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Forensic Psychiatry Reading Rx for Risk on a Screen? Click on the Page Numbers Below to Be Taken Directly to That Section of the Newsletter! Rx FOR RISK 2017 | Volume 25 | Issue 1 IS A PRMS PUBLICATION FOR RISK Addressing risk management issues and concerns in the field of psychiatry Forensic Psychiatry Reading Rx for Risk on a screen? Click on the page numbers below to be taken directly to that section of the newsletter! Table of Contents MALPRACTICE LIABILITY FOR FORENSIC ACTIVITIES: LIABILITY IN THE ABSENCE OF A TREATMENT RELATIONSHIP 03 MYTHS & MISCONCEPTIONS: THE TREATING VS. THE FORENSIC ROLE 11 INDEPENDENT EVALUATIONS IN CHILD CUSTODY DISPUTES 13 RISK MANAGEMENT PRACTICAL POINTERS FOR PSYCHIATRIC FORENSIC PRACTICE 15 CASE PRESENTATION: INDEPENDENT MEDICAL EXAMINATION (IME) LIABILITY 19 The content of this newsletter (“Content”) is for informational purposes only. The Content is not intended to be a substitute for professional legal advice or judgment, or for other professional advice. Always seek the advice of your attorney with any questions you may have regarding the Content. Never disregard professional legal advice or delay in seeking it because of the Content. ©2017 Professional Risk Management Services, Inc. (PRMS). All rights reserved. PRMS MALPRACTICE LIABILITY FOR FORENSIC ACTIVITIES: LIABILITY IN THE ABSENCE OF A TREATMENT RELATIONSHIP Over the past several years, psychiatrists seem to be pursuing forensic work in increasing numbers. Concurrently, or perhaps in response, courts and professional oversight bodies are demonstrating an increasing interest in evaluating and holding physicians accountable for forensic activities. For example, courts have begun to depart from the traditional rule of not imposing liability on physicians for forensic activities and state medical boards, and professional associations have become more active in reviewing forensic activities. While not a major source of liability for psychiatrists, psychiatrists involved in forensics should be aware of this emerging malpractice liability trend. In order for a plaintiff to win a medical malpractice lawsuit, s/he must prove all four of the following elements: 1) a duty (i.e., the defendant physician owed the plaintiff the duty to meet the standard of care), 2) negligence (i.e., the defendant failed to meet that duty/standard of care), 3) damages (i.e., legal damages), and 4) causation (i.e., the plaintiff’s damages were caused by the defendant’s negligence). Traditionally, courts have held that physicians performing forensic activities cannot be liable for malpractice because there is no physician- patient relationship, but courts are re-examining this issue and, in some cases, have found liability for forensic physicians. This article is a survey of what courts, medical boards, and professional associations are saying about performing independent medical examinations and providing testimony, the two common forensic practice activities for which liability risk may exist. It is anticipated that this overview, while showing that there is no consistent approach among the states, will provide some risk management guidance to psychiatrists engaged in forensic work. There are other possible causes of actions related to forensic activities (e.g., defamation, invasion of privacy, breach of contract, perjury, battery, and other intentional torts) that will not be addressed here. LIABILITY FOR PERFORMING AN INDEPENDENT MEDICAL EXAMINATION (“IME”) When discussing potential professional liability for IMEs, there are at least three issues to consider – the duties owed to the evaluee, immunity for the examining physician, and administrative actions. Issue 1 – Duty Owed to the Evaluee Courts seem to agree that the physician’s duty in performing an IME is not the same as the duty owed to the physician’s patients. The courts disagree, however, on what exact duty, if any, the physician does owe to the evaluee. The traditional view - and the current majority view - has been that there is no physician- patient relationship in IMEs, therefore there is no duty owed to the evaluee. However, psychiatrists should not assume that just because there is no physician-patient relationship, that there is no duty owed to the Rx FOR RISK 3 2017 | Volume 25 | Issue 1 PRMS evaluee. Courts have begun to approach the issue of duty of care to the evaluee differently, with some courts recognizing a “limited” patient-physician relationship for IME purposes. The Kansas Supreme Court summarized the issue of the physician’s duty of care while performing IMEs by noting the following from the Colorado Supreme Court: Many courts set forth a ‘general’ rule that in the absence of a physician-patient relationship a physician owes no duty to an examinee. Many of these same courts, however, recognize a duty of care if the examining physician undertakes in some way to act on behalf of the examinee or induces reasonable reliance by the person examined. Some courts conclude that medical malpractice standards govern, and recognize a duty of care simply on the basis of the relationship created by the referral and examination. Others agree but temper this conclusion by expressly limiting the scope of the duty to the functions the physician agrees to undertake. Still others hold that the absence of a physician-patient relationship precludes a malpractice action, with the concomitant broad duty of care, but that an ordinarily negligence action can be maintained in appropriate circumstances. Some of these latter cases are based on the well- recognized principle that a person who assumes to act must act with care.1 As discussed below, cases have indicated the following duties may be expected: the duty not to injure the evaluee, the duty to properly diagnose, and the duty to inform the evaluee of a potentially serious medical condition. This trend of imposing liability without the traditional physician-patient relationship may continue in the future. For a more in-depth analysis of the various state views on the requirement of a physician-patient relationship for liability, see Stanley v. McCarver decided by the Arizona Supreme Court in June 2004. In this case, the majority opinion acknowledged that the requirement of a physician-patient relationship has been “quietly eroding in several jurisdictions,” and held that “the absence of a formal doctor-patient relationship does not necessarily preclude the imposition of a duty of care.”2 There was also a dissenting opinion discussing the contrary case law. Duty Not to Injure the Evaluee Most courts agree that even if there is no other duty, the examining physician has the duty to avoid physically injuring the evaluee during the examination. This has been true even in those states following the traditional rule that IMEs do not create a physician-patient relationship. Moreover, several courts have indicated that a mental health examiner might be liable to an examinee where the examiner harms the examinee’s mental health during the evaluation.3 It is important to note that courts have not generally found an adverse outcome or loss from the IME physician’s report to be an adequate basis for a lawsuit. As stated by the Michigan Supreme Court, “the IME physician, acting at the behest of a third party, is not liable to the examinee for damages resulting from the conclusions the physician reaches or reports.”4 Duty to Properly Diagnose Some courts impose on IME physicians the duty of reasonable care for the discovery of conditions posing imminent danger to the evaluee’s physical and mental well-being, even in the absence of the traditional physician-patient relationship. As stated by the Montana Supreme Court: This relationship imposes upon the examining physician a duty to conduct the requested tests and diagnose the results thereof, exercising the level of care consistent with the doctor’s professional training and expertise and to take reasonable steps to make information available timely to the examinee of any finding that poses an imminent danger to the examinee’s physical or mental well-being.5 Rx FOR RISK 4 2017 | Volume 25 | Issue 1 PRMS And, a New Jersey appellate court in 1996, admitting it was the minority view, stated: [W]hen an examinee presents himself with specific complaints that are the occasion for the third party reference for the examination, the examining physician owes the examinee the duty of examining and diagnosing the examinee in the same professional manner and with the same professional skill and care as would be employed in examining and diagnosing a ‘traditional’ patient with those complaints.6 Duty to Disclose/ Inform About a Potentially Serious Medical Condition Expanding the IME physician’s duty even further, some courts have required the physician to disclose to the evaluee any serious medical condition discovered in the course of the evaluation. Courts may require this even while holding that no traditional physician-patient relationship exists. Psychiatrists are encouraged to disclose by informing the evaluee directly. In at least one case, this duty to inform was found to be non- delegable, even where the contract with the third party stated that the third party would notify the examinee.7 Accordingly, psychiatrists should ensure all contracts for IMEs allow the evaluating physician to inform the evaluee directly of any serious medical conditions. In addition to case law, psychiatrists should be aware of AMA Ethics Opinion 1.2.6 Work-Related and Independent Medical Examinations (2016), which, after noting there is a limited physician-patient relationship, states the following: …In keeping with their core obligations as medical professionals, physicians who practice as industry- employed physicians or independent medical examiners should: (a) Disclose the nature of the relationship with the employer or the third party and that the physician is acting as an agent of the employer or third party before gathering health information from the patient. (b) Explain that the physician’s role in this context is to assess the patient’s health or disability independently and objectively. The physician should further explain the differences between this practice and the traditional fiduciary role of a physician.
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