Increasingly, managed care organizations ("MCOs") are diversely affecting the practice of clinical psychiatry. So, what can a psychiatrist do to manage new risks of malpractice in this clinical setting? Here are 4 ways to avoid a lawsuit in the first place, or to minimize the harmful effects if you are sued.

1. APPEAL EVERY DENIAL OF CARE:

Few things are as clear as the ethical and legal obligation of all physicians to advocate for their patients' needs. Under MCOs, pressures to control costs of care by limiting care, often through arbitrary definitions or interpretations of "medical necessity" by non-medical administrators, make it necessary that the involved psychiatrist:

a) protest/appeal such denial of care

b) document clearly the need for care

c) inform/educate both the involved patient and family of the denial, risks stemming from such denial and treatment options needed

While such actions by psychiatrists are both ethically and legally necessary to properly treat patients, often psychiatrists face conflicts of interest and risk violating "gag rules"* in their contracts with MCOs or being terminated "without cause" by MCOs. The American Psychiatric Association and the American Medical Association are actively seeking legislative relief to outlaw "gag rules" and "termination without cause". Currently both legislative and voluntary rules prohibiting "gag clauses" in provider contacts have been proposed and some have been adopted. A recent appellate court decision (Potvin v. Metropolitan Health, May 2, 1997) held that a physician may not suffer "de-selection" without a due process hearing and fair procedure. However, until there is full uniform, legislative relief psychiatrists are well advised to follow the Wickline rule: a payer's cost-containment program may not overrule the physician's duty for care.

2. READ THE CONTRACT

MCO's contracts present numerous risks for practitioners. You may be ending up insuring your patients all by yourself by carrying all the risks. DO NOT SIGN unless you have understood the contract: "If you've seen one managed care contract, you've seen one managed care contract." Help is available from your local psychiatric society, the American Psychiatric Association: (202) 682 6230 or your state medical association. You can also call your malpractice insurance to clarify issues in the contract.

Next to understanding the contract, you have to be consciously aware of the inherent conflict of interest in all capitated contracts for physicians. If you accept a capitated contract you must ensure adequate rates in order to safeguard quality care.

3. BE GUIDED BY YOUR ETHICS AND "STANDARD OF CARE"

Managed behavioral care organizations characteristically practice cost containment by substituting non-medical providers for psychiatrists and restricting the practice of psychiatrists to medication management. Psychiatrists are not allowed to treat patients with combined psychotherapeutic and psychopharmacologic treatment in most MCOs. If a patient requires such treatment, the psychiatrist must appeal/protest this practice and advocate for the specific patient's need for psychiatric care by a psychiatrist.

The usual treatment offered by MCOs is "split treatment". The psychiatrist, while "restricted" to medication management, is actually legally and ethically responsible for the total psychiatric care of all patients in split treatment. The standard of care requires that the psychiatrist will coordinate/manage and supervise the entire treatment. This means that psychiatrists:

a) communicate with and have reliable information from the non-medical therapist

b) caution the involved patient and family to keep the psychiatrist informed of any adverse reactions or crises

c) see the patient themselves whenever there is a clinical dilemma or crisis, especially for suicidality assessment.

4. OBTAIN INFORMED CONSENT FOR DOCUMENTATION

Psychiatrists working in MCOs often practice under conditions of high pressure, having to see large numbers of patients in a very short time. Often, instead of a full initial evaluation, only a screening emergency type of consultation is possible due to the limiting circumstances.

Under these conditions

a) patients should be informed that the evaluation has not been completed

b) document the need for further evaluation and/or examination

c) Work within the MCO to improve quality care for patients.

Psychiatrists must inform patients of the documentation requirements for utilization review of their care and obtain the patient's consent for the release of confidentiality in order to fulfill the review requirements. In addition, all psychiatric patients have to be informed of the applicable state law requirements for documentation of their care in computerized medical records. Psychiatrists working in MCOs have to ensure the confidentiality of the psychiatric records within their system of care.

(Sections of this article have been printed at CAPsules of CAP/MPT, vol 16 #2, 1997.)