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Standard of Care, Treatment Guidelines and Risk Management: How Your Malpractice Insurer Created The Testimony Against You
Note:The following is the text of an oral presentation delivered to the Annual Convention of the American Psychological Association.
My talk this year focuses on the relationship between risk management and the standard of care and how risk management either will become the standard of care, or already is the standard of care, and how you may not even know about it. Although this talk concerns psychotherapy, the basic principles are equally applicable to any field of health care, including medicine and dentistry. Standards of care inadvertently grow out of risk management advice and treatment guidelines.
I think part of my interest in the topic of risk management derives from the reasons I went into clinical psychology. When I was a graduate student at U.C. Berkeley many years ago, our heroes were not people who displayed a great deal of concern over risk management: Albert Ellis, Carl Rogers, Fritz Perls and Arnold Lazarus, to name a few. My peer and I were drawn to clinical psychology precisely because it was a field of innovators and risk takers. Risk management was an idea that my peer group, back in those exciting days, would have found stifling--even despicablehad we ever even heard the term, which we didnt.
Today the field is different. Young clinical psychologists seem to welcome risk management and seem to take pride in their ability to anticipate risk and take the most creative preventative action. Indeed, risk prevention becomes a mark of pride today, much as in the previous era is would have been a mark of shame.
Today, we seem more similar to accountantsthe kind of accountant who is so fearful of a tax audit that he or she has you overpay your taxes, just to make sure that no person and no computer algorithm at the IRS even notices you. Today, we learn about the ethics code, and we even go beyond the ethics code and learn about risk management, things we should never do because if we do them, someone may get mad at us, or someone may think weve done something wrong, someone might think we failed to consider all the downsides of a particular action. Risk management is all about imagecreating the image of competence and ethical practice. How much of our integrity are we willing to sacrifice to create that image?
The promulgation of risk management seems to follow one of two principles:
- Monkey see, monkey do. According to this principle, you practice the same risk management methods as the person down the hall because you are fearful that someone, with the power to judge and enforce against you, might compare you to that person and ask why you failed to act as cautiouslytaken to mean professionally as that person.
- Keeping up with the Joneses. According to this principle, you need to continually tighten up your risk management because everyone else is, and if you are left behind, you will stand out like a sore thumb and appear to practice unethically.
It doesnt matter whether you prefer monkey see, monkey do or keeping up with the Joneses because they both leave you in the same predicament: compelled to practice more and more risk management because everyone else is.
Why I Have My Perspective
My perspective on this may be different from yours, not only because I seem to feel an emotional attachment to the freewheeling norms of my generation, but also because I make some of my living participating in malpractice adjudication. Although I do see clinical patients, I also have forensic practice in which I testify in psychotherapy malpractice cases in civil court and before licensing boards.
Every year prior to APA, I seem to find myself testifying in a case in which I believe the psychotherapist has done nothing wrong, but the plaintiffs standard of care expert says he or she has. That has inspired me when I have prepared my talks for the panels Ive been onincluding this year.
Where do these plaintiffs standard of care experts get their material? What is the nutritive substrate in which they thrive? It is the climate of risk management promulgated by the APA insurance trust and other insurors, by many state licensing boards, by medical centers for those of us who are hospital based, and increasingly by training institutions.
The Natural History of Risk Management Lets begin by thinking about the natural history of risk management. How does risk management evolve to become the standard of care. First of all, consider that this process is insidious. No one proposes a new idea to tighten the standard of care. Indeed, the initiation of risk management practices is considered to be utterly benign. The view of risk management as a benign process goes something like this:
- We are offering you these ideas to use to protect yourself.
- You are free to take them or leave them. It is your decision.
- Make your own decisions about how much risk management you want to use. Its a free country.
I f you would like a reference on the risk management approach to practice, there is a book that many of you already have:
Assessing and Managing Risk in Psychological Practice: An Individualized Approach, by Bruce E. Bennett, PhD, Patricia M. Bricklin, PhD, Eric Harris, JD, PhD, Samuel Knapp, EdD, Leon VandeCreek, PhD, and Jeffrey N. Younggren, PhD. WilliamsThis book was sent to all psychologists who are insured by the APAIT. This book was distributed by a malpractice insurance company, consistent with the idea that risk management has always been driven by the insurers who pay the claims for policy holders who engage in risky behavior. The yellow signs you see on wet floors that say Wet Floor in multiple languages, the sign you see at your car repair shop that says Customers Not Permitted in Work Area, are examples of risk management efforts. The former to prevent slips and falls (and resulting lawsuits) and the latter to prevent whatever injuries might occur in a repair shop, that will cost the insurance company money.
Risk management is perceived as hurting no one. If a clinician adopts a particular risk management strategylets say, for example, documenting a written suicide assessment of every patient at every visitthats fine, the clinician has taken a little step to protect himself or herself. The downside is not immediately apparent. Hence, if the clinician down the hall, for whatever reason, doesnt want to use that method, no problem. Risk management is there to help you. It is not the standard of care, it cant be imposed on you, you wont get sued simply for failing to follow risk management advice.
The most insidious, subtle and unrecognized aspect of risk management is this which can be stated as if it were a law of nature: Any risk management method that becomes popularly accepted, applied or maybe even paid lip-service to, becomes the standard of care. Lets be clear what standard of care means. One definition is as follows:
In legal terms, the level at which the average, prudent provider in a given community would practice. It is how similarly qualified practitioners would have managed the patient's care under the same or similar circumstances. (from the web site, Medterms.net)
Standard of care testimony will be provided by expert witnesses at your malpractice trial or licensing board hearing. And, while you may have debated various aspects of practice in graduate schoolin a climate of tolerance and respectin court you may be held liable for an aspect of practice to which you never subscribed, something that evolved to become the standard of care after starting off as a glimmer in a risk management experts eye. Thus, what is the standard of care todaysomething you can be found liable for violatingwas just someones risk management suggestion yesterday. If you grant this proposition, and Ill give you examples in a minute, then suddenly risk management stops seeming benign. It stops seeming like a harmless effort for some people to protect themselves without in any way imposing their approach on others. In fact, it comes to seem like the opposite: All risk management methods of today, will later be the standard of care to which every single practitioner will be heldand they may already be taken as the standard of care if thats how the plaintiffs or boards expert chooses to testify. Guidelines establish the standard of care
The APA publishes guidelines to assist us in carrying out all sorts of activities. Here are some of the published guidelines that are relevant to practice:
Guidelines are very similar to risk management advice in the sense that they explicitly go on record as not intending to set the standard of care but are simply offered to help us. They all have disclaimers stating that they are not the standard of care. Take the guidelines for treating gay, lesbian and bisexual clients. The disclaimer for these guidelineswhich is about as perfect a disclaimer as could ever be writtenreads as follows:
The term guidelines refers to pronouncements, statements, or declarations that suggest or recommend specific professional behavior, endeavors, or conduct for psychologists. Guidelines differ from standards in that standards are mandatory and may be accompanied by an enforcement mechanism. Thus, these guidelines are aspirational in intent. [skipping one sentence] These guidelines are not intended to be mandatory or exhaustive and may not be applicable to every clinical situation. They should not be construed as definitive and are not intended to take precedence over the judgment of psychologists.Heres the problem, though, with guidelines or with popular risk management strategies, or, really, with anything that is published and widely promulgated as the proper way to do something.
I f thats the proper way, and if your professional peers have gone to the trouble to explain that thats the proper way, why do you want to offer methods or approaches to the public that are not the proper way? If the guideline or the risk management advice recommends that you exercise a certain degree of care, why do you feel that you needin your dealings with vulnerable members of the public [now Im using the language you might hear in court]to use methods that are different?
As a defendant, when the jury or judge or licensing board hears that the guideline exists, and is considered a good ideaeven though not mandatoryyou will be called upon to explain why you, in your practice, thought you didnt need to follow good ideas, or, to make it look worse, why you didnt even know of the existence of the guidelines (which is actually quite possible, as news guidelines are promulgated often by a wide range of entities).
Here are some examples of how this process has operated historically and speculation about how it may operate in the future.
Note taking, medical records and risk management. I distinctly remember something from my graduate student years. I was at the small Psychology Clinic at Berkeley. This is a clinic operated by the psychology department to assist with training those in the Clinical Psychology Program. I had just finished seeing a patient (or clientand this distinction becomes important when we consider the implications of the medical model on the standard of care), and I was in the file room writing a brief note on the session. Phil Cowan, the Chair of the Clinic at that time, and I had a brief discussion about whether its useful or helpful to write notes. We agreed we thought it was. Now I mention this discussion only to highlight one thing: Once upon a time, note taking was clearly NOT the standard of care; it was an optioneven at a training program, one that we liked to think was prestigious.
Why wouldnt you want to take notes about your session? The reason this was debatable mostly had to do with whether one wanted to approach therapy from the medical model. Do psychologists want to construe what they do as treatment, much like medical treatments, and do they want to adopt the various trappings of the medical world. Do we want to be called doctor, and do we want to call those we serve patients? And, do we want to adopt the medical philosophy of documentationif its not documented, it never happened. Do we want to treatment, rather than consultation? Do we want to have a treatment plan? Do we want to make a diagnosis?
Some psychologistsmany more, I think, back a few decades ago and fewer todaydo not think of what we do as medical, or as a treatment, or as something for which written documentation is appropriate. We see our work as forming relationships with patients, relationships that are unlike that of doctor-patient, but more like teacher-student, consultant, clergy-parishioner, or simply peers. Some of us believe that medicalizing that relationship by writing notes about how the patient is progressing or even about what happened during the session creates a barrier between the two people who are engaged in a personal journey together. Along those same lines, some of us eschew diagnosis and treatment plans.
It doesnt really matter whether you agree with this Humanistic approach to psychotherapy. It serves as a good example of how risk management evolves to become the standard of care. Somewhere along the line, psychologists thought it would be a good idea to document what you did in therapy as a way of protecting yourself from certain claims, especially claims that you failed to do something. If someone claims you failed to ask your patient if he or she was still feeling suicidal, and your notes show that you did ask that question, bingo, youre protected. If the patient later suicided, but after the session you wrote a note documenting the reasons that you believed the patient was not suicidal, and those reasons make sense to a later adjudicator, you have a degree of protection that you wouldnt have had you just reconstructed that session from memorysubject to the skeptics view that your memory had been conveniently altered and rearranged to diminish your liability.
So it makes sense that those of us who want more protection would minimize their risk by taking notes, taking notes to document that we did all those things that someone later might claim we failed to doa fine risk management idea. Fast forward to 2002 and we find that record keeping is no longer about risk management. It has become the standard of care:
6.01 Documentation of Professional and Scientific Work and Maintenance of Records Psychologists create, and to the extent the records are under their control, maintain, disseminate, store, retain, and dispose of records and data relating to their professional and scientific work in order to (1) facilitate provision of services later by them or by other professionals, (2) allow for replication of research design and analyses, (3) meet institutional requirements, (4) ensure accuracy of billing and payments, and (5) ensure compliance with law.One no longer keeps records to protect oneself. Now, one keeps records because not doing so is considered unethical in and of itself. Risk management evolves to become the standard of care.
Another Example: Informed Consent: The APA Code tells you to document that you obtained informed consent:
(d) Psychologists appropriately document written or oral consent, permission, and assent. (See also Standards 8.02, Informed Consent to Research; 9.03, Informed Consent in Assessments; and 10.01, Informed Consent to Therapy.)This is an area where we can see the risk management evolving across professions to become a standard of care. Psychologists are required to get informed consent, and they are required to document that they got it. Interestingly, the documenting part of this requirement hardly concerns ethics. Obtaining informed consent is about ethics; failing to do so would be unethical. But why is the requirement to document the consent in the ethics code? The documentation part is not really about ethics; it is about risk management. One documents in order to prove that you did it.
But the Ethics Code of the California Association of Marriage and Family Therapists takes this excursion from ethics to risk management or self-protection even further. In their code, written consent is required before videotaping, audiotaping or allowing a third party to observe. Similarly, the Code states that written consent is needed before releasing information. Using these MFT guidelines, the patient would have a harder time denying that he or she gave consent because youve got signature. So this is risk management couched as if its ethics.
Expert Testimony: A Case Example
If you are ever sued, or if you ever receive a licensing complaint, please be aware that the ethics code is not the only place where the plaintiff or state will look for the standard of care. They will look towards expert testimony, and here, more than anywhere else, is where you will find utter confusion between that which is risk management and that which is the standard of care. Remember, the law states that you must comply with the standard of carenot risk managementso the difference should be important. But try to tell that to the states or plaintiffs expert.
I will use the example of my most recent malpractice testimony, in Sonoma County this past Spring. Ill use examples from this trial for two reasons:
- The defendant therapist was accused of a great many deviations from the standard of care, and
- That of which she was accused were the typical themes that play themselves out in most psychotherapy malpractice trials.
To make a long story short, nearly all the plaintiffs expert testimony concerned itself with matters that I would call risk management and not with the standard of care. In fact, my central effort in my testimony was simply to explain the difference in meaning between these two concepts. Ill tell you right now that the outcome was a verdict for the defense, but it was no slam dunk. It could have gone either way. Fortunately for the defendant, her malpractice insurance company retained perhaps the two best malpractice attorneys in California, Brandt Caudill and John Fleer. Brandt has coauthored a book with Ken Pope on law and psychotherapy, and John was a consultant to APA on the 2002 Ethics Code revision. By the way, it was a woman therapist and a woman defendant, and one of the central allegations was that they had had a sexual relationship, and to further place it in a context, they both resided in the same small town in Sonoma County. Here were some of the matters at issue:
During a time when the patient had been hospitalized for medical reasons,
the therapist came by the patients home to feed her dog. This was
presented as a boundary violation, and the jury was led to believe that
this was a deviation from the standard of care. As John Fleer said to me
privately, our field may be the only field of human endeavor in which
ordinary acts of kindness are made to appear unethical. So lets consider
whether feeding your patients dog is unethical: The only actual rule that it
may violate is the prohibition against certain kinds of multiple
relationshipsthose that involve a loss of objectivity, that cause harm or
exploitation. Clearly, the patient is not exploited by the therapist helping
her in this way, and its hard to envision the patient being harmed. So the
plaintiff argued that feeding the dog was part of an overall breakdown in
the distinction between the professional and the personal, so it was an
indication that a personal relationship existed, in addition to the
therapeutic one, and was therefore unethical due to a loss of objectivity.
Clearly, if one takes risk management as the standard of care, then feeding your patients dog is a terrible thing to dofor exactly the reasons that were used in this case. Feeding your patients dog is a bad risk management idea because it could give the appearance that a personal relationship existed along with the therapeutic relationship. Indeed, feeding your patients dog would be consistent withnot inconsistent withthe sexual relationship of which this therapist was accused. So, would I recommend that anyone ever feed his or her patients dog? Absolutely not, because it could look bad and it could be used against you if your patient is litigious. But did the therapist violate the standard of care? Not if all she did was feed the dog, and if she was able to do so without impairing her objectivity in the rest of her treatment of her patient.
By the way, I may as well mention that this was a case in which the therapistwho, I believe, never violated the standard of carepracticed absolutely terrible risk management. The plaintiffs attorneys bombarded the jury with all of the risk management failures in this case in an effort to make the jury believe that the standard of care had been violated.
The therapist was aware that the patient had very little income and had
periods during which she was not employed. Because of this, the
therapist lowered the fee, or even excused the fee, for periods of time.
- At times during sessions, the patient elected to lie on the floor and talk to the therapist from there. Once again, I know of no stricture that holds that patients must sit on chairs during sessions. There was no standard of care violation, but, from a risk management point of view, this was not a good idea. The patient claimed that it was during these episodes of lying on the floor that the therapist molested her sexually. The therapists notes actually confirmed that the patient had laid down on the floor, or on a mat in the office, so the jury had confirmation of half of the claim, the lying down part, but would they believe the entire claim, that the lying down was associated with inappropriate sexual behavior. Someone versed in risk management would advise never to allow patients to deviate from ones usual method of sitting with patients. Remember, the essence of risk management is to deprive the potential plaintiff of support for false claims by depriving the plaintiff of the existence of behaviors or events that might be consistent with those false claims. Documenting that the patient laid down opens the door for the patient to also claim that something untoward had occurred while she was lying down. The plaintiffs expert testified that the lying down was part of an overall pattern of a breakdown of therapeutic boundaries. Hence, the standard of care was violated by the accrual of various departures from the hypothetical normative psychotherapeutic sessioneven though there was no confirmatory evidence that any actual deviation from the standard of care had occurred.
Not charging a fee has been cited in several cases in which I have been retained as an indication of negligence. There is absolutely no deviation from the standard of care if you fail to charge a fee, yet it is a very questionable practice from a risk management standpoint. Why? Because if the patient ever alleges that a sexual or any other kind of overly close, unethical relationship occurred between himself or herself and the therapist, forgiving the fee would be consistent with that kind of unethical relationship. Lets put it this way: If the patient were also your sexual partner, would you have the nerve to charge a fee for therapy? So the lack of a fee appears consistent with therapist-patient sex, and most instances of therapist-patient sex probably include fee problems as well, but the important point is that failing to charge a fee is not, in and of itself, an indication that sex, or anything else unethical, has occurred.
From a risk management point of view, then, one should always charge a feeindeed, always charge the same feeas a statement to the world that the relationship is 100% professional and unbiased. No payment, no session. From a risk management point of view, once you start lowering the fee, the door is opened to accusations that you actually like the patient and want to find ways to help him or her. Thats completely harmless to you until the patient wants to accuse you of having sex with him or her. Then, the reduced fee is taken as proof that you had lost your objectivity.
This, then, highlights one of the biggest downsides of risk management: It can cause you to act in ways that dont feel right and in ways that harm the patientall in the interest of creating a record that documents that you were objective, impartial and highly, highly professional.
Remarkably, in this case, the accusations kept on coming.The therapist was discarding an old, Brother word processor. This was a device that was available before personal computers became popular. It was a little more advanced than a typewriter. Remember, the patient was nearly destitute. The therapist had this old word processor that, at the time, had no value. Its destination was to be the trash, but the therapist offered it to the patient. This gift was another bit of evidence used in support of a breakdown of boundaries in the service of an overly personal and sexual relationship that had deprived the plaintiff of the needed therapy. Is it unethical to give things to your patient? No, it is not. If is poor risk management? Definitelybecause it creates the image that you are carrying on an unethical multiple relationship with your patient, where you are both therapist and friend.
Potential Risk Management Advice That May Someday Become The Standard of Care
It is not difficult to think about the risk management advice you get today and imagine it someday becoming the standard of careand that someday could be as soon as an expert witnesses convinces the jury that it currently is the standard of care. The basic principles by which risk management becomes the standard of care is along the same lines of either monkey see, monkey do, or keeping up with the Joneses.
I t can be seen as a cycle that works like this: Someone promulgates risk management advice. One prong of the cycle involves psychologists in training who receive the given bit of risk management advice. They begin their careers taking the particular advice to be gospel. De facto, it becomes the standard of care for that cohort of psychologists. Alternatively, a given bit of risk management advice is promulgated to practicing, experienced psychologists, and it becomes quite popular. Like a song, it may become a hit, meaning that many psychologists practice according to this new piece of advice. If a large group of psychologists then believe that one ought to practice that way, youve got yourself a new standard of care. Standard of care is based on popularity. It is not based on the APA Ethics Code and it is not empirically based. It is all about perception.
Here are some bits of risk management advice that could be seen as the standard of care in the future, or may be the standard of care now, depending on who is testifying against you.
- A written suicide assessment should be part of every treatment note.
- Therapists should never hug patients.
- A written summary of every medication the patient uses should be part of every treatment note.
- Therapists should contact the psychiatrist to coordinate care with all patients who receive prescription psychiatric medications.
- The patient should sign a consent form for all treatment.
- Every patient should have a written treatment plan, and this should be updated frequently.
- Every patient should have a diagnosis and mental status exam at every visit.
Actually, the only way I can imagine preserving a different vision of the standard of care is to publish material that establishes the standard of care you want to establish. If you want to educate the court as to the existence various divergent therapeutic approaches and that the defendants approach is considered legitimate by those who share the same theoretical orientation, you can cite things Ive written. Most of all, we need to understand that this continued pressure to incorporate more and more risk management into our practices is not without its costs.