| Risk Management: How Your Malpractice Insurer Created Testimony Against You
Symposium Presented at the Annual Meeting of the American Psychological Association Martin H. Williams, Ph.D. Williams Psychological Services Williams Psychological Services www.drmwilliams.com Abstract
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 despicable—had we ever even heard the term, which we didn’t. 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 accountants—the 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 we’ve done something wrong, someone might think we failed to consider all the downsides of a particular action. Risk management is all about image—creating 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:”
It doesn’t 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 Where do these plaintiff’s 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
If 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: This 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 strategy—let’s say, for example, documenting a written suicide assessment of every patient at every visit—that’s 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, doesn’t want to use that method, no problem. Risk management is there to help you. It is not the standard of care, it can’t be imposed on you, you won’t 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. Let’s 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 school—in a climate of tolerance and respect—in 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 expert’s eye. Thus, what is the standard of care today—something you can be found liable for violating—was just someone’s risk management suggestion yesterday. If you grant this proposition, and I’ll 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 held—and they may already be taken as the standard of care if that’s how the plaintiff’s or boards expert chooses to testify.” Guidelines establish the standard of care
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 guidelines—which is about as perfect a disclaimer as could ever be written—reads 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.” Here’s 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. If that’s the proper way, and if your professional peers have gone to the trouble to explain that that’s 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 need—in your dealings with vulnerable members of the public [now I’m 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 idea—even though not mandatory—you will be called upon to explain why you, in your practice, thought you didn’t need to follow good ideas, or, to make it look worse, why you didn’t 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 client—and 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 it’s 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 option—even at a training program, one that we liked to think was prestigious. Why wouldn’t 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 documentation—if it’s 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 psychologists—many more, I think, back a few decades ago and fewer today—do 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 doesn’t 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, you’re 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 wouldn’t have had you just reconstructed that session from memory—subject to the skeptic’s 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 do—a 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 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 you’ve got signature. So this is pure risk management couched as if it’s ethics. Expert Testimony: A Case Example I will use the example of my most recent malpractice testimony, in Sonoma County this past Spring. I’ll use examples from this trial for two reasons:
Also, this was a civil suit with a jury trial, so keep in mind that the jurors, who seemed reasonably bright, knew little about our field and probably had less of an understanding than we do about the differences between the standard of care and risk management. To make a long story short, nearly all the plaintiff’s 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. I’ll 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:
Remarkably, in this case, the accusations kept on coming.
Potential Risk Management Advice That May Someday Become The Standard of Care It 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, you’ve 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.
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