Lawsuits and NPDB

[forchinet121]

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So if you have a lawsuit filed against you and you settle or you lose I think you have to report to the NPDB and then have to report this to every medical board and to all future employers, how big of a deal is this? Do you not get hired if you have had lawsuits? Is this a concern?

 

[PikminOC]

So if you have a lawsuit filed against you and you settle or you lose I think you have to report to the NPDB and then have to report this to every medical board and to all future employers, how big of a deal is this? Do you not get hired if you have had lawsuits? Is this a concern?

It's a concern with insurance credentialing and getting malpractice insurance

 

[nexus73]

Can be. For employment they will usually not worry too much unless there are several lawsuits, especially if it's repeated similar errors. For malpractice insurance I'm not sure how they change rates based on lawsuits, board complaints, etc.

I listened to a podcast and a lawyer suggested some success when settling a lawsuit to define the settlement as paying the cost of defending the claim, rather than admitting any guilt or settling the specific complaint. This way you're not technically settling the case, you're saying, look we would have paid out $75K to defend this thing, so if plaintiff agrees to it, we're just going to pay $50K to avoid the cost of defense. This way plaintiff gets something and the resolution of the case is not a settlement accepting responsibility, it's paying off the plaintiff to save defense costs. The lawyer said this has kept settlements off the NPDB, and a couple were reported but he was able to get them removed.

 

[psych_0]

Slightly off topic, but what the things psychiatrists actually get sued for? When I spoke with a friend of mine who is a prominent malpractice attorney in town (we those annoying ambulance chaser TV ads on every channel), he laughed and said it wasn't worth his time to sue a psychiatrist and told me he could "count on one hand" the amount of times his firm had ever even considered suing psych.

 

[forchinet121]

Slightly off topic, but what the things psychiatrists actually get sued for? When I spoke with a friend of mine who is a prominent malpractice attorney in town (we those annoying ambulance chaser TV ads on every channel), he laughed and said it wasn't worth his time to sue a psychiatrist and told me he could "count on one hand" the amount of times his firm had ever even considered suing psych.

Honestly it’s really funny because we statistically are the least sued but by far the most anxious about being sued in my experience

 

[splik]

Slightly off topic, but what the things psychiatrists actually get sued for? When I spoke with a friend of mine who is a prominent malpractice attorney in town (we those annoying ambulance chaser TV ads on every channel), he laughed and said it wasn't worth his time to sue a psychiatrist and told me he could "count on one hand" the amount of times his firm had ever even considered suing psych.

Probably varies by state on how worth it is is, but psychiatrists are sued for wrongful death (either when patient kills themselves or someone else or deaths in restraints/seclusion etc), wrongful diagnosis, failure to diagnose, failure to hospitalize, abandonment, violating confidentiality, failure to warn/protect, failure to provide informed consent, harm from medications, failure to supervise mid-levels, and boundary violations.

But yes, because the standard of care is low in psychiatry, it is quite hard to be successfully sued. psychiatrists account for about 1% of NPDB malpractice reports, but 4% of physicians. The annual risk of lawsuit for psychiatrists is 2.5% which is significantly lower than physicians in general. Working in ER, inpatient, and correctional settings has higher risk of lawsuits.

 

[forchinet121]

Probably varies by state on how worth it is is, but psychiatrists are sued for wrongful death (either when patient kills themselves or someone else or deaths in restraints/seclusion etc), wrongful diagnosis, failure to diagnose, failure to hospitalize, abandonment, violating confidentiality, failure to warn/protect, failure to provide informed consent, harm from medications, failure to supervise mid-levels, and boundary violations.

But yes, because the standard of care is low in psychiatry, it is quite hard to be successfully sued. psychiatrists account for about 1% of NPDB malpractice reports, but 4% of physicians. The annual risk of lawsuit for psychiatrists is 2.5% which is significantly lower than physicians in general. Working in ER, inpatient, and correctional settings has higher risk of lawsuits.

If risk of lawsuits is 2.5 why isn’t the NPDB 2.5 percent also? Why the discrepancy? Also what does wrong diagnosis or failure to diagnose exactly mean like how do you get sued for that successfully? Why would someone diagnose incorrectly on purpose?

 

[splik]

So if you have a lawsuit filed against you and you settle or you lose I think you have to report to the NPDB and then have to report this to every medical board and to all future employers, how big of a deal is this? Do you not get hired if you have had lawsuits? Is this a concern?

So you don't report to the NPDB - your malpractice carrier will. However, whenever you apply for a license or credentialing with a hospital/clinic/payer etc they will ask about lawsuits. The NPDB is searched mainly to look for discrepancies. So if you fail to report this and it comes up on search, that will look bad. Obviously, one will be less desireable if you've been sued, but psychiatrists are in high demand that much of the time it's unlikely to be a big deal. The nature of the lawsuit will also be considered as well - e.g. boundary violations is worse than say a borderline pt who died by suicide.

If risk of lawsuits is 2.5 why isn’t the NPDB 2.5 percent also? Why the discrepancy? Also what does wrong diagnosis or failure to diagnose exactly mean like how do you get sued for that successfully? Why would someone diagnose incorrectly on purpose?

There is no discrepancy. 2.5% is risk of a psychiatrist being sued annually, 1% is how many claims of all physicians are regarding psychiatrists.
I would say that psychiatrists incorrectly diagnose purposefully all the time (e.g. to appease patients, justify hospitalizations, get treatments like TMS covered etc) but that is irrelevant here. We are talking about negligent diagnosis due to incompetence. For example, dx pt with psychosis NOS when they have delirium tremens or werknicke's encephalopathy, failure to dx a brain tumor. Dx schizophrenia instead of dementia with lewy bodies causing harm because of exposure to antipsychotics. Dx patient with conversion disorder when they have myaesthenia gravis. These are all real examples.

 

[psych_0]

Probably varies by state on how worth it is is, but psychiatrists are sued for wrongful death (either when patient kills themselves or someone else or deaths in restraints/seclusion etc), wrongful diagnosis, failure to diagnose, failure to hospitalize, abandonment, violating confidentiality, failure to warn/protect, failure to provide informed consent, harm from medications, failure to supervise mid-levels, and boundary violations.

But yes, because the standard of care is low in psychiatry, it is quite hard to be successfully sued. psychiatrists account for about 1% of NPDB malpractice reports, but 4% of physicians. The annual risk of lawsuit for psychiatrists is 2.5% which is significantly lower than physicians in general. Working in ER, inpatient, and correctional settings has higher risk of lawsuits.

Very informative. Thanks! You mention inpatient being higher risk. I've always wondered, how long after discharge is a suicide still legally our fault? Obvious if someone kills themselves same day of discharge or a day after discharge, fine, maybe our responsibility...or at least looks bad from an optics perspective. But when does it end? A week? A month? I get patients all the time who are involuntarily admitted for a suicidal statement made to family or a suicidal text during an argument or drunk & suicidal but now sober & euthymic. They get to the hospital and deny SI till the cows come home. Admissions last 24-48 hours in these cases. How many days in a row does a person have to say they're not suicidal until I'm no longer responsible? Feels arbitrary. Nearly all of these patients discharge with a "safety" plan and family/friends telling me they don't have guns or additional concerns..

 

[nexus73]

So you don't report to the NPDB - your malpractice carrier will. However, whenever you apply for a license or credentialing with a hospital/clinic/payer etc they will ask about lawsuits. The NPDB is searched mainly to look for discrepancies. So if you fail to report this and it comes up on search, that will look bad. Obviously, one will be less desireable if you've been sued, but psychiatrists are in high demand that much of the time it's unlikely to be a big deal. The nature of the lawsuit will also be considered as well - e.g. boundary violations is worse than say a borderline pt who died by suicide.

There is no discrepancy. 2.5% is risk of a psychiatrist being sued annually, 1% is how many claims of all physicians are regarding psychiatrists.
I would say that psychiatrists incorrectly diagnose purposefully all the time (e.g. to appease patients, justify hospitalizations, get treatments like TMS covered etc) but that is irrelevant here. We are talking about negligent diagnosis due to incompetence. For example, dx pt with psychosis NOS when they have delirium tremens or werknicke's encephalopathy, failure to dx a brain tumor. Dx schizophrenia instead of dementia with lewy bodies causing harm because of exposure to antipsychotics. Dx patient with conversion disorder when they have myaesthenia gravis. These are all real examples.

is it standard of care for a psychiatrist to diagnose a brain tumor, I feel there must be more details to this story. Like mistaking obvious delirium and admitting the patient to inpatient psych?

 

[splik]

is it standard of care for a psychiatrist to diagnose a brain tumor, I feel there must be more details to this story. Like mistaking obvious delirium and admitting the patient to inpatient psych?

because we are physicians, we are supposed to be able to identify and rule out other medical causes of psychiatric symptoms. There is of course some hindsight bias that can play into these kinds of lawsuits, but that's for the experts to duke it out in our adversarial system. As long as the plaintiff's attorney can find an expert to say that the good doctor should have order an MRI etc then the civil suit can proceed.

Very informative. Thanks! You mention inpatient being higher risk. I've always wondered, how long after discharge is a suicide still legally our fault? Obvious if someone kills themselves same day of discharge or a day after discharge, fine, maybe our responsibility...or at least looks bad from an optics perspective. But when does it end? A week? A month? I get patients all the time who are involuntarily admitted for a suicidal statement made to family or a suicidal text during an argument or drunk & suicidal but now sober & euthymic. They get to the hospital and deny SI till the cows come home. Admissions last 24-48 hours in these cases. How many days in a row does a person have to say they're not suicidal until I'm no longer responsible? Feels arbitrary. Nearly all of these patients discharge with a "safety" plan and family/friends telling me they don't have guns or additional concerns..

This is a very important point as there has to be proximate causation for there to be negligence. The way I think about it is, how long could you have reasonably hospitalized the patient? Say the patient is on a 14 day hold, and you discharge them before the end of it, and a bad outcome happens upon discharge within the time that was left on the commitment, then there is a case for malpractice. If the event happened after that time period, and there wouldn't have been grounds to keep the patient longer, then there isn't a case. At least that's how I think about it.

In terms of your example of a drunkicidal patient who sobers up and now denies SI, the issue comes down not to how long it's been, but what you did to mitigate the risk of suicide. For a patient like that you know that drinking again is going to make them suicidal. So if you treated withdrawal, gave them some antabuse, offered them substance use treatment, referral to residential/IOP etc (even if they refused), then you have a good defense. If on the other hand, you didn't take any steps to mitigate the risk then much harder to defend and you could be on the hook. But you definitely don't have to hospitalize them, since it won't be beneficial and once it comes down to discharge, the hospitalization hasn't mitigated their risk any.

Most of the time Im consulted on a malpractice case, I don't think there was malpractice. It usually has to be really obvious. For example, I consulted on a case recently where a patient killed another patient during the hospitalization. Since that is a never event, it is de facto malpractice. But it's not common for all the ducks to line up in a row. That said, there are psychiatrists out there who are willing to say their colleagues were negligent even when they weren't and that can force a settlement, or for the plaintiff to prevail at trial.

 

[calvnandhobbs68]

Most of the time Im consulted on a malpractice case, I don't think there was malpractice. It usually has to be really obvious. For example, I consulted on a case recently where a patient killed another patient during the hospitalization. Since that is a never event, it is de facto malpractice. But it's not common for all the ducks to line up in a row. That said, there are psychiatrists out there who are willing to say their colleagues were negligent even when they weren't and that can force a settlement, or for the plaintiff to prevail at trial.

I'm not getting this part of it. How is it "de facto" malpractice on the part of the physician? I mean sure, if there was a lot of violent escalating activity leading up to this that everyone ignored, I could get how this could be malpractice, but for instance say an antisocial roommate gets pissed off at the other roommate and decides to suffocate him in the middle of the night between q15 checks or before security can get in there....how the heck does that fall below the standard of care on the part of the physician and the physician's job to prevent?

Homicide is a quite different "never event" than leaving a surgical instrument in a patient, the latter of which is quite directly within the physician's control.

 

[splik]

I'm not getting this part of it. How is it "de facto" malpractice on the part of the physician? I mean sure, if there was a lot of violent escalating activity leading up to this that everyone ignored, I could get how this could be malpractice, but for instance say an antisocial roommate gets pissed off at the other roommate and decides to suffocate him in the middle of the night between q15 checks or before security can get in there....how the heck does that fall below the standard of care on the part of the physician and the physician's job to prevent?

Homicide is a quite different "never event" than leaving a surgical instrument in a patient, the latter of which is quite directly within the physician's control.

It might not be malpractice on the part of the physician, and on the part of the hospital. However in the case I reviewed, the patient was admitted with HI, put in a room with another patient, and killed the other patient. The joint commission has identified various "never events" in terms of patient safety. This includes assault of a patient or staff member. Thus evidence of such an event is considered de facto negligence. I'm not saying it's fair, but from a medicolegal perspective there is no defense and these cases will definitely move to settle.

If there hadn't been a physician involved, then that physician might not be liable, though if they were slow about evaluating the patient, it could be argued they were negligent in failing to triage the patient.

 

[Psychresy]

We know the immediate period upon discharge from the inpatient unit is the most high risk time for suicide. As such, I would imagine there are a number of suicides that occur shortly after discharge. I don't think these cases are automatically negligence because of the short course between discharge and suicide. A truly suicidal patient can certainly say and do all the right things so they are placed in a less restrictive environment in order to follow through on their desire to kill themselves. The way it has been explained to me by a nationally prominent forensic psychiatrist at my program is that it's okay to be wrong, but it's not okay to not make a comprehensive suicide assessment which is documented in the chart. He says good documentation is almost always enough to ward off a lawsuit - attorneys just don't want to take the case because it's already an uphill battle to begin with.

 

[Psychresy]

It's a concern with insurance credentialing and getting malpractice insurance

As in, if you've lost a lawsuit you cannot get insurance/your career is dead?

 

[dl2dp2]

For some clinical contexts, suicide/overdose deaths are reasonably common, and physicians certainly don't get sued every time that happens.

In my experience/hearsay repository, the biggest headache/reason when people get sued in your everyday outpatient practice is boundary violation. It's VERY interesting how often a psychiatrist ends up having inappropriate sexual interactions with a patient. This is actually the "de facto" malpractice, as every time it happens it will end up moving to settle/potential criminal liability.

I would say this is far more common than suicide/misdiagnosis-missing-zerba driven lawsuits in our field. I know *several* PROMINENT academic psychiatrists who got into major trouble for this. Going to patients' houses/stalking. Inappropriate texting of sexual content. That sort of thing. Historically it's obviously much much worse. And everyone I talk to about this says hey this is dumb and will never happen to me, but it's shocking how often this happens. I actually think a LOT of this never gets reported.

And it's NOT always men. Get supervision before you do anything that you have any slight doubt whether it's "appropriate".

 

[nexus73]

For some clinical contexts, suicide/overdose deaths are reasonably common, and physicians certainly don't get sued every time that happens.

In my experience/hearsay repository, the biggest headache/reason when people get sued in your everyday outpatient practice is boundary violation. It's VERY interesting how often a psychiatrist ends up having inappropriate sexual interactions with a patient. This is actually the "de facto" malpractice, as every time it happens it will end up moving to settle/potential criminal liability.

I would say this is far more common than suicide/misdiagnosis-missing-zerba driven lawsuits in our field. I know *several* PROMINENT academic psychiatrists who got into major trouble for this. Going to patients' houses/stalking. Inappropriate texting of sexual content. That sort of thing. Historically it's obviously much much worse. And everyone I talk to about this says hey this is dumb and will never happen to me, but it's shocking how often this happens. I actually think a LOT of this never gets reported.

And it's NOT always men. Get supervision before you do anything that you have any slight doubt whether it's "appropriate".

I wonder how often this happens in other specialties and if it's truly a lot less for family docs for example, or if maybe people just aren't bothered as much if a family doc starts dating a patient. I say this with two anecdotes. One being my uncle in law was a family doc who started dating and married a patient with no blow back. And in a small rural town so it wasn't an unknown occurrence in the community. Another was during a residency, another small town, a female family doc was dating a male patient with seemingly no concern. These were also people in their 50s, which might be different than a 60 year old doctor dating a 23 year old patient.

 

[WisNeuro]

I wonder how often this happens in other specialties and if it's truly a lot less for family docs for example, or if maybe people just aren't bothered as much if a family doc starts dating a patient. I say this with two anecdotes. One being my uncle in law was a family doc who started dating and married a patient with no blow back. And in a small rural town so it wasn't an unknown occurrence in the community. Another was during a residency, another small town, a female family doc was dating a male patient with seemingly no concern. These were also people in their 50s, which might be different than a 60 year old doctor dating a 23 year old patient.

While I think that it's a bad idea in both MH and other professions, generally speaking, much more of an issue in MH. I think the power differentials are wider, and there is much more of an issue of being able to take advantage of someone in an emotionally vulnerable state. A doc knowing your phsyical health conditions is a lot different than one knowing your innermost fears and such.

 

[comp1]

It's really sad (and wrong) that any psychiatrist would conceptualize a patient suicide as ever their fault, legally or otherwise, regardless of when it occurred. At least in CA, as long as you made a reasonable risk assessment, you are literally immune from civil lawsuits regarding suicides. It's one of the best formal immunities in medicine. Last I read, undisclosed medication side effects were the most common lawsuit against psychiatrists, but as others have pointed out, vanishingly rare. Most of our meds are pretty safe, at least in the short term. I know inappropriate relationships are relatively up there as well.

 

[FlowRate]

Honestly it’s really funny because we statistically are the least sued but by far the most anxious about being sued in my experience

Maybe tied with peds? 🙃

 

[Candidate2017]

It might not be malpractice on the part of the physician, and on the part of the hospital. However in the case I reviewed, the patient was admitted with HI, put in a room with another patient, and killed the other patient. The joint commission has identified various "never events" in terms of patient safety. This includes assault of a patient or staff member. Thus evidence of such an event is considered de facto negligence.

Joint Commission does not regulate what is or is not de facto malpractice. The term "never event" is as stupid as "zero suicide". Suicides, homicides, or other bad acts on the part of patients are not defacto malpractice without additional acts/omissions from the physician that deviate from the standard of care. And if slow triage makes imposes liability for a patient's bad acts, then RNs need to sue hospitals and doctors every time they get attacked by a patient who is waiting to see a doctor.

As in, if you've lost a lawsuit you cannot get insurance/your career is dead?

I don't know any states that require malpractice insurance to practice medicine. A small percentage of doctors actually go bare and have no legal assets. This makes sense if you have a lot of money and treat high net worth patients who aren't going to be satisfied with your $1 mil/$4 mil policy and have enough money to hire expensive lawyers to bludgeon you and your insurer into submission (i.e., pro athletes who will sue an orthopod for tens or hundreds of millions in damages to their career).

But all employers will require medmal insurance because they like to smear and spread liability around like a psychotic patient playing with feces.

 

[nexus73]

The way I think about it is, how long could you have reasonably hospitalized the patient? Say the patient is on a 14 day hold, and you discharge them before the end of it, and a bad outcome happens upon discharge within the time that was left on the commitment, then there is a case for malpractice. If the event happened after that time period, and there wouldn't have been grounds to keep the patient longer, then there isn't a case. At least that's how I think about it.

This is an irratioal approach. The length of the hold is an artificial timeline created by statute and has nothing to do with a patient's clinical readiness for discharge. By this logic a psychiatrist should keep every patient for the maximum time allowed by the hold, because if they don't and there is a bad outcome before the hold would have ended it is negligent. There are no practice guidelines stating standard of care is to keep a person hospitalized until the end of their hold. Further, it is entirely unethical to keep someone who you deem low risk and safe for discharge, but deprive them of their freedom for the remaining duration of the hold. In some states commitments can last for 90 days, 180 days, or even 1 year. Would you keep a stable patient, deemed low risk, in the hospital for a year? I really hope you aren't using this logic in malpractice cases against psychiatrists.

 

[Psychresy]

It's really sad (and wrong) that any psychiatrist would conceptualize a patient suicide as ever their fault, legally or otherwise, regardless of when it occurred. At least in CA, as long as you made a reasonable risk assessment, you are literally immune from civil lawsuits regarding suicides. It's one of the best formal immunities in medicine. Last I read, undisclosed medication side effects were the most common lawsuit against psychiatrists, but as others have pointed out, vanishingly rare. Most of our meds are pretty safe, at least in the short term. I know inappropriate relationships are relatively up there as well.

Can you speak to this further? What makes you immune? Is there case law to validate that?