November 2021

You learn that someone is trying to serve you with a subpoena.  Your best strategy is to avoid the process server, as this will protect your patient’s confidentiality and let you avoid the hassle of complying with the subpoena.

What do you think - fact or fiction?

Fiction! 

Evading service of a subpoena rarely benefits anyone.  The risk management advice is generally to accept service so the subpoena can be evaluated and a proper response can be formulated.  For more information on types of subpoenas and guidance for responding, click here for our article Subpoenas Should Not be Ignored

October 2021

Health plans’ utilization review guidelines can evidence the standard of care.

What do you think - fact or fiction?

Fiction! 

Clinical practice guidelines can definitely be used to determine the applicable standard of care, but these are authoritative guidelines, such as those developed by the APA and AACAP.  They are not UR guidelines from payers.  Also, following the guidelines does not necessarily mean there is no negligence.  And the reverse is true - not following the guidelines does not automatically mean there is no negligence. Guidelines are just one of many factors that can be used to determine the applicable standard of care.  (For our new resource on the standard of care, click here.) Your professional judgment is always determinative. If you decide to deviate from an authoritative guideline, your reasoning for that determination should be documented.  

September 2021

If a patient is non-adherent to your treatment plan (e.g., does not take medications as prescribed, does not keep regular appointments, fails to obtain necessary labs, etc.) and this then results in care that does not meet the standard of care, you should still continue to treat them to the extent they will allow.  Even if you are not meeting the standard of care, it is better than the patient not receiving treatment. 

What do you think - fact or fiction?

Fiction! 

If the patient will not agree to the treatment plan and will not let you provide treatment that meets the standard of care, that generally is not a treatment relationship you can stay in.  Sub-standard care, in terms of liability, is not better than no treatment.

Before terminating the treatment relationship, you may want to consider the cause(s) of non-adherence; for more information, see our article.

August 2021

The Ryan Haight Act requires, with very few limited exceptions, an initial in-person examination prior to prescribing controlled substances, and subsequent in-person visits every two years.

What do you think - fact or fiction?

Fiction! 

There is no requirement for subsequent in-person visits in the Ryan Haight Act.  The only in-person visit requirement is initially, before prescribing the controlled substance.  However, subsequent in-person visits may be clinically necessary or legally required under state law.  For more information, see our new resource “Top Five Things to Know about the Ryan Haight Act.” 

 

July 2021

A psychiatrist’s former patient has posted a scathing online review of the psychiatrist, his practice, and his treatment. The patient didn’t include a name, but he is positive he knows the author of the post. The psychiatrist feels he must respond to the post given the ridiculous lies, but knows he is limited in exactly what he can say due to confidentiality. However, since the patient shared in the post that she was in treatment with him and the fact of treatment is no longer confidential, the psychiatrist believes he can address the patient’s false statements by posting his response.

What do you think - fact or fiction?

Fiction! 

Even though a patient tells the world of your treatment, you cannot acknowledge that the reviewer was treated by you.  For more information, click here to access “10 Things to Know about Online Reviews."

 

June 2021

When parents continue to pay for services once a patient turns 18, they continue to have access to patient information the same as when the patient was a minor.

What do you think - fact or fiction?

Fiction! 

Once a patient turns 18, parents no longer automatically have the right to access the patient’s record.  Once a patient turns 18:

  • To release information to parents, even if they are continuing to pay for your services, you need the patient to authorize such release.
  • If parents had access to the patient’s records on your patient portal, be sure to discontinue that access.
  • Remember to get informed consent from the now adult patient for all medications, even those the patient is currently taking.

 

May 2021

You can terminate care with a patient without abandoning the patient. 

What do you think - fact or fiction?

Fact! 

We often face reluctance from psychiatrists when we discuss terminating with a patient who has been non-adherent to the treatment plan.  Typically this reluctance, which can be significant, stems from a belief that terminating treatment with a patient means the psychiatrist is abandoning the patient, and that their care (though substandard because of the patient’s non-adherence) is better than no care.  Even during the pandemic, with a greater shortage of psychiatrists available for new patients, substandard care is in fact negligent care.  By following the proper termination process, which includes providing notice to the patient (which varies by state, but typically is 30 days), providing referral resources, and confirming the termination in a letter, they can put an end to the negligent treatment and avoid an allegation of abandonment.  For more information on this topic, you can view our article here

 

April 2021

All psychiatrists are covered entities under HIPAA, so all psychiatrists are subject to government enforcement for violations of HIPAA’s Privacy and Security Rules.

What do you think - fact or fiction?

Fiction! 

Not all psychiatrists are covered entities under HIPAA.  Covered entities are only those healthcare providers who do specific transactions electronically with health plans.  The most frequent electronic transaction done with health plans is the electronic transmissions of claims forms for payment, whether by the psychiatrist or by a billing service on behalf of the psychiatrist.  There are several other transactions, such as checking on referrals, pre-authorizations, etc., that if done electronically with a health plan, make a provider covered under HIPAA, meaning HIPAA must be complied with.  The government has a decision tool available here to help you determine if you are a covered entity.  But keep in mind that there are additional confidentiality laws, such as state confidentiality law, that must be complied with even if you are not a covered entity under HIPAA.

 

March 2021

A patient invited you to invest in an innovative project that you fully support. Your only contribution would be financial - you would not be providing any type of service. Before agreeing, you pondered whether this arrangement could be seen as some type of boundary violation, but you decided no, as your involvement would be purely financial, and certainly nothing of a personal or sexual nature.

Boundary violations have to involve some kind of personal relationship (which is usually sexual) between the psychiatrist and the patient.

What do you think - fact or fiction?

Fiction! 

Boundary violations are not limited to sex and other personal relationships.   Over the years, boundary violations has always made it to our list of top causes of actions brought against our insured psychiatrists - and not at the bottom of the list!  Fortunately, not all of these cases involve sexual allegations.

Boundary violations can result from numerous types of "multiple” or “dual” relationships.  Such relationships can occur anytime a psychiatrist relates to patients in more than one relationship, whether professional, social, or business, in addition to being in the treatment relationship.  Multiple or dual relationships can lead to allegations of taking unfair advantage of the treatment relationship to exploit or otherwise further the psychiatrist’s personal, religious, political, or business interests.  As a general rule - once you are the patient’s psychiatrist, that is all you should be.

Even if the psychiatrist has only the best of intentions, if something goes wrong, there will be allegations that there were non-therapeutic motivations involved.

February 2021

You see your patient on the news - law enforcement is looking for him and asking anyone with any information about who he is to contact the FBI.  They say he should be considered dangerous.

The correct next step here is to contact law enforcement. 

What do you think - fact or fiction?

Fiction! 

The correct next step is to contact your Risk Manager or professional liability insurer.  The exceptions to patient confidentiality are very limited. It is possible in this case that you could be contacted by law enforcement, as well as the media.  Do not speak to the media, and do not assume that law enforcement is entitled to any patient information, regardless of what the investigators may say.  For more information on this, see our article "When Your Patient Makes the News". 

January 2021

As a psychiatrist, you are more likely to be sued or have a claim (a demand for money outside of litigation) brought against you than have an administrative action (an investigation by a regulatory agency) brought against you.

What do you think - fact or fiction?

Fiction! 

The trend of psychiatrists being more likely to have an administrative action brought against them than a claim or lawsuit continued in 2020.  Based on our Program’s data, 60% of all incoming actions in 2020 were administrative actions, versus 40% claims and lawsuits. 

Psychiatry is a regulated profession, with many federal and state agencies as regulators.  The vast majority of these administrative actions were brought by state licensing boards; other relevant federal agencies include HHS (enforces HIPAA) and the DEA.

December 2020

A psychiatrist can be sued and be found liable for the acts of a professional with whom she merely shares office space.

What do you think - fact or fiction?

Fact! Your presence in a shared office may lead your office mate’s patients to believe that you employ or supervise your office mate.  You may be held liable for the office mate’s malpractice if a court finds the patient’s perception of association between you and the other professional to be reasonable.  For simple steps to take to minimize your professional liability risks when sharing office space, click here

November 2020

Psychiatry is the least often sued medical specialty. 

What do you think - fact or fiction?

Fact! Psychiatry is the least often sued medical specialty.  For more information on this, things to do and not do after an adverse event, and more, click here to see slides from a recent presentation.

October 2020

There is no risk if you ignore notifications from a patient’s pharmacy benefit plan with concerns about what you are prescribing.

What do you think - fact or fiction?

Fiction. If there was patient harm or death, even if unrelated to the medications in the notice, and there was an action brought against you, plaintiff’s attorney would use the fact that you ignored the notification against you as evidence of negligent care.

But reviewing the notice does not mean that you - the treating psychiatrist - have to agree with the concerns. Here is the brief risk management advice:

  1. Review and research the information
  2. Discuss with the patient
  3. Document your decision-making

For more information on this topic, you can access our risk management article here.