided in the doctor’s favor.

Types of Policies

In claims-made policies, coverage is only provided for claims that occurred and were filed during the coverage period. Claims filed after the coverage period are not covered, unless the policy includes “tail coverage” which covers claims filed after the policy is no longer in effect.
Occurrence policies provide coverage for any incident during the coverage period that gives rise to a malpractice, regardless if the claim is filed after the policy was in effect.

All medical malpractice payments, whether settlements or verdicts, are reportable to the National Practitioner Data Bank (NPDB) which may provide disclosures to hospitals, medical boards, professional societies, and various health care entities. The most common successful malpractice claims faced by psychiatrists include suicide, incorrect treatment, and breach of confidentiality.

Jurisdictional Considerations

Medical malpractice actions are decided in state courts and are guided by the rules of civil procedure in each state. Many states have passed tort reform measures to limit malpractice costs because they contribute to overall health care costs. Some states have limited or capped awards for damages, developed more restrictive statutes of limitation (requiring that a claim be filed within a limited time frame [e.g., within 2 years in 31 states]), required mediation, and tightened requirements for expert witnesses. The litigation process itself may be lengthy; lawsuits dismissed in court averaged over 20 months and those that settle averaged over 28 months.

CLINICAL SCENARIOS

Scenario #1: A patient recently discharged from an inpatient psychiatric facility died from suicide after overdosing on her discharge medications. Her estate sues the treating psychiatrists for negligent treatment and release.

In the event of a bad clinical outcome, it is prudent to consult with a hospital risk manager, or, if in outpatient practice, your malpractice insurance carrier. This should be done prior to receiving notice of a lawsuit.
In the event of a medical malpractice action, do not contact the plaintiff’s attorney and do not discuss the case with family members, colleagues and friends. All communication with the plaintiff’s attorney must be left to your defense attorney.
Above all, do not modify the medical record after an adverse event.

Scenario # 2: A patient who presents with severe major depression is prescribed an antidepressant. After nine months of failure to improve, inability to work or function well at home, and after adequate trials of two additional antidepressants, she seeks a second opinion. The second psychiatrist recommends a course Electroconvulsive Therapy (ECT), after which her depression improves and she is able to resume work and her usual activities. She sues the initial psychiatrist for failing to recommend ECT earlier in the course of treatment.

The best defense against the likelihood of facing a malpractice claim is reasonable medical practice, following generally accepted standards of care, clear communication with the patient, and clear documentation.
In difficult cases such as this one, it is frequently prudent for a clinician to recommend a second opinion and inform patients of alternative treatment options.

ADDITIONAL TIPS

In difficult clinical situations, it is often helpful to consult colleagues and to document in the chart that you have done so.
If alternative effective treatments are available, even if they require referral to another clinician, the patient should be informed about them

Documentation Tips

The most useful documentation in preventing a successful malpractice claim is the documentation of “medical decision making”. This documentation should outline the rationale behind treatment decisions. Additionally, with suicidal patients, it is useful to document suicide risk assessments at times of transition in the level of care (i.e., removing suicide precautions, discharging from hospital, etc.). Documentation in high risk cases should be done with special consideration to document the risk – benefit analyses for treatment decisions and awareness of the potential for negative outcomes. For example, for a patient with Borderline Personality Disorder chronic suicidal ideation and a history of multiple attempts, it may be useful to document that “although the patient is chronically at risk for suicide, hospitalizations in the past have led to regression and, ultimately, worsening of his/her suicide risk. Therefore, continued outpatient treatment without hospitalization is indicated from a risk/benefit perspective.”

Finally, and most importantly, never alter a medical record or attempt to recreate missing records after an undesirable clinical outcome.

REFERENCES

Studdert DM, Mello MM, Brennan TA. Medical malpractice. N Engl J Med. 2004 Jan 15;350(3):283-92.
Medscape: Malpractice report 2017. Available from: https://www.medscape.com/slideshow/2017-malpractice-report-6009206
Medscape: Malpractice and Medicine: Who Gets Sued and Why? 2015. Available from: https://www.medscape.com/viewarticle/855229_1
Frierson RL, Joshi KG. Malpractice Law and Psychiatry: An Overview. Focus (Am Psychiatr Publ). 2019 Oct; 17(4):332-336.
National Conference of State Legislatures: Medical malpractice reform – health cost containment (2014). Available from: https://www.ncsl.org/research/health/medical-malpractice-reform-health-cost-brief.aspx
Norton A: Docs Win Most Malpractice Suits, But Road Is Long. Reuters Health News May 23, 2012. Available from: https://www.reuters.com/article/us-docs-win-most-idUSBRE84M11N20120523

Additional Reading

Medical Malpractice Insurance. American College of Physicians. Available from: https://www.acponline.org/about-acp/about-internal-medicine/career-paths/residency-career-counseling/guidance/medical-malpractice-insurance
Reporting Medical Malpractice Payments. The NPDB Guidebook. National Practitioner Data Bank. Available from: https://www.npdb.hrsa.gov/resources/aboutGuidebooks.jsp

Overview | Clinical Scenarios | Additional Tips | References

By Richard Frierson, MD