August 01, 2001 | Lise Van Susteren
Damages are of two types: direct, resulting from the doctors' failure to live up to their fiduciary responsibility arising out of the trust invested in them; or indirect, resulting from the doctor's negligence. Damages are not limited to dramatic and obvious cases. Emotional distress, which may arise from an untimely or inappropriately handled termination of therapy, may also be considered cause if it can be shown that the patient suffered greatly.
Lowering Your Risks
The likelihood of being charged with patient abandonment after terminating treatment can be reduced if the doctor follows a few simple steps and carefully records every step in the patient's chart.
- The doctor must emphasize the patient's need to continue treatment with another therapist. There should be no ambiguity about this, and the record should show that the patient has understood the continued need for treatment. It would be wise to discuss and document the reasons why treatment should not be stopped.
- Reasons why the doctor cannot continue to provide treatment must be reviewed with the patient. Most patients will believe that they are being let go because the doctor does not like them, regardless of what the doctor says. Whether or not this is true, every effort should be made to preserve the patient's self-respect. Clearly it would be a failure on the part of the therapist if the patient went away feeling beyond hope or help.
- Reasonable efforts to see that a patient has another therapist should be made. The likelihood of the new therapeutic relationship being successful must be considered in making a referral.
- The termination process should take enough time to reasonably expect that a successful transition will take place. Within a reasonable time prior to the sale or other disposition of one's practice, the physician should provide written notice to all patients. Included in the notice should be the date the physician is withdrawing from the patient's care and a statement informing the patient that consent will be necessary to transfer medical records to another physician.
Managed care patients are at risk of having their psychiatric benefits suddenly denied -- with little or no warning -- even though they may be very much in need of further treatment. Legislation regarding psychiatrists' medical responsibilities toward patients has not caught up with this reality. Therefore, doctors continue to be responsible for the standard of care, even though it is the managed care company that determines the benefits. For this reason, although it may be the managed care company refusing to authorize payment for mental health care services, it is the doctor who may be sued even when the doctor had no role in making those decisions, or even worse, argued against the decision. Managed care companies have used loopholes in the Employee Retirement Insurance Security Act (ERISA) to protect themselves from liability. This issue continues to be debated in the courts.
To protect themselves in the event of denial of care by the managed care company, psychiatrists must show that all options to see the patient receives appropriate medical care have been exhausted. All efforts must be recorded in detail in the patient's chart, including consultations with colleagues.
No matter what policies or obligations have been agreed to or incurred as a result of a relationship with a managed care company, in the end, doctors may not suspend their own ethics or sidestep a patient's genuine need for treatment. This is true regardless of whether or not the doctor is financially or otherwise inconvenienced. Patient care is primary.
The doctor must not peremptorily drop the patient, particularly at a time of crisis, but must continue until the patient is reasonably assured of adequate alternative treatment. After a careful and reasonable transition, subsequent referral to a low-fee clinic may be the only remaining option if a patient's resources have dried up.
Wickline v State of California (183 Cal App 3d 1175, 228 Cal Rptr 661; Cal Ct App 1986), while not a psychiatric case, illustrates the responsibilities doctors may have in dealing with managed care decisions. In this case, a managed care company refused to authorize payment for a patient's continued hospital stay, even though the treating physician argued that the patient needed it. The patient was thereby discharged. She was readmitted to the hospital after developing gangrene in her leg, which had to be amputated. The patient sued, and the managed care company (Medi-Cal) was initially held liable. On appeal, however, the court said that the doctor ultimately was responsible for the patient's medical care, notwithstanding decisions made by the managed care company (192 Cal.App.3d 1630). The decision stated that the doctor should have argued more exhaustively for the patient's continuing hospital care.
On the heels of Wickline, in Howard E. Wilson Sr. v Blue Cross of Southern California (222 Cal App 3d 660 1990), the California Court of Appeals found the insurance company liable. Hospitalized for depression and drug dependency, Wilson's son was discharged against his psychiatrist's wishes after the insurance company's utilization review committee refused to pay for further hospitalization. In the days that followed, Wilson's son committed suicide. In its decision, the court found that insurance companies are not immune from the consequences of decisions made by their utilization review committees.
A psychiatrist is absolved of responsibility to treat a patient if fired by that patient. However, in some instances the firing is "incompetent." An extreme example is the angry, psychotic manic who plans a violent act, but fires his therapist first. This individual is far from no longer being a patient of that therapist. Of course, there are more subtle incompetent firings, many emanating from transference issues or other misunderstandings. These firings should be explored as treatment issues rather than being acted upon immediately.
It might seem reasonable to assume that failure to comply with treatment is justifiable grounds for termination, however, physicians should observe all the previous precautions before ending a relationship with a noncompliant patient.
While an initial visit with a patient does not necessarily imply a treatment relationship, it certainly may. One way to assure that the relationship is not binding is to discuss the nature of the initial meeting(s) as an evaluation process.
Occasionally, patients will stop coming to therapy with no explanation. Obviously, a therapist cannot force a patient to continue therapy -- but this does not absolve the therapist of all responsibility. The prudent response is to notify the patient in writing of the need for continued treatment and of the doctor's availability to discuss any problems. The therapist may reasonably set a cut-off date -- after which the patient's absence or silence will be considered as evidence that the patient has terminated the relationship.
Patients must pay their bills. It would be detrimental to the patient's acceptance of responsibility, as well as an indication of something unusual about the therapist, if bills were allowed to go unpaid. No therapist should suddenly end a relationship because of an unpaid or disputed bill. It would be legitimate to do so, however, after reasonable efforts to work things out have failed and the patient has had suitable warning.
There are, however, circumstances that may hamper a cooperative patient's ability to pay, such as problems with insurance, job loss or sudden illness, and the question of abandonment can arise if the patient stops therapy due to lack of funds. While no psychiatrist is required to work for free for extended periods of time, some largesse is expected by the court (especially juries) when patients are in crisis.
Of course, psychiatrists will have different opinions about what constitutes lack of funds. Does a patient's refusal to work extra hours in order to pay for needed treatment constitute a need for the psychiatrist to provide transitional services? These types of questions are tricky and require consultation with colleagues and the lawyers or legal experts of malpractice insurance companies. Their opinions should be recorded and followed, as they will apply the same standard of care as the courts.
Psychiatrists need to be wary about how they manage patients with ongoing drug or alcohol addiction. In the face of the patient's continuing addiction, legitimate reasons for ending the relationship would include the refusal to participate in any recovery program or to consult with addiction specialists. If the doctor has made reasonable attempts to help the addicted patient but repeatedly fails, after suitable warning the doctor would be justified in terminating treatment. With these types of patients, making a referral to another therapist or treatment center is essential.
No psychiatrist needs to feel obliged to deal with outright liars or cheats. Simply not liking a patient, however, does not justify suddenly terminating treatment. Outrageous though it may seem, a patient who has threatened or even attacked his therapist must also be managed in a way that avoids the appearance of abandonment.
To a psychiatrist, the courts may at times seem fickle or naive. For example, in Hess v Frank (47 AD2d 889, 367 NYS2d 30 - NY App Div 1975), the therapist had a screaming match with a long-term patient over an unpaid bill and disputed sessions. In this case, the court found that the issue of payment of the bill lay outside the therapeutic relationship and was, therefore, not legitimate grounds for malpractice. The case was thrown out.
Cases of No Liability
As a consultant, a psychiatrist may contract to perform a specific task, such as evaluating a patient for a second opinion or for forensic or other purposes.
In Brandt v Grubin (131 NJ Super 182, 329 A.2d 82 1974), a physician was called in as a consultant. After giving medication to the patient, he recommended the patient see a psychiatrist. In the meantime, the patient committed suicide. The physician was then sued for abandonment. The court found that the physician had completed the task for which he was engaged -- the evaluation and recommendation for additional, specialized treatment. Once the job for which the physician was contracted has been performed, there is no obligation to deepen or expand involvement.
Clinicians must remember that if there are no damages there is no case. A patient may be angry or have hurt feelings, but something more substantial is needed to qualify as emotional distress. Simply dumping a patient, although ethically reprehensible, will not give cause for legal action unless the court determines that substantial physical or emotional harm occurred as a direct result.
Duty to Terminate
Working with psychiatric patients can indeed be challenging. Continuing to treat a patient long after it is clear the chosen treatment is not working can be seen as the flip side to abandonment. A psychiatrist does have a legal (and an ethical) duty not to continue ineffective treatment. In Ison v McFall (55 Tenn. App. 326, 400 S.W.2d 243 Tenn Ct App 1986), the court described the duty to terminate ineffective or dangerous treatment.
A corollary is Osheroff v Chestnut Lodge (490 A2d 720, 722 Md App 1985), in which Osheroff, a physician himself, underwent months of ineffective psychodynamic treatment, including hospitalization, for major depression. When he was finally given antidepressants by other psychiatrists, he rapidly improved and was able to resume his normal life. Osheroff sued Chestnut Lodge and the psychiatrists who failed to treat him with medication for malpractice. The case was settled out of court.
Physicians should consider, even if actions could be justified to colleagues -- who understand the ins and outs of treating psychiatric patients -- how their actions would be perceived by the patient, the patient's family, or a judge and a jury. For adequate protection against charges of failing one's duty with a patient, a physician may well have to perform "above and beyond the call of duty." This should result in decisions that allow for good treatment and keep us out of legal danger.
"Audrey" is a particularly troubled and difficult patient of "Dr. Darrow." Audrey continually tries Dr. Darrow's therapeutic skills by telling him that he is incompetent and that she has not made any progress. She insists she is going to end up in a mental hospital if he does not find a better medicine for her or make more helpful interpretations of her condition. At work, Audrey has not been reliable, and the agency that employs her has warned her that if things did not improve they would have to let her go. Over the weekend, Audrey breaks up with her boyfriend. In the mail Monday morning, she receives a form letter from her managed care company indicating that she will no longer receive benefits for therapy. Audrey shows up for her appointment with Dr. Darrow sobbing and blaming him for her lack of progress and resultant breakup with her boyfriend.
Dr. Darrow is wondering how he can get rid of this patient, not only because he does not like her but also because he has recently passed his forensic boards and could earn a lot more money doing forensic psychiatry. Dr. Darrow decides this is an ideal time to get rid of Audrey. He tells her he thinks she would be much better off with another therapist. Afraid of the repercussions from referring a patient who is not only a pain in the neck but probably will not pay her bill, Dr. Darrow fails to give her the names of any other therapist and he does not refer her to a clinic.
Case Study Discussion
If Audrey loses her job or can prove other damages, Dr. Darrow has opened himself to liability. A psychiatrist should never refer a patient or risk a suit for abandonment when that patient is in crisis. Even if a patient is threatening the therapist, physically or otherwise, the therapist still has some responsibilities to that patient. At the very least, Dr. Darrow should have referred Audrey to another doctor or mental health care center.
It would strain anyone's therapeutic credulity to believe that Audrey needed no further help. Therefore, even if Dr. Darrow were to carefully announce and meticulously document that he was terminating treatment, he would be leaving himself vulnerable to an abandonment suit if he simply declared Audrey needed no further treatment and he was, therefore, closing her case. A psychiatrist must not summarily terminate therapy without the patient's consent by stating the patient needs no further help.
If Dr. Darrow decided to cushion the blow and see Audrey only once in a while, he would also be asking for trouble. A therapist must not propose nor agree to see a seriously ill patient only infrequently.
Even if Audrey were not in crisis, Dr. Darrow should not terminate therapy with her simply because he does not like her. While disliking her could ultimately stand in the way of providing good treatment for Audrey, it must not be used as an excuse to unceremoniously dump her.
A psychiatrist who is selling or giving up his practice, as Dr. Darrow is contemplating, must be sure patients do not fall through the cracks as a result. An unequivocal statement stressing the importance of continuing treatment as well as the assurance that appropriate treatment is in place may, in some cases, be imperative. The potential perils of giving up one's practice can be seen in the tragic case of Williamson v Liptzin in North Carolina.
Myron Liptzin, M.D., had seen Wendell Williamson six times before retiring from the student health center. Eight months after their last session, having stopped taking his medicine, Williamson became delusional and shot to death two students on the University of North Carolina campus. Liptzin was found negligent for failing to adequately inform Williamson about the gravity of his illness and the absolute need to continue treatment. Although Liptzin had told Williamson that he was retiring and that Williamson would need to see another psychiatrist on staff, Liptzin was criticized for failing to refer Williamson to a specific therapist and insuring that an appointment was set up. (On Dec. 19, 2000, the court of Appeals of North Carolina unanimously agreed with the arguments made by the University and the North Carolina Psychiatric Association and ordered the trial court judge to enter a verdict in favor of Liptzin -- Ed.)