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


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




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:

  1. The first encounter occurs under stress or duress, as in a medical emergency.
  2. There is no continuing care or ongoing relationship, so that treatment is conducted as a series of encounters between strangers.
  3. 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.
  4. 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]
  5. 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.


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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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.