One often-overlooked consequence of the decline of solo office practice is an increase in the malpractice risks psychiatrists are forced to confront. Ironically, many of these arise from the managed care industry’s success in forcing psychiatrists to share treatment with nonphysician therapists.

Psychiatrist Eugene Lowenkopf, M.D., alerted psychiatrists to some of the malpractice pitfalls and risks during a presentation at APA’s annual meeting in Chicago in May.

In addition to the perils presented by scenarios in which treatment is split between a psychiatrist and mental health clinician, shared-treatment trouble spots that he and New York attorney Abe Rychik, J.D., identified include supervisory, consultative, and even administrative relationships.

An essential ingredient in reducing malpractice risk in these situations is for psychiatrists to prepare written documents that clearly spell out the responsibilities and expectations of all professionals involved in the treatment relationship.

In situations where the psychiatrist is responsible for prescribing a patient’s medication while a psychologist or social worker conducts psychotherapy, judges and juries have sent the message that "the physician is generally considered to be the primary clinician," Lowenkopf pointed out. Psychiatrists should not plan a malpractice defense that centers on how little time they spent with the patient compared with the amount of the other therapist’s involvement. Courts put a great deal of emphasis on requirements of some insurers and group practices "that psychiatrists ‘sign off’ on cases, whether this refers to treatment plans, insurance claims, or hospital discharges."

Always ranking high in juries’ consciousness, he emphasized, is the fact that "the psychiatrist usually has the highest malpractice coverage, making him or her the juiciest target for the plaintiff’s attorney to go after."

Though they may not be at fault for something that allegedly went wrong in a patient’s treatment, psychiatrists are often trapped by the "casualness" with which they enter these collaborations. They should not feel sheltered from malpractice risk by the amiability or collegiality of their relationship with the other therapist, he said.

"While this may contribute to a pleasant work environment, . . . it is legally murky when a malpractice suit arises" and leaves the psychiatrist exposed to serious legal liability, he said.

The circumstances become even more complicated when therapeutic, professional, or personal disagreements enter the collaborative relationship. It is not unusual to discover that the use of a similar language does little to enhance communication between clinicians, Lowenkopf warned. "Psychiatrists tend to see themselves as ‘captains of the ship’ and tend to view work done by other professionals as less important. Conversely, other disciplines may minimize the psychiatrist as a knowledgeable, well-trained professional and place him or her in the role of nothing but a provider of medication."

In addition, he cautioned psychiatrists against assuming that they are legally protected because their state’s licensing laws seem to free them from blame in certain situations, Lowenkopf noted. "When cases come to court, juries are not always sufficiently persuaded by the job descriptions implicit in licensing to forgive the physician who may be involved," he said.

Yet despite all the warnings from lawyers and medical colleagues, psychiatrists remain loath to delineate each clinician’s responsibility in the form of a written agreement, Lowenkopf noted. What psychiatrists overlook when they view these arrangements as a bother is that in our litigious society, written agreements could save them substantial money and aggravation. Remember, he urged, "lawyers and courts are enamored of formal documents."

Nonetheless, Lowenkopf pointed out that while a contract can be valuable protection, "no contract can totally eliminate" the peril. "It can simply deflect such liability or shift it to other pockets based on the contract" wording. He advised psychiatrists and their attorneys to pay particular attention to the explanations governing contract elements such as "indemnity provisions, guidelines regarding insurance and insurance policies, managed care directives, [and] policies and procedures."

For cases in which the psychiatrist has agreed to see a patient on referral, Lowenkopf favored a contract that takes the form of a one-page letter in which both parties confirm referral and initial appointment dates and a description of who will provide which treatment services; it should also note that either party will discuss with the other clinician concerns about medication or the progress of psychotherapy. In addition, and applicable to all collaborative relationships, the contract should describe how the clinicians will handle emergency situations and times when they will be unavailable such as during vacations.

He also urged psychiatrists to deal with therapists they know and to obtain a copy of that therapist’s credentials and malpractice insurance coverage certificate. He acknowledged that while this suggestion is valuable from a legal standpoint, "it is rarely carried out because it is cumbersome, may bring into the open various conflicts between the two parties, and may be seen as a confrontational move." Following through on this recommendation may mean the end of referrals from that psychologist or social worker, Lowenkopf said.