Informed Consent and Physician Outreach Can Help Prevent, Mitigate Legal Action. (Risk Management)

By Sherman, Carl | Clinical Psychiatry News, April 2003 | Go to article overview

Informed Consent and Physician Outreach Can Help Prevent, Mitigate Legal Action. (Risk Management)


Sherman, Carl, Clinical Psychiatry News


NEW YORK -- Treating the feelings of the patient and his or her family with respect isn't just good psychiatry--it's a key to malpractice liability prevention, Dr. Thomas G. Gutheil said at a conference on psychopharmacology sponsored by New York University.

After a patient's suicide--an event that carries considerable liability risk--such concern may call for the treating psychiatrist to attend memorial services and meet with family members at their request, said Dr. Gutheil, professor of psychiatry at Harvard Medical School, Boston.

A successful malpractice suit must in theory meet specific legal requirements that include demonstrable negligence and compensable damages, but in reality such suits are usually the result of a malignant synergy between bad outcome and bad feelings.

A tort action allows family members to discharge painful emotions that commonly arise when things go wrong--guilt, rage, and grief in particular. But some bad feelings can be avoided by good clinical management. For example, patients are particularly likely to be outraged when surprised by a bad result, such as an unanticipated and devastating side effect. "This argues for giving the bad news early about medication," Dr. Gutheil said.

They may feel their trust has been betrayed--a dangerous situation--by a "defensive medicine strategy" that puts them in an adversarial role. Psychiatrists who fail to return telephone calls and otherwise make themselves scarce after a bad outcome risk engendering a sense of "abandonment," he said.

Properly managed, the informed consent process fosters a positive atmosphere that is "inimical to litigation" and satisfies legal requirements. "It's not a form or an event, but an ongoing dialogue of openness and honesty that begins with eye contact and continues throughout the therapeutic relationship," Dr. Gutheil said.

Full informed consent includes the risks and benefits of the proposed treatment, alternative treatments, and no treatment at all. When choosing risks to discuss, he recommended a "sliding scale" that emphasizes particularly serious or likely adverse events but also those that might have special relevance to the individual.

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