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.