A New Resource for Managing Managed Care Malpractice Risks
Harold J. Bursztajn, MD
Archie Brodsky, B.A.
Harold J. Bursztajn is Co-director of the
Program in Psychiatry and the Law and Associate Clinical Professor, Department
of Psychiatry, Harvard Medical School at the Massachusetts Mental Health
Center, Boston, Massachusetts. Archie Brodsky, BA, is Senior Research
Associate Program in Psychiatry and the Law Harvard Medical School at
the Massachusetts Mental Health Center, Boston, Massachusetts
Table of Contents
Abstract
From the Witness Stand to the Consulting Room
The High-Risk Patient
The High-Risk Family
Containing High-Risk Factors
The Forensic Psychiatric Consultation as a Risk-Management
Tool
Acknowledgements
References
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. [1-5]
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. [6]
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." [7] 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.
From the Witness Stand to the Consulting Room
The involvement of forensic psychiatrists in the medical malpractice
arena, like the involvement of physicians with their patients' health,
takes the form of both prevention through the exercise of foresight and
postvention, which seeks to correct. The former ("foresight" as
opposed to the spurious clarity of "hindsight") is, of course,
to be preferred, but it is not as visible as the consultant's role after
the fact, when the legal process is under way.
Retrospectively, in addition to assessing possible deviations from the
standard of care in psychiatry, forensic psychiatrists are consulted
in at least three major components of medical malpractice litigation,
irrespective of specialty. [8,9] First,
the consultant may be asked to help reconstruct the decision-making process
as carried out by the physician, patient, and family with an analysis
which accurately reflects the complexities of decision making under conditions
of uncertainty. A common focus of such a "constructive analysis" can
be the presence or absence of informed consent and the adequacy of the
physician's assessment of the patient's competence to give or refuse
consent to treatment. Second, the consultant may analyze the circumstances
and emotional dynamics that led to an accusation of deliberate misconduct
(sexual or otherwise) or negligent conduct on the part of a physician
-- an analysis which may be used to inform the defense. Third, the consultant
may assess the extent (if any) of emotional distress and psychiatric
disability experienced by the plaintiff(s) as part of the determination
of damages. Expert reports or testimony arising out of such consultations
can be helpful in bringing a malpractice action to a satisfactory resolution.
For example, one of the authors (HJB) testified as a forensic expert
in general medical decision making, in defense of an obstetrician-gynecologist
accused of an unwanted hysterectomy and an accidental abortion. [10]
Less familiar, but even more effective, is the prospective role which
is our theme here. Prospectively, forensic psychiatrists apply their
legal experience by advising practicing physicians with regard to the
decision-making process, motivating factors in litigation, and the sources
and manifestations of emotional harm. For example, lawsuits typically
are triggered neither by actual medical negligence nor by tragic outcomes
alone, but rather by tragic outcomes combined with bad feelings and alienated
relationships. The best antidote to these toxic factors is to build a
strong treatment alliance with the patient and his or her family, based
on shared responsibility for decision making in the face of uncertainty.
[11] In such an alliance, informed consent is not a
mere signature on a checklist of risks, but a process of mutual engagement
with clinical realities and the feelings that accompany them.
This in-depth approach (in contrast to adversarial "defensive medicine")
lays the groundwork for the best possible clinical care and, at the same
time, the most effective malpractice prevention. [12]
In the course of developing the alliance it is essential to document
the informed-consent dialogue, but it is a mistake to think that exhaustive
documentation can substitute for a strong treatment alliance. Taping
the informed-consent interview, for example, can even interfere with
the alliance. With patients who are feeling suspicious or hostile, taping
can set an adversarial tone for the relationship, a sense of "where
there's smoke, there's fire." Moreover, because audiotapes do not
capture nonverbal communication, they may not convey the actual level
of understanding reached by the physician and patient. Even videotapes
are notoriously subject to conflicting interpretations.
Instead of relying entirely on mechanical solutions, the physician caught
between the conflicting pressures of cost-control and malpractice prevention
can look to the forensic psychiatrist as a resource for containing the
iatrogenic consequences of managed care and other current trends. Specifically,
a forensic psychiatric consultation can help the physician identify and
manage patient encounters that carry a high risk for malpractice litigation.
Some of the key risk factors -- stemming from characteristics of the
patient, the family, the physician, the physician-patient relationship,
or the clinical/ethical/legal situation -- are summarized here. In identifying
the risk factors presented below, care must be taken not to stereotype
or stigmatize. An awareness of such risk factors is, however, an essential
first step to their containment.
The High-Risk Patient
Not all patients are equally likely to sue. As in many a prognosis under
conditions of uncertainty, a useful heuristic rule is that one-third
of litigants are likely to sue if given any reason to do so; one-third
are extremely unlikely to sue no matter what happens; and one-third may
or may not sue depending on a variety of factors, including the outcome,
the attendant feelings, the strength of the treatment alliance, and circumstantial
pressures such as instigation by relatives, friends, or attorneys' advertisements.
Whereas the first third include those motivated by pure greed or simple
hate, patients in the final third are often those who will sue their
treating clinician if they feel abandoned. A patient who feels abandoned
may go to court to force the physician to continue the doctor-patient
relationship, albeit now an adversarial one.
The following categories of patients are not hard and fast schemata.
Clinicians working with different patient populations or within different
health-care systems may find different sets of categories useful in predicting
which patients are at especially high risk for acting out various feelings
in lawsuits directed at physicians:
The "hypochondriacal" patient.
Patients who are labeled as hypochondriacal may be depressed individuals
who desperately fear being alone. They may suffer from a mental illness
expressed through chronic physical complaints and/or a medical illness
whose true nature is lost in the background noise of those complaints.
It is important not to abandon these patients. Their suffering needs
to be heard through the complaints they articulate. Otherwise, in the
absence of discriminating therapeutic support and exploration, the patient
who repeatedly "cries wolf" may finally develop a serious medical
condition that goes unnoticed amid the patient's incomplete, imprecise
reports and the physician's skepticism and fatigue. The patient, whose
fantasies of being dismissed and abandoned are thereby confirmed, then
takes the physician to court.
The patient who has suffered prior
trauma. People who have experienced threat to survival, pain,
abuse, abandonment, and helplessness at some point in their lives
are at prime risk for the emotional reactions that lead to litigation.
These include abused or neglected children, torture victims, combat
veterans, and others who suffer from some variant of Post-Traumatic
Stress Disorder (PTSD). [13] When a bad outcome
of illness leaves the patient in pain, the patient's anger toward
those who inflicted the earlier pain may be transferred to the physician,
the human agent who is associated with the patient's present pain
and on whom the patient feels dependent. At the least sign that the
physician is not totally devoted to the patient, the patient is likely
to think, "You're doing to me what my parents [the Nazis, the
North Vietnamese] did to me."
The narcissistic patient.
People who can be characterized as narcissistic with respect to health
are individuals who fend off feelings of insecurity and mortality through "body
worship" and incessant pursuit of perfection -- eating wholesome
food, lifting weights, jogging ten miles a day. Often high-achieving
professionals, they tend to be chronically dissatisfied with their interpersonal
relationships and intolerant of the natural physical processes associated
with illness and aging. "My body is my temple" is their motto.
But when something goes wrong in the temple, the temptation to blame
the messenger is strongly felt. "Surely there isn't anything wrong,
Doctor, or if there is, it's something you can quickly fix." Such
individuals tend to seek compensation for their suffering. Moreover,
a lawsuit vindicates the narcissist's belief that the imperfection lies
not in his or her body, but in the physician. [14]
The litigious patient.
A patient who is already suing somebody else is more likely to sue the
treating physician as well. It is useful, therefore, to take a legal
as well as a medical history, especially when a suspicion of litigiousness
has arisen. Under such conditions it is appropriate to ask a new patient, "Are
there any stressful things going on in your life? For example, are you
involved in any lawsuits?" If the patient replies, "Well,
right now I'm involved in half a dozen lawsuits, but no, I don't think
there are any special stresses in my life," that, too, is of diagnostic
and risk-management significance. Patients with Paranoid Personality
Disorders or Manic Depressive illness may occasionally present in this
manner. For such patients, litigation can be a way of denying psychotic
exacerbations of major mental illness. During such exacerbations, such
patients can provoke abandonment even among the most dedicated care providers.
The physician should also be alert for specific circumstantial indicators
(and triggers) of a litigious outlook. People who are receiving worker's
compensation or social-security disability income for a chronic disability
may expect compensation for any untoward outcome regardless of negligence.
Likewise, those who have received compensation for motor-vehicle accident
injuries or other civil damages may, in the face of losses suffered through
illness, return to the courts for compensation. Once such a pattern is
established (to the point where several generations of family members
may have received worker's compensation), litigation can become the alternative
of first resort in response to suffering. In a particularly malignant
variation of this pattern, patients with a history of criminal activity
may malinger illness or fabricate damage from medical treatment in order
to receive compensation and/or to avoid criminal responsibility.
The doctor-shopper. Why should
a patient who has pronounced six previous physicians inadequate feel
any differently about the seventh? With just a bit of bad luck, the current
physician will be the last one this patient sees before calling 1-800-LAWSUIT.
Be especially alert for doctor-shopping around multiple somatic complaints
for which no known cause has been identified. Suspicion should also be
aroused by a history of doctor-shopping in the context of chronic illness,
where the degree of disability manifested is disproportionate to the
organic configuration. Often, doctor shopping and the need to cut one's
physician "down to size" are symptoms of an underlying sense
of being defective, which the patient defends against by saying either, "I
don't need you," or "It's not me; it's you."
The High-Risk Family
When the patient either dies or becomes too disabled to take action,
the patient's family becomes the moving party in any litigation that
results. Some family characteristics that typically prompt litigation
are as follows:
Families that have taken care
of someone with a chronic, debilitating illness. When a person
dies after a long, disabling illness that drained the family's resources,
family members often experience exhaustion combined with relief that
the patient finally has died. These feelings, while entirely normal
and understandable, engender discomfort and guilt. All too often,
family members displace the guilt onto the deceased relative's other
caretaker, the physician. "I'm not guilty," they think. "You,
the doctor, are guilty. You're the one who killed her." Feelings
of resentment also may surface at this time, such as "Aunt Sally
has finally died, and what do we have to show for it except painful
memories of taking care of her?" How much easier it is to blame
the doctor than to live with one's mixed feelings toward the long-dependent
family member.
Families that have taken care
of a "difficult" or abusive patient. The risk of litigation
on the part of the survivors of a chronically ill patient is magnified
if the patient's condition entailed mistreatment of the caretaking
relatives. For example, those who have lived with a chronically alcoholic
family member have paid a tremendous emotional cost. What they feel
toward the deceased -- such as the anger at the abuse they have endured
but kept silent about-- is correspondingly intensified and projected
by blaming a physician -- perhaps the one who is identified as having
kept the patient alive, but never cured, during all those years,
or even the physician who sees the patient last, e.g. he who happened
to be on duty in the emergency room when the patient came in for
the twentieth time after a drunken brawl, only this time with a fatal
subdural hematoma.
Families of patients with
somatoform disorder. The patient who "cries wolf," expressing
an underlying depression with vague somatic concerns, presents a
high risk not only of patient-initiated litigation, as noted above,
but of family-initiated litigation as well. For instance, aroused
and alarmed repeatedly by the patient's complaints, the family takes
the patient to the doctor, who cannot find any identifiable condition.
After countless such false alarms, the exhausted physician performs
yet another routine examination based on the patient's standard complaint: "Doctor,
I have a headache." This time, with no additional data from
the patient, the headache is caused by a subdural hematoma. In the
aftermath, the family is furious at the physician's failure to diagnose
what many diligent clinicians might have overlooked under the circumstances.
Families that have previously
experienced unexpected medically related deaths or other disastrous
outcomes. A family that has in the past experienced an unanticipated
medical catastrophe, especially with a hospitalized family member,
is more likely to seek legal redress when another family member suffers
even a minor untoward clinical event. Typical predisposing events
are a congenital anomaly resulting from birth trauma and an unexpected
death following a minor surgical procedure. Reinforcing the family's
sense of alienation and betrayal, the new event may serve as a lightning
rod for unresolved feelings of grief, rage, and entitlement. Moreover,
it may be seen as an opportunity to gain compensation for the uncompensated
earlier loss.
The High-Risk Physician
Physicians understandably find it easier to think about what makes a
patient or family likely to sue than about what makes a physician likely
to be sued. Yet it is our own suit-vulnerable traits, not those of the
patient or family, that (once identified) we can most readily correct
and change. The following risk factors for physicians are most usefully
understood not as representing character traits (although they sometimes
do), but as highlighting tendencies which all of us in the profession
are susceptible to expressing under stress.
The physician as God. Anxiety about
a patient's well-being, as well as denial of one's own mortality, all
too often prompts the physician to make sweeping reassurances and unrealistic
promises. This narcissistic streak can come out in any of us under sufficient
stress. In high-anxiety situations, feeling under fire, we seek to exert
control by playing God, denying the natural course of illness and invoking
the spurious certainties offered by an uncritical reliance on medical
technology. [11] This is a temptation to be resisted;
people love to sue God for breach of promise.
The physician as technician.
The physician who acts as a technician uses detachment to defend against
the possibility of error and the grief and potential liability attendant
upon a tragic outcome. Beginning with pro forma informed consent,
the physician takes the necessary task of documentation to an extreme,
even to the point of appearing to treat the chart rather than the patient.
If the outcome is disappointing, the physician withdraws further into
the attitude that "if I can't cure you, then I can't treat you,
and no one else can, either." This stance is counterproductive,
since the patient may well conclude, "It looks to me as if this
doctor is just protecting himself/herself. The doctor seems worried that
I might sue, so maybe I will."
The guilt-or-shame-ridden physician.
The physician who is involved in a tragic outcome naturally asks, "Could
I have done something differently? Is there anything else I could have
done?" Such self-questioning is appropriate in the context of continuing
education and peer review. However, physicians who obsess and browbeat
themselves over what they did not see and did not do become suit-vulnerable
clinicians. Patients and families sense the physician's guilt or shame
and draw their own conclusions: "If the doctor is feeling guilty,
he must be guilty. Where there's smoke, there's fire."
The defensive physician.
At the opposite extreme from the guilt-obsessed physician, the defensive
physician raises the banner of defiance: "I never make mistakes,
and I never apologize." Contrary to this rigid policy, there are
ways of acknowledging error that do not reek of guilt and do not amount
to an admission of negligence. "I made a mistake here. I did my
best to remedy it" is the message one wants to give. By clearing
the air and expressing an empathic bond, this kind of statement can contribute
to preserving and even strengthening the treatment alliance. [15,16]
If the physician accurately acknowledges an error, the patient does not
need to go to court to force such an acknowledgment. It is important
to distinguish, via one's attitude, the acknowledgment of an error from
an admission of negligence.
The High-Risk Situation
The high-risk patient, family, or physician is at even greater risk when
placed in a high-risk situation. High-risk situations begin with the
high-risk doctor-patient-family relationship and include the various
economic, ethical, and legal contexts that promote such relationships.
All of the factors that predispose to malpractice litigation are intensified
in contexts that create alienation between physician and patient and
that give the physician responsibility without authority. Some contextual
factors that increase the likelihood of malpractice litigation are briefly
noted here, with emphasis on the most important of these factors, the
managed-care environment.
The High-Risk Relationship:
An Interpersonal Conundrum
Vulnerability to litigation resides not only in the physician, patient,
and family members individually, but in the relationships they form with
one another. A relationship tends to be suit-vulnerable to the extent
that it has the following characteristics:
-
The first encounter occurs under stress or duress, as in a medical
emergency.
-
There is no continuing care or ongoing relationship, so that treatment
is conducted as a series of encounters between strangers.
-
Informed consent is at best pro forma, with no attempt to
share uncertainty or to reach a deep understanding of the implications
of the decisions to be made.
-
There is no attempt to assess and, if necessary, to enhance the patient's
decision-making competence at the affective as well as cognitive
level. [17-20]
-
No attempt is made to involve the family in decision making.
For physicians who want something better than this kind of toxic relationship,
the literature of forensic psychiatry [12] as well
as general medicine [21] provides a model of physician-patient
alliance-building through the empathic sharing of uncertainty. This model
has been extended to the physician-patient-family alliance as well. [11]
Managed Care: An Economic Conundrum
Managed care, whether in the current private-sector environment or in
proposed public/private health-care financing plans overseen by the government,
is profoundly changing the ground rules by which physicians, patients,
and families relate to one another. Instead of simply a doctor-patient-family
relationship, there is now a doctor-managed care-peer review-patient-family
relationship. As the structure of decision making becomes more complex,
decisions increasingly are taken out of the hands of both the physician
and patient. In place of a dialogue in which the patient makes an informed
choice with the aid of the physician's best medical judgment, rulings
by third parties far removed from the scene approve or deny funding for
treatments recommended by the physician and chosen by the patient.
Yet while the legal liabilities of those third parties are only beginning
to be defined, [1,4] physicians are
still held to a standard of care that, for the most part, does not take
into account the constraints imposed on medical decision making by limited
resources. As a result, the patient may feel compelled to sue the accessible
second party, the physician, in response to real or perceived abandonment
by the inaccessible third party, the insurer or managed-care agency.
In other words, managed care will exacerbate the tendency of some patients
and families to scapegoat the physician. For the physician, it is a clear
and alarming case of responsibility without authority. [3]
The disruptive effects of managed care on the communication, trust, empathy,
and informed choice that are at the core of liability prevention are
only beginning to be fathomed. Increasingly, for example, patients must
qualify for a protocol to have access to new technology. To illustrate,
a 67-year-old woman with melanoma has a chance to benefit from a treatment
that involves enhancement of her immune system, but the funding the hospital
has received is based on a protocol that accepts patients only up to
the age of 65. Since the treatment is still considered experimental,
the insurer will inevitably deny funding for it. Knowing this, the physician
decides not to tell the patient about what she cannot have. When the
patient finds out about it anyway, she asks, "Doctor, why didn't
you tell me about this treatment?"
More routinely, patient confidentiality is compromised by the mandated
divulging of medical records to third-party reviewers. As patients learn
how third-party administrators (especially those associated with employers
or the government) are gaining access to highly personal diagnostic information,
they are likely to become less reliable informants. Such intrusions,
together with everpresent uncertainties about reimbursement for long-term
treatment, are believed by some observers, for example, to make the practice
of psychotherapy impossible. [22]
As long as managed care is a reality, principles of fairness and accountability
(and, indeed, the very viability of the health-care system) demand that
those who actually control the allocation of resources -- not the
physicians whose requests for resources on behalf of their patients are
denied -- be held liable for the consequences of that denial. Although
physicians are not accustomed to welcoming successful litigation, a Georgia
federal court's ruling may herald a trend more favorable to the physician-patient
relationship. It ruled that a health insurer could be held liable for
its failure to respond to a hospital's repeated requests for confirmation
of coverage of cardiac bypass surgery that had been ordered for a patient.
[23]
Pending the systemic reform that such legal precedents may inspire, information
and advocacy have become primary foci of physician ethics under managed
care. [1,3,5] Physicians
can best serve patients' interests as well as protect themselves from
liability by informing patients as to what the limitations on coverage
are and when those limits prevent implementation of the physician's best
clinical judgment. In an extension of a traditional role to the new context
of economic resource allocation, the physician should then advocate vigorously
for the patient, or else (where possible) help the patient find a better
source of coverage.
Advance Directives: An Ethical
Conundrum
Since the enactment of the Patient Self-Determination Act in 1990, hospitals
have been required to inform patients on admission of their right to
make an advance directive in the event that either resuscitation or heroic
life-sustaining measures are called for. The mandate to solicit specific
instructions for these contingencies introduces a note of legalism into
the doctor-patient relationship that was not there even twenty years
ago. It also abstracts these complex decisions from the contexts of pain,
fear, and helplessness in which they are typically made -- factors that
may impair the patient's competence to decide according to his or her
authentic wishes and long-term best interests. [17,18,24,25]
The pressure for a premature decision, by denying the patient the support
of an ongoing therapeutic alliance, increases the risk that a hasty directive
to avoid such measures as resuscitation will lead to subsequent litigation
by the patient's family.
Disability Evaluation: A Legal
Conundrum
The increasing volume of requests for worker's compensation and other
disability evaluations has placed treating physicians in an uncomfortable
dual role. If the physician's report does not accomplish the purpose
desired by the patient, the patient may retaliate by bringing suit --
as if an unsuccessful application for benefits constituted bad treatment,
i.e., malpractice. Tactful referral to a forensic clinician (e.g., a
psychiatrist or cardiologist, as appropriate) for an independent medical
examination regarding the extent of disability can be both self-protective
and protective of the doctor patient relationship.
Containing High-Risk Factors
Identification of risk factors for litigation allows for the understanding
that precedes thoughtful intervention. High-risk patients are those who
come to the physician with an unspoken, unexamined agenda, a weight of
preexisting bad feelings focused on the physician in the form of unrealistic
expectations, demands, and resentments. With the exception of a few malingerers,
their suffering is real. These suffering patients should not be rejected
as troublemakers. Rather, they can benefit from a psychiatric referral
to help them work through the issues that otherwise drive malpractice
litigation. Of course, such patients often are unwilling to see a psychiatrist
because of the perceived stigma and threat to self-esteem associated
with such action, which are magnified when one is depressed. However,
it is possible to make the psychiatric referral in a way that is sensitive
to these objections, as well as to the patient's fear of rejection by
the treating physician. [26]
Similarly, identification of the litigation-prone family is the first
step toward detoxifying the unbearable feelings such families live with.
This is best done through careful alliance-building, beginning with listening
closely while taking a family medical history to learn what the family's
experience with medical care has been. As with the high-risk patient,
a referral for psychiatric consultation or brief family counseling can
be offered in a manner sensitive to the family's distress.
For the physician, self-examination is an invaluable tool in identifying
suit-vulnerable traits. However, one does not always see what one is
not looking for. Therefore, feedback from colleagues can be helpful as
well. Where indicated, a confidential psychiatric consultation will bring
a perspective other than one's own to those counterproductive reactions
that come to the surface in troubling situations.
In a high-risk situation such as that created by third-party denial of
benefits, the physician must take care not to overidentify with the managed-care
position. A common pitfall is to deny either the existence or the value
of the proposed treatment in the face of the anticipated denial of benefits.
Under such circumstances, the patient may well identify the physician
with the controlling third party.
The Forensic Psychiatric Consultation as a Risk-Management Tool
When one or more risk factors for malpractice litigation exist, a forensic
psychiatric consultation can be a useful precaution for the treating
physician even as it enhances patient care. From the physician's point
of view, the consultation can be used to document that the patient was
fully informed and that the patient's competence to consent to treatment
(as well as to follow treatment recommendations) was assessed. Indeed,
in cases in which competence may be subtly impaired by the effects of
past and present illnesses, the consultation itself may furnish the most
effective forum both for assessing and enhancing competence. [18]
The consultant can also document how the denial of third-party benefits
exacerbates the patient's suffering by interacting with the pain, fear,
and helplessness. In the context of life- or function-threatening illness,
denial of treatment benefits can create or rekindle chronic Post-Traumatic
Stress Disorder.
By giving the patient an additional supportive relationship, the consultation
reduces the risk that the patient will use the treating physician as
a lightning rod for feelings of helplessness, hopelessness, disappointment,
frustration, or vulnerability. If necessary, the consultant can recommend
and facilitate referral to a treating psychiatrist with whom the patient
can explore and come to terms with such feelings. The consultation can
also give the family of a chronically ill patient relief from the feelings
of guilt and shame that might otherwise be translated into rage. When
medicine has reached the limits of its ability to cure, a consulting
psychiatrist and, as needed, a treating psychiatrist can support the
physician's efforts to reassure the patient and family that the medical
profession has not abandoned them.
Finally, when a tragic outcome has occurred, a forensic psychiatric consultation
can help the patient or the family communicate their bad feelings in
some other manner than via a lawsuit. When a lawsuit seems inevitable,
a "psychological autopsy" of both the physician's decision-making
process and the patient's competence to consent can lay the foundation
for a successful defense, as in Drewry v. Harwell, the case of
the obstetrician-gynecologist cited above. [10] Although
the conditions of medical practice today might appear to overwhelm any
and all efforts at patient sensitive risk management, those conditions
make the strategic value of an early forensic psychiatric consultation
all the more salient.
Acknowledgments
The authors wish to thank their colleague, Thomas G. Gutheil, with whom
they have enjoyed an enlightening dialogue since the inception of the
Program in Psychiatry and the Law, and the other colleagues who have
joined the Program over the years.
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