"A person may cause evil to others not only by his actions but by his inactions."
-- John Stuart Mill
Suicide by Managed Care: The Cost of Care
Versus the Value of Life
Rand Partridge, Ph.D.
Part 2 -- Who’s Liable?!
In part 1 the author presented the conflict between a provider and a managed care organization in treating a suicidal client. Who would be held legally liable for the suicide of the client in the scenario, if anybody? Would the managed care company be liable, or would the treating psychologist be liable? For the psychologist, professional conduct would be examined to determine whether the conduct, both actions and inaction, in treating the client exhibited carelessness. The basis for determining liability lies in the principles of civil law.
Civil law focuses on financial compensation for wrongdoing. A tort refers to any civil wrong, with the exception of breach of contract. In civil law the plaintiff, the estate of the client here, represents the person who has sustained harm as a result of the conduct of the named defendant or tortfeaser, the psychologist or the managed care organization. The plaintiff initiates a tort action in order to obtain compensation for the harm occurring, the death of the client, as a result of the conduct of the tortfeaser. If the judgment occurs for the plaintiff, the plaintiff is financially compensated for the harm caused. Altogether, the law of torts has three goals: a) to compensate plaintiffs for harm caused by tortfeasors, b) to force a judged wrongdoer to be responsible for the costs associated with the harm, and c) to deter future, similar harm to others.
The tort applicable to the professional conduct of psychologists is negligence, which broadly refers to careless conduct. Negligent behavior involves a failure to exercise the ordinary degree of care and conform conduct to the standard that a reasonably prudent professional would demonstrate. Health care providers generally must exhibit an average degree of competence in regard to the current state of knowledge in their field (e.g., psychology and mental health care). Malpractice is a form of negligence, representing wrongful conduct by a professional, such as a psychologist. Thus, malpractice and negligence are interchangeable when discussing the conduct of a psychologist who is careless in providing care to a client.
To be legally actionable, as malpractice, several elements must exist: a) Duty, b) Deviation, c) Damage, and d) Direct cause. Duty refers to the requirement for a professional relationship between a psychologist and a client. The provider must have provided care that involves Deviation below the accepted standard of care. The care must have resulted in Damage or harm to the client. Substandard care must have caused Direct harm to the client, and further, this consequence must have been reasonably foreseeable. These are the established elements, the core of malpractice law, that a psychologist should understand.
The scenario as presented suggests several prominent concerns about the psychologist’s conduct, although other concerns may exist. While the psychologist is obviously worried, there isn’t any documented, systematic, ongoing risk assessment exploring the conditions and characteristics associated with the likelihood of suicidal behavior. This type of risk assessment may have revealed an extreme likelihood for suicidal behavior. Failure to adequately assess the risk could have led to harm, since the suicide may have been foreseeable. While the psychologist considered several reasonable alterations, no documentary evidence exists of attempts to discuss the risk with the client’s other health care providers, more knowledgeable colleagues, or member’s of the client social support network. No documentary evidence exists of attempts to address the issue of involuntary commitment or safety-proofing the client’s home. For an extreme risk, such inaction can represent substandard care. While the psychologist may have had reasonable clinical impulses, inadequate documentation of conduct can undermine a malpractice defense.
When a conflict over care occurs between a psychologist and a managed care organization, protection against a negligence tort develops through knowledge, conduct, and documentation. Psychologists should have the knowledge necessary to provide an appropriate standard of care for the risk posed. For suicidal clients, psychologists must also learn about the risk factors for suicide. The conduct of a reasonably prudent psychologist in caring for a client at risk follows two general approaches. The psychologist conducts systematic, ongoing risk assessment. Based upon the risk posed, the psychologist develops a plan, considering ethical and legal principles, to protect the client from harm. Finally, the cautious psychologist thoroughly and clearly documents all actions.
The following references may prove useful in incorporating information about ethical and legal principles into clinical decision-making:
Bednar, Richard L., Bednar, Steven C.,
Lambert, Michael J., & Waite, Dan R. (1991). Psychotherapy with
high-risk clients: Legal and professional standards. Pacific Grove, CA:
Brooks/Cole Publishing Company.
Bennet, Bruce E., Bryant, Brenda K.,
VandenBos, Gary R., & Greenwood, Addison. (1990). Professional
liability and risk management. Washington, D.C.: American Psychological
Association.
Simon, Robert I. (1998). Concise guide
to psychiatry and the law for clinicians (2nd edition). Washington, D.C.:
American Psychiatric Press.
Stromberg, Clifford D. et. al. (1988). The psychologist’s legal handbook. Washington, D.C.: The Council for the National Register of Health Service Providers in Psychology.
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Part 2 -- Who’s Liable?! |