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].


  1. Firman GJ: Ostensible agency: another malpractice hazard. Am J Psychiatry 1988; 145:510-512
  2. 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
  3. 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.