Fewer losses translate to lower costs directly to your business through lower insurance premiums.  Behavioral healthcare employees face risks that are far different than those faced by employees in other professions, whether its tough exposures,  Workers Compensation claims, Professional Liability claims, Employment claims or unique Property issues. That is why it is important to stay informed on current risk management and safety issues and with Negley Associates, “best in class” partners, we are able to offer state of the art loss prevention services dedicated to directly addressing the needs of behavioral healthcare and social service providers by line of business. Policyholders can now avail themselves of loss control services through resources specifically dedicated to their industry.

  Part 1 - Quality Care and Avoiding Liability for Medication Errors Learning from History
The most frequent lawsuits brought against mental healthcare providers involve claims of sexual misconduct, patient violence, suicide malpractice and medication errors. The specific allegations of error in each of these categories generally repeat themselves from one lawsuit to the next. Thus good risk management includes being aware of the repeating allegations and taking reasonable steps to avoid the same errors.
**This series of articles was originally published in Behavioral Healthcare Magazine which may be accessed from the following link: Click Here

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More importantly because it is the health care provider’s mission to provide quality care, paying attention to lawsuit allegations with an open mind presents the opportunity to learn something to enhance the quality of care. In the face of a lawsuit, we can understandably become defensive and it is difficult to be objective. The tendency is to think that most lawsuits are frivolous and expert witnesses motivated by financial gain are shading their testimony in favor of finding negligence. However these experts often have impressive credentials and evaluate the facts of a case objectively and ethically. It is their function to point out failures in quality care. Once we know about our failures we can design systems to avoid them and develop best practices.

This is the first of three articles examining the specific allegations of negligence in actual lawsuits with medication error claims and the risk management implications of those cases. This first article is a discussion of various lawsuits and litigation concepts for the purpose of identifying patterns of negligence. Future articles will contain recommendations for techniques and systems to improve quality care when prescribing and monitoring psychiatric medication.

Prescription and management of psychiatric medication can present liability risks and dilemmas for the mental health care provider. For example, schizophrenia can be a severe, life threatening disease because of the risk of suicide. Treatment is often with second generation antipsychotics (SGA’s). This type of medication can also be potentially life threatening because some of the medication in the class is associated with diabetes and negative cardiovascular effects. Either prescribing or not prescribing SGA’s can potentially end in a bad result and a possible lawsuit.

Lawsuits are only successful, however, when a patient’s bad results or injury are caused by breaches of the “standard of care,” that is a failure of the provider to do what a reasonably prudent healthcare provider would have done under similar circumstances. Safety from lawsuits and resolution of quality of care dilemmas lies in doing what reasonably prudent providers would have done. This, of course, is a general concept and provides little guidance. Analysis of lawsuits can assist in identifying specific “reasonably prudent” behaviors.

Here then are examples of allegations of negligence in real medication error lawsuits.

In a lawsuit involving a prescription of Zoloft, allegations were as follows: the doctor failed to warn the patient of known side effects, failed to diagnose adverse reactions and did not obtain baseline neurological data.

In a lawsuit involving prescription of Lithium, allegations were: the doctor increased lithium dosage without checking serum lithium levels which had last been obtained 2 years earlier. The physician’s notes documented symptoms of lithium toxicity but the doctor did nothing to treat the toxicity.

In a lawsuit involving prescription of Elavil, allegations were: the doctor took an inadequate history, documented symptoms of overdose and when the doctor did not treat the symptoms the patient died of an overdose. A prior physician’s notes also documented symptoms associated with an overdose but were unread by the new doctor.

In another lawsuit involving prescription of Lithium, allegations were: the doctor did not obtain a baseline kidney function test and failed to obtain kidney function tests for 3 years while American Psychiatric Association guidelines suggest a test every 6 months. When first prescribing the medication, the physician took an inadequate history by not asking about family history of diabetes and kidney disease and also did not tell the patient about the risk of kidney damage.

In a lawsuit involving prescription of Zyprexa, allegations were: the doctor did not obtain an adequate baseline by failing to ask about family history of diabetes and failing to test to determine whether the patient himself had diabetes. The physician failed to monitor the patient adequately by not checking blood sugar levels. Further the doctor did not tell the patient about the risks of weight gain and diabetes and failed to timely educate himself about the changing research relating to the risks associated with the medication.

The allegations in these lawsuits are representative of the types of allegations of breaches of the standard of care which are repeated in most medication error cases. In summary: (1) there was an inadequate informed consent procedure with insufficient warnings of risks associated with the medication; (2) there was a failure to monitor properly because there was an inadequate or no baseline, insufficient history and insufficient testing required with the medication; (3) the doctor failed to connect documented symptoms of adverse reaction to the medication with known associated risks.

Future articles will contain recommendations of detailed risk management techniques and systems for complying with the standard of care and avoiding these medication errors.

  Part 2 - Quality Care and Avoiding Liability for Medication Errors Learning from History
As discussed in the first article in this series, lawsuits about medication errors in behavioral healthcare tend to have the same allegations from one case to the next. These allegations fall into the following categories:
**This series of articles was originally published in Behavioral Healthcare Magazine which may be accessed from the following link: Click Here

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As discussed in the first article in this series, lawsuits about medication errors in behavioral healthcare tend to have the same allegations from one case to the next. These allegations fall into the following categories:

(1) there was an inadequate informed consent procedure with insufficient warnings of known risks associated with the medication;

(2) there was a failure to monitor properly because there was an inadequate or no baseline, insufficient history and insufficient testing required with the medication;

(3) the doctor failed to connect documented symptoms of adverse reaction to the medication with known associated risks.

This article will include recommendations for an adequate informed consent procedure as well as discussion of the roles of healthcare staff in medication risk management.

Staff roles:

An adequate medication risk management system in the community mental health or hospital setting should start with a commitment to involve the facility’s whole treatment staff in the effort to avoid error. The prescribing physician alone can not do everything, if for no other reason than the time the doctor spends with the patient is limited.

Other staff including nurses, case managers, counselors, residential supervisors and psychiatric technicians will have substantial contact with patients. Their part in risk management should be considered as important as the doctor’s and adequate resources should be devoted to their training. These staff should be able to do the following:

1. Educate patients about the risks and benefits of medication, alternatives to a specific medication and possible adverse reactions.
2. Monitor charts to be sure that adequate information about baseline data and laboratory testing is documented and alert the appropriate supervisor if something is missing.
3. Monitor patient competence and understanding of both medication risks and how to comply with the doctor’s orders.
4. Monitor patient condition and take appropriate steps to address adverse reactions to the prescribed medication.

To help staff recognize adverse medication reactions, a checklist should be readily available describing the most common and most worrisome adverse reactions to medication frequently prescribed for the facility’s patients.

Informed consent:

Some physicians believe they know what is best for the psychiatric patient and that they should not fully disclose the risks of medication because the patient might refuse to take what the doctor prescribes. This approach, however, increases the risk of lawsuits. The decision to take or refuse medication legally belongs to the patient. Our legal principles reflect our cultural value that the individual patient knows what is best. Medication should be seen as a ‘respectfully negotiated aid to recovery.” The focus should be on the patient’s empowerment and “role restoration” of self determination. See Rosen, The Community Psychiatrist of the Future, Current Opinion in Psychiatry 2006, 19:380-388.

The process of obtaining informed consent should be considered as simply sharing with the patient what we know about a particular medication. Taking enough time to inform the patient at the beginning increases the likelihood of medication compliance. Thus the doctor may end up spending less time on emergencies. Further, obtaining informed consent is an important part of building a quality therapeutic relationship. That relationship is critical to both the success of treatment and good risk management.

Most states have statutes mandating informed consent to any medical treatment and defining required elements. These laws are the starting place for designing an informed consent procedure. Depending on the state, violation of a statute could be the basis for a separate lawsuit apart from any allegations of negligence. Alternately a violation could be considered evidence of negligence. Most of the statutes require disclosure of adequate information about the nature of the treatment and the risks and benefits of the treatment, alternative treatments and no treatment.

The informed consent process should include obtaining a signature to a written, up to date, medication specific risk disclosure and consent form and an oral discussion with the prescribing doctor. At a minimum, the doctor should document discussion of the patient’s diagnosis and risks and benefits as required by the particular state’s law and signs of possible adverse reaction. Material risks should be discussed, but the doctor need not read the medication insert to the patient. Instructions for taking the medication should be discussed, a follow up appointment scheduled and the patient told to call if anything unusual happens.

The doctor should not use medical terms during the discussion and language should be as simple as possible. Because jargon can be used habitually, a facility could give providers the opportunity to practice using simple language with an observer who could point out any “slips.” The patient should be given an opportunity to ask questions. The provider should ask questions to test the patient’s understanding of the issues and reeducate as needed.

The doctor should also tell the patient that additional risks may become known as research on the drug develops and the drug is used by a larger population. Of course it is important for each physician to stay current with the published literature, tell the patient about any newly identified risks and make treatment changes appropriate to the new information. Each facility should have a system in place to help its medical staff stay current with the research.

The written consent form should be considered a legal document and should disclose risks and benefits in more detail than the discussion. It should also contain instructions for taking the medication, explanation of signs indicating an adverse reaction and instructions on when and how to call the doctor for help. These forms should be updated regularly as new information about the medication becomes available. Mental Health Corporations of America, Inc. has posted on its web site at mhca.com an example of a consent form prepared by the author which can be used as a model. There should be a separate form for each medication.

In the next article in this series I will recommend risk management techniques relating to determining competence to consent to medication, obtaining adequate baseline data and monitoring the patient.

  Part 3 - Quality Care and Avoiding Liability for Medication Errors Learning from History
As discussed in the first article in this series, lawsuits about medication errors in behavioral healthcare tend to have the same allegations from one case to the next. These allegations fall into the following categories:
**This series of articles was originally published in Behavioral Healthcare Magazine which may be accessed from the following link: Click Here

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(1) there was an inadequate informed consent procedure with insufficient warnings of known risks associated with the medication;

(2) there was a failure to monitor properly because there was an inadequate or no baseline, insufficient history and insufficient testing required with the medication;

(3) the doctor failed to connect documented symptoms of adverse reaction to the medication with known associated risks.

This article will include recommendations regarding a procedure for determining competence to consent to a medication as well as discussion of examples of the type of baseline data and monitoring required for appropriate medication management. The article will conclude with recommendations for a clinical decision making checklist to document consideration of the factors required by the standard of care in deciding which medication or treatment to use.

Determining competence to consent

Distinguish between legally declared incompetence and actual incompetence to consent to medication. Only a small percentage of the mentally ill have been declared incompetent as part of legal proceedings to determine if a guardian should be appointed. The fact that a patient has not been legally declared incompetent usually has little to do with whether the patient is competent. For instance there may simply have been no family member who knew how to begin guardianship proceedings or the process may be too expensive or the courts may have a backlog.

Further a patient may be incompetent to consent to medication while being competent to consent to other types of treatment. The decision to take medication requires an understanding of a variety of complex factors. Therefore it is prudent for the prescriber to determine competence to consent to medication separate from other competence evaluations.

The evaluation is best done by 2 people. The prescriber can be supported by a nurse or other staff to interview the patient. The prescriber should do a mental status exam and educate the patient about the medication and monitoring procedures. The support staff can follow up with an interview to test the patient’s ability to voluntarily consent and understanding of the issues.

The mental status exam should include evaluation of orientation, memory, intellectual functioning, insight and judgment, mood alterations and factors indicating impairment of rationality such as delusional thinking and hallucinations.

The interview by support staff should include questions to evaluate the patient’s ability to make a choice, to understand the factual issues, to appreciate the situation and its consequences, and to rationally manipulate information. Here are some example questions.

Ability to make a choice

Have you decided whether to accept our recommendation about medication?
Can you tell me what your decision is?

Factual understanding of the issues

Please tell me in your own words your understanding of the nature of your condition, the possible benefits of the medication, the possible risks of the medication, the possible risks and benefits of other treatments, and the possible risks and benefits of no treatment at all.

Please tell me some of the things you should tell us about if they happen to you while taking the medication.  What might happen if you don’t tell us?

How likely is it that you might experience one of the side effects of the medication? Why do you think we are giving you information about this medication?  What do you think will happen if you decide not to go along with our recommendation to take this medication?

What do you think you should do to avoid the possible risks associated with this medication which we have explained to you? Why do you think it is important to keep your appointments with us so that we can monitor your progress on this medication?

Appreciation of the situation and its consequences

Please explain to me what you believe is wrong with your health. Do you believe you need some kind of treatment? Why do you think we recommended this medication?

Rational manipulation of information

Tell me how you reached the decision to accept or reject this medication? What were the factors that were important to you in reaching the decision?

The interviewer should document a final opinion as to whether the patient is competent to consent. Of course if the patient is not competent, alternative decision makers should be contacted. There may be a guardian, a person who has a power of attorney, a health care surrogate, a government agency, or family member who has the authority to consent. Your state law may authorize a mental health center to seek authority to consent. In any event a prescriber should make reasonable efforts to locate an alternative decision maker when appropriate.

Baseline data and patient monitoring

The baseline data required to be gathered before prescribing a drug and the type of patient monitoring is different for each kind of medication. Moreover the standard of care changes as the pharmaceutical industry and researchers learn more about a specific drug. Clinical trials are conducted with a limited population. The experience with a drug and our understanding of it is far more complete when it is used on the open market by millions rather than thousands of people and new studies are conducted and published.

For example the standard of care for baseline data and monitoring for second generation antipsychotics (SGAs) was conceived differently from 2004 to 2006. In 2004 “Consensus Guidelines” were published in Diabetes Care resulting from a cooperative effort of various associations for diabetes, psychiatry, endocrinology, and obesity. American Diabetes Association (2004b), Consensus Development Conference on Antipsychotic Drugs and Obesity and Diabetes, Diabetes Care 27: 596-601. In 2005 a report and new guidelines were published based on a conference of psychiatrists, diabetologists and pharmacists from major Belgian hospitals, Belgian consensus on metabolic problems associated with atypical antipsychotics, International Journal of Psychiatry in Clinical Practice, 2005; 9(2): 130-137.  In 2006 yet another publication contained different guidelines based on a literature review. Metabolic abnormalities associated with second generation antipsychotics: Fact or fiction? Development of guidelines for screening and monitoring, International Clinical Pscychopharmacology 2006, Vol 21 (suppl 2).

Thus it is essential that each prescriber keep up to date on the latest research literature. Mental health center medical directors can greatly enhance patient quality of care by being sure that the most current information is available and staff training occurs regularly. Staying current on the latest research is not only a foundation for quality care and risk management. It is also an ethical duty.

The 2006 guidelines for atypicals are a good example of the specifics of the kind of information required for a baseline and patient monitoring of a medication. The major associated risks for SGAs are diabetes, dyslipidemia and weight gain. The prescriber should obtain a medical history to include symptoms, lab reports and examinations related to diabetes, fasting blood glucose, oral glucose tolerance tests, family history of diabetes and obesity, eating habits, nutritional status, weight, exercise habits and other medications taken which may affect glucose levels. The prescriber should also consider any risk factors for atherosclerosis such as smoking, hypertension, obesity, dyslipidemia, and tobacco or substance use. An in depth physical examination should be completed to include among other things height, weight, waist circumference, body mass index, and blood pressure. Laboratory tests should include fasting plasma glucose and fasting lipid profile.

Follow up monitoring should occur periodically. The 2006 guidelines contain a recommendation to obtain the patient’s weight weekly for inpatients and monthly in ambulatory care. Depending on weight gain the prescriber should consider making changes to the prescription. Fasting plasma glucose should be assessed “monthly in patients with family history of diabetes/obesity and/or with manifested overweight or obesity, and/or with impaired fasting glucose, after 6 and 12 weeks, then quarterly in patients without risk factors.” Total cholesterol, HDL, LDL and triglycerides should be obtained every 3 months for the first year of treatment and annually thereafter. Blood pressure should be taken every 3 months.

These guidelines are different and more watchful than the earlier guidelines. The SGA guidelines are just an example because each medication will have its own requirements for baseline data and monitoring.

Allegations of failing to connect documented patient symptoms with known risks associated with a medication are often a result of inadequate monitoring.

Clinical decision making checklist

Providing quality care includes consideration of all those factors which a reasonably prudent health care provider would consider in making decisions about which treatment or medication is appropriate. Since we all have imperfect memories it is best to have a checklist of those factors. A form could be included in the patient’s chart to document the unique facts and decision process for each patient.

The decision process should include consideration and documentation of the following factors: the diagnosis, severity of symptoms and overall level of functioning currently, in response to past medications and different doses. Is the patient experiencing side effects currently? Why is this medication appropriate rather than some other medication, no medication or other treatment? If the medication being considered is “off label,” is there research literature to support its use and is there some other medication which would be as effective? Does the patient take other drugs which would interact adversely with this prescription? Does the patient have a preference for or against this or another drug? How does the patient’s history of medication compliance or noncompliance relate to this medication decision?  Does the patient have any medical conditions or co-morbidities which affect this decision? Does the chart contain sufficient baseline and monitoring data to support the medication being considered? Is an appropriate formulation available? Is the cost of and access to this medication or an alternate medication a problem for the patient?  Is the patient or a family member able to understand, remember and report matters to the prescriber as instructed in a consent and instructions form?  Why do the benefits of the drug outweigh its risks?

Model forms prepared by the author are available as follows: a clinical decision making checklist, an informed consent procedure checklist, competence to consent to treatment interview checklist and an example consent and instructions form for the patient’s signature. The forms may be accessed on the Mental Health Corporations of America, Inc. web site at ________.

  The 2 Most Important Risk Management Techniques When Treating Violent Mental Health Patients
Violent and potentially violent mental health patients present a unique risk in the mental health care setting. If undeterred they can seriously injure or kill themselves, other patients, members of the general public and healthcare staff. The possible range of violent incidents includes those that are truly shocking beyond all bounds of the comprehensible. Some incidents attract extraordinary media attention. This kind of attention is likely to alter the character of judicial proceedings to the detriment of an accused professional.
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Mental health professionals can be held liable for their patients’ violent acts despite the fact that the consensus in the field is still that it is not possible for the professional to accurately predict a specific act of violence. Courts routinely justify findings of liability by contending that the professional could have avoided liability by simply doing what “a prudent professional would have done under similar circumstances.” However that is a standard on which testifying experts disagree in every case litigated. What then should a community mental health center do to protect its patients from being injured and itself from paying possibly catastrophic liability claims?

First, be sure you have professional liability insurance with adequate policy limits from a good company that puts its insured’s interests first. Second, divert resources to adequately address the needs of your patients who present the highest risk. This, of course, includes the potentially violent.

You can’t win them all:

It is part of good risk management to accept the proposition that there are some cases you cannot win. And there are cases you should only try to settle. By analogy tornados with 160 mile per hour winds will destroy even well built structures designed to meet a building code requiring construction that resists 110 mile per hour winds. Similarly in some cases you are unlikely to win even if you provided good care. Consider the following 2 claims.


  1. A patient with a history of attempting to shoot a neighbor was found not guilty by reason of insanity in a criminal case and was held in a state forensic hospital for 2 years. He was then discharged home with a referral to a community mental health center for outpatient medication management. Within 3 weeks of beginning outpatient care, he stopped taking his prescribed medication and was brought to a center by the police after he threatened another neighbor. The police reported that there was no evidence the patient used or had a weapon. The patient was admitted to a crisis stabilization unit where he was compliant with his medication. After 2 weeks of inpatient care a psychiatrist did an evaluation in a 50-minute session. Because he appeared stable and denied homicidal ideation the psychiatrist discharged the patient home with a follow up medication management appointment for one month.  2 days later the patient went to 3 homes in the area and shot and killed 8 people. One of the people killed was a famous and well-liked CEO of a statewide charitable agency. Two of the people murdered were parents of a 4 year-old girl who was hiding under a couch when her parents were shot.  She saw them die. The police interrupted the patient when he was in the parents’ home and killed him as he attempted to shoot a policeman. The police found a list of people to be killed in the patient’s pocket. A nurse from the state forensic hospital later testified that she saw the list before the patient was sent home, but she did not believe the patient really intended to kill anyone.
  2. The girlfriend of a mental health center’s 22-year patient called the patient’s counselor to say she was ending their relationship, she was leaving the state and that she was worried about the patient. He had become increasingly agitated and was saying threatening things. He had delusions about people on the highway near their home trying to get into the home they had shared. The counselor went out to the patient’s home to do an evaluation and asked another staff member to come along because he thought the patient was unpredictable. While at the patient’s home the counselor saw that the patient had a hunting rifle but thought nothing of it because the patient lived in a rural area where hunting was common. The patient appeared stable and denied delusions. The counselor made an appointment for the patient to come in for a medication management appointment for 3 days later. 1 day later the patient put up a wood barricade on the highway next to his house to keep people from using the highway. The first car to happen by contained a mother and 4 girl scouts who were 9 and 10 years old. When the mother got out of the car to move the barricade, the patient started shooting at her and the girls with his hunting rifle. One of the girls was killed.  Another girl was shot in the leg and wounded so seriously that her leg had to be amputated.

The media gave both of these cases extraordinary coverage. The judicial system becomes less reliable when so much attention is focused on a particular case. Elected state attorneys and judges can’t help being influenced even if very subtly. Juries will have to explain their decisions to friends and likely the media. The natural tendency in these kinds of cases is to look for someone to blame so that what went wrong can be “fixed” and won’t happen again.
The risk of a jury awarding a very large verdict in this type of case is real. Thus there is a reasonable possibility,if not probability, that a mental healthcare provider will have to pay from its own funds. When selling its policies, insurance companies always place a limit on the amount of any damages it will pay for the insured. This is called the “policy limit.” The insured must pay any judgment in excess of the policy limit. Thus in a potentially catastrophic case the insured could conceivably end up in bankruptcy. The risk of leaving the decision up to the jury to attempt to be vindicated or to ask for the smallest award possible can be far greater than the possible reward.

Therefore it is important to have not only insurance but also the right kind of insurance and the right company. Every claim presents a built in potential conflict of interest between the insured and the insurance company that is clearest in large value claims. It is in the insured’s interest for the company to pay whatever amount is necessary to settle the claim within policy limits so the insured will not have to pay anything. It is in the insurance company’s interest to pay the smallest amount possible and it has less risk at a trial because its potential losses are capped at the policy limit. An insured has no such cap on its potential losses.
Thus when buying insurance it is best to know something about a company’s settlement practices and reputation for putting the insured’s interest first. Insurance agents and attorneys practicing in the field are most likely to have this information.  Captive insurance companies and risk retention groups are structured to put a priority on the insured’s interest because they are owned by their insureds.

Further since it is a very rare case that cannot be settled if an insurance company offers to pay its policy limits, it is important to select adequate policy limits. Some policies have both a general limit and a smaller limit, referred to as a “sublimit,”applicable to specific types of claims. For example it is common in professional liability policies in mental health to have a sublimit for sexual misconduct cases. Sublimits can be quite small so it is important to inform yourself about all limits and all coverage exclusions when buying a policy.

Divert resources to high-risk areas:

It makes sense to divert resources to high-risk areas such as violence risk assessment because it serves the patient’s interest in getting the best care, the center’s mission in providing good care to those most in need and the center’s interest in maintaining financial health. Good violence risk assessments take time.

In order to prove a case all plaintiffs have the burden to prove that the defendant was negligent and that the negligence caused injury. In the vast majority of cases brought against mental health care providers for acts of violent patients plaintiffs claim that the provider did an inadequate job in assessing the risk of violence. More specifically plaintiffs allege that the provider did not obtain available, adequate information to do a risk assessment and was not thorough enough in performing the assessment.

The standard of care in assessing the risk of violence has been changing with research being done over the last 15 years. Psychiatrist Paul Appelbaum at Columbia Universitywas reported to take the position that “structured risk assessments” may be the standard of care for some patients.

“…the structured risk assessment is becoming the standard of care …It ensures that clinicians gather relevant data about the most important risk factors for violent behavior…In the absence of a structured way to think about risk, clinicians tend to be highly inaccurate in their assessment. New Tools to Aid Violence Risk AssessmentJournal of the American Medical Association, 2007 Volume 298, No.5, p.501,

Performing “structured risk assessments” for the typical community mental health center requires balancing needs and resources. Performing an adequate structured risk assessment requires that the provider commit enough resources to gather a substantial amount of information, spend sufficient time with the patient, seek consultation from other clinicians and use actuarial tools developed by researchers over the last 15 years to complement the evaluator’s clinical judgment.
Gathering adequate information requires obtaining and reviewing the provider’s own records and other relevant providers’ records, and contacting relevant collaterals such as family, friends and police. At a minimum the evaluator should spend enough time with the patient to decide whether the patient’s statement are reliable and consistent with collateral information.
It is important to seek consultation from other providers for at least 2 reasons. First decisions about the risk of violence made by a multidisciplinary group have been found more likely to be accurate than individual decisions. See for example Huss &Zeiss, Clinical Assessment of Violence from Inpatient Records: A Comparison of Individual and AggregateDecision Making Across Risk Strategies, International Journal of Forensic Mental Health, 2004, Vol.3, No.2, pages 139-147.Second a significant number of appellate courts have reversed findings of liability based on a provider’s careful consultation with other experts.

Actuarial tools for predicting violence provide the advantage of objectivity and structure and have been found to be more accurate than unstructured clinical approaches. Among the tools available which should be considered for use as appropriate to the patient are the Psychopathy Checklist: Screening Version (PCL:SV), The Violence Risk Appraisal Guide (VRAG), The Classification of Violence Risk (COVR), software developed from the MacArthur Violence Risk Assessment Study, and the Historical Clinical and Risk – 20 Item Risk Assessment Scheme (HCR-20 version 2). See Doyle & Dolan, Standardized Risk Assessment, Principles of Forensic Psychiatry, 2007, Vol. 6, No. 10 pages 409- 414, for a good summary of the purposes of the specific tools and steps in a structured risk assessment.

  Alleged Discrimination in Violation of the Americans with Disabilities Act
In a June, 2007 press release, the Federal Equal Employment Opportunity Commission (EEOC) reported that in its fiscal year 2006 it had received almost 17,000 complaints of employment discrimination “on the basis of race, color, sex, national origin, disability and reprisal.” The law requires that employment discrimination complaints be filed with the EEOC before filing in court. During its investigation of each complaint the EEOC requires a response from the employer and requests copies of a wide variety of documents. This results in a substantial commitment of time and money. If court proceedings follow, the additional time and money expended can seriously detract from attention to the employer’s primary mission. Thus it is prudent to put into place a well thought out risk management program to reduce the risk of employment practices litigation. A good program also has the benefit of boosting employee morale because it should include a process to enhance the quality of communication between management and employees.
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This article describes an example case of alleged discrimination in violation of the Americans with Disabilities Act (ADA) and contains risk management suggestions. Although all the facts described are a matter public record, changes have been made to protect the identity of the persons involved.

A case example: alleged violations of the ADA

Sally was a long time nurse practitioner for a large, rural community mental health center. She worked for the Center her entire career over 20 years. Her performance evaluations were uniformly glowing. Her supervisors described her as a “self starter” who frequently did more than was asked of her. She was responsible for directing the Center’s in patient crisis stabilization unit. Her co-workers liked and respected her and she had formed many long friendships with them. The Center’s management had changed during the last 3 years of her tenure following the CEO’s departure to different employment.

Unfortunately Sally became ill with leukemia at about the same time management changed. She had to take leave from the Center for treatment which included chemotherapy. She returned to her job after 5 months and again received a good performance evaluation. However, within a year her condition deteriorated and she had to take another leave of absence. Her recovery from a second round of chemotherapy was slower but her doctors were encouraging that she would live a normal life expectancy. Her doctors cleared her to return to work but she was restricted to part time. Although she could care for herself, feed herself and drive, she had low energy and difficulty walking and lifting. It was difficult for her to stand for extended periods. She became tired easily after work activities requiring more than mild exertion.

The crisis unit had a rotation schedule for night duty which her doctors advised her not to do. Thus Sally told the CEO that she was disabled and asked the Center to accommodate her disability by allowing her to return to full time work gradually. She also asked to be taken off the night duty rotation until she was able to work full time.

Sally did return to work part time, but heard rumors that the CEO was going to “force her out.” She became upset and shared some of her frustration with coworkers telling them that she thought the CEO was not willing to accommodate her. The CEO heard that she was talking to coworkers and sent her a memo ordering her not to talk about her accommodation requests and to say only that her continued employment depended on her doctors’ recommendations. Sally responded with a memo agreeing to say that her continued employment depended on her doctors. However she also asserted that she felt she had a right to express her opinion that management was not willing to accommodate her. When the CEO received her memo Sally was fired for “insubordination.” Sally filed a complaint with the EEOC alleging that she had been fired in violation of the ADA.

Legal principles applied to facts

In order to state a claim for violation of the ADA a plaintiff must demonstrate that he or she is a “qualified individual with a disability.” A “disability” is a “physical or mental impairment that substantially limits one or more of the major life activities of such individual.” In order to be “qualified,” the employee must be able to perform the “essential functions” of the job with or without a “reasonable accommodation.” An employer is not required to make accommodations which impose an “undue hardship” taking into account, among other things, the cost of the accommodation, the employer’s financial resources and size and the employer’s type of business. A reasonable accommodation may include “job restructuring, [and] part time or modified work schedules.”

Possible damages awardable in an ADA claim include lost wages with the cost of benefits and mental anguish. Lost wages include both past and future lost wages. Depending on the circumstances lost wage claims can amount to very large sums, sometimes over a million dollars. Compensation for mental anguish, non-economic damage, is limited depending on the size of the employer. If an employer acts with “malice” or with “reckless disregard” of the employee’s ADA rights, punitive damages meant to punish the employer may be awarded. Further, the party who loses the case must pay the other’s costs and attorney fees which can sometimes be $50,000 or more.

In our case, the Center did not contest Sally’s claim that she had a “disability,” because of the difficulties she had with walking, lifting, standing and fatigue. However, the Center did assert that she could not perform the “essential functions” of her job because her doctors ordered her not to do night duty. The Center claimed that it was an undue hardship to remove Sally from the night duty rotation because there were very few nurses on the schedule. Further since the center was in a rural area where there were few qualified nurses available it would be expensive to replace her on the rotation.

An “essential function” is a “fundamental job duty necessary to accomplish the goals of the position.” In determining whether a function is essential a court will consider all of the unique circumstances. This includes the employer’s judgment as to what functions are essential and whether the employer has a written job description which was prepared before advertising or interviewing for the job. The courts will also consider the time spent doing the function, the consequences of not performing the function and the work experience of other employees in similar jobs.

In our case the court ruled that the jury would decide whether being on night duty was essential because there were factors both for and against a finding that the function was “essential.” On the one hand there were only a few nurses on the rotation and taking one off the rotation added to the burden of the others. The employer did have a job description which designated night duty as essential. However all of the functions of the job were labeled essential. On the other hand Sally claimed that other nurses had been temporarily taken off the rotation. Also Sally’s coworker friends testified that her temporary removal from the rotation would not be a hardship on them and they were willing to provide coverage.

Sally also claimed that punitive damages should be awarded because the CEO had never in good faith considered her request for an accommodation of temporary part time work. The court ruled that issue would be left to the jury.

Risk management suggestions

1. Do what is fair. Simply because the world has more employees than managers, juries are likely to consist of more employees than managers. Many trial lawyers believe that juries often either do not understand or ignore some of the details of the law and just try to do what they think is fair. Of course “fair” is a relative term and what an employee considers fair may be different than what a supervisor thinks is fair.

In our case, an employee/juror would likely consider Sally’s long, exemplary work performance, the fact she was well liked and the supportive testimony of her coworkers. An employee/juror could identify with Sally and be concerned that if Sally could be fired when she was sick the same fate might befall the juror. A juror could also conclude that there was nothing wrong with Sally telling other coworkers that she was afraid she would lose her job because the new CEO did not want to accommodate her.

In trying to do what is fair and to prevent litigation in the first place, it could be helpful to consider an advisory opinion from a committee of employees when deciding on employee discipline and requests for accommodations. The committee might be structured with your center’s general counsel so that its deliberations could be considered privileged. At a minimum, supervisors should try to see an employee’s point of view before taking action.

2. Keep talking. Management sometimes takes disciplinary action and ends up in litigation when continued communication between all involved could have resulted in an entirely different outcome without a lawsuit. Our case is a good example. Communication broke down quickly. Sally heard rumors and did not go to the CEO to talk. Instead, in frustration she talked to her coworkers. Similarly, the CEO did not talk to Sally but decided to send a memorandum. Predictably Sally responded with another memo.
The issue in dispute, what Sally was going to tell her coworkers, was capable of
negotiation and was not central to the material issues between the parties. The most important issues were Sally’s ability to return to work and the center’s ability to complete its mission of providing quality care. However, the parties stopped talking and made decisions on peripheral issues.

The law favors alternative dispute resolution programs. Mediation could be a required part of a grievance procedure. The employer could require mediation before filing a lawsuit in court. Mediation is a process during which a neutral third party assists the parties in talking about and reaching a settlement of matters in dispute. The whole process can be confidential. A good mediator will help both sides see the other’s point of view and will increase the likelihood that the parties will talk instead of resorting to the courts.

3. Check your insurance. You may or may not be covered for employment related lawsuits like the one in our case. Ask your insurance agent. Some companies include employment practices liability insurance in directors and officers liability policies. However your policy might not provide coverage at all or only in a separate policy at an additional premium.

4. Review your job descriptions. Make sure you have adequate written descriptions for each job position. Only those functions which are truly essential should be so labeled. If a function is essential, do not act as if it is not. Act as if the function is essential when dealing with all employees performing the same function. In our case it was alleged that Sally was treated differently than other employees who wanted to be removed from the night duty rotation.

5. As appropriate to the importance of the matter, consult with legal professionals for employment decisions. Some liability insurance companies may offer risk management consultation. For example the Mental Health Risk Retention Group offers a risk management hot line free of charge for answers to its insureds’ questions and provides direct consultation with its general counsel. Your center’s general counsel may be consulted if experienced in employment law.

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