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A. STEVEN FRANKEL, PH.D., J.D.,
A.B.P.P. (Clinical & Forensic)
ATTORNEY AT LAW
CSB 192014
VOICE: (925) 283-4800
FAX: (925) 944-8889
E-mail:drpsylex@earthlink.net
12/18/02
To all U.S.-based ISSTD Component Societies
Re: Risk Management
Dear Colleagues:
As a result of an inquiry from Members who meet as a professional
study group, I put together some ideas to address the management
of risk for groups of professionals who meet periodically to
discuss clinical issues and cases. The specific concern raised
by the group that contacted me was managing the risk of group
members being named as possible co-defendants in malpractice
litigation against one of the group members. What follows is
not to be considered legal advice – just information.
This is especially true for groups outside of the U.S. For
legal advice, you should consult a local attorney who has expertise
in these matters in the state where you work.
There are several steps that can be taken to serve the goal
of protecting group members and the group itself:
1. The group should have a name that does not include the
word “supervision,” as that word suggests that
some members may be liable for the acts of others. “Peer
consultation/education” might be helpful to consider.
2. The group should have a brief statement of purpose, like: “The
East Overshoe SSTD meets monthly for peer consultation and
education regarding post-traumatic and dissociative disorders.
Supervision of members is not a function of the group. When
members share clinical information about patient care issues,
all references that could disclose the identities of patients
are deleted. Clinical case discussions thus focus on important
issues rather than on specific patients. The group also does
not provide referrals to particular professionals. Rather,
names of local ISSTD members may be obtained through ISSTD’s
central office. Relevant phone numbers are available at the
ISSTD website. Membership status does not convey endorsement
of the quality of a member’s
professional services.”
3. The advantage of a peer consultation group (in addition
to the fact that it may keep members “sane”) is
that malpractice litigation requires first that a professional
has breached a duty of care of a patient. This determination
requires that the “trier of fact” (jury) be informed
of what the “standard of care” is, in any given
case. The standard of care refers to a range of options available
to a professional in any specific patient care situation. The
standard of care “lives” in the professional community.
It may be expressed in terms of ethical standards, guidelines,
policy statements and the like (the ISSTD Guidelines for treatment
of adults – and, soon, of children as well – are
examples of materials that experts would present as standards
of care in the diagnosis and treatment of dissociative disorders).
Since one’s professional peers set the standard of care,
ongoing consultation with peers is a very positive, responsible
professional activity – one that adds to any professional’s
credibility. And credibility is the only commodity available
to professionals caught in legal quandaries. Low credibility
means high liability.
4. If you use office policy statements or informed consent
agreements with patients, be sure to include a statement that
indicates that you participate in peer consultation, that patient
identities are protected, and that, unless the patient objects,
you won’t tell them each time you meet – it’s
just a part of the way you practice. For an example of such
an agreement that includes this idea, go to: www.apait.org
Click on “resources,” then click on “risk
management,” then click on “sample psychotherapist-patient
contract.” This is the website for the American Psychological
Association Insurance Trust. It is all accessible to anyone
with a computer – you don’t have to be a psychologist
and you don’t have to be insured through the Trust in
order to access this information. (There are two or three other
nice downloads available at this location, including informed
consent for forensic evaluations, disclaimers for groups of
professionals who share space and costs, but are not an organized
group, etc.).
5. The group should be mindful of its relationship to ISSTD’s
requirements for obtaining and maintaining Component Society
standing (e.g., membership requirements, etc.). Information
and forms for those purposes are available through the ISSTD
website.
6. Groups with professionals who have “legal histories” (e.g.,
malpractice suits, licensing board actions, etc.) should be
mindful of the statement about the group not making referrals
to specific professionals, but deferring to the ISSTD central
office for lists of members that only indicate interest – not
competence. Making a referral to someone whose legal history
is problematic may open the referring person to liability,
if something should go wrong that results in a malpractice
suit.
I hope these ideas are helpful to you. I may modify this document from time
to time, so it’s a good idea to check at least annually for updates.
A. Steven Frankel, Ph.D., Esq.
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