Douglas Mossman, MD

Dear Dr. Mossman:

Multiple studies support the reliability and validity of actuarial measures—such as the Historical, Clinical, and Risk Management (HCR-20) risk assessment scheme—to assess violence risk, whereas physicians’ clinical judgment is highly variable. Should clinicians use actuarial measures to assess a patient’s risk of violence? Could it be considered negligent not to use actuarial measures?—Submitted by “Dr. S”

In the 30 years since the Tarasoff decision—which held that psychiatrists have a duty to protect individuals who are being threatened with bodily harm by a patient¹—assessing patients’ risk of future violence has become an accepted part of mental health practice.² Dr. S has asked 2 sophisticated questions about risk assessment. The short answer is that although so-called “actuarial” techniques for assessing risk are valuable, psychiatrists who do not use them are not practicing negligently. To explain why, this article discusses:

• the difference between “clinical” and “actuarial” judgment
  
• the HCR-20’s strengths and weaknesses
  
• actuarial measures and negligence.
  

Clinical vs actuarial judgment

In the 1970s and 1980s, mental health professionals believed they could not accurately predict violence.³ We now know this is not correct. Since the 1990s, when researchers adopted better methods for gauging the accuracy of risk assessments,^4-6 research has shown that mental health clinicians can assess dangerousness with clearly-better-than-chance accuracy, whether the assessment covers just the next few days, several months, or years.⁴

Over the same period, psychologists recognized that when it comes to making predictions, clinical judgment—making predictions by putting together information in one’s head—often is inferior to using simple formulae derived from empirically demonstrated relationships between data and outcome.⁷ This approach—“actuarial” judgment—is how insurance companies use data to calculate risk.

By the late 1990s, psychologists had developed actuarial risk assessment instruments (ARAIs)⁸ that could accurately rank the likelihood of various forms of violence. Table 1 lists some well-known ARAIs and the populations for which they were designed. In clinical practice, psychiatrists usually focus on risk posed by psychiatric patients. The HCR-20⁹ was designed to help evaluate this type of risk.

Table 1

Examples of actuarial risk assessment instruments (ARAIs)

ARAI	Risk assessed
HCR-209	Violence in psychiatric populations, such as formerly hospitalized patients
Classification Of Violence Risk (COVR)	Violence by civil psychiatric patients following discharge into the community
Violence Risk Assessment Guide (VRAG)	Violent recidivism by formerly incarcerated offenders
Static-99	Recidivism by sex offenders

HCR-20’s pros and cons

The HCR-20 has 20 items:

• 10 concerning the patient’s history
  
• 5 related to clinical factors
  
• 5 that deal with risk management (Table 2).
  

To evaluate a patient’s risk of violence, you score each item 0, 1, or 2, depending on how closely the patient matches the described characteristic. For example, when scoring item C3 (active symptoms of major mental illness), a patient gets 0 for “no active symptoms,” 1 for “possible/less serious active symptoms,” or 2 for “definite/serious active symptoms.” An individual can receive a total HCR-20 score of 0 to 40. The higher the score, the higher the likelihood of violence in the coming months.

To use the HCR-20 as an exercise of true actuarial judgment, you would base your opinion of a patient’s risk of violence solely on the HCR-20 score, without regard for other patient factors. However, the HCR-20’s developers think this approach “may be unreasonable, unethical, and illegal.”⁹ One reason is that the HCR-20 omits obvious signs of potential violence, such as a clearly stated threat with unambiguous intent to act.

The HCR-20’s designers hope clinicians will use this instrument to “structure” clinical judgments about dangerousness. The HCR-20 reminds clinicians to identify and evaluate known risk factors for violence. Clinicians can then address those factors to better manage their patients.

For example, if a patient is doing well in the hospital (and has a low score on HCR-20 clinical items), a psychiatrist might assume the patient will cause few problems after discharge. But if the risk management items generate a high score, the psychiatrist should realize that these factors raise the patient’s violence risk and may require additional intervention—perhaps a different type of community placement or special effort to help the patient follow up with out-patient treatment.

 

Table 2

Items from the Historical, Clinical, and Risk Management (HCR-20)

Historical items	Clinical items	Risk management items
H1 Previous violence	C1 Lack of insight	R1 Plans lack feasibility
H2 Young age at first incident	C2 Negative attitudes	R2 Exposure to destabilizers
H3 Relationship instability	C3 Active symptoms of major mental illness	R3 Lack of personal support
H4 Employment problems	C4 Impulsivity	R4 Noncompliance with remediation attempts
H5 Substance use problems	C5 Unresponsive to treatment	R5 Stress
H6 Major mental illness
H7 Psychopathy
H8 Early maladjustment
H9 Personality disorder
H10 Prior supervision failure
Score each item 0, 1, or 2, depending on how closely the patient matches the described characteristic. For example, when scoring item C3 (active symptoms of major mental illness), a patient gets 0 for “no active symptoms,” 1 for “possible/less serious active symptoms,” or 2 for “definite/serious active symptoms.” An individual can receive a total HCR-20 score of 0 to 40. The higher the score, the higher likelihood of violence in the coming months.
Source: Reprinted with permission from Webster CD, Douglas KS, Eaves D, Hart SD. HCR-20: assessing risk for violence, version 2. Burnaby, British Columbia, Canada: Simon Fraser University, Mental Health, Law, and Policy Institute; 1997

Is not using ARAIs negligent?

Some writers believe that using ARAIs should¹² or may soon¹³ become the standard of care. Why, then, do psychiatrists seldom use ARAIs in their clinical work? Partly it is because clinicians rarely receive adequate training in assessing violence risk or the science supporting it. After a 5-hour training module featuring the HCR-20, psychiatry residents could better identify factors that affect violence risk, organize their reasoning, and come up with risk management strategies.²

Psychiatrists may have other reasons for not using ARAIs that make clinical sense. Although ARAIs can rank individuals’ violence risk, the probabilities of violence associated with each rank aren’t substantial enough to justify differences in management.¹⁴ Scientifically, it’s interesting to know that we can separate patients into groups with “low” (9%) and “high” (49%) risks of violence.¹⁵ But would you want to manage these patients differently? Most psychiatrists probably would not feel comfortable ignoring a 9% risk of violence.

Also, ARAIs typically focus on factors that influence violence risk over weeks, months, or years. But as Simon¹⁶ notes, clinicians often are asked to address “imminent” violence. No agreed-upon definition of imminence exists, but even if the meaning were clear, ARAIs “are insensitive to patients’ clinical changes that guide treatment interventions or gauge the impact of treatment.”¹⁶

To avoid negligence, psychiatrists need only “exercise the skill, knowledge, and care normally possessed and exercised by other members of their profession.”¹⁷ Psychiatrists seldom use ARAIs,¹² so failing to use them cannot constitute malpractice. As Simon points out, a practicing psychiatrist’s role is to treat patients, not predict violence. He concludes, “at this time, the standard of care does not require the average or reasonable psychiatrist to use actuarial assessment instruments in the evaluation and treatment of potentially violent patients.”¹⁶

Dear Dr. Mossman:

Multiple studies support the reliability and validity of actuarial measures—such as the Historical, Clinical, and Risk Management (HCR-20) risk assessment scheme—to assess violence risk, whereas physicians’ clinical judgment is highly variable. Should clinicians use actuarial measures to assess a patient’s risk of violence? Could it be considered negligent not to use actuarial measures?—Submitted by “Dr. S”

In the 30 years since the Tarasoff decision—which held that psychiatrists have a duty to protect individuals who are being threatened with bodily harm by a patient¹—assessing patients’ risk of future violence has become an accepted part of mental health practice.² Dr. S has asked 2 sophisticated questions about risk assessment. The short answer is that although so-called “actuarial” techniques for assessing risk are valuable, psychiatrists who do not use them are not practicing negligently. To explain why, this article discusses:

• the difference between “clinical” and “actuarial” judgment
  
• the HCR-20’s strengths and weaknesses
  
• actuarial measures and negligence.
  

Clinical vs actuarial judgment

In the 1970s and 1980s, mental health professionals believed they could not accurately predict violence.³ We now know this is not correct. Since the 1990s, when researchers adopted better methods for gauging the accuracy of risk assessments,^4-6 research has shown that mental health clinicians can assess dangerousness with clearly-better-than-chance accuracy, whether the assessment covers just the next few days, several months, or years.⁴

Over the same period, psychologists recognized that when it comes to making predictions, clinical judgment—making predictions by putting together information in one’s head—often is inferior to using simple formulae derived from empirically demonstrated relationships between data and outcome.⁷ This approach—“actuarial” judgment—is how insurance companies use data to calculate risk.

By the late 1990s, psychologists had developed actuarial risk assessment instruments (ARAIs)⁸ that could accurately rank the likelihood of various forms of violence. Table 1 lists some well-known ARAIs and the populations for which they were designed. In clinical practice, psychiatrists usually focus on risk posed by psychiatric patients. The HCR-20⁹ was designed to help evaluate this type of risk.

Table 1

Examples of actuarial risk assessment instruments (ARAIs)

ARAI	Risk assessed
HCR-209	Violence in psychiatric populations, such as formerly hospitalized patients
Classification Of Violence Risk (COVR)	Violence by civil psychiatric patients following discharge into the community
Violence Risk Assessment Guide (VRAG)	Violent recidivism by formerly incarcerated offenders
Static-99	Recidivism by sex offenders

HCR-20’s pros and cons

The HCR-20 has 20 items:

• 10 concerning the patient’s history
  
• 5 related to clinical factors
  
• 5 that deal with risk management (Table 2).
  

To evaluate a patient’s risk of violence, you score each item 0, 1, or 2, depending on how closely the patient matches the described characteristic. For example, when scoring item C3 (active symptoms of major mental illness), a patient gets 0 for “no active symptoms,” 1 for “possible/less serious active symptoms,” or 2 for “definite/serious active symptoms.” An individual can receive a total HCR-20 score of 0 to 40. The higher the score, the higher the likelihood of violence in the coming months.

To use the HCR-20 as an exercise of true actuarial judgment, you would base your opinion of a patient’s risk of violence solely on the HCR-20 score, without regard for other patient factors. However, the HCR-20’s developers think this approach “may be unreasonable, unethical, and illegal.”⁹ One reason is that the HCR-20 omits obvious signs of potential violence, such as a clearly stated threat with unambiguous intent to act.

The HCR-20’s designers hope clinicians will use this instrument to “structure” clinical judgments about dangerousness. The HCR-20 reminds clinicians to identify and evaluate known risk factors for violence. Clinicians can then address those factors to better manage their patients.

For example, if a patient is doing well in the hospital (and has a low score on HCR-20 clinical items), a psychiatrist might assume the patient will cause few problems after discharge. But if the risk management items generate a high score, the psychiatrist should realize that these factors raise the patient’s violence risk and may require additional intervention—perhaps a different type of community placement or special effort to help the patient follow up with out-patient treatment.

 

Table 2

Items from the Historical, Clinical, and Risk Management (HCR-20)

Historical items	Clinical items	Risk management items
H1 Previous violence	C1 Lack of insight	R1 Plans lack feasibility
H2 Young age at first incident	C2 Negative attitudes	R2 Exposure to destabilizers
H3 Relationship instability	C3 Active symptoms of major mental illness	R3 Lack of personal support
H4 Employment problems	C4 Impulsivity	R4 Noncompliance with remediation attempts
H5 Substance use problems	C5 Unresponsive to treatment	R5 Stress
H6 Major mental illness
H7 Psychopathy
H8 Early maladjustment
H9 Personality disorder
H10 Prior supervision failure
Score each item 0, 1, or 2, depending on how closely the patient matches the described characteristic. For example, when scoring item C3 (active symptoms of major mental illness), a patient gets 0 for “no active symptoms,” 1 for “possible/less serious active symptoms,” or 2 for “definite/serious active symptoms.” An individual can receive a total HCR-20 score of 0 to 40. The higher the score, the higher likelihood of violence in the coming months.
Source: Reprinted with permission from Webster CD, Douglas KS, Eaves D, Hart SD. HCR-20: assessing risk for violence, version 2. Burnaby, British Columbia, Canada: Simon Fraser University, Mental Health, Law, and Policy Institute; 1997

Is not using ARAIs negligent?

Some writers believe that using ARAIs should¹² or may soon¹³ become the standard of care. Why, then, do psychiatrists seldom use ARAIs in their clinical work? Partly it is because clinicians rarely receive adequate training in assessing violence risk or the science supporting it. After a 5-hour training module featuring the HCR-20, psychiatry residents could better identify factors that affect violence risk, organize their reasoning, and come up with risk management strategies.²

Psychiatrists may have other reasons for not using ARAIs that make clinical sense. Although ARAIs can rank individuals’ violence risk, the probabilities of violence associated with each rank aren’t substantial enough to justify differences in management.¹⁴ Scientifically, it’s interesting to know that we can separate patients into groups with “low” (9%) and “high” (49%) risks of violence.¹⁵ But would you want to manage these patients differently? Most psychiatrists probably would not feel comfortable ignoring a 9% risk of violence.

Also, ARAIs typically focus on factors that influence violence risk over weeks, months, or years. But as Simon¹⁶ notes, clinicians often are asked to address “imminent” violence. No agreed-upon definition of imminence exists, but even if the meaning were clear, ARAIs “are insensitive to patients’ clinical changes that guide treatment interventions or gauge the impact of treatment.”¹⁶

To avoid negligence, psychiatrists need only “exercise the skill, knowledge, and care normally possessed and exercised by other members of their profession.”¹⁷ Psychiatrists seldom use ARAIs,¹² so failing to use them cannot constitute malpractice. As Simon points out, a practicing psychiatrist’s role is to treat patients, not predict violence. He concludes, “at this time, the standard of care does not require the average or reasonable psychiatrist to use actuarial assessment instruments in the evaluation and treatment of potentially violent patients.”¹⁶

Dear Dr. Mossman:

Multiple studies support the reliability and validity of actuarial measures—such as the Historical, Clinical, and Risk Management (HCR-20) risk assessment scheme—to assess violence risk, whereas physicians’ clinical judgment is highly variable. Should clinicians use actuarial measures to assess a patient’s risk of violence? Could it be considered negligent not to use actuarial measures?—Submitted by “Dr. S”

In the 30 years since the Tarasoff decision—which held that psychiatrists have a duty to protect individuals who are being threatened with bodily harm by a patient¹—assessing patients’ risk of future violence has become an accepted part of mental health practice.² Dr. S has asked 2 sophisticated questions about risk assessment. The short answer is that although so-called “actuarial” techniques for assessing risk are valuable, psychiatrists who do not use them are not practicing negligently. To explain why, this article discusses:

• the difference between “clinical” and “actuarial” judgment
  
• the HCR-20’s strengths and weaknesses
  
• actuarial measures and negligence.
  

Clinical vs actuarial judgment

In the 1970s and 1980s, mental health professionals believed they could not accurately predict violence.³ We now know this is not correct. Since the 1990s, when researchers adopted better methods for gauging the accuracy of risk assessments,^4-6 research has shown that mental health clinicians can assess dangerousness with clearly-better-than-chance accuracy, whether the assessment covers just the next few days, several months, or years.⁴

Over the same period, psychologists recognized that when it comes to making predictions, clinical judgment—making predictions by putting together information in one’s head—often is inferior to using simple formulae derived from empirically demonstrated relationships between data and outcome.⁷ This approach—“actuarial” judgment—is how insurance companies use data to calculate risk.

By the late 1990s, psychologists had developed actuarial risk assessment instruments (ARAIs)⁸ that could accurately rank the likelihood of various forms of violence. Table 1 lists some well-known ARAIs and the populations for which they were designed. In clinical practice, psychiatrists usually focus on risk posed by psychiatric patients. The HCR-20⁹ was designed to help evaluate this type of risk.

Table 1

Examples of actuarial risk assessment instruments (ARAIs)

ARAI	Risk assessed
HCR-209	Violence in psychiatric populations, such as formerly hospitalized patients
Classification Of Violence Risk (COVR)	Violence by civil psychiatric patients following discharge into the community
Violence Risk Assessment Guide (VRAG)	Violent recidivism by formerly incarcerated offenders
Static-99	Recidivism by sex offenders

HCR-20’s pros and cons

The HCR-20 has 20 items:

• 10 concerning the patient’s history
  
• 5 related to clinical factors
  
• 5 that deal with risk management (Table 2).
  

To evaluate a patient’s risk of violence, you score each item 0, 1, or 2, depending on how closely the patient matches the described characteristic. For example, when scoring item C3 (active symptoms of major mental illness), a patient gets 0 for “no active symptoms,” 1 for “possible/less serious active symptoms,” or 2 for “definite/serious active symptoms.” An individual can receive a total HCR-20 score of 0 to 40. The higher the score, the higher the likelihood of violence in the coming months.

To use the HCR-20 as an exercise of true actuarial judgment, you would base your opinion of a patient’s risk of violence solely on the HCR-20 score, without regard for other patient factors. However, the HCR-20’s developers think this approach “may be unreasonable, unethical, and illegal.”⁹ One reason is that the HCR-20 omits obvious signs of potential violence, such as a clearly stated threat with unambiguous intent to act.

The HCR-20’s designers hope clinicians will use this instrument to “structure” clinical judgments about dangerousness. The HCR-20 reminds clinicians to identify and evaluate known risk factors for violence. Clinicians can then address those factors to better manage their patients.

For example, if a patient is doing well in the hospital (and has a low score on HCR-20 clinical items), a psychiatrist might assume the patient will cause few problems after discharge. But if the risk management items generate a high score, the psychiatrist should realize that these factors raise the patient’s violence risk and may require additional intervention—perhaps a different type of community placement or special effort to help the patient follow up with out-patient treatment.

 

Table 2

Items from the Historical, Clinical, and Risk Management (HCR-20)

Historical items	Clinical items	Risk management items
H1 Previous violence	C1 Lack of insight	R1 Plans lack feasibility
H2 Young age at first incident	C2 Negative attitudes	R2 Exposure to destabilizers
H3 Relationship instability	C3 Active symptoms of major mental illness	R3 Lack of personal support
H4 Employment problems	C4 Impulsivity	R4 Noncompliance with remediation attempts
H5 Substance use problems	C5 Unresponsive to treatment	R5 Stress
H6 Major mental illness
H7 Psychopathy
H8 Early maladjustment
H9 Personality disorder
H10 Prior supervision failure
Score each item 0, 1, or 2, depending on how closely the patient matches the described characteristic. For example, when scoring item C3 (active symptoms of major mental illness), a patient gets 0 for “no active symptoms,” 1 for “possible/less serious active symptoms,” or 2 for “definite/serious active symptoms.” An individual can receive a total HCR-20 score of 0 to 40. The higher the score, the higher likelihood of violence in the coming months.
Source: Reprinted with permission from Webster CD, Douglas KS, Eaves D, Hart SD. HCR-20: assessing risk for violence, version 2. Burnaby, British Columbia, Canada: Simon Fraser University, Mental Health, Law, and Policy Institute; 1997

Is not using ARAIs negligent?

Some writers believe that using ARAIs should¹² or may soon¹³ become the standard of care. Why, then, do psychiatrists seldom use ARAIs in their clinical work? Partly it is because clinicians rarely receive adequate training in assessing violence risk or the science supporting it. After a 5-hour training module featuring the HCR-20, psychiatry residents could better identify factors that affect violence risk, organize their reasoning, and come up with risk management strategies.²

Psychiatrists may have other reasons for not using ARAIs that make clinical sense. Although ARAIs can rank individuals’ violence risk, the probabilities of violence associated with each rank aren’t substantial enough to justify differences in management.¹⁴ Scientifically, it’s interesting to know that we can separate patients into groups with “low” (9%) and “high” (49%) risks of violence.¹⁵ But would you want to manage these patients differently? Most psychiatrists probably would not feel comfortable ignoring a 9% risk of violence.

Also, ARAIs typically focus on factors that influence violence risk over weeks, months, or years. But as Simon¹⁶ notes, clinicians often are asked to address “imminent” violence. No agreed-upon definition of imminence exists, but even if the meaning were clear, ARAIs “are insensitive to patients’ clinical changes that guide treatment interventions or gauge the impact of treatment.”¹⁶

To avoid negligence, psychiatrists need only “exercise the skill, knowledge, and care normally possessed and exercised by other members of their profession.”¹⁷ Psychiatrists seldom use ARAIs,¹² so failing to use them cannot constitute malpractice. As Simon points out, a practicing psychiatrist’s role is to treat patients, not predict violence. He concludes, “at this time, the standard of care does not require the average or reasonable psychiatrist to use actuarial assessment instruments in the evaluation and treatment of potentially violent patients.”¹⁶

Dear Dr. Mossman,

I prescribed topiramate for Mr. B, a patient with no history of kidney stones. Many months later he developed back pain. During the medical workup for a possible kidney stone, Mr. B and I revisited the risk of kidney stones with topiramate, which we had discussed at the beginning of therapy. Mr. B was adamantly opposed to stopping topiramate, even if he had a kidney stone. Testing revealed that Mr. B did not have a stone, but I wasn’t sure how to proceed. I worried that I might be found liable if Mr. B stayed on topiramate and did develop a kidney stone.—Submitted by Dr. A

When a patient develops a medical problem from a drug you prescribed, it is natural to feel responsible—after all, your treatment caused the adverse event. But did you commit malpractice? To answer this, let’s review the concept of “medical negligence.”

Malpractice law applies legal principles of negligence to professional conduct.¹ The elements of a negligence case (Table 1) can be summarized as “breach of duty causing damages.” Therefore, when you wonder whether possible harm to a patient might be considered malpractice, ask yourself, “Did I breach my professional duty?”

Physicians have a duty to practice within their specialty’s standard of care, and if they do this, they should not be held liable even if their treatments cause adverse effects. Each jurisdiction defines the standard of care differently, but the general expectation is “that physicians acting within the ambit of their professional work will exercise the skill, knowledge, and care normally possessed and exercised by other members of their profession…in the relevant medical community.”¹

It’s impossible to describe all the skills, knowledge, and care a psychiatrist normally employs when prescribing a drug, but elements of good practice include reasonable efforts to:

• make an appropriate diagnosis
  
• offer appropriate treatment
  
• monitor effects of treatment.
  

Further, treatment should occur only when a patient gives informed consent. Let’s examine each of these elements as they apply to Dr. A and Mr. B.

Table 1

Elements of a successful negligence case

Defendant owed the plaintiff a duty of care Defendant breached that duty Defendant’s conduct harmed the plaintiff Defendant’s conduct was a “proximate cause,” meaning it had a significant relationship to the harm Legally recognized damages, such as a physical injury, occurred
Source: Reference 1

Appropriate assessment

Despite the availability of guidelines for psychiatric evaluation,^2,3 it is tough to summarize everything psychiatrists do when assessing patients. But—focusing on Dr. A’s question—it is reasonable to ask: Did the psychiatric evaluation provide reasonably good evidence that Mr. B had a condition that topiramate might alleviate? Mr. B’s strong desire to keep taking the drug suggests that the answer is “yes.”

Another part of assessment is considering whether a patient has medical conditions that might contraindicate topiramate or affect prescribing. Typically, psychiatrists learn about these matters by careful history-taking and laboratory testing. In addition to kidney stones, topiramate is associated with increased risk for secondary angle closure glaucoma, hyperthermia, metabolic acidosis, cognitive dysfunction, mood changes, and sedation.⁴

Dr. A also should consider potential interactions between topiramate and any other medications that Mr. B is taking. A prudent clinician must judge whether the potential benefit of topiramate for Mr. B outweighs the risk of adverse effects. If Mr. B actually had developed a kidney stone, Dr. A might seek a nephrologist’s advice about how to minimize the risk of recurrence.

Appropriate treatment

Topiramate is FDA-approved only for treating seizures and for prophylaxis against migraine headaches. However, FDA approval limits only how pharmaceutical companies can promote a medication.⁴ Physicians may prescribe drugs for unapproved “off-label” uses, and doing so is accepted medical practice. Peer-reviewed publications support using topiramate to treat agitation,⁵ alcohol dependence,⁶ binge-eating disorder,⁷ and other conditions that psychiatrists often manage. A tendency to promote weight loss has made topiramate an attractive add-on medication for patients whose weight problems are causing other health difficulties.⁸

 

Assuming that Mr. B is taking topiramate for an off-label purpose, an appropriate question to ask is, “Does professional literature support use of topiramate in Mr. B’s circumstances?” Also, given everything known about Mr. B up to this point, is topiramate a good treatment choice?

Appropriate monitoring

As every clinician knows, medications can cause problems. Monitoring topiramate therapy involves periodic lab testing and assessment of effectiveness. Dr. A should feel reasonably sure that Mr. B—assisted by a family member or close friend, if necessary—can and will cooperate with monitoring requirements. Dr. A also should verify that Mr. B can grasp and follow instructions designed to avert complications—such as ample hydration to reduce risk of nephrolithiasis—and will promptly address problems if they occur.

Informed consent

Informed consent is especially important when a patient receives a treatment that has a known risk. Although the Physician’s Desk Reference does not list previous kidney stones as a contraindication to topiramate therapy, it urges caution under these circumstances.⁴ Therefore, if Dr. A wishes to prescribe topiramate for a patient with a history of kidney stone, the patient should meaningfully collaborate in the treatment decision.

Informed consent for treatment requires that patients not feel coerced by the doctor or setting and have the mental capacity or competence to give consent. Under the conceptualization developed by Appelbaum and Grisso,⁹ competent patients can:

• express a consistent choice
  
• understand medical information provided to them
  
• appreciate how this information applies to them and their condition
  
• reason logically about treatment.
  

Most psychiatric outpatients have capacity to consent to treatment, but if you have doubts, assess the patient’s capacity systematically. Appelbaum¹⁰ provides a superb summary of these concepts and suggested questions to ask your patient (Table 2).

What information should patients receive before giving consent? The legal standard varies, but in most U.S. jurisdictions, patients “are entitled to material information about the nature of any proposed medical procedure. For example, patients are entitled to information about the risks of the procedure, its necessity, and alternate procedures that might be preferable.”¹ Topiramate’s manufacturer instructs physicians to question and warn patients about the risk of kidney stones—which Dr. A did in Mr. B’s case. When you prescribe a drug off-label, you may want to tell patients this, but explain why the drug is appropriate nonetheless.

Table 2

Evaluating a patient’s capacity to consent to treatment

Is this patient able to?	Questions to ask
Express a clear treatment preference	What treatment have you chosen?
Understand basic information communicated by caregivers	Can you tell me in your own words about your condition and the treatment options I have told you about?
Appreciate his or her medical condition and how information about treatment applies	What do you think is wrong with your health now? Do you think you need some kind of treatment? What do you think treatment will do for you?
Reason logically when choosing treatment options	Why did you choose this treatment? Why is it better than your other treatment options?
Source: Adapted and reprinted with permission from Appelbaum PS. Assessment of patients’ competence to consent to treatment. N Engl J Med 2007;357:1834-40

Dear Dr. Mossman,

I prescribed topiramate for Mr. B, a patient with no history of kidney stones. Many months later he developed back pain. During the medical workup for a possible kidney stone, Mr. B and I revisited the risk of kidney stones with topiramate, which we had discussed at the beginning of therapy. Mr. B was adamantly opposed to stopping topiramate, even if he had a kidney stone. Testing revealed that Mr. B did not have a stone, but I wasn’t sure how to proceed. I worried that I might be found liable if Mr. B stayed on topiramate and did develop a kidney stone.—Submitted by Dr. A

When a patient develops a medical problem from a drug you prescribed, it is natural to feel responsible—after all, your treatment caused the adverse event. But did you commit malpractice? To answer this, let’s review the concept of “medical negligence.”

Malpractice law applies legal principles of negligence to professional conduct.¹ The elements of a negligence case (Table 1) can be summarized as “breach of duty causing damages.” Therefore, when you wonder whether possible harm to a patient might be considered malpractice, ask yourself, “Did I breach my professional duty?”

Physicians have a duty to practice within their specialty’s standard of care, and if they do this, they should not be held liable even if their treatments cause adverse effects. Each jurisdiction defines the standard of care differently, but the general expectation is “that physicians acting within the ambit of their professional work will exercise the skill, knowledge, and care normally possessed and exercised by other members of their profession…in the relevant medical community.”¹

It’s impossible to describe all the skills, knowledge, and care a psychiatrist normally employs when prescribing a drug, but elements of good practice include reasonable efforts to:

• make an appropriate diagnosis
  
• offer appropriate treatment
  
• monitor effects of treatment.
  

Further, treatment should occur only when a patient gives informed consent. Let’s examine each of these elements as they apply to Dr. A and Mr. B.

Table 1

Elements of a successful negligence case

Defendant owed the plaintiff a duty of care Defendant breached that duty Defendant’s conduct harmed the plaintiff Defendant’s conduct was a “proximate cause,” meaning it had a significant relationship to the harm Legally recognized damages, such as a physical injury, occurred
Source: Reference 1

Appropriate assessment

Despite the availability of guidelines for psychiatric evaluation,^2,3 it is tough to summarize everything psychiatrists do when assessing patients. But—focusing on Dr. A’s question—it is reasonable to ask: Did the psychiatric evaluation provide reasonably good evidence that Mr. B had a condition that topiramate might alleviate? Mr. B’s strong desire to keep taking the drug suggests that the answer is “yes.”

Another part of assessment is considering whether a patient has medical conditions that might contraindicate topiramate or affect prescribing. Typically, psychiatrists learn about these matters by careful history-taking and laboratory testing. In addition to kidney stones, topiramate is associated with increased risk for secondary angle closure glaucoma, hyperthermia, metabolic acidosis, cognitive dysfunction, mood changes, and sedation.⁴

Dr. A also should consider potential interactions between topiramate and any other medications that Mr. B is taking. A prudent clinician must judge whether the potential benefit of topiramate for Mr. B outweighs the risk of adverse effects. If Mr. B actually had developed a kidney stone, Dr. A might seek a nephrologist’s advice about how to minimize the risk of recurrence.

Appropriate treatment

Topiramate is FDA-approved only for treating seizures and for prophylaxis against migraine headaches. However, FDA approval limits only how pharmaceutical companies can promote a medication.⁴ Physicians may prescribe drugs for unapproved “off-label” uses, and doing so is accepted medical practice. Peer-reviewed publications support using topiramate to treat agitation,⁵ alcohol dependence,⁶ binge-eating disorder,⁷ and other conditions that psychiatrists often manage. A tendency to promote weight loss has made topiramate an attractive add-on medication for patients whose weight problems are causing other health difficulties.⁸

 

Assuming that Mr. B is taking topiramate for an off-label purpose, an appropriate question to ask is, “Does professional literature support use of topiramate in Mr. B’s circumstances?” Also, given everything known about Mr. B up to this point, is topiramate a good treatment choice?

Appropriate monitoring

As every clinician knows, medications can cause problems. Monitoring topiramate therapy involves periodic lab testing and assessment of effectiveness. Dr. A should feel reasonably sure that Mr. B—assisted by a family member or close friend, if necessary—can and will cooperate with monitoring requirements. Dr. A also should verify that Mr. B can grasp and follow instructions designed to avert complications—such as ample hydration to reduce risk of nephrolithiasis—and will promptly address problems if they occur.

Informed consent

Informed consent is especially important when a patient receives a treatment that has a known risk. Although the Physician’s Desk Reference does not list previous kidney stones as a contraindication to topiramate therapy, it urges caution under these circumstances.⁴ Therefore, if Dr. A wishes to prescribe topiramate for a patient with a history of kidney stone, the patient should meaningfully collaborate in the treatment decision.

Informed consent for treatment requires that patients not feel coerced by the doctor or setting and have the mental capacity or competence to give consent. Under the conceptualization developed by Appelbaum and Grisso,⁹ competent patients can:

• express a consistent choice
  
• understand medical information provided to them
  
• appreciate how this information applies to them and their condition
  
• reason logically about treatment.
  

Most psychiatric outpatients have capacity to consent to treatment, but if you have doubts, assess the patient’s capacity systematically. Appelbaum¹⁰ provides a superb summary of these concepts and suggested questions to ask your patient (Table 2).

What information should patients receive before giving consent? The legal standard varies, but in most U.S. jurisdictions, patients “are entitled to material information about the nature of any proposed medical procedure. For example, patients are entitled to information about the risks of the procedure, its necessity, and alternate procedures that might be preferable.”¹ Topiramate’s manufacturer instructs physicians to question and warn patients about the risk of kidney stones—which Dr. A did in Mr. B’s case. When you prescribe a drug off-label, you may want to tell patients this, but explain why the drug is appropriate nonetheless.

Table 2

Evaluating a patient’s capacity to consent to treatment

Is this patient able to?	Questions to ask
Express a clear treatment preference	What treatment have you chosen?
Understand basic information communicated by caregivers	Can you tell me in your own words about your condition and the treatment options I have told you about?
Appreciate his or her medical condition and how information about treatment applies	What do you think is wrong with your health now? Do you think you need some kind of treatment? What do you think treatment will do for you?
Reason logically when choosing treatment options	Why did you choose this treatment? Why is it better than your other treatment options?
Source: Adapted and reprinted with permission from Appelbaum PS. Assessment of patients’ competence to consent to treatment. N Engl J Med 2007;357:1834-40

Dear Dr. Mossman,

I prescribed topiramate for Mr. B, a patient with no history of kidney stones. Many months later he developed back pain. During the medical workup for a possible kidney stone, Mr. B and I revisited the risk of kidney stones with topiramate, which we had discussed at the beginning of therapy. Mr. B was adamantly opposed to stopping topiramate, even if he had a kidney stone. Testing revealed that Mr. B did not have a stone, but I wasn’t sure how to proceed. I worried that I might be found liable if Mr. B stayed on topiramate and did develop a kidney stone.—Submitted by Dr. A

When a patient develops a medical problem from a drug you prescribed, it is natural to feel responsible—after all, your treatment caused the adverse event. But did you commit malpractice? To answer this, let’s review the concept of “medical negligence.”

Malpractice law applies legal principles of negligence to professional conduct.¹ The elements of a negligence case (Table 1) can be summarized as “breach of duty causing damages.” Therefore, when you wonder whether possible harm to a patient might be considered malpractice, ask yourself, “Did I breach my professional duty?”

Physicians have a duty to practice within their specialty’s standard of care, and if they do this, they should not be held liable even if their treatments cause adverse effects. Each jurisdiction defines the standard of care differently, but the general expectation is “that physicians acting within the ambit of their professional work will exercise the skill, knowledge, and care normally possessed and exercised by other members of their profession…in the relevant medical community.”¹

It’s impossible to describe all the skills, knowledge, and care a psychiatrist normally employs when prescribing a drug, but elements of good practice include reasonable efforts to:

• make an appropriate diagnosis
  
• offer appropriate treatment
  
• monitor effects of treatment.
  

Further, treatment should occur only when a patient gives informed consent. Let’s examine each of these elements as they apply to Dr. A and Mr. B.

Table 1

Elements of a successful negligence case

Defendant owed the plaintiff a duty of care Defendant breached that duty Defendant’s conduct harmed the plaintiff Defendant’s conduct was a “proximate cause,” meaning it had a significant relationship to the harm Legally recognized damages, such as a physical injury, occurred
Source: Reference 1

Appropriate assessment

Despite the availability of guidelines for psychiatric evaluation,^2,3 it is tough to summarize everything psychiatrists do when assessing patients. But—focusing on Dr. A’s question—it is reasonable to ask: Did the psychiatric evaluation provide reasonably good evidence that Mr. B had a condition that topiramate might alleviate? Mr. B’s strong desire to keep taking the drug suggests that the answer is “yes.”

Another part of assessment is considering whether a patient has medical conditions that might contraindicate topiramate or affect prescribing. Typically, psychiatrists learn about these matters by careful history-taking and laboratory testing. In addition to kidney stones, topiramate is associated with increased risk for secondary angle closure glaucoma, hyperthermia, metabolic acidosis, cognitive dysfunction, mood changes, and sedation.⁴

Dr. A also should consider potential interactions between topiramate and any other medications that Mr. B is taking. A prudent clinician must judge whether the potential benefit of topiramate for Mr. B outweighs the risk of adverse effects. If Mr. B actually had developed a kidney stone, Dr. A might seek a nephrologist’s advice about how to minimize the risk of recurrence.

Appropriate treatment

Topiramate is FDA-approved only for treating seizures and for prophylaxis against migraine headaches. However, FDA approval limits only how pharmaceutical companies can promote a medication.⁴ Physicians may prescribe drugs for unapproved “off-label” uses, and doing so is accepted medical practice. Peer-reviewed publications support using topiramate to treat agitation,⁵ alcohol dependence,⁶ binge-eating disorder,⁷ and other conditions that psychiatrists often manage. A tendency to promote weight loss has made topiramate an attractive add-on medication for patients whose weight problems are causing other health difficulties.⁸

 

Assuming that Mr. B is taking topiramate for an off-label purpose, an appropriate question to ask is, “Does professional literature support use of topiramate in Mr. B’s circumstances?” Also, given everything known about Mr. B up to this point, is topiramate a good treatment choice?

Appropriate monitoring

As every clinician knows, medications can cause problems. Monitoring topiramate therapy involves periodic lab testing and assessment of effectiveness. Dr. A should feel reasonably sure that Mr. B—assisted by a family member or close friend, if necessary—can and will cooperate with monitoring requirements. Dr. A also should verify that Mr. B can grasp and follow instructions designed to avert complications—such as ample hydration to reduce risk of nephrolithiasis—and will promptly address problems if they occur.

Informed consent

Informed consent is especially important when a patient receives a treatment that has a known risk. Although the Physician’s Desk Reference does not list previous kidney stones as a contraindication to topiramate therapy, it urges caution under these circumstances.⁴ Therefore, if Dr. A wishes to prescribe topiramate for a patient with a history of kidney stone, the patient should meaningfully collaborate in the treatment decision.

Informed consent for treatment requires that patients not feel coerced by the doctor or setting and have the mental capacity or competence to give consent. Under the conceptualization developed by Appelbaum and Grisso,⁹ competent patients can:

• express a consistent choice
  
• understand medical information provided to them
  
• appreciate how this information applies to them and their condition
  
• reason logically about treatment.
  

Most psychiatric outpatients have capacity to consent to treatment, but if you have doubts, assess the patient’s capacity systematically. Appelbaum¹⁰ provides a superb summary of these concepts and suggested questions to ask your patient (Table 2).

What information should patients receive before giving consent? The legal standard varies, but in most U.S. jurisdictions, patients “are entitled to material information about the nature of any proposed medical procedure. For example, patients are entitled to information about the risks of the procedure, its necessity, and alternate procedures that might be preferable.”¹ Topiramate’s manufacturer instructs physicians to question and warn patients about the risk of kidney stones—which Dr. A did in Mr. B’s case. When you prescribe a drug off-label, you may want to tell patients this, but explain why the drug is appropriate nonetheless.

Table 2

Evaluating a patient’s capacity to consent to treatment

Is this patient able to?	Questions to ask
Express a clear treatment preference	What treatment have you chosen?
Understand basic information communicated by caregivers	Can you tell me in your own words about your condition and the treatment options I have told you about?
Appreciate his or her medical condition and how information about treatment applies	What do you think is wrong with your health now? Do you think you need some kind of treatment? What do you think treatment will do for you?
Reason logically when choosing treatment options	Why did you choose this treatment? Why is it better than your other treatment options?
Source: Adapted and reprinted with permission from Appelbaum PS. Assessment of patients’ competence to consent to treatment. N Engl J Med 2007;357:1834-40

Current Psychiatry’s malpractice column is evolving. Previously, “Malpractice Verdicts,” used case decisions to initiate discussions of clinical situations that can generate lawsuits. The verdicts remain as “Malpractice Minute”, but Current Psychiatry has invited me to contribute a new column, “Malpractice Rx,” that will solicit questions and address practicing clinicians’ concerns about malpractice risk.

To start this dialogue, I’ll begin with a question that often comes up in discussions with colleagues, and especially when I teach psychiatry residents: “What should I document?” In this article, we will review why proper documentation is essential. We’ll also look at some ideas that might make documentation easier, more efficient, and more satisfying.

Purposes of documentation

When I was in medical school, my professors said the primary reason for accurate charting was to communicate with the rest of the treatment team. This is still true. But in these sadder-but-wiser days, when I ask psychiatry residents “What is the purpose of documentation?” they always answer, “to create a legal record.”

Documentation plays many roles (Table 1). From the standpoint of preventing a malpractice judgment, the clinical record can accomplish 3 important things:

Lawsuit deterrence. Records are a key source—and often the only source—of information an attorney uses when deciding whether to file a lawsuit. An attorney won’t risk time and money on a malpractice case if the clinical record suggests that a psychiatrist was conscientious and met the standard of care.¹

Impression management. The patient’s chart is what plaintiffs’ and defendants’ experts use when forming their initial opinions about the quality of care delivered.

Credibility. Clinical records are the most believable source of information about what you observed, what you thought, what you did, why you did it, and when you did it. The adage “if it wasn’t written, it didn’t happen” is not always applicable,² but if an adverse event occurs, a defendant doctor’s verbal testimony about delivering good care will be more convincing when backed up by documentation created before the event.

Table 1

Purposes of medical record documentation

Communicate clinical information to current and future caregivers Remind you of what happened and what you did Justify care to third-party payers Inform professional standards review organizations Satisfy accrediting agencies Create a basis for defense in a malpractice action

Improving documentation

Because it is impossible to describe everything you see, hear, say, do, and think during clinical encounters with patients, you must make choices about what to include in the record. The components of good documentation depend on the clinical context, but the following general principles may avert some malpractice actions.

1 More is better. Psychiatric practice often requires you to be discreet about patients’ personal information. Within appropriate bounds, however, the more information the record contains about objective findings, patients’ statements, clinical judgments, and your decision making, the better the portrayal of competent care.

2 Record the time and date. When attorneys and experts try to reconstruct what happened before an adverse occurrence, knowing the exact time you saw the patient, recorded findings, wrote orders, followed up on lab tests, or discussed problems with others—including family and treatment team members—can make a big difference.

3 Sooner is better. The most credible charting is done during or just after a service is rendered. Charting completed after an adverse event is vulnerable to accusations of fabrication.

4 Describe your thinking. Most aspects of clinical medicine are far from certain. Documenting the reasoning behind your diagnosis and treatment selection—what you’ve ruled out, what still seems tentative, and what risks and benefits you’ve weighed—helps emphasize this reality.³ After something bad happens, people retrospectively regard the event as more probable than it really was.⁴ Documenting your uncertainty and ways of addressing it may help counter this “hindsight bias.” It also shows that you were thoughtful and took therapeutic steps prudently.

5 Collaborate with the patient. In some circumstances, it is appropriate to draft documents in a patient’s presence. Examples might include information sent to third-party payers or referrals to other clinicians. Noting that you’ve done this demonstrates the patient’s awareness and implicit concurrence. Also, collaborative documentation reinforces the “working together” aspects of a doctor-patient relationship and can be therapeutic.

 

⁵

6 Clarify capacity. Jurors may believe that all psychiatric patients are incompetent, and plaintiff’s attorneys sometimes try to create the impression that patients are completely controlled by weird whims and aberrant thoughts. To counter this, when appropriate indicate in the chart that the patient can handle responsibilities such as reporting side effects, seeking emergency attention, or notifying you about changes in thought or mood.^3,5

7 Manage appearance and content. Under Health Insurance Portability and Accountability Act (HIPAA) regulations, patients have the right to review their medical records.⁶ If a lawsuit occurs, the records might be read out loud in court. Documentation will make a better impression if it is clear, legible, and free of gratuitous comments.

8 Include quotations. Documenting verbatim statements from a patient, such as “I’ve never considered suicide,” can quickly convey key information that you considered when making a therapeutic decision.

Technical approaches

Table 2^7,8 lists several techniques and technologies that might improve documentation. For example, computer users can create templates or customize software to quickly produce thorough documentation for frequently encountered procedures or clinical events. Whether these approaches are useful and appropriate will depend on your work setting, but all aim to improve the speed and quality of clinical documentation.

Think creatively about improving documentation. Even if you’re never sued, better documentation helps you and your patients. For example, several years ago a colleague⁹ designed an emergency room form that allowed clinicians to complete in a few seconds a Brief Psychiatric Rating Scale on every patient we evaluated. This innovation shortened the time needed to document a systematic, comprehensive assessment and increased the quantity, quality, and reliability of information in patients’ records.

Table 2

Purposes of medical record documentation

Idea	Comment
Use speech recognition	You speak faster than you write. Transcription software
Software	accuracy has improved in the last few years.
Use handouts and	Patients often do not remember or understand much of what
medication instructions	doctors tell them,7,8 so handouts may be more useful than verbal instructions. Good handouts about medications are available on the Internet. Note in the chart that you gave the patient the document.
Seek anonymous	Documenting consultations shows you are prudent and
consultations with colleagues	a colleague agreed with your treatment.
Ask patients to rate their	This practice may improve your information gathering
own symptoms and progress	and help document what the patient told you.
Use standard rating scales	Rating scales can help you record more information in a scientifically validated format.
Use macros and templates	Macros can reduce time needed for documentation. Your memory isn’t perfect, but templates can help you include everything you need to cover.

Current Psychiatry’s malpractice column is evolving. Previously, “Malpractice Verdicts,” used case decisions to initiate discussions of clinical situations that can generate lawsuits. The verdicts remain as “Malpractice Minute”, but Current Psychiatry has invited me to contribute a new column, “Malpractice Rx,” that will solicit questions and address practicing clinicians’ concerns about malpractice risk.

To start this dialogue, I’ll begin with a question that often comes up in discussions with colleagues, and especially when I teach psychiatry residents: “What should I document?” In this article, we will review why proper documentation is essential. We’ll also look at some ideas that might make documentation easier, more efficient, and more satisfying.

Purposes of documentation

When I was in medical school, my professors said the primary reason for accurate charting was to communicate with the rest of the treatment team. This is still true. But in these sadder-but-wiser days, when I ask psychiatry residents “What is the purpose of documentation?” they always answer, “to create a legal record.”

Documentation plays many roles (Table 1). From the standpoint of preventing a malpractice judgment, the clinical record can accomplish 3 important things:

Lawsuit deterrence. Records are a key source—and often the only source—of information an attorney uses when deciding whether to file a lawsuit. An attorney won’t risk time and money on a malpractice case if the clinical record suggests that a psychiatrist was conscientious and met the standard of care.¹

Impression management. The patient’s chart is what plaintiffs’ and defendants’ experts use when forming their initial opinions about the quality of care delivered.

Credibility. Clinical records are the most believable source of information about what you observed, what you thought, what you did, why you did it, and when you did it. The adage “if it wasn’t written, it didn’t happen” is not always applicable,² but if an adverse event occurs, a defendant doctor’s verbal testimony about delivering good care will be more convincing when backed up by documentation created before the event.

Table 1

Purposes of medical record documentation

Communicate clinical information to current and future caregivers Remind you of what happened and what you did Justify care to third-party payers Inform professional standards review organizations Satisfy accrediting agencies Create a basis for defense in a malpractice action

Improving documentation

Because it is impossible to describe everything you see, hear, say, do, and think during clinical encounters with patients, you must make choices about what to include in the record. The components of good documentation depend on the clinical context, but the following general principles may avert some malpractice actions.

1 More is better. Psychiatric practice often requires you to be discreet about patients’ personal information. Within appropriate bounds, however, the more information the record contains about objective findings, patients’ statements, clinical judgments, and your decision making, the better the portrayal of competent care.

2 Record the time and date. When attorneys and experts try to reconstruct what happened before an adverse occurrence, knowing the exact time you saw the patient, recorded findings, wrote orders, followed up on lab tests, or discussed problems with others—including family and treatment team members—can make a big difference.

3 Sooner is better. The most credible charting is done during or just after a service is rendered. Charting completed after an adverse event is vulnerable to accusations of fabrication.

4 Describe your thinking. Most aspects of clinical medicine are far from certain. Documenting the reasoning behind your diagnosis and treatment selection—what you’ve ruled out, what still seems tentative, and what risks and benefits you’ve weighed—helps emphasize this reality.³ After something bad happens, people retrospectively regard the event as more probable than it really was.⁴ Documenting your uncertainty and ways of addressing it may help counter this “hindsight bias.” It also shows that you were thoughtful and took therapeutic steps prudently.

5 Collaborate with the patient. In some circumstances, it is appropriate to draft documents in a patient’s presence. Examples might include information sent to third-party payers or referrals to other clinicians. Noting that you’ve done this demonstrates the patient’s awareness and implicit concurrence. Also, collaborative documentation reinforces the “working together” aspects of a doctor-patient relationship and can be therapeutic.

 

⁵

6 Clarify capacity. Jurors may believe that all psychiatric patients are incompetent, and plaintiff’s attorneys sometimes try to create the impression that patients are completely controlled by weird whims and aberrant thoughts. To counter this, when appropriate indicate in the chart that the patient can handle responsibilities such as reporting side effects, seeking emergency attention, or notifying you about changes in thought or mood.^3,5

7 Manage appearance and content. Under Health Insurance Portability and Accountability Act (HIPAA) regulations, patients have the right to review their medical records.⁶ If a lawsuit occurs, the records might be read out loud in court. Documentation will make a better impression if it is clear, legible, and free of gratuitous comments.

8 Include quotations. Documenting verbatim statements from a patient, such as “I’ve never considered suicide,” can quickly convey key information that you considered when making a therapeutic decision.

Technical approaches

Table 2^7,8 lists several techniques and technologies that might improve documentation. For example, computer users can create templates or customize software to quickly produce thorough documentation for frequently encountered procedures or clinical events. Whether these approaches are useful and appropriate will depend on your work setting, but all aim to improve the speed and quality of clinical documentation.

Think creatively about improving documentation. Even if you’re never sued, better documentation helps you and your patients. For example, several years ago a colleague⁹ designed an emergency room form that allowed clinicians to complete in a few seconds a Brief Psychiatric Rating Scale on every patient we evaluated. This innovation shortened the time needed to document a systematic, comprehensive assessment and increased the quantity, quality, and reliability of information in patients’ records.

Table 2

Purposes of medical record documentation

Idea	Comment
Use speech recognition	You speak faster than you write. Transcription software
Software	accuracy has improved in the last few years.
Use handouts and	Patients often do not remember or understand much of what
medication instructions	doctors tell them,7,8 so handouts may be more useful than verbal instructions. Good handouts about medications are available on the Internet. Note in the chart that you gave the patient the document.
Seek anonymous	Documenting consultations shows you are prudent and
consultations with colleagues	a colleague agreed with your treatment.
Ask patients to rate their	This practice may improve your information gathering
own symptoms and progress	and help document what the patient told you.
Use standard rating scales	Rating scales can help you record more information in a scientifically validated format.
Use macros and templates	Macros can reduce time needed for documentation. Your memory isn’t perfect, but templates can help you include everything you need to cover.

Current Psychiatry’s malpractice column is evolving. Previously, “Malpractice Verdicts,” used case decisions to initiate discussions of clinical situations that can generate lawsuits. The verdicts remain as “Malpractice Minute”, but Current Psychiatry has invited me to contribute a new column, “Malpractice Rx,” that will solicit questions and address practicing clinicians’ concerns about malpractice risk.

To start this dialogue, I’ll begin with a question that often comes up in discussions with colleagues, and especially when I teach psychiatry residents: “What should I document?” In this article, we will review why proper documentation is essential. We’ll also look at some ideas that might make documentation easier, more efficient, and more satisfying.

Purposes of documentation

When I was in medical school, my professors said the primary reason for accurate charting was to communicate with the rest of the treatment team. This is still true. But in these sadder-but-wiser days, when I ask psychiatry residents “What is the purpose of documentation?” they always answer, “to create a legal record.”

Documentation plays many roles (Table 1). From the standpoint of preventing a malpractice judgment, the clinical record can accomplish 3 important things:

Lawsuit deterrence. Records are a key source—and often the only source—of information an attorney uses when deciding whether to file a lawsuit. An attorney won’t risk time and money on a malpractice case if the clinical record suggests that a psychiatrist was conscientious and met the standard of care.¹

Impression management. The patient’s chart is what plaintiffs’ and defendants’ experts use when forming their initial opinions about the quality of care delivered.

Credibility. Clinical records are the most believable source of information about what you observed, what you thought, what you did, why you did it, and when you did it. The adage “if it wasn’t written, it didn’t happen” is not always applicable,² but if an adverse event occurs, a defendant doctor’s verbal testimony about delivering good care will be more convincing when backed up by documentation created before the event.

Table 1

Purposes of medical record documentation

Communicate clinical information to current and future caregivers Remind you of what happened and what you did Justify care to third-party payers Inform professional standards review organizations Satisfy accrediting agencies Create a basis for defense in a malpractice action

Improving documentation

Because it is impossible to describe everything you see, hear, say, do, and think during clinical encounters with patients, you must make choices about what to include in the record. The components of good documentation depend on the clinical context, but the following general principles may avert some malpractice actions.

1 More is better. Psychiatric practice often requires you to be discreet about patients’ personal information. Within appropriate bounds, however, the more information the record contains about objective findings, patients’ statements, clinical judgments, and your decision making, the better the portrayal of competent care.

2 Record the time and date. When attorneys and experts try to reconstruct what happened before an adverse occurrence, knowing the exact time you saw the patient, recorded findings, wrote orders, followed up on lab tests, or discussed problems with others—including family and treatment team members—can make a big difference.

3 Sooner is better. The most credible charting is done during or just after a service is rendered. Charting completed after an adverse event is vulnerable to accusations of fabrication.

4 Describe your thinking. Most aspects of clinical medicine are far from certain. Documenting the reasoning behind your diagnosis and treatment selection—what you’ve ruled out, what still seems tentative, and what risks and benefits you’ve weighed—helps emphasize this reality.³ After something bad happens, people retrospectively regard the event as more probable than it really was.⁴ Documenting your uncertainty and ways of addressing it may help counter this “hindsight bias.” It also shows that you were thoughtful and took therapeutic steps prudently.

5 Collaborate with the patient. In some circumstances, it is appropriate to draft documents in a patient’s presence. Examples might include information sent to third-party payers or referrals to other clinicians. Noting that you’ve done this demonstrates the patient’s awareness and implicit concurrence. Also, collaborative documentation reinforces the “working together” aspects of a doctor-patient relationship and can be therapeutic.

 

⁵

6 Clarify capacity. Jurors may believe that all psychiatric patients are incompetent, and plaintiff’s attorneys sometimes try to create the impression that patients are completely controlled by weird whims and aberrant thoughts. To counter this, when appropriate indicate in the chart that the patient can handle responsibilities such as reporting side effects, seeking emergency attention, or notifying you about changes in thought or mood.^3,5

7 Manage appearance and content. Under Health Insurance Portability and Accountability Act (HIPAA) regulations, patients have the right to review their medical records.⁶ If a lawsuit occurs, the records might be read out loud in court. Documentation will make a better impression if it is clear, legible, and free of gratuitous comments.

8 Include quotations. Documenting verbatim statements from a patient, such as “I’ve never considered suicide,” can quickly convey key information that you considered when making a therapeutic decision.

Technical approaches

Table 2^7,8 lists several techniques and technologies that might improve documentation. For example, computer users can create templates or customize software to quickly produce thorough documentation for frequently encountered procedures or clinical events. Whether these approaches are useful and appropriate will depend on your work setting, but all aim to improve the speed and quality of clinical documentation.

Think creatively about improving documentation. Even if you’re never sued, better documentation helps you and your patients. For example, several years ago a colleague⁹ designed an emergency room form that allowed clinicians to complete in a few seconds a Brief Psychiatric Rating Scale on every patient we evaluated. This innovation shortened the time needed to document a systematic, comprehensive assessment and increased the quantity, quality, and reliability of information in patients’ records.

Table 2

Purposes of medical record documentation

Idea	Comment
Use speech recognition	You speak faster than you write. Transcription software
Software	accuracy has improved in the last few years.
Use handouts and	Patients often do not remember or understand much of what
medication instructions	doctors tell them,7,8 so handouts may be more useful than verbal instructions. Good handouts about medications are available on the Internet. Note in the chart that you gave the patient the document.
Seek anonymous	Documenting consultations shows you are prudent and
consultations with colleagues	a colleague agreed with your treatment.
Ask patients to rate their	This practice may improve your information gathering
own symptoms and progress	and help document what the patient told you.
Use standard rating scales	Rating scales can help you record more information in a scientifically validated format.
Use macros and templates	Macros can reduce time needed for documentation. Your memory isn’t perfect, but templates can help you include everything you need to cover.