Ways of Dealing With a Malpractice Hazard
Sir: We would like to respond to "Ostensible Agency: Another Malpractice
Hazard" by Gregory J. Firman, M.D., J.D. [1], who
described a suite in which a physician was named as defendant because
he was (falsely) alleged to have been the supervisor of a counselor with
whom he shared office space. While it is a familiar saying that "hard
cases yield bad law," Dr. Firman's article suggests that rare and
exceptional cases yield confusing advice; we feel that the author's suggestions
might even provoke litigation.
The author's advice, summarized, included checking the credentials (with
annual updates) of nonmedical practitioners who share one's space, using
separate letterheads, and having patients sign forms documenting their
awareness that the physician is not the supervisor of the nonphysician.
We suggest that this advice is not useful enough to justify the considerable
investment of labor involved. First, there is simply no defense against
the filing of a suit; anyone can sue anyone. Second, the article confounded
the many different space-sharing arrangements (for economy or convenience)
that are possible.
Even more important, too many individuals seem to feel that the solution
to any problem in the negotiations between physicians, their colleagues,
and patients is the use of yet another form, with precise contractual
language. Not only is such a form alienating and confusing for the average
patient but it may serve as an inflammatory inducement to the plaintiff's
attorney to focus on the nature of the (actually irrelevant) physician-patient
relationship. That is, if a plaintiff's attorney discovers that such
a form has been signed, that document would then become the new focus
of a legal attack, just as happens with informed-consent forms ("the
patient didn't really understand it," etc.). Such "formophilia" represents
the classic case of pro forma considerations taking undue precedence
over the process of therapy, the interpersonal dialogue [2].
The suggestion that the physician check on the credentials of individuals
who share office space, moreover, seems to create (rather than avoid)
a supervisory duty and, by implication, to create responsibility for
those very qualifications--a line of duty and responsibility, ironically,
that probably would not exist with more casual arrangements.
Our simpler alternative advice, which we believe actually protects physicians,
includes: 1) straightforward lease agreements articulating the separate
functions of private and shared practice, 2) as suggested in the article,
separate letterheads for separate functions, 3) a brief note in the patient's
record that this is a "private patient" of the nonphysician,
and 4) avoidance of special forms.
Forms do not serve the alliance and may strain it. A form that introduces
the physician's name only to exclude its relevance is confusing to patients
at best and antagonizing at worst. "What is the actual purpose of
this disclaimer?" the patient may well wonder. "Whose interests
are being protected? Who is defending himself against whom?" The
situation engenders the doubt one might feel upon reading on a can of
food "Contains no toxins." Indeed, one hopes not, but what
fear is here being so maladroitly eased? Is it not rather a case of qui
s'excuse, s'accuse?
In sum, Dr. Firma's detailed recommendation in response to one admittedly
unusual and aberrant case was, we believe, bad advice, since it would
both create increased exposure to liability and place a potential strain
on the therapeutic alliance--the alliance lying at the core of all liability
prevention [3].
References
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Firman GJ: Ostensible agency: another malpractice
hazard. Am J Psychiatry 1988; 145:510-512
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Bursztajn H, Gutheil TG, Cummins B: Medicolegal
issues in inpatient psychiatry, in Inpatient Psychiatry: Diagnosis
and Treatment, 2nd ed. Edited by Sederer I., Baltimore, Williams & Wilkins,
1986
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Gutheil TG, Bursztajn H, Brodsky A: Malpractice
prevention through the sharing of uncertainty: informed consent and
the therapeutic alliance. N Engl J Med 1984; 311:49-5
Thomas G. Gutheil, M.D.
Harold Bursztajn, M.D.
Boston, Mass.