Psychiatrist liability in "return-to-work clearance"

[NickNaylor]

I'm hoping some of our forensics folks may be able to weigh in.

A question came up recently in discussing a patient of whether or not a psychiatrist can be held liable for clearing a patient with psychiatric conditions - in this case, depressive symptomatology and anxiety following a legitimate stressor - to return to work should something happen in the course of the patient's work resulting in harm to others. In this case, the patient is a truck driver and is requesting a "return-to-work" letter. The patient has been non-adherent with treatment - no-showing to outpatient appointments and not taking medications for much of the time he/she was under psychiatric care - and, unsurprisingly, remains quite symptomatic. The concern is that the patient's symptoms - specifically, sleep difficulties and concentration impairment - may result in the patient being unable to successfully perform the his/her job duties. The patient has been off from work for several months due to psychiatric symptoms. Given the patient's line of work, obviously there is a public safety component.

Is anyone aware of a case where a psychiatrist has been held liable in a somewhat similar case? I did some searching but wasn't able to find anything. Obviously the legal particulars would vary from jurisdiction to jurisdiction, but how would you guys address this if this kind of issue came up in your practice?

---

Members don't see this ad.

 

[Mass Effect]

I'm hoping some of our forensics folks may be able to weigh in.

A question came up recently in discussing a patient of whether or not a psychiatrist can be held liable for clearing a patient with psychiatric conditions - in this case, depressive symptomatology and anxiety following a legitimate stressor - to return to work should something happen in the course of the patient's work resulting in harm to others. In this case, the patient is a truck driver and is requesting a "return-to-work" letter. The patient has been non-adherent with treatment - no-showing to outpatient appointments and not taking medications for much of the time he/she was under psychiatric care - and, unsurprisingly, remains quite symptomatic. The concern is that the patient's symptoms - specifically, sleep difficulties and concentration impairment - may result in the patient being unable to successfully perform the his/her job duties. The patient has been off from work for several months due to psychiatric symptoms. Given the patient's line of work, obviously there is a public safety component.

Is anyone aware of a case where a psychiatrist has been held liable in a somewhat similar case? I did some searching but wasn't able to find anything. Obviously the legal particulars would vary from jurisdiction to jurisdiction, but how would you guys address this if this kind of issue came up in your practice?

Sounds like your role should be limited to discussing active mental health symptoms and the fitness-for-duty eval should be done by occupational health or someone skilled in that area. If a patient asked that of me, I'd say I have no expertise in deciding whether or not you can safely drive a truck and perform the duties of your job. All I can do is say that the symptoms you were experiencing that caused the leave have improved, resolved, stayed the same, or worsened.

 

[splik]

The short answer is yes but unlikely. In my clinical practice I consider it a big goal of mine and my pts to get them back to work and it is very satisfying when they do. I am happy to write letter supporting return to work including phased returns to work and requests for reasonable accommodations.

when you are getting into fitness for duty issues - for example for law enforcement, healthcare workers, firefighters, or even truck drivers etc that is something I don’t think treating clinicians should generally weigh in on. When doing a FFD eval we get a lot more info (including their personnel files, psychological testing, collateral and info from employer a treating physician would not be privy to etc). You also don’t want to be in a position where you are interfering with someone’s livelihood as you won’t be able to treat them (though there are some exceptions to this).

there is no such a thing as psychiatric “clearance” -be it for work, transplant, bariatric surgery, firearm ownership etc. these are nuanced issues and we have to be careful not to treat this as black or white when it is not. The issue is not whether a person is mentally fit, but whether there are any psychiatric contraindications to x and identifying how those can be mitigated.

When a forensic psychiatrist is rendering an opinion on FFD etc then they are unlikely to be successfully sued since they are merely rendering an opinion. As a treating psychiatrist you are more liable for any adverse outcomes. With the truck driving issue, it is complicated, but in some states where case law has established an expanded Tarasoff it could be argued that you have a duty to protect the public from harm by reckless driving from a mentally disordered patient. On the other hand, it is not your responsibility to determine or have your patient be able to perform their work duties in any way that doesn’t have an impact on public safety.

 

[deleted1100659]

personally I wouldnt get involved in this one. One reason being, you are right, it is not like he is a cashier at a retail store, hes a truck driver, and that has more obvious risk. Consider this, even if his mental health or physical health did not directly lead to an accident, what if you write him a letter, and something happens by random chance? You know who the patient will point fingers toward; the lawyer will sue anyone and everyone that he can, regardless of how strong the case is, getting involved in that mess does not sound pleasant.

I would refer to something like neuropsych testing, where he can undergo objective tests of attention and other domains, and the psychologist can present those findings and determine if he possesses adequate ability to function as a truck driver.

It is rare I write letters for patients, except in some circumstances.

 

[WisNeuro]

personally I wouldnt get involved in this one. One reason being, you are right, it is not like he is a cashier at a retail store, hes a truck driver, and that has more obvious risk. Consider this, even if his mental health or physical health did not directly lead to an accident, what if you write him a letter, and something happens by random chance? You know who the patient will point fingers toward; the lawyer will sue anyone and everyone that he can, regardless of how strong the case is, getting involved in that mess does not sound pleasant.

I would refer to something like neuropsych testing, where he can undergo objective tests of attention and other domains, and the psychologist can present those findings and determine if he possesses adequate ability to function as a truck driver.

It is rare I write letters for patients, except in some circumstances.

Based on the limited info from the original post, I would not take this referral in my clinic. It appears the only concerns are anxiety and depression, which don't lead to measurable objective deficits on cognitive testing. Most insurances would not deem it medically necessary were it to require a prior auth or audit unless there is some concern about a neurological issue.

 

[deleted1100659]

Based on the limited info from the original post, I would not take this referral in my clinic. It appears the only concerns are anxiety and depression, which don't lead to measurable objective deficits on cognitive testing. Most insurances would not deem it medically necessary were it to require a prior auth or audit unless there is some concern about a neurological issue.

Well he was saying the patient had deficits in sleep resulting in deficits in attention/concetration, that's why I was headed in that direction, to see if there was an objective way to see if those deficits existed.

 

[WisNeuro]

Well he was saying the patient had deficits in sleep resulting in deficits in attention/concetration, that's why I was headed in that direction, to see if there was an objective way to see if those deficits existed.

In these cases, I'd strongly suggest a sleep consultation/eval prior to seeing the person. If return to work was anywhere in the referral question or recommendation queries, I'd insist on the sleep eval first.

 

[watto]

You can quantify level of sleepiness several ways, and these are used in sleep assessments - the MWT is used frequently. Here is a recent overview of the topic:

Journal of Clinical Sleep Medicine

The official peer-reviewed journal of the American Academy of Sleep Medicine.

jcsm.aasm.org

 

[NickNaylor]

Thanks for the thoughts.

My initial thought would be to refer to someone else for a formal fitness-for-duty evaluation. The patient is quite insistent on returning to work which is leading to some straining of the therapeutic relationship, so it would seem best to have a third-party involved specifically to perform this kind of assessment.

@WisNeuro - interesting, why is it that I always get comments in neurpsychological reports in patients with depressive symptoms/anxiety essentially mentioning that interpretation of the test data is limited due to likely contributions from the patient's underlying psychiatric symptomatology? I'd also say that I fairly frequently see patients with severe depressive symptomatology that have gross cognitive impairments that improve with treatment. What of that?

 

[WisNeuro]

Thanks for the thoughts.

My initial thought would be to refer to someone else for a formal fitness-for-duty evaluation. The patient is quite insistent on returning to work which is leading to some straining of the therapeutic relationship, so it would seem best to have a third-party involved specifically to perform this kind of assessment.

@WisNeuro - interesting, why is it that I always get comments in neurpsychological reports in patients with depressive symptoms/anxiety essentially mentioning that interpretation of the test data is limited due to likely contributions from the patient's underlying psychiatric symptomatology? I'd also say that I fairly frequently see patients with severe depressive symptomatology that have gross cognitive impairments that improve with treatment. What of that?

It's the difference between subjective and objective deficits. We have a lot of good data showing that when you control for performance validity, individuals who have diagnoses of depression and anxiety do not perform any differently on objective cognitive testing. It would be more accurate to think about it in terms of motivation/effort issues rather than any objective neurological deficit.

 

[NickNaylor]

It's the difference between subjective and objective deficits. We have a lot of good data showing that when you control for performance validity, individuals who have diagnoses of depression and anxiety do not perform any differently on objective cognitive testing. It would be more accurate to think about it in terms of motivation/effort issues rather than any objective neurological deficit.

Got it, interesting.

 

[WisNeuro]

Got it, interesting.

There's going to be a big split in literature depending on when you look at the studies as PVT/SVT use only really started to become best clinical practices within the past 20 years.

 

[comp1]

Aren't there physicians who focus on commercial truck driving fitness evaluations? I don't think a treating provider should be involved with this at all. It's a weird conflict of interest and also the average treating psychiatrist is almost certainly not an expert on commercial truck driving. I don't think their opinion is worth very much. You can be sued for anything at any time, but I haven't heard of any clearance to work evaluations ever making it to trial...seems like it would be very challenging for the plaintiff. I don't think the right question is really liability at all. It's whether the clinician actually has the expertise to be making determinations. We shouldn't have to base everything on whether we're going to get sued for doing or not doing it.

 

[erg923]

I'm hoping some of our forensics folks may be able to weigh in.

A question came up recently in discussing a patient of whether or not a psychiatrist can be held liable for clearing a patient with psychiatric conditions - in this case, depressive symptomatology and anxiety following a legitimate stressor - to return to work should something happen in the course of the patient's work resulting in harm to others. In this case, the patient is a truck driver and is requesting a "return-to-work" letter. The patient has been non-adherent with treatment - no-showing to outpatient appointments and not taking medications for much of the time he/she was under psychiatric care - and, unsurprisingly, remains quite symptomatic. The concern is that the patient's symptoms - specifically, sleep difficulties and concentration impairment - may result in the patient being unable to successfully perform the his/her job duties. The patient has been off from work for several months due to psychiatric symptoms. Given the patient's line of work, obviously there is a public safety component.

Is anyone aware of a case where a psychiatrist has been held liable in a somewhat similar case? I did some searching but wasn't able to find anything. Obviously the legal particulars would vary from jurisdiction to jurisdiction, but how would you guys address this if this kind of issue came up in your practice?

The company wants to know if there is undue risk to having this person handle a 25,000 pound potential death machine in a public space. This requires a very in-depth evaluation, including objective testing to have any real meaning/validity. I would not see this much different than a FAA eval. Of which there are specially trained clinicians to do this.

When I broke my right leg, the ortho surgeon refused to even entertain writing a letter stating a date for which it would be safe for me to drive again. He stated there was absolutely no upside to him doing this. I had to agree, thinking about.

 

[Stagg737]

The patient has been non-adherent with treatment - no-showing to outpatient appointments and not taking medications for much of the time he/she was under psychiatric care - and, unsurprisingly, remains quite symptomatic

I’d refer to a specialist for an FFD case like this, but the above would be an automatic no-go from me regardless. If the patient hasn’t been compliant with your treatments and is still very symptomatic, on what grounds are you approving them to return to work? If they can really work, why haven’t they been working all along? Seems like a lose-lose for you either way.

 

[Candidate2017]

Liability shifting is THE reason a 3rd party requests letters.

Our professional judgment is already impinged upon by 3rd parties (our employers and 3rd party payors). I would've done forensics if I wanted to introduce more 3rd parties into the mix.

I'm not a fan of people expecting us to go beyond the traditional role of a doctor's note ("please excuse Johnny for the time he was out sick"). I like to err on the side of shuting up about things that require my signature and professional stamp of approval, but for which I have no professional training. I can't even predict if someone will commit suicide or even code the right DSM specifiers most of the time.

Even if you are ok with writing doctor's notes, as pointed out above, why would you opine that a noncompliant, symptomatic patient is ok to pilot a speeding hunk of death metal down public roads? Even his employer who has much more experience identifying terrible drivers won't let him do so.

 

[TexasPhysician]

Ignoring this specific case, I keep my “letters” very simple. My last line is something like “There is no current psychiatric contraindication to driving”. I can’t predict the future. At any time, something can change which would alter my opinion. I do not “clear” someone to do something for an indefinite time.

 

[NickNaylor]

Awesome, thanks for the thoughts - I appreciate it.

 

[PsyDr]

I would highly recommend using the AMA's Return to Work Guidelines. The introductory text would help you understand how to perform these exams, including the differences between symptoms and impairment.

 

[Monocles]

I write these all the time... but my pts are teens so most of these are jobs like fast food or retail so I doubt mcdonald's will come to sue me lol...

 

[Mass Effect]

I write these all the time... but my pts are teens so most of these are jobs like fast food or retail so I doubt mcdonald's will come to sue me lol..

I mean, they'd have to be pretty impaired to not be able to go to work in retail or fast food.

 

[Monocles]

I mean, they'd have to be pretty impaired to not be able to go to work in retail or fast food.

Thats why I write them lol

 

[sloop]

As others have mentioned, this is effectively a forensic evaluation and I would treat it as such. There are a few problems here from the perspective of a treating psychiatrist.

The first is simply the time and energy it would take to do this properly. My guess is that you don’t really want to spend the many hours on this issue that it would take and that the patient doesn’t really want to pay you what that type of evaluation is worth. That is probably why he is even approaching you. He likely has no idea what this entails and thinks you can just write him a note like if he needed to take off work for an appointment.

The second is that, if you’re going to do this type of evaluation, you really have to be prepared if you come to the conclusion that he can’t safely operate a truck. Your position as this person’s treating physician compromises your objectivity.

As has been mentioned, in a forensic/occupational evaluation, you’re answering the employer’s question to the best of your ability. You are providing a recommendation but you’re not ultimately the person who has authority over whether the person goes back to work, gets their CDL back, whatever. That is not devoid of liability, but it is limited. As the person’s treating psychiatrist, you maintain a duty to the patient as well. If they get into an accident, they might claim that you inappropriately advised them that it was safe to return to work.