Ms. P has worked as a nurse practitioner in family practice for 10 years. Of all the patients she was required to treat, she was most comfortable with pediatric cases. She was least comfortable with psychiatric cases, which she considered unpredictable and difficult.
A 46-year-old woman who was under the care of a psychiatrist and psychologist for panic attacks and general anxiety came to Ms. P’s clinic to see if she could get her alprazolam (Xanax) prescription refilled. Her psychiatrist was out of town and unavailable, so she turned to her family physician for help. Ms P had seen the patient several times but was not involved in her mental-health care. Because her supervising physician was out of the office, Ms. P was left with the difficult choice of whether to refill the prescription or not. Even though she was not familiar with the medication or the patient’s psychological history, Ms. P reluctantly called in the refill.
At the time, Ms. P was not aware that the patient had fallen asleep while driving on two previous occasions, narrowly avoiding tragedy by jerking awake at the last minute and swerving back into her lane. If Ms. P had known this, it was unlikely that she would have refilled the Xanax prescription.
One week later, Ms. P’s patient was involved in a fatal head-on collision with a young mother returning home from work. The patient was not injured and later confessed to the police that she had fallen asleep at the wheel and woken up just before impact. She was devastated by the ordeal and admitted to a psychiatric unit for 10 days to stabilize. After burying his wife, the accident victim’s husband met with a plaintiff’s lawyer and eventually filed a wrongful death lawsuit against Ms. P’s patient.
During discovery, the plaintiff’s lawyer called the clinic for the woman’s medical charts and discovered that Ms. P had prescribed the Xanax the patient was taking at the time of the accident. Once this had been established, a lawsuit was filed against Ms. P and her supervising physician for contributing to the death of the young woman by failing to warn the patient of the danger of operating a vehicle while taking the antidepressant. The plaintiff’s lawyer alleged that a word of caution from either of the clinicians would have prevented the accident.
A defense lawyer was hired to represent Ms. P and her supervising physician. After reviewing the file, he contacted the insurance adjuster to see if the company would pay the $25,000 in legal fees necessary to file a motion for summary judgment. The insurance adjuster agreed, and the defense lawyer began drawing up a brief based on the argument that the dead woman had no contact with Ms. P or her supervising physician. Therefore, no clinician-patient relationship was formed, rendering the lawsuit void. The trial judge listened to both sides and then dismissed the case. The plaintiff’s lawyer immediately filed an appeal with the regional court. Six months later, the case was tried again before a panel of three justices. The appeals court upheld the ruling to dismiss the lawsuit against
Ms. P and her supervising physician. Rather than supporting dismissal on the grounds that there had been no clinician-patient relationship, the appeals court ruled that there was no proximate cause between the Xanax prescription and the accident because the one was not a foreseeable consequence of the other under the circumstances.
Cases like this represent a legal turning point with regard to a provider’s responsibility to third parties. In the 1990s, developing case law expanded a new area of clinician liability as plaintiff’s lawyers convinced trial judges that providers were responsible to other motorists if the clinicians failed to warn patients not to drive after taking medication that might make them drowsy (even if previous experience suggested to the patient that it was unsafe to continue to drive). This new litigation was finally reined in by more conservative judges who argued that it was not always foreseeable that failing to warn a patient of potential side effects when prescribing medication would necessarily lead the patient to drive while drowsy and risk an accident. Common sense ought to tell the patient that what happened before (i.e., falling asleep at the wheel) could happen again. The appeals court minimized the plaintiff’s lawyer’s argument that although the patient knew from experience that Xanax could make her drowsy, she would not have driven while taking it if Ms. P had reminded her of this fact.
Third-party liability for providers is most recognized when a psychiatric patient makes a threat to physically harm another person. In such a case, the provider may have a duty to warn the potential victim, police, or other authorities, depending on the circumstances. Courts view mental-health professionals as having an enhanced ability to predict the potentially harmful acts of their patients. Confidentiality rights are outweighed by public-safety interests. With the advent of the managed-care system, many primary-care clinicians are treating patients for mental-health concerns and prescribing medication for these conditions. It is yet to be determined whether they will be held to a higher standard of care to evaluate their patients’ propensity for dangerous behavior.
Describing side effects of medication to patients is a delicate task—provide too much detail and patients get bored, confused, and anxious about their treatment. A detailed explanation also takes up valuable clinical time. On the other hand, a perfunctory description carries more serious risks. Perhaps the best compromise is to provide the patient with a package insert or preprinted document and explain the primary side effects. This approach is usually sufficient and has the added advantage of giving the clinician the ability to produce hard evidence for jurors to inspect. It is difficult for patients to convince a jury that they were never informed of a potential side effect when it is listed in plain view on an information sheet. Unfortunately, these documents usually contain more information than the average patient can absorb, causing them to be ignored. Nevertheless, most electronic medical record (EMR) programs provide computer-generated sheets for heavily prescribed medications. This is a proven method of efficiently covering the most important side effects.
If you do not have an EMR system, confirm that you have explained the side effects by making a chart notation (e.g., “info: check”). Make this explanation and dissemination of printed information such an ingrained habit that the possibility of a patient’s forgetting such actions is negated by your records and testimony.
Ms. P was placed in the vulnerable position of prescribing a medication with which she had little experience. Although frequently motivated by good intentions, clinicians put themselves at high risk of liability in such situations. One way to mitigate this risk is to familiarize yourself as well as the patient with the medication by going over the printed information or package insert together. Also, ask if the patient has previously experienced any of the published side effects while taking the medication. The answer could be revealing.