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Learning from history

February 1, 2007
by RONALD ZIMMET
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Providers can take important lessons away from their peers’ mistakes

Lawsuits brought against mental healthcare providers frequently involve claims of sexual misconduct, patient violence, suicide malpractice, and medication errors. In each type of claim, the allegations tend to be similar. Thus, effective risk management includes being aware of the usual allegations and taking reasonable steps to avoid the same errors.

In the face of a lawsuit, we understandably can become defensive, and it is difficult to be objective. We tend to think that most lawsuits are frivolous and that expert witnesses, motivated by financial gain, are shading their testimony in favor of finding negligence. However, these experts often have impressive credentials and evaluate cases objectively. Their function is to point out failures in providing quality care. Yet 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 actual cases of alleged medication error negligence and their risk management implications. In this article, I identify patterns of negligence.

Typical Cases

Prescribing and managing psychiatric medications present liability risks and dilemmas. For example, schizophrenia can be a severe, life-threatening disease with a risk for suicide. Treatment often involves second-generation antipsychotics. These medications themselves can be potentially life-threatening because some are associated with diabetes and negative cardiovascular effects. Therefore, prescribing a second-generation antipsychotic could result in negative patient outcomes and possibly a lawsuit.

Lawsuits are successful when a patient's negative results or injury are caused by breaches of the “standard of care” (i.e., the provider's failure to do what a reasonably prudent healthcare provider would have done under similar circumstances). Here are examples of allegations of negligence from real medication error lawsuits:

  • In a lawsuit involving a patient prescribed Zoloft (sertraline), the doctor allegedly failed to warn the patient of the drug's side effects, failed to diagnose adverse reactions, and did not obtain baseline neurologic data.

  • In a lawsuit involving a patient prescribed lithium, the doctor allegedly increased the lithium dosage without checking serum lithium levels, which were last obtained two years earlier. The physician's notes documented symptoms of lithium toxicity, but the doctor allegedly did nothing to treat it.

  • In another lawsuit involving lithium, the doctor allegedly did not order a baseline kidney function test and failed to obtain kidney function tests for three years, whereas American Psychiatric Association guidelines suggest a test every six months. The physician allegedly failed to build an adequate history by not asking about a family history of diabetes and kidney disease, and the physician allegedly did not tell the patient about the risk of kidney damage while taking lithium.

  • In a lawsuit involving a patient prescribed Elavil (amitriptyline), the doctor allegedly did not build an adequate history. Although the doctor documented symptoms of an overdose, the patient allegedly was not treated accordingly and subsequently died. A prior physician's notes also documented symptoms associated with an overdose, but they allegedly were not read by the treating physician in this case.

  • In a lawsuit involving Zyprexa (olanzapine), the doctor allegedly did not obtain adequate baseline data, failed to ask about a family history of diabetes, and failed to determine whether the patient had diabetes. The physician allegedly failed to monitor the patient adequately by not checking blood sugar levels. Furthermore, the doctor allegedly did not tell the patient about possible risks of weight gain and diabetes while on Zyprexa, and the doctor allegedly failed to keep up-to-date on the changing research related to the medication's risks.

Common Problems

These lawsuits’ allegations are representative of the types of allegations in medication error cases claiming breaches of the standard of care. Namely:

  • The physician did not use an adequate informed patient consent procedure with sufficient warnings about the medication's risks.

  • The physician did not properly monitor the patient because he/she did not obtain adequate baseline data, a sufficient history, and sufficient testing.

  • The physician failed to connect the patient's documented symptoms of an adverse reaction with the medication's known risks.

In the next two articles, I will recommend detailed risk management techniques and systems to ensure physician compliance with the standard of care to avoid medication error lawsuits.

Ronald Zimmet is a trial attorney and general counsel to the Mental Health Risk Retention Group. He provides risk management consultation to mental health centers. The Mental Health Risk Retention Group is a captive insurance company owned solely by behavioral healthcare organizations. The company provides professional and general liability insurance.

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