There is some authority, across many jurisdictions, that a physician-patient relationship is established only when a physician conducts the initial history and physical examination. In some cases, however, the relationship has been found to exist at an earlier point, such as when a physician gave a referred patient an appointment for a consultation. When in doubt, assume the relationship exists.4
Duty of care
These cases raise areas where possible duty of care was breached:
- negligent prescription of medication
- failure to assess suicidal thinking.
Assessing suicide risk. Negligence in the second and third cases is based upon failure to assess suicidal thoughts. The legal system recognizes that psychiatrists cannot predict suicide,6 and mistakes in clinical judgment are not the same as negligence. Psychiatrists, however, are required to assess suicide risk and intervene appropriately.
When defending a negligence claim, the profession’s custom—reflected by the standard of care common to others with the practitioner’s training—is the benchmark against which the courts measure negligence. Therefore, take steps determined appropriate by the profession and document this risk assessment.7 For example, ask the patient about:
- suicidal thoughts and intent
- stressors
- history of suicidal behavior/attempts
- substance use
- signs and symptoms of depression
- bipolar disorder
- psychosis.8
Prescriptions. No clear line defines negligence when potentially dangerous medications are prescribed to a suicidal patient. Some psychiatrists dispense limited quantities of medications and see the patient weekly to monitor mood and medication. But even then a psychiatrist cannot prevent suicide—for example, the patient may have multiple prescribers or hoard medications. The concept of “sufficient intervals” to see a patient is determined case-by-case.
Documentation. Make suicide assessments an ongoing process. Document all aspects of the patient’s care, stability, and suicide risk, and reasons for the visit intervals. Indicate in the records your risk-benefit assessment in making treatment decisions.
Cases are selected byfrom Medical Malpractice Verdicts, Settlements & Experts, with permission of its editor, Lewis Laska of Nashville, TN (www.verdictslaska.com). Information may be incomplete in some instances, but these cases represent clinical situations that typically result in litigation.
Drug brand name
- Oxycodone • Percocet