Medical and Judicial Perceptions of the Risks Associated with Use of
Antipsychotic Medication
Harold Bursztajn, MD; Benzion Chanowitz, PhD; Eric Kaplan, MD;
Thomas G. Gutheil, MD; Robert M. Hamm, PhD; and Victoria Alexander, BA
Drs. Bursztajn, Chanowitz, Kaplan, and Gutheil and Ms. Alexander are
affiliated with the Program in Psychiatry and the Law, Massachusetts
Mental Health Center, Boston, Massachusetts. Dr. Hamm is affiliated
with the Center for Research on Judgment and Policy, University of
Colorado, Boulder, Colorado. Address reprint requests to Dr. Gutheil,
Massachusetts Mental Health Center, 74 Fenwood Rd., Boston, MA 02115.
To determine whether occupational
perspective influences the decision to prescribe antipsychotic medications,
we presented a group of psychiatrists and judges with a hypothetical
case involving a potentially psychotic patient. The subjects were
asked what probability of drug-induced tardive dyskinesia they would
accept in order to prevent psychotic decompensation. The subjects
were then asked to estimate the actual probability that tardive dyskinesia
would occur if the patient received antipsychotic medications. From
the responses to these questions we inferred their treatment decisions.
Although the psychiatrists and judges agreed on an acceptable level
of risk, they differed significantly in their estimates of the actual
risk involved and, by inference, their decisions concerning treatment.
Our findings have several implications for adjudication of cases
involving treatment decisions and the right to refuse treatment.
One suggested wellspring of the malpractice crisis, as well as of widespread
difficulties in communication between the medical and legal professions,
is the notion that clinicians and judges may approach problems in
patient care differently because of their divergent perceptions of
the risks involved. This paper examines empirically how psychiatrists
and judges perceive the risks and benefits of prescribing an effective
medication with possibly serious side effects.
While physicians necessarily make risk-benefit decisions prospectively,
in deciding whether to prescribe medications, [1,2]
the legal profession is usually involved retrospectively, after a
bad outcome, as in the determination of whether a medical decision
represented good practice or a deviation from good practice—that
is, malpractice. Little information exists on the "set points" [3,4]
of the two professions. In other words, for clinicians and judges,
at what point do the perceived risks of a given treatment become "excessive," so
that a decision to proceed with that treatment would constitute a
deviation from the standard of care?
To examine this question, we presented a group of psychiatrists and a
group of judges with a clinical vignette concerning the possible
use of an antipsychotic drug that may induce tardive dyskinesia.
We questioned the two groups of subjects about their perceptions
of the risks involved in prescribing the medication in this case.
Specifically, we wanted to know what degree of risk subjects would
tolerate to obtain the benefits of such treatment. We expected to
find differences in the responses of the two groups, reflecting different
perceptions of the risks of treatment in relation to its benefits.
Methods
We presented 70 psychiatrists and 41 judges, all of whom were attending
symposia devoted to medicolegal issues, with the following vignette:* A
20-year-old patient of yours becomes violently psychotic when taking
any less than a neuroleptic equivalent of 400 mg of Thorazine. As
you know, Thorazine is effective in reducing psychotic behavior,
but its continuing use is associated with tardive dyskinesia (involuntary
muscle spasm).
The subjects were asked two questions about this case:
-
What probability of tardive dyskinesia would you risk or accept to
prevent recurrence of psychosis in this 20-year-old patient?
-
What is the probability that this patient will get tardive dyskinesia
if continued on medication?
From the responses to these questions, we obtained three dependent variables
for each subject. The response to the first question provided a measure,
from 0 to 100 percent, of the respondent's tolerance of the risk
(inducing tardive dyskinesia) in order to obtain the benefit (preventing
psychosis) of the treatment. The response to the second question
yielded an estimate, from 0 to 100 percent, that the patient would
develop tardive dyskinesia if the drug were prescribed as stated
in the vignette. We inferred the subject's treatment decision by
subtracting the value of the second measure from the value of the
first. This third measure represents an adjusted expression of what
the individual would actually decide to do, given the perceived risks
and benefits of the medication. A positive number indicates that
the subject perceives the benefits as outweighing the risks, from
which we would infer a decision to prescribe the medication; a negative
number reflects the perception that the risks outweigh the benefits,
which would be consistent with a decision not to prescribe.
Results
Mean responses to the first question (what probability of tardive dyskinesia
respondents would tolerate in order to prevent the recurrence of
psychosis) did not differ significantly for the two groups of subjects
(psychiatrists: 50.5 percent, judges: 48.1 percent; see Table 1).
In other words, the psychiatrists and judges seemed to agree about
the value of inhibiting psychosis relative to the risk of side effects.
However, the two groups responded quite differently to the second question,
which asked for an estimate of the actual risk of tardive dyskinesia
associated with the continued use of medication. The judges estimated,
on average, that the medication carried a 62.5 percent probability
of tardive dyskinesia, whereas the psychiatrists gave an average
estimate of 25 percent (see Table 1).
Table 1
Mean Responses as a Function of Profession
(Psychiatrists vs. Judges) |
| |
Value Assessment [a]
(%) |
Probability Assessment [b]
(%) |
Action [c]
(%) |
| Psychiatrists |
50.5 |
25.0 |
25.5 |
| Judges |
48.1 |
62.5 |
-14.4 |
a "What probability of TD
would you risk/accept to prevent recurrence of psychosis In this...
patient?"
b "What is the probability that this patient
will get TO if medication Is continued?" F(1,92) = 54.2, p < .001.
c Computed decision to prescribe: a minus
b, F(1,90) = 29.7, p < .001. |
The significance of this difference in responses to the second question
became clear when we subtracted the percentage value of each individual's
response to the second question from the value of the response to
the first question. As described above, this yielded a positive or
negative number, from which we inferred the subject's treatment decision
in the case vignette. As an example, if a subject estimated a 30
percent chance that the neuroleptic would induce tardive dyskinesia
in the patient (question 2) and would tolerate a 50 percent chance
of complications (question 1), the adjusted expression would have
a positive value of 20 (50 - 30). For this subject, the perceived
benefits outweigh the perceived risks, suggesting a willingness to
prescribe the medication. On the other hand, a subject who estimated
a 60 percent risk of tardive dyskinesia yet would tolerate only a
45 percent chance of complications would have a negative adjusted
expression of -15 (45 - 60), indicating that the perceived risk outweighs
the perceived benefit and suggesting that this subject would probably
not be willing to prescribe the medication.
In fact, these two examples correspond to the average responses by the
psychiatrists and the judges, respectively. As Table 2 shows, 87
percent of the psychiatrists in our study (59 of 68) had a positive
adjusted expression, suggesting that they felt the benefits of prescribing
the neuroleptic in this case outweighed the risks. In contrast, 59
percent of the judges (20 of 34) would probably have been unwilling
to prescribe the medication (or, more realistically, to condone its
prescription retrospectively) because the perceived risks were too
great. (Nine subjects who failed to answer both questions were dropped
from the analysis.)
Table 2
| Decision to Prescribe by Profession |
| Decision |
Psychiatrists
(%) |
Judges
(%) |
| To Prescribe |
87 |
41 |
| Not To Prescribe |
13 |
59 |
| Chi-square analysis: x^2(1) = 20.96, p < .0001. |
Discussion
In this study psychiatrists and judges differed greatly in their perceptions
of the risks associated with antipsychotic medication and, by inference,
in their willingness to prescribe such medication. Whereas the psychiatrists
estimated a 25 percent risk that neuroleptics medication would induce
tardive dyskinesia, the judges' estimate of that risk was 62 percent.
Various clinical studies of incidence suggest that the actual probability
of tardive dyskinesia is between 5 and 20 percent. [5,6]
The two groups of subjects apparently agreed on a tolerable level
of risk, yet the disparity in their perceptions of the actual risk
involved suggests that they would have opposing views of the treatment
question: whereas the psychiatrists would probably choose to treat
the patient, the judges would be likely to forego treatment.
Our data shed light on the problems that emerge when cases of malpractice
[7,8] relating to medications and
those involving the right to refuse neuroleptic treatment are adjudicated.
If our sample of judges is representative of those who deal with
such issues in court, then judges are substantially overestimating
the probability that antipsychotic treatment will induce tardive
dyskinesia. While agreeing with clinicians on the level of risk that
is acceptable in order to obtain the benefits of medication, they
may weigh the actual risks and benefits differently. Thus, judges
may tend to view clinicians' treatment decisions as reckless.
In an actual malpractice case, of course, expert witnesses can educate
both judge and jury on the risks of the treatment in question. Nevertheless,
the empirical findings of cognitive psychology [9,10]
indicate that people are reluctant to revise their initial probability
estimates. [10] This relative incorrigibility is
magnified by another well-established empirical principle: hindsight
bias. In the context of a malpractice suit, brought in the wake of
a tragic outcome, it is difficult not to see that outcome as inevitable
in retrospect. [11]
Differences in occupational perspective undoubtedly influence the disparity
in risk perceptions between our two groups of subjects. For one thing,
clinicians make treatment decisions prospectively, whereas judges
hearing malpractice cases must address such decisions retrospectively,
after a harm has occurred. Thus, the courts tend to be more attuned
to the potential harms of the treatment in question than to its benefits;
that is, they are "risk-averse." In addition, the harms of treatment
are concrete and therefore more susceptible to courtroom demonstration
than the harms of no treatment. One can point out the abnormal movements
that characterize tardive dyskinesia, but it would be difficult,
and perhaps unethical, to do the same with untreated psychosis. Among
the possible harms of withholding neuroleptic treatment for serious
mental illness are prolonged hospitalization, stigma, social alienation,
loss of employment, and homelessness. Similarly, the benefits of
treatment—say, 10 years of living independently in the community
without rehospitalization—are less easily demonstrated concretely
in court than the harms.
Malpractice cases involving neuroleptic treatment have received considerable
publicity recently, with some claims in the millions. Fearful of
such litigation, many physicians have altered their perceptions of
the risks that neuroleptics treatment poses. In addition to the clinical
risk of tardive dyskinesia, they perceive the legal risk of a liability
claim. Unfortunately, they may be tempted to approach treatment decisions
not in terms of what they view as appropriate medical practice but
rather in terms of what they believe a judge (or jury) would think
is appropriate medical practice. That is, they may practice defensively,
adopting a legal perspective in making a clinical decision. Ironically,
by doing so they allow their own legal concerns to take precedence
over the medical interests of their patients, making themselves more
rather than less vulnerable to malpractice litigation. [7]
Although our study confirms the impression that physicians and judges
tend to approach problems of patient care differently, the news is
not all bad. The point at which the two professions diverge is in
their estimates of actual risk, not in their views of an acceptable
level of risk. This suggests that an educational dialogue between
the professions, starting at the training stage, could result in
a clearer basis for defining acceptable practice, by clarifying the
actual clinical risks associated with neuroleptics treatment. Psychiatrists
need to use clinical, not legal, criteria in making treatment decisions;
and judges need to learn, through expert witnesses, the clinical
facts that can help them evaluate those decisions from a legal perspective.
Acknowledgment
Thanks to Leslie M. Levi lor her help in the preparation of this manuscript.
*It should be apparent that judges and psychiatrists
attending a symposium on medicolegal issues may be a biased sample.
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