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
-
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
-
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.
