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Forensic Corner; Managed Care Liability
Lee H. Haller, M.D.
The topic of the times is certainly managed health care.
In keeping with that, I thought I would present two areas
of potential liability in the context of working in a managed
care environment.
Negligent Discharge
The first topic is that of negligent discharge. Increasingly,
managed health care companies are involving themselves in
the decision about hospitalizing the patient or not. This
is done by insisting that they be kept informed of the patient's
status during the hospitalization before they will authorize
payment to the hospital or the doctor. In some cases, the
reviewer for the managed heath care organization determines
that hospitalization is no longer necessary and therefore
no further payments will be forthcoming from the insurance
company. You, as the physician in charge of the patient's
care, may not agree with this reviewer and believe that the
patient still needs continued hospitalization. Given this
scenario, you feel caught in a bind as does your patient (or
parents of the patient), who cannot afford continued care
without insurance payments.
In this circumstance, what you should not do is discharge
the patient unless you, by using your own professional judgement,
believe the patient can be adequately treated in a less intensive
setting. The reasons for behaving in this manner are clear.
To do otherwise leaves: 1) the patient open to a poor outcome;
and 2) you, as the physician in charge, liable for malpractice
due to negligent care. Remember, the health care reviewer
is only making a determination of whether or not the insurance
company will pay for the treatment. As unfair as it may seem,
the reviewer generally bears no liability for denying medical
payments should the patient suffer adversely due to that decision.
You, on the other hand, continue to be liable for any adverse
outcome.
In spite of the perceived interference by the reviewing agency,
your duty remains to the patient. Therefore, you must do your
best to treat the patient appropriately. This means keeping
the patient in the hospital while you and the parents start
an appeal of the reviewer's decision. Regardless of the outcome
of the appeal, you must make appropriate arrangements for
the care of the patient. Also, be sure to document in the
chart all conversations with the reviewers, parents, and consultants.
Also, keep private notes of any conversation you have with
your own attorney.
Contracting for Therapy
Another outgrowth of the managed health care movement is
a trend away from therapy by psychiatrists, with their role
being limited to medication management. Because of this, psychiatrists
frequently hire ancillary mental health personnel and refer
cases to them for treatment. Be aware that, in doing so, although
you may not feel in charge of the case, from a legal standpoint
you are and if anything goes wrong, you have liability as
does the therapist. The legal basis for your liability is
called "respondeat superior." Under this doctrine, you are
responsible for actions of your employees. Thus, whenever
a patient is injured due to negligence of the employee, you
are also liable.
Therefore, it is important to become scrupulously careful
in your hiring practices, making sure to know that the people
you are hiring are qualified to handle the type of cases which
you wish to refer. Also, you should supervise them in some
fashion to make sure that they are, in fact, performing in
a professional manner and using an acceptable standard of
care.
The liability of the psychiatrist is clear where the therapist
is an employee. One might think that when the therapist doing
the treatment is not an employee, the referring psychiatrist
has no liability. This is not necessarily a good assumption.
If the therapist is an independent contractor, but the psychiatrist
and the therapist appear to do business together, then the
psychiatrist may well have liability. Additionally, even if
there is no formal employment arrangement of any sort, but
the psychiatrist makes a referral to one person (rather than
giving the patient a list of possible names from which to
choose), the possibility exists that the psychiatrist could
be brought in as a party to any litigation arising out of
the actions of the therapist.
In short, the managed health care movement creates strain
for all physicians and their practices. Increased risk of
malpractice liability is certainly one of those strains. In
order to meet these challenges, it behooves the practitioner
to always maintain an ethical stance, to discuss treatment
plans with the patient and/or parents (as dictated by the
age of the patient), to use one's best medical judgement,
to document and, when in doubt, to consult your own attorney.
Dr. Haller is in the private practice of forensic Psychiatry
in Potomac, Maryland
AACAP News/November-December
1995
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