A New Resource for Managing Managed Care Malpractice Risks

Harold J. Bursztajn, MD
Archie Brodsky, BA

Harold J. Bursztajn is Co-director of the Program in Psychiatry and the Law and Associate Clinical Professor at Harvard Medical School. Archie Brodsky is Senior Research Associate in the Program in Psychiatry and the Law at Harvard Medical School

Abstract

The risk of malpractice liability faced by physicians is exacerbated by third-party intrusions such as those encountered in today's managed-care environment. Individual and situational risk factors that contribute to litigation are here outlined. The likelihood that a malpractice action will be brought is increased by the interaction between a patient, family, or physician who is at high risk for litigation and a situation (such as managed-care denial of treatment benefits) that creates adversity. To prevent the ready translation of resource adversity into an adversarial doctor-patient-family relationship, a forensic psychiatric consultation is recommended.

Managed care, by superimposing nonclinical decision-making imperatives on the traditional doctor-patient-family relationship, is creating new ethical dilemmas and, in turn, additional liability risks for physicians already well aware of the need for malpractice prevention. Under these stressful conditions it is essential for physicians to use enlightened risk-management principles while maintaining the integrity of the clinical decision-making process. One resource for preserving the autonomy of clinical decision making in the face of third-party pressure is the forensic psychiatric consultation.

Forensic psychiatry, as defined in the Ethical Guidelines of the American Academy of Psychiatry and the Law, is "a subspecialty of psychiatry in which scientific and clinical expertise is applied to legal issues in legal contexts embracing civil, criminal, correctional, or legislative matters." Forensic psychiatrists, by virtue of their involvement in the legal process and their close study of the psychology of malpractice litigation, are well situated to consult on a case-by-case basis as to the application of risk-management principles. Recently, the American Board of Medical Specialties has recognized the subspecialty of Forensic Psychiatry by creating through the American Board of Psychiatry and Neurology an additional certification in the subspecialty of Forensic Psychiatry for physicians already certified in the specialty of Psychiatry. There are today only 271 such nationally certified subspecialists in Forensic Psychiatry. However, even when a Board-certified forensic psychiatrist is not available, a consultation with a psychiatrist with some forensic experience may be helpful.

What follows are some hypotheses generated in the course of one of the authors' (HJB's) more than fifteen years of forensic psychiatric consultations to colleagues across the spectrum of medical specialties. These hypotheses can be used as first steps in a prospective empirical investigation of whether and how the autonomy of clinical judgment may be enhanced and the risks of successful malpractice litigation reduced by the ready availability of forensic psychiatric consultation.

Copyright on this material is retained by Harold J. Bursztajn, M.D.. Permission is granted by Dr. Bursztajn to reprint this article in its entirety, including this copyright notice and the by-line, for educational purposes only. Expressed written consent from Dr. Bursztajn must be obtained before reproduction of this article for any other purpose.