Fact vs. Fiction

Fact! 

Federal and some state law explicitly permit the sharing of patient information for treatment purposes (except information related to substance abuse treatment).

Under HIPAA’s Privacy Rule, covered entities have regulatory permission to share protected health information for treatment purposes (as well as for payment and healthcare operations).  This is explained in greater detail in OCR’s FAQ.  Covered entities should include this in their Notice of Privacy Practices.  For an example, see OCR’s Model Notice of Privacy Practices.   

Additionally, some states specifically allow all providers to share information for treatment purposes without patient permission.  For example, under California law:

(a) A provider of health care…shall not disclose medical information regarding a patient of the provider of health care without first obtaining an authorization, except as provided in subdivision (b) or (c)…

(c) A provider of health care… may disclose medical information as follows:

(1) The information may be disclosed to providers of health care, health care service plans, contractors, or other health care professionals or facilities for purposes of diagnosis or treatment of the patient.

Given the reluctance of various entities (notably hospitals and labs) to rely on this regulatory permission, you may want to have patients sign a consent to the sharing of treatment information with others involved in the patient’s care.  Obtaining such a consent is a good way to manage patient expectations and preserve trust within your treatment relationship.

This consent should be general and should not name specific providers.  It could be as simple as this:

I consent to [clinician’s name] obtaining and sharing my health information with other treating providers involved in my care for purposes of providing and coordinating my care.
 
Patient Signature: __________________________
Date _______________

Fiction! 

Regardless of how many of your colleagues are doing this, it is inappropriate for at least the following reasons:

• Failure to retain records may violate state law.
  • For example, as noted by the Florida Medical Board:

According to Rule 64B8-10.002(3), FAC : A licensed physician shall keep adequate written medical records, as required by Section 458.331(1)(m), Florida Statutes, for a period of at least five years from the last patient contact; however, medical malpractice law requires records to be kept for at least seven years.

• Failure to retain records may constitute unprofessional conduct.
  • For example, New York law includes the following within the definition of professional misconduct:

Failing to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient…. Unless otherwise provided by law, all patient records must be retained for at least six years. Obstetrical records and records of minor patients must be retained for at least six years, and until one year after the minor patient reaches the age of eighteen years;

• Failure to retain records may violate your professional liability insurance policy.

While coverage issues are handled on a case-by-case basis depending on the specific circumstances, most policies exclude coverage for “…error or violation of law committed by an insured or any person for whose acts an Insured is legally responsible.”  So, for example, if a state law mandates that physicians retain medical records for up to six years, and a physician fails to do so, coverage for any claim that is related to this could be denied by virtue of this policy exclusion.

Also, policies may have a cooperation clause precluding an insured from taking any actions that could limit the insurance company’s ability to defend the case.  Not retaining the record could be such an action.
 
But even if coverage is intact, by giving up control of the original records to the person who is most likely to make a claim regarding the care documented in them, a physician could be very severely jeopardizing their defense.  The record could be altered, or there could be chain of custody issues resulting in the record being inadmissible. 

For more information, see our article on retaining and destroying psychiatric records.

Fact! 

While it is certainly appropriate to forward copies of your notes of your interactions with the other psychiatrist’s patients to the other psychiatrist, the risk management advice is to also keep a copy of those notes for yourself.  In the unlikely event of a lawsuit by the other psychiatrist’s patient, you could become enmeshed, either as a defendant or a witness, depending on the allegations.  In either event, your notes from your interactions are crucial to your ability to explain your interactions with the patient, if required to do so.

Fiction! 

So long as a patient is under your care, your licensing board expects you to meet their clinical needs.  Refusing to see them or to prescribe necessary medication until they are able to pay could be grounds for a claim of abandonment.  If a patient can’t or won’t timely pay your fees, you can initiate termination of the treatment relationship, but you must not withhold treatment until the termination becomes effective.  It is also not appropriate to withhold a patient’s medical records until they have paid their past-due bills.  This practice is specifically precluded under HIPAA, as well as the laws of many individual states.  

Fiction! 

You should never respond to a licensing board complaint on your own.  While all physicians appreciate the seriousness of receiving notice of a lawsuit, physicians receiving notice of a board complaint do not always recognize the need for the same level of concern and the potential impact upon their professional license.  In fact, a board complaint may be far more serious as penalties may include the loss of one’s license.   Unlike lawsuits, there is often no need to prove that damage has actually occurred (i.e., that a patient has been harmed) before a licensing board can discipline a physician.  And licensing boards are not required to limit their inquiry to what’s contained in the complaint.  It is not unheard of for a board to find that a patient’s complaint was completely without merit but then take action against the physician due to other things that were discovered in the investigation (for example records provided in response to the complaint did not meet regulatory requirements).  Discipline imposed may include fines, public reprimands, suspension or revocation of a license.  Physicians may also be required to receive special training or complete programs before returning to practice.  Also, many plaintiff attorneys will encourage patients to file board complaints prior to the filing of a lawsuit.  Negative findings by a licensing board may typically be used as evidence in a related malpractice lawsuit or even as leverage to persuade you to settle.
Many professional liability insurance carriers (such as PRMS) do provide administrative coverage and will hire an attorney to represent you in the event of a licensing board investigation.  Insurers typically do not raise rates when they are called upon to defend physicians for frivolous actions.  If your carrier does not have such coverage, it’s prudent to seek legal representation on your own.

Fact! 

You do need to comply with the licensure requirements of the patient’s state (as well as your own, if different).  While some states have exceptions to full licensure, such as a telemedicine license, or not requiring a license for very few contacts with the patient in the state, most states require full licensure.  And this is true regardless of whether medications are prescribed.  However, your compliance with the patient’s state licensing requirements may not be sufficient to allow you to prescribe controlled substances to that out-of-state patient.
 
In the event you need to prescribe controlled substances to patients in a different state, keep in mind that once the federal Public Health Emergency (PHE) ends, the DEA will likely go back to requiring a DEA registration in both your state and the patient’s state, if different.  (This is a long-standing requirement that existed prior to the pandemic, but enforcement was temporarily waived by the DEA for the duration of the PHE.)  This may be problematic because, in addition to requiring a license in the patient’s state, the DEA also generally requires a practice address in the patient’s state to issue the DEA registration.  Remember that controlled substances are in a closed system with the DEA responsible for tracking them from manufacture to prescribing, and unannounced visits to prescribers’ practice locations currently remain a part of this process.  Prior to paying the significant non-refundable fee for a DEA registration in another state, consider seeking confirmation from the DEA that it is needed and can be obtained without a practice address.  Here is contact information for assistance with DEA registrations.      

Fiction! 

You need to see the custody order as it will likely spell out which parent(s) must consent to treatment, and who can access the patient’s record.  Typically, unless parental rights have been terminated, both parents can access treatment information, even a parent without custody. If parents are in disagreement over consent to treatment and/or release of treatment information, and these issues are not addressed in the order, the parents should seek resolution from their attorneys.

Psychiatrists treating minors may want to consider the following:

• When a new appointment is made for a new patient who is a minor, ask if the parents are divorced.  If so, advise that a copy of the custody order will need to be brought to the first appointment. Without the order, the psychiatrist may not be able to see the patient because there is no proof that the parent bringing the minor has the legal authority to consent to treatment.
• Manage the expectations of all parties.  Explain your process for keeping parents informed about their child’s treatment.

Fiction! 

Once a treating psychiatrist starts giving opinions for litigation purposes, they have moved beyond the treating psychiatrist role and into the role of forensic psychiatrist, or even expert witness (regardless of what the patient promises).  Multiple roles bring with them the very real possibility, even the inevitability, of conflicting obligations (i.e., the patient’s clinical needs versus the patient’s other needs).  Conflicting obligations / dual roles increase the risk of clinical, ethical, and even legal problems. 

Psychiatrists should be wary when asked for opinions or predictions by third-parties, such as employers, disability insurance companies, and attorneys.  The safest response is for the psychiatrist to discuss the issue with the patient, explaining the limits of your role as a treating psychiatrist and outlining the potential consequences.  You can advise the requesting parties that if they want an opinion or a prediction, then they should obtain an independent medical exam for that specific purpose.  Psychiatrists who practice in rural areas sometimes find that it is difficult to avoid dual roles; however, they should still make every effort to do so.

For more information, click here to access “Myths & Misconceptions: The Treating vs The Forensic Role.”

Fiction! 

Whenever you prescribe a medication for the first time, even if just continuing another treater’s prescription, you need to have – and document – an informed consent discussion.  You cannot presume that the prior treater discussed risks with the patient and you need to assure yourself that the patient knows and understands these risks.  “I assumed he knew” will not cut it with a jury.  The extent of the informed consent discussion will vary with the riskiness of the medication.  Remember that the FDA’s patient medication information guides may be useful in your discussions.  And remember to make sure you have made the patient aware of any applicable driving warnings associated with the medication.

Fiction! 

A psychiatric record does not have to be "perfect", but it should be "good enough."  What does that mean?  While the specific content of a psychiatric record may vary, the purpose of documentation remains constant.  Remember, the primary purpose of documentation is to support continuity of care.  A good record accomplishes several things: it substantiates your clinical judgment and choices, demonstrates the knowledge and skill you exercised during treatment, provides a contemporaneous assessment of the patient's needs and behaviors, and documents significant events, revisions to the treatment plan, and explanations of your decisions.
 
It is true that documentation plays a vital role in the defense of a malpractice lawsuit; without adequate documentation it may be very difficult to demonstrate that you provided appropriate care.  However, an experienced defense attorney can work well with a cooperative physician and a "good enough" record.  Plaintiffs’ attorneys do not like care that is documented, as that precludes them from making up their own story about what happened in your treatment.  And, under the professional judgment rule (a rule of evidence), courts give great deference to the treating physician, as long as there is something to base that deference on – such as a well-documented, contemporaneous treatment record.
 
There is one absolute with regard to records and professional liability . . . never alter a record.  Altering a record destroys your credibility in a lawsuit, could compromise your professional liability insurance coverage, could lead to sanctions from your licensing board, and could destroy your professional reputation.  In addition, altering a record may be considered a criminal act.  

Fiction! 

Evading service of a subpoena rarely benefits anyone.  The risk management advice is generally to accept service so the subpoena can be evaluated and a proper response can be formulated.  For more information on types of subpoenas and guidance for responding, click here for our article Subpoenas Should Not be Ignored. 

Fiction! 

Clinical practice guidelines can definitely be used to determine the applicable standard of care, but these are authoritative guidelines, such as those developed by the APA and AACAP.  They are not UR guidelines from payers.  Also, following the guidelines does not necessarily mean there is no negligence.  And the reverse is true - not following the guidelines does not automatically mean there is no negligence. Guidelines are just one of many factors that can be used to determine the applicable standard of care.  (For our new resource on the standard of care, click here.) Your professional judgment is always determinative. If you decide to deviate from an authoritative guideline, your reasoning for that determination should be documented.  

Fiction! 

If the patient will not agree to the treatment plan and will not let you provide treatment that meets the standard of care, that generally is not a treatment relationship you can stay in.  Sub-standard care, in terms of liability, is not better than no treatment.

Before terminating the treatment relationship, you may want to consider the cause(s) of non-adherence; for more information, see our article.

Fiction! 

There is no requirement for subsequent in-person visits in the Ryan Haight Act.  The only in-person visit requirement is initially, before prescribing the controlled substance.  However, subsequent in-person visits may be clinically necessary or legally required under state law.  For more information, see our new resource “Top Five Things to Know about the Ryan Haight Act.” 

Fiction! 

Even though a patient tells the world of your treatment, you cannot acknowledge that the reviewer was treated by you.  For more information, click here to access “10 Things to Know about Online Reviews."

Fiction! 

Once a patient turns 18, parents no longer automatically have the right to access the patient’s record.  Once a patient turns 18:

• To release information to parents, even if they are continuing to pay for your services, you need the patient to authorize such release.
• If parents had access to the patient’s records on your patient portal, be sure to discontinue that access.
• Remember to get informed consent from the now adult patient for all medications, even those the patient is currently taking.

Fact! 

We often face reluctance from psychiatrists when we discuss terminating with a patient who has been non-adherent to the treatment plan.  Typically this reluctance, which can be significant, stems from a belief that terminating treatment with a patient means the psychiatrist is abandoning the patient, and that their care (though substandard because of the patient’s non-adherence) is better than no care.  Even during the pandemic, with a greater shortage of psychiatrists available for new patients, substandard care is in fact negligent care.  By following the proper termination process, which includes providing notice to the patient (which varies by state, but typically is 30 days), providing referral resources, and confirming the termination in a letter, they can put an end to the negligent treatment and avoid an allegation of abandonment.  For more information on this topic, you can view our article here. 

Fiction! 

Not all psychiatrists are covered entities under HIPAA.  Covered entities are only those healthcare providers who do specific transactions electronically with health plans.  The most frequent electronic transaction done with health plans is the electronic transmissions of claims forms for payment, whether by the psychiatrist or by a billing service on behalf of the psychiatrist.  There are several other transactions, such as checking on referrals, pre-authorizations, etc., that if done electronically with a health plan, make a provider covered under HIPAA, meaning HIPAA must be complied with.  The government has a decision tool available here to help you determine if you are a covered entity.  But keep in mind that there are additional confidentiality laws, such as state confidentiality law, that must be complied with even if you are not a covered entity under HIPAA.

Fiction! 

Boundary violations are not limited to sex and other personal relationships.   Over the years, boundary violations has always made it to our list of top causes of actions brought against our insured psychiatrists - and not at the bottom of the list!  Fortunately, not all of these cases involve sexual allegations.

Boundary violations can result from numerous types of "multiple” or “dual” relationships.  Such relationships can occur anytime a psychiatrist relates to patients in more than one relationship, whether professional, social, or business, in addition to being in the treatment relationship.  Multiple or dual relationships can lead to allegations of taking unfair advantage of the treatment relationship to exploit or otherwise further the psychiatrist’s personal, religious, political, or business interests.  As a general rule - once you are the patient’s psychiatrist, that is all you should be.

Even if the psychiatrist has only the best of intentions, if something goes wrong, there will be allegations that there were non-therapeutic motivations involved.

Fiction! 

The correct next step is to contact your Risk Manager or professional liability insurer.  The exceptions to patient confidentiality are very limited. It is possible in this case that you could be contacted by law enforcement, as well as the media.  Do not speak to the media, and do not assume that law enforcement is entitled to any patient information, regardless of what the investigators may say.  For more information on this, see our article "When Your Patient Makes the News". 

Fiction! 

The trend of psychiatrists being more likely to have an administrative action brought against them than a claim or lawsuit continued in 2020.  Based on our Program’s data, 60% of all incoming actions in 2020 were administrative actions, versus 40% claims and lawsuits. 

Psychiatry is a regulated profession, with many federal and state agencies as regulators.  The vast majority of these administrative actions were brought by state licensing boards; other relevant federal agencies include HHS (enforces HIPAA) and the DEA.

Fact! Your presence in a shared office may lead your office mate’s patients to believe that you employ or supervise your office mate.  You may be held liable for the office mate’s malpractice if a court finds the patient’s perception of association between you and the other professional to be reasonable.  For simple steps to take to minimize your professional liability risks when sharing office space, click here. 

Fact! Psychiatry is the least often sued medical specialty.  For more information on this, things to do and not do after an adverse event, and more, click here to see slides from a recent presentation.

Fiction. If there was patient harm or death, even if unrelated to the medications in the notice, and there was an action brought against you, plaintiff’s attorney would use the fact that you ignored the notification against you as evidence of negligent care.

But reviewing the notice does not mean that you - the treating psychiatrist - have to agree with the concerns. Here is the brief risk management advice:

1. Review and research the information
2. Discuss with the patient
3. Document your decision-making

For more information on this topic, you can access our risk management article here.