Telemedicine and telepsychology: a medicolegal dilemma clarifying standard of care for the physicians emergency certificate: a case report.
Physicians and psychologists are often the front-line professionals who examine and treat individuals who are in suicidal crisis. Murphy (1) comments "the clinical conditions that predispose to suicide frequently occasion visits to physicians, mostly nonpsychiatrists." When suicide appears imminent, physicians and psychologists take the necessary steps to hospitalize the patient to ensure their safety. If the patient refuses to voluntarily submit to examination and hospitalization, La.R.S.28:53 provides the legal means for effecting examination and treatment.
The report will address the strengths and weaknesses of the Physician Emergency Certificate (PEC) and the Order of Protective Custody (OPC). This report is presented to illustrate these followed by a brief review of the Standard of Care literature for crisis intervention. Suggestions for resolving the medicolegal dilemma are also presented.
The criteria for the Physicians Emergency Certificate (PEC) are that a person must be (1) mentally ill; (2) dangerous to self; (3) or dangerous to others; (4) or gravely disabled; (5) and refuses to consent; (6) is treatable; (7) and hospitalization is the least restrictive alternative. The PEC statute further states:
"Any physician or psychologist may execute an emergency certificate only after an actual examination of a person alleged to be mentally ill or suffering from substance abuse who is determined to be in need of immediate care and treatment in a treatment facility because the examining physician or psychologist determines the person to be dangerous to self or others or to be gravely disabled. Failure to conduct an examination prior to the execution of the certificate will be evidence of gross negligence."
There are several strengths built into the PEC that serve a dual purpose. That is, they protect an individual's civil liberty while, at the same time, protect others in the community.
1. The PEC specifies very clearly the criteria for who is a candidate for the PEC. It states that only four types of patients can be considered: (1) those who are mentally ill, (2) dangerous to self, (3) or dangerous to others, (4) or gravely disabled. No other clinical population can be considered suitable candidates. Moreover, these patients have to refuse voluntary examination and treatment but are considered treatable and that hospitalization is the least restrictive alternative.
2. An examination by a qualified physician, mental health nurse practitioner, or psychologist must be performed within 72 hours prior to executing the PEC. The purpose of which is to ensure there is sufficient clinical evidence and collateral evidence to justify temporary hospitalization. The evidence must support the clinical conclusion that the patient meets the criteria listed above. The conclusion is, reached by trained healthcare providers based on specific data. This protects the patient from being unjustly hospitalized based solely on the biased opinion of a relative or friend who may have ulterior motives for such hospitalization. There are many anecdotal reports of the latter occurring prior to the legal existence of the PEC.
3. There are also limits to the amount of time a patient can be detained. The PEC gives legal authority to transport a patient to a treatment facility and allows the facility director to admit the patient for examination and treatment not to exceed 15 days. This further protects the patient because the PEC does not permit indefinite retention of the patient.
4. Upon admission, the patient's legal rights are explained to him. Prior to or after hospitalization he or his attorney can demand a judicial hearing to determine if sufficient evidence exists for his continued confinement.
5. The patient can, after five days, request that the executive director of the mental health advocacy service be notified of his admission and request representation.
6. After admission, the facility director must immediately notify the parish coroner. The patient must be examined by the admitting physician within 12 hours, who will determine if the patient is admitted voluntarily, admitted by PEC, admitted as non-contested admission, or discharged. Several options are available to the patient. The coroner then must, within 72 hours of admission, independently examine the patient. If the coroner concludes that the patient is not a proper candidate for emergency admission the patient is immediately discharged, thus protecting his civil liberty.
7. If, after examination, the coroner agrees that the patient meets the criteria for the PEC, he will then execute a Coroner's Emergency Certificate (CEC) which permits the treatment facility to detain the patient for no longer than 15 days. The purpose of the coroner's examination is to further validate the PEC thereby obtaining collateral verification that the patient meets the PEC criteria. By this point in the process the patient has been examined by at least three health-care providers thus ensuring that his civil liberty is not being unduly violated.
The counterpart to the PEC is the Order for Protective Custody (OPC) LSA-R.S 28:53.1. The parish coroner or judge of a court of competent jurisdiction can order a person to be taken into protective custody and transported to a treatment facility or the coroner's office for immediate examination. A police officer or other credible person (e.g. relative) must sign a statement of facts which have led to the conclusion that the person is mentally ill or suffering from substance abuse and is dangerous to himself or others or gravely disabled.
The OPC is effective for 72 hours from its issuance. The person must be delivered to a treatment facility or the coroner's office within 12 hours. Immediately upon arrival or within 12 hours, the person is to be examined by a qualified healthcare provider who will determine if he is admitted or discharged.
The advantage of the OPC is in cases when there is no physician, psychiatric mental health nurse practitioner, or psychologist available to examine the patient or the patient has no access to one or refuses to see one but is determined by a police officer or other credible person that he is mentally ill or a danger to himself or others.
The benefits and shortcomings of the PEC will be illustrated by the following legal case. (2) The patient was an established patient of mine, with whom I had had two face-to-face office encounters, in addition to telephonic contacts, in the two-week period prior to my executing the PEC August 15, 1995.
The patient, a 43 year-old white female, was initially seen August 1, 1995. The patient was clinically interviewed during that session. She presented with anxiety and depression related to severe marital discord. She indicated her husband had been demanding a divorce for several months and wanted her to leave the home. She also related a history of physical and emotional abuse from her husband. She had six children (twostepchildren and four of her own). She related that two of her sons were exhibiting conduct problems. Her 17 year old son was arrested for possession of drugs and her youngest son (13 years old) became intoxicated, in Florida, on a family vacation. She also indicated that she had caught her husband in an affair in 1985. She also verbalized suicidal ideation during this initial session. Following a suicide risk assessment, I determined that she did not currently have intent or plan. At that time, I obtained a "No Suicide Contract" with her, in which she agreed that while under my care and treatment, she would call me at any time, day or night, if she had any additional thoughts of suicide or plans to commit suicide. I also explained that I am proactive in protecting my patients, which means I will not hesitate to hospitalize her if that is required to protect her. She indicated that she understood and agreed to the contract. This constituted informed consent. She was given a Life History Questionnaire at this initial visit and instructed to fill it out and bring it back with her at her next scheduled appointment which was August 9, 1995.
On August 5, 1995, I received a telephone call from the patient, following a volatile altercation that she had with her husband. She stated that she was only honoring my "No Suicide Contract " that I had with her by calling me because she was thinking about suicide again. She had intent and a specific plan this time. She indicated that she would either overdose on medication (Xanax) or get in her car and drive off a bridge or into a culvert. I strongly recommended hospitalization at that point. She adamantly refused. I spoke with her husband and explained my concern about her safety and my recommendation about hospitalization. He also refused my recommendation. I indicated that it was not wise for the patient to be left alone. I spoke with the patient again and asked if there was anyone that could stay with her. She indicated that her son would be able to stay with her. I then spoke with her son and explained my concerns regarding his mother's safety and asked if he would be willing to stay with her and not allow her to drive by herself. He agreed and was willing to stay with her. He assured me he would look after her. I instructed him to call me again if there were any problems. The patient returned to my office for her scheduled visit on August 9, 1995, at which time she returned the completed Life History Questionnaire. On page 2 of that questionnaire she admitted to being depressed. She stated "Presently I am depressed. I feel as though I have been stretched so thin that I am not capable of doing even the most basic tasks." She estimated the severity of her problems as "Extremely Severe." On page 3, item H, when asked if she had any previous accidents she answered "Yes." July 31, 1979, automobile accident. Brain damage and epilepsy resulted." On page 4 she admitted to the following symptoms: "headaches, anger, feel tense, depressed, unable to relax, dizziness, stomach trouble, fatigue, conflict, suicidal ideas, sexual problems, fainting spells, anxiety, no appetite, insomnia, and home conditions bad." On the same page, she also acknowledged "feelings of worthlessness, agitation, aggressive feelings, and that life is empty." On page 5 she admitted to the following symptoms: "depressed, unloved, restless, confused, in conflict." On page 11 she admitted to "suicidal thoughts." In response to the question "What do you consider your most irrational thought or idea?" she answered "On Saturday last, the notion of suicide dancing through my head."
At the August 9, 1995 session we discussed her call to me the previous Saturday night in which she threatened suicide. She continued to be very resistant to my recommendations for hospitalization. She felt that things had settled down somewhat but that her husband still wanted a divorce and wanted her out of the house. She reported that he has threatened to kill her numerous times. At that session I reiterated the No Suicide Contract with her. I reiterated my policy that I would hospitalize her if at any time I considered her to be a serious risk. She appeared somewhat calmer that day. She again agreed to the Contract and understood everything that I was saying to her. At that session she was also administered the Minnesota Multiphasic Personality Inventory-II (MMPI-II). She produced a valid MMPI-II profile which indicated that she was experiencing personality deterioration and decompensation. The profile was strongly suggestive of a severe psychological disorder and possible assaultive behavior. The profile indicated that she had disturbed interpersonal relationships and that she may be experiencing marital discord. The profile also indicated that she may be dangerous to herself.
On August 12, 1995 the patient's 17 year-old son was tragically killed in a motor-vehicle accident. The funeral was held on August 15, 1995. Following the funeral I received a telephone call, that night, from the patient's husband. He expressed grave concern for his wife's safety because she had been verbalizing suicidal threats. He stated that he had also spoken with two of her friends, who were present at the home, who also had heard the patient's expressions of suicidal intent and wanting to go be with her son. She, in fact, was making her own funeral arrangements and giving them to the two friends. Then the patient's husband put the patient on the telephone and I interviewed her to determine what was going on. During the interview she acknowledged that she wanted to kill herself and join her son. She stated that at her son's funeral her husband announced that their marriage was over, removed his wedding ring, and placed it in their son's casket stating that "This marriage started with our son and now it ends with him." The patient went on to say that her life was over and that she was going to join her son. No amount of reasoning with her or empathizing with her changed her opinion. At that time I again recommended that she go to the hospital for a brief period of time to regain control and stabilize. She again adamantly refused to go voluntarily. I then spoke with her husband again and advised him that my assessment of the patient indicated that she was a serious suicide risk considering recent events and prior suicide threats in the past two weeks. I recommended that she be admitted to Charter Cypress Behavioral System on a Physician Emergency Certificate (PEC) because she was absolutely refusing to come in voluntarily and that she had met the criteria for being considered to be a serious suicide risk. I indicated to her husband that I would contact Charter Hospital to secure their availability of a bed and that I would immediately go to the Hospital and execute the PEC which would give legal authority to either an ambulance service or law enforcement to transport the patient to the Hospital where she could be further examined and treated, if necessary.
I then called Charter Cypress Hospital and secured a bed for the patient and informed them that I would leave immediately and come to the hospital and execute the PEC form. After completing the PEC form, which documented my assessment that night of the patient, I instructed the admitting staff to be prepared to receive her. They were also instructed to call me if she did not arrive at the hospital. At that point I left and went back home feeling that I had done everything possible, both professionally and legally, to insure the safety of my patient.
My decision to execute the PEC was based on my clinical assessment of the patient, August 15, 1995, my suicide risk assessment that same night, previous suicidal ideation and threats (August 1, 1995, August 5, 1995, and August 9, 1995), psychometric test results (MMPI-II), and collateral sources of information on the night of August 15, 1995, the recent tragic death of her 17 year-old son, and pending separation and divorce. Taking all of this data into consideration, including the suicide risk assessment, I deemed the patient to be an imminent and serious suicide risk. This meets one criterion for the PEC, which is that she was a danger to herself. She also adamantly refused to come in voluntarily for examination and treatment which satisfied the other criterion for the PEC listed as B 2 e. I felt that I had more than sufficient convergent data to support my clinical decision to execute the PEC.
The patient was examined by the admitting physician at Charter Cypress Psychiatric Hospital, within 12 hours of admission. He noted that the patient admitted to suicidal ideation. He assessed her and could have released her if he felt that hospitalization was inappropriate. He did not order her to be released.
The patient was examined by the coroner, within 72 hours of admission, as required by law. The coroner determined that involuntary hospitalization was appropriate and executed a CEC. Within 24 hours of admission, the patient was examined by the psychiatrist whom I had consulted and who agreed to admit the patient and provide primary psychiatric services while she was an inpatient. He conducted an independent investigation of the events of August 15, 1995, including discussions with collateral informants. He independently concluded that hospitalization was appropriate and did not release the patient for nine days.
The patient was kept in the hospital a total of nine days before she was discharged. As is legally necessary, she was informed when she was admitted that she could call her attorney and apply for discharge after five days. On advice from her attorney she continued to stay in the hospital until her psychiatrist felt that she was no longer at risk.
LEGAL PROCEDURES, ISSUES AND OUTCOMES
On August 9, 1996, the Plaintiff, filed a petition for damages in the Fifteenth Judicial District Court, Parish of Lafayette, State of Louisiana, naming Lynn W. Aurich, Ph.D. and Charter Cypress Behavioral Health System, LLC as defendants.
On October 6, 1996, an Exception of Prematurity was filed on behalf of Lynn W. Aurich, Ph.D. seeking dismissal of the Plaintiff's claim adverse to Dr. Aurich on the grounds that Dr. Aurich was a qualified health care provider pursuant to the provisions of LSAR.S. 40:1299.41 and, as such, was entitled to the Plaintiff's claims of medical malpractice presented to a Medical Review Panel in accordance with LSA-R.S. 40:1299.47.
On November 20, 1996, on motion of the Plaintiff, and by order of the Honorable Court, Lynn W. Aurich, Ph.D. was voluntarily dismissed without prejudice from the above-entitled and caption matter. The Plaintiff reserved her rights against all other Defendants.
A Medical Review Panel was subsequently empaneled to review the Plaintiff's claim of medical malpractice adverse to Lynn W. Aurich, Ph.D. On July 6, 1999, the Medical Review Panel convened and rendered an opinion and written reasons.
The Medical Review Panel opinion was as follows:
The Medical Review Panel, having reviewed and considered all of the evidence submitted herein, renders the following expert opinion:
The evidence supports the conclusion that the Defendant, Dr. Lynn Aurich, failed to comply with the appropriate Standard of Care as charged in the complaint.
The conduct complained of was not a factor in the resultant damages.
The reasons for the panel's opinion are as follows:
Dr. Lynn Aurich breached the Standard of Care because he did not meet with the patient face to face and conduct an actual examination before commitment. We feel there is a general lack of impairment arising from the commitment and that the hospitalization was probably appropriate and beneficial to the patient. The major emotional damages were caused by the death of her son and the divorce and the commitment did not significantly add to that burden.
Following the Medical Review Panel opinion, on September 10, 1999, the Plaintiff, re-filed a petition for damages in the Fifteenth District Court, Parish of Lafayette, State of Louisiana, naming Lynn W. Aurich, Ph.D. as Defendant.
This case finally went to trial August 23, 2010, until August 27, 2010. Stating that the Standard of Care had been breached by me, the Jury did not give any reasons for its finding.
The PEC statute (La. R.S. 28:53) states that the examination preceding execution of a PEC must be within 72 hours of execution of the PEC. The medical review panel's finding against me was based on the 72-hour window. The panel did not conclude that I had never seen the patient, nor has the patient ever made such a contention. The panel concluded that there was a breach of the Standard of Care because my last face-to-face exam of the patient was August 9, 1995; therefore, I had exceeded the 72-hour window, notwithstanding the fact that I had conducted a telephonic exam of the patient within an hour or so of my execution of the PEC form at the hospital. The panel's conclusion, therefore, was based on a standard which the panel itself admitted did not exist until they decided it did when ruling on my case. That is, in the opinion of the panel, a psychologist's exam, for purposes of La. R.S. 28:53, must be face-to-face, within 72 hours prior to executing the PEC form. Under this standard, according to a panel member, a face-to-face exam 72 hours plus one minute prior to execution of the PEC form is a breach of the standard of care--regardless of the risk that the patient will suicide--while a face-to-face exam exactly 72 hours prior to the PEC is not.
Following the Jury verdict, my attorney filed a Motion for Judgment Notwithstanding the Verdict (JNOV) and Alternative Motion for a New Trial.
Oral arguments regarding the Motion for JNOV were heard before the Court on February 7, 2011. The Judge issued his ruling on March 11, 2011. He granted the JNOV which overturned the Jury verdict and the case was dismissed. In granting the JNOV the Judge stated "The evidence presented at trial was insufficient to support the jury's findings that Dr. Aurich breached the Standard of Care and had caused damages to the Plaintiff." The Judge also stated, "Additionally, there was testimony that Dr. Aurich spoke with the Plaintiff on the evening of her commitment and went to the hospital to execute the commitment paperwork. Notwithstanding the fact that Dr. Aurich did not wait for the Plaintiff to arrive at the hospital to conduct a face-to-face observation, this Court feels that given the prior relationship of the Plaintiff and Dr. Aurich, that fact that Dr. Aurich was familiar with the Plaintiff's history, and at the insistence of the Plaintiff's family and friends, Dr. Aurich's decision to execute the PEC was appropriate. Therefore, it is the opinion of this Court that the Defendant, Dr. Aurich, did not breach the standard of care and is not liable to the Plaintiff for damages."
The Plaintiff, appealed the JNOV to the Third Circuit Court of Appeal. The appellate court overturned the Judge's JNOV, stating, essentially that when there is a jury, the jury is the trier of fact and that there was a dispute over the facts of the case between Defendant and Plaintiff. The verdict of the jury was upheld and the appellate court returned it to the lower court. At that point, we agreed to a settlement to satisfy judgment. In the settlement, the Defendant, Dr. Lynn Aurich, admitted to no liability and the Plaintiff, agreed to this and the case was dismissed With Prejudice, meaning that the Plaintiff could not file against the Defendant again for any reason concerning this case. This settlement was arrived at May 30, 2012, thus legally wiping out any prior judgment.
During the 17 years pendency of this case, there was a huge volume of information regarding it. However, this entire case can be boiled down to two simple issues: (1) What is the Standard of Care in assessing and treating potentially suicidal patients? and (2) What is the definition of "actual examination" appearing in Line 2 of 53 B 1 of the PEC Statute and again the word "examination" in Line 5 of 53 B 1? The word "examination" appears again in B 2, Line 2.
An issue has arisen in Louisiana concerning how the word "examination" as used in the PEC statute should be defined. One school of thought adamantly maintains that it means only face-to-face.
The issue is what type of examination is appropriate given the certain clinical situation facing the examiner. The criteria for the PEC listed above described a certain type of clinical situation that, in turn, dictates the type of hospital commitment that must be used. It stands to reason, then, that the clinical situation will also dictate the type of examination that can be used. In demanding that a face-to-face examination is the only standard of care, the proponents create the following clinical, legal, and ethical dilemma:
1. 1. A patient is suicidal but refuses to consent to examination and treatment thereby meeting the criteria for a PEC.
2. But, we cannot perform the PEC without first performing a face-to-face examination.
3. But, we cannot examine the patient face-to-face because he/she refuses to consent to it.
4. The patient's refusal, therefore, makes him/her a candidate for the PEC.
5. But, we cannot perform the PEC without a face-to-face examination which he/she refuses, which makes the patient eligible for the PEC.
On, and on, and on goes the circular reasoning of the face-to-face proponents. It has been pointed out that health-care professionals often set standards that are much higher than that set by the law before they are willing to execute involuntary commitments. (3) In the PEC the face-to-face-only standard may not only be too high but may be unattainable, and may endanger the safety and welfare of the patient or others.
STANDARD OF CARE
What then is the standard of care for assessment in emergency situations? Standard of care has been defined as the average standard of a profession. (4) The standard of care is that adhered to by "reasonable professionals of similar training and experience. (4) In other words, a particular clinical technique or method of assessment should be "evaluated on the basis of how widely accepted the technique is or whether textbooks and journals regularly refer to it, or whether there is a general consensus that it is a technique or methodology useful to the profession. (5)"
As cited above, Shapiro (6) points out that there is more than one type of assessment and that the choice of appropriate technique or method depends upon the demands of the clinical situation. The critical criterion for the PEC is not just that the person is mentally ill (i.e., dangerous to self or others or gravely disabled) but that he/she refuses to consent to examination and treatment. To protect the patient and the public, the PEC legally authorizes involuntary transportation of the patient to a treatment facility and involuntary commitment. By definition, then, often the only type of examination that is obtainable in an emergency is one by telephone. Over 400 certified crisis intervention centers have been established throughout the U.S. since the first one was opened in Los Angeles in 1958 by Edwin Schneidman and Norman Farberow. The telephone is viewed as a life-line between the crisis centers and the patient.
TELEPHONE USE AS STANDARD OF CARE
In a study commissioned by the National Institute of Mental Health, one recommendation for community mental health centers providing emergency care is that emergency telephone services be provided around-the-clock and that crisis workers receive direct instruction dealing with crisis situations by both telephone calls and face-to-face. (7) Thus, interviewing and assessing patients in emergency by telephone is a practice accepted by the National Institute of Mental Health.
The face-to-face only proponents apparently view assessments by telephone as sub-standard and as not constituting an actual examination. A New York court decided otherwise (O'Neill v. Montefiore Hospital) stating that a telephone conversation constituted a "duty of care. (8)" Goldstein (9), further explains this ruling as stating that a professional"duty of care"exists if a Doctor/ Patient relationship has been established. This relationship does not have to consist of face-to-face interaction but can actually be established by telephone or through the mail.
Miller (10) found that 97 percent of psychiatrists surveyed responded to emergencies by telephone. Hatten, Valentee, and Rink (11) maintain that the location of the assessment of a suicidal patient does not matter. It can take place "in a clinic, a general hospital, an emergency room, at a distance through a telephone answering service or even indirectly by talking to a friend or a neighbor." They further state that "sometimes the telephone or the client's home is as practical a milieu for communication as the caregiver's office." Brockopp (12) states, "In most 24 hour emergency telephone services, the major way of assisting individuals in difficulty is through a telephone, usually publicized under the general rubric of a suicide prevention center, a crisis service, or a combination of the two."
Face-to-face exclusivists maintain that telephone examinations are too limiting and that they exclude important behavioral and sensory cues necessary to form diagnostic impressions of the patient and, therefore, refuse to assist the patient unless he/she consents to a face-to-face consultation. This rigidity not only restricts the health-care provider's usefulness, but may also facilitate life-threatening behavior. (13) Some emergency cases simply do not lend themselves to face-to-face interaction. "Physical distance, time of day, monetary expense, uncooperativeness, embarrassment and humiliation may all prevent patients from seeking face-to-face consultation. (13)"
The key to understanding this common practice of telephone examination is to understand the difference between suicide risk assessment and the traditional psychiatric/psychological evaluation. In the latter, the goal is to obtain a thorough, detailed history (social, educational, medical, employment, and psychiatric), mental status examination and possibly psychological testing in an effort to understand the personality dynamics of the patient, to diagnose and formulate a treatment plan. If a doctor-patient relationship has been established, this type of evaluation has usually already been performed.
The suicide risk assessment, on the other hand, is less involved, more specifically focused, and more urgent. Typically, it consists of assessing four criteria: method; availability, specificity, and lethality. (11) It is problem-oriented and the focus is more on the present crisis with which the individual is confronted. (12)
Based on the information gathered on these criteria, the doctor may determine that immediate intervention or hospitalization may be necessary. A face-to-face interview does not necessarily add anything to a suicide risk assessment that cannot be ascertained by telephone especially if a doctor-patient relationship has already been established.
In his conclusive work on clinical and legal standards of care for the suicidal patient, Bongar, (14) states, "The telephone can be an invaluable instrument in the outpatient management of the suicidal patient." Bongar (15) further comments that, through the appropriate use of the telephone examination, "the psychologist can sharpen the ongoing clinical risk assessment and allow for greater fine-tuning of the outpatient treatment plan."
In a study by Haas, Benedict, and Kobos (16) it is stated that the most widely used form of technology by mental health clinicians is the telephone. They go on to state that the telephone is regularly used when screening for crisis intervention, to facilitate ongoing in-person treatment, and to make referrals.
In a study by Mishara and Daigle, (17) concerning the effectiveness of telephone interventions by suicide prevention centers the data indicated "that a significant number of callers reported feeling less depressed at the end of the call, had a reduction in suicidal urgency, and agreed to engage in constructive steps to resolve the suicidal crisis."
Kleespies (18) also cites a classic study by Miller, et al. (19) that he felt was pertinent to the general topic of the effectiveness of emergency phone services. Miller, et al. studied the effectiveness of suicide prevention centers or crisis centers that utilized emergency phone services and found a significant reduction in suicides in those counties that initiated crisis centers. Kleespies (18) concluded that the studies by Miller, et al. and Mishara and Daigle "support the importance of such emergency phone contact"
Although the PEC has many strengths, as discussed above, it has one major weakness. Nowhere in the PEC statute is "actual examination" or "examination" defined as only face-to-face. In fact, no operational definition of these terms is given at all. In his deposition, the plaintiff's expert witness, who had served on the Medical Review Panel, testified that there was much debate on the three member panel concerning the definition of "actual examination." He stated the meaning of "actual" was vague and not clear and that the statute did not define "actual." He testified that they eventually interpreted it to mean "face-to-face." One panel member disagreed stating that, with Borderline patients, it is certainly reasonable to do an examination by phone. He was eventually out-voted.
In admitting that his opinion was not substantiated by any professional and research literature, her expert violated the Daubert rule that governs expert witness testimony. It states essentially than an expert witness must be able to support his opinion with evidence from the professional and scientific literature. The Daubert Rule replaced the Fry Rule that did not compel experts to substantiate their opinion with anything at all. The Appellate Court ignored this in their ruling on this case.
For purposes of clarification, the following definitions from authoritative texts are offered.
1. Webster's New Twentieth Century Dictionary (1962) defines "actual" as:
A. Existing in act; real: in opposition to speculative, existing in theory only; as an actual crime; actual receipts.
B. Existing at the present time; as the actual condition of the country. Actual is an adjective which is derived from the noun act. From the same source, act is a noun and it is defined as "a thing done, to do". It is further defined as "to do a thing; to function".
The APA Dictionary of Psychology (2007) (20) defines "actual" as: Adjective. In philosophy, existing as a real and present fact. The actual is often contrasted with the merely apparent. Something may appear to the senses to be real, but may not actually exist. In the intellectual tradition founded by Greek Philosopher Aristotle (384-322 BCE), the actual is contrasted to the potential, which is the capacity to change: an entity is actual when form and substance come together to produce it as an end.
From the same source the word act is a noun and is defined as a complex behavior, as distinct from a simple movement.
From Steadman's Medical Dictionary (1972), (21) the word act is defined as: "the doing of anything: the performance of any function or the bringing about of any effect."
The expert witness also testified that "standard of care" is also a vague term but that it is defined by a variety of things such as the Ethical Code, Codes of Practice, case law and by the professional literature.
When asked to what sources did the panel look in determining that their opinion was generally accepted in August 1995, he answered "none." He stated... there was no document, we didn't go to APA, we didn't go to any table of authority or anything --to seek that. That was simply a product of a discussion that emerged from the panel." He stated that it was an inference that they were making. "It wasn't based on science, research, precedent".
There are several errors evident in this expert's testimony in his deposition which he did not alter when he appeared at trial as hired expert witness for the plaintiff. He testified, as has been shown above, that there was nothing at the time that the review Panel met in 1999, nor is there anything now, that defines the term "actual examination" as stated in the PEC Statute. He also stated that the panel did not seek any external sources of information outside of the review panel meeting to determine whether there were definitions of those terms or what any of the professional and research literature stated as pertaining to the standard of care for assessing suicidal and borderline personality patients in 1995. He testified that they basically gave this term, actual examination, their own interpretation, on the spot, without any research into the issue, and concluded then that their definition was the standard of care. They then retroactively applied that interpretation to me, according to their self-defined standard that they first formulated some four years after the incident in question. The panel's reasoning represents eisegesis and constituted a serious error in professional judgment.
2. I will now offer definitions of the word examination. From Webster's New Twentieth:
Century Dictionary (1962) the word examination is a noun and is defined as:
A. To weigh, examine.
B. The act of examining or the state of being examined; search or inquiry with a view to ascertain the truth or the real state of things; inspection; scrutiny; testing; as an examination of a house or ship.
C. Means or method of examining.
D. A set of questions asked or answers given in testing; a test.
Stedman's Medical Dictionary (1972) (21) defines the word examination as: "any investigation made for the purpose of diagnosis."
The APA Dictionary of Psychology (2007) (20) defines the word examination as: " a test, observation, or other means of investigation carried out on a patient to evaluate physical or mental health or to detect the presence or absence of signs or symptoms of diseases or conditions."
The APA Dictionary of Psychology (2007) (20) also defines the term psychological assessment in the following way: "the gathering and integration of data in order to make a psychological evaluation, decision, or recommendation. Psychologists assess diverse psychiatric problems (e.g., anxiety, substance abuse) and non-psychiatric concerns (e.g., intelligence, career interest), and assessment can be conducted with individuals, dyads, families, groups, and organizations. Assessment data may be gathered through various methods, such as clinical interviews, behavior observations, psychological test, physiological or psychophysiological measurement devices, or other specialized test apparatus."
The purpose of giving the above definitions is to show that nowhere in any of these definitions is the phrase face-to-face, or a synonymous term, used. All of these definitions were in print and available to the Medical Review Panel at the time that they met in 1999 and later, prior to the trial in this case in 2010. The panel made no effort to seek out specific definitions of these terms. This was significant in this case because the panel ruled that I had not seen the patient face-to-face, thus conducting an "actual examination."
Based on the above definitions, the term "actual examination" can be interpreted to mean that the patient must be examined prior to the PEC as opposed to not being examined. To infer that it means anything more than that is to ignore these definitions.
In the Guidelines for the Practice of Telepsychology, the American Psychological Association (22) states:
"Telepsychology encompasses a breadth of different psychological services using a variety of technologies (e.g., interactive videoconferencing, telephone, text, e-mail, web services, and mobile application). The burgeoning research in telepsychology suggests that certain types of interactive telepsychological interventions are equal in effectiveness to their in-person counterparts (specific therapies delivered over videoconferencing and telephone)."
Shapiro (6) states, "clinical/forensic practitioners have an opportunity and, in fact, an obligation to inform the judiciary of this need to recognize distinctly different kinds of psychological expertise, that 'one standard fits all' approach is inaccurate and inappropriate."
The plaintiff's expert testified that "... the damage resulting from the hospitalization [was] not there because the hospitalization probably would have occurred had he done an actual examination anyway." He appears to have contradicted himself by stating that the outcome in this case would have been the same whether I had done a face-to-face examination or not. That is, she would have been hospitalized anyway even if a face-to-face examination had been performed. This means, then, that the two methods of examination were equivalent yielding the same information and producing the same outcome. How is it, then, that the standard of care was breached? The plaintiff's expert was never able to explain that.
To further illustrate this, let's look at two scenarios with which Doctors may be presented:
A known patient calls you after office hours threatening suicide. You do a Suicide Risk-Assessment and, based on the patient's answers to your questions, deem them to be an imminent suicide risk. You then instruct them to go to the Emergency Room at the nearest hospital and be voluntarily admitted. The patient responds and says, "Yes, ok I'll do that." They then comply and are voluntarily admitted. Most Doctors would have no problem with this scenario.
This scenario consists of the exact same circumstances, same suicide risk-assessment, same conclusion and same recommendation as scenario I. However, the patient responds and says, "no, I'm not going to any hospital." Therefore, you issue the PEC and they are transported to the Emergency Room by EMT services or the police.
What is the difference between these scenarios?
1. The only difference is the patient's response and the method of transport to the hospital.
2. The same information is obtained, same diagnosis, same recommendation and same outcome. Why, then, would the telephone examination be acceptable in Scenario I but not Scenario II?
The issue in the PEC is not whether the telephone examination is efficient and meets standard of care. It does. The main issue in crisis intervention relative to the PEC is the patient's response. Do they consent to examination and treatment or not.
It is a well-recognized and accepted fact that doctors have interacted with patients by telephone for decades. They may diagnose, prescribe medicine, give advice, refer to other doctors or deal with emergencies. This practice of using this technology is nothing new.
All of the facts were presented during the trial; however, the facts were obscured and overshadowed by one finding. That is, the medical review panel opinion, as augmented by the Plaintiff's Expert's testimony. In rendering a verdict, the jury in fact stated specifically that they found in favor of the plaintiff and against me because I had breached standard of care by not examining the patient face-to-face. This medical review panel opinion also influenced the Appellate Court decision to overturn the Judge's JNOV thus upholding the jury verdict.
The appellate court Opinion stated (pg. 9) "The expert witness testified that the panel was further of the opinion that it violated the standard of care to conduct a phone interview rather than an in-person examination. Essentially, the standard of care required an in-person examination before a person can be involuntarily committed. Thus, Dr. Aurich breached the standard-of-care by not conducting an in-person examination of the Plaintiff."
If indeed the term actual examination and examination is "vague," then it is subject to personal, subjective interpretation, which is exactly what the expert witness and the Medical Review Panel did. That suggests, then, that an alternative subjective interpretation might be that a non-face-to-face examination can be performed because one criterion for the PEC is that the patient refuses to voluntarily come in for a face-to-face examination. The statute only states that an "examination" must be performed.
To say that a patient who meets all of the criteria for a PEC must first be examined face-to-face and only face-to-face before issuing a PEC is to pervert a perfectly good and helpful statute into a Catch-22. The statute gives law enforcement officials and EMT services the legal authority to take a patient into custody and transport him/her to a treatment facility without being sued for false arrest and false imprisonment. The PEC, therefore, must be executed before these actions are carried out, not afterward as suggested by the face-to-face proponents. Transporting a patient against his/her will for a face-to-face examination without the PEC exposes the physician/psychologist to potential lawsuits. Mandating a face-to-face only examination in order to execute the PEC creates a medicolegal/ethical conundrum for the physician/psychologist. It goes something like this: If a health-care provider executes a PEC without a face-to-face examination, then he/she can be sued for not meeting standard of care. If, on the other hand, he/she refused to execute the PEC because the patient refuses to consent to a face-to-face examination, then the doctor can be sued for wrongful death if the patient kills himself/herself or someone else.
The medical review panel member further testified that if a patient refuses to come in for a face-to-face examination the only other option is to request an Order of Protective Custody (OPC). The rationale for requesting the OPC is to be able to get the patient to the hospital, legally, where they can be examined face-to-face and then execute the PEC. This rationale is problematic for several reasons. First, it is redundant. The PEC and the OPC accomplish exactly the same thing. That is, they give law enforcement officers and/or EMT services the legal authority to transport the patient to the hospital. The admitting staff at the hospital then examines the patient and determines whether they will hold them or release them at that time. If a patient is transported legally to the hospital under an OPC, then there would be no need for the PEC. If a patient is already at the hospital due to an OPC, a PEC is unnecessary. It is a redundant procedure, the only positive effect of which is to give the psychologist or physician legal "cover" if the patient suicides, at the expense of danger to the patient.
The OPC theory is also problematic when the patient is an imminent suicide risk. The physician/psychologist has no authority to execute an OPC. As described earlier, it must be requested from either a judge or the coroner, or by a family member or friend. In the latter case, the welfare of the patient is left up to the risk tolerance of the police who respond to the family member's call--if they respond at all. As described earlier, a strength of the OPC is that a police officer or other credible person can request it when there is no access to a healthcare provider for examination. This, however, is also a weakness in that the OPC can be issued without a prior examination by a healthcare provider. By requesting an OPC, the case is taken out of the examining doctor's hands, at that point. The examining doctor must then trust that the OPC will be executed by the judge or the coroner or implemented by a police officer immediately, so that the patient can be found and transported to the hospital where she will be safe.
OPC's sometimes take hours to effect. I recently saw a patient on referral from his internist after the patient had been briefly hospitalized on an OPC. The patient had abruptly stopped taking his Lexapro, got severely depressed and suicidal, but refused to go to the hospital. His wife called the sheriff's department and asked for an OPC. The sheriff's department then requested the OPC from the coroner and it was executed. The time elapsing from when the OPC was requested to when the patient was finally picked up and taken to the hospital was four hours. This type of delay, especially in cases of imminent suicide risk, puts the patient at serious risk.
In the case report cited above, the time elapsing from when the PEC was executed to when the patient arrived at the hospital was approximately 30 minutes. In imminent suicide risk cases, time is of the essence. Every minute counts. Inserting another step (OPC) into the PEC process, as face-to-face proponents require, is unnecessary, redundant, and potentially endangers the patient. Moreover, nowhere in the PEC statute does it state that an OPC must be performed first if the patient refuses to be seen voluntarily face-to-face. It does not say that because the purpose of the PEC is precisely for patients who refuse to voluntarily consent to a face-to-face examination. It only states that an examination must be performed first before executing the PEC. It does not state what type of examination should be performed.
It is also important to note that when the coroner or judge issues an OPC they seldom see the patient face-to-face and, most often, do not even know the patient. They simply respond to the request made by a doctor, relative, friend, or the police. If the PEC and OPC are equivalent in purpose and function, as has been shown, then why is a face-to-face examination not mandatory for the OPC but is for the PEC as the face-to-face proponents insist? This is convoluted logic.
According to the face-to-face proponent's opinion that "actual examination" and "examination" means only a face-to-face examination, it can be concluded, then, that standard of care would also apply to the second type of patient that qualifies for a PEC, that is, those that are a danger to others and refuse to consent voluntarily for a face-to-face examination. To rigidly mandate that a face-to-face examination is the only one that can be done in this type of clinical situation before they can be transported to the hospital puts at peril not only the person that they are threatening to kill but also the examiner. Considering the large number of homicide-suicides that have occurred in this country, especially in the last ten years, this rigid, subjective definition of "examination" flies in the face of logic, common sense,"duty of care,"and is itself a potential violation of an Ethical Principle: Avoiding Harm. (23) This "one size fits all" standard of care is not only erroneous but downright dangerous.
RECOMMENDATIONS & SUMMARY
As has been clearly shown, the face-to-face only view is not substantiated with any professional or scientific evidence from the research literature, case law literature, standard of care literature, PEC statute or anywhere else for that matter.
Interviewing and assessing patients in emergency by telephone is a practice that is supported by the professional literature and is endorsed by such organizations as the National Institute of Mental Health, National Association of Suicidology, and the National Suicide Prevention Lifeline.
If a particular word is going to be used, such as "actual examination" or "examination" to define a standard of care, then it should be explicitly and operationally defined so that there is no room for subjective interpretation, confusion, or misunderstanding.
As it currently exists, the PEC provides a reasonable and necessary method for examining and treating patients who refuse voluntary examination and treatment. The only current challenge to getting a suicidal, homicidal, or gravely disabled patient to the hospital against their will is the arbitrary face-to-face mandate.
A simple solution to this medicolegal dilemma is to revise the current statute to include an operational definition of "actual examination." It may go something like this: "Actual examination is meant to include but is not limited to clinical interview, in-person or by telephone, video-conference, psychological testing, suicide-risk assessment, mental status examination, screening instruments, or any combination of these necessary to gather information sufficient to support the health-care provider's decision-making and reasonable judgment regarding the welfare of a patient."
Subjective interpretations of any kind are unacceptable. The above definition may bring greater clarity and balance to this issue. It is hopeful that the definition offered above will stimulate reasonable, scholarly dialogue on this issue. The final definition should be sufficiently broad to include a variety of methods which can accommodate any type of crisis situation with which a clinician may be presented.
In summary, the strengths and weaknesses of the PEC and OPC were discussed. By comparison, the PEC appears to be a more complete statute providing multilevel safeguards to the patient and community. It requires an examination prior to its execution whereas the OPC does not always provide it.
In an effort to protect a patient's civil liberty some healthcare providers began insisting, as if by fiat, the examination prior to issuing a PEC must be only face-to-face although nothing in the statute states that. Protecting a person's civil liberty is absolutely of paramount importance but, as has been clearly shown, there are ample safeguards built into the PEC statute that accomplishes this. Subjectively adding yet another one without any evidence to support it is superfluous and violates the scientific method by which healthcare providers are trained. That is, the scientific method stresses that one must have data to support one's hypothesis or opinions. Moreover, if the observed data conflicts with one's opinion, it is incumbent upon professionals to change their opinion to conform to the evidence.
It should be noted that, even in America, a person's civil liberty is not limitless. We operate by the rule of law. When one person's civil liberty endangers himself or others then there will be restrictions, albeit temporary ones, imposed upon him. For example, in a recent ruling by the U.S. Supreme Court it was decided that law enforcement officers have the right to defend themselves when attacked by a mentally disturbed person.
As the current case illustrated, a healthcare provider can follow the PEC steps to the letter and still be sued for malpractice if another provider disagrees with his examination.
If the Medical Review Panel, in the present case report, had done "due diligence" and researched the standard of care issue in this particular case and rendered the proper opinion, this case would have been dismissed by summary judgment many years ago. Instead, they focused their attention on the definition of "actual examination" in the PEC statute and then created a standard of care from that definition then and there. They then compounded their error by applying that instantly derived standard of care retroactively to the case in question that occurred four years previously. Of greater concern, they mistakenly concluded that any deviation in diagnostic examination and interpretation of the PEC statute from their own signifies incompetence and a breach of standard of care.
La.R.S.40:1299.47(G) states the following:
The panel shall have the sole duty to express its opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care.
It does not state that the responsibility of the panel is to create and establish a new standard of care that may or may not apply to the clinical situation being reviewed.
As stated earlier, this medicolegal dilemma can be reduced to two simple issues: (1) What is the existing standard of care for assessing and treating potentially suicidal or homicidal patients? And (2) The definition of "actual examination" as it appears in the PEC statute.
I have provided a review of the professional literature, case law literature, standard of care literature, and PEC Statute relative to standard of care for the assessment and treatment of imminently suicidal patients. I have also provided specific definitions for "actual examination" and recommended an operational definition to be amended to the Statute. This leaves the current statute completely intact. PECs will still be issued by licensed health care providers (physicians, nurse practitioners, or psychologist). It will simply give greater clarity, flexibility, and balance to what is already a solid, well designed statute. The current Telepsychology Guidelines developed by the American Psychological Association were also provided.
These guidelines specifically state that research has shown equivalence in effectiveness between telepsychological interventions, such as videoconferencing or telephone, with their in-person counterparts.
The above presentation has clearly shown that the face-to-face only standard, when applied to the PEC, is not always attainable, violates the very purpose of the PEC, and potentially endangers the safety and welfare of the patient or others. Furthermore, it creates an unnecessary clinical, legal, and ethical dilemma for physicians and psychologists.
In the final analysis, the trained, experienced clinical judgment of each health-care provider must play a major role in the decisionmaking process and should not be restricted by meaningless technicalities or subjective definitions that have little to do with the ultimate welfare of the patient. To mandate a "one size fits all" standard is to completely eliminate a doctor's clinical judgment in the examination and treatment of his/her patients.
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(2.) Leslie Schillig versus Lynn W. Aurich, Ph.D., et.al., Docket Number 96-3899, "Division E".
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(19.) Miller, H., Coombs, D., Leeper, J. & Barton, S. (1984). An analysis of the effects of suicide prevention facilities on suicide rates in the United States. American Journal of Public Health, 74, 340-343.
(20.) APA Dictionary of Psychology, American Psychological Association, 2007, pg. 889
(21.) Stedman's Medical Dictionary The Williams & Wilkins Company, 22nd ed., 1972.
(22.) Guidelines for the Practice of Telepsychology, American Psychologist, The American Psychological Association, 68, 9, 791-800, 2013.
(23.) Ethical Principles of Psychologists and Code of Conduct, American Psychological Association, Washington, D.C., 1992.
Lynn W. Aurich, PhD
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|Author:||Aurich, Lynn W.|
|Publication:||The Journal of the Louisiana State Medical Society|
|Article Type:||Clinical report|
|Date:||Sep 1, 2016|
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