Potential Liabilities in Collaborative Care

GINA BRIGNOLA, ESQ., Associate
MAX BILLEK, ESQ., Partner

Wilson Elser

The Collaborative Care Model (CoCM) is an emerging model for integration of behavioral health and somatic medical services that has been shown to be an effective and efficient method of delivering integrated care and reducing stigma surrounding mental health. While this model carries the potential to improve patient outcome and efficiency overall, practitioners must be mindful of the risks and potential liabilities inherent in such a plan of care. The following article addresses potential liabilities in collaborative care, particularly those faced by consulting psychiatrists, as well as practical solutions to mitigate those risks and liabilities to further the goals of collaborative care.

The traditional CoCM features a team of healthcare providers and professionals working together to reach a patient’s clinical goals by providing psychiatric services in the primary care setting. Typically, the team is led by a primary care provider, or PCP, who works directly with a Care Manager – a mental health professional situated within the PCP’s office. The Care Manager coordinates with a consulting psychiatrist, who offers his or her expertise and recommendations regarding the patient’s mental health treatment. Treatment often includes talk therapy and sometimes medication prescribed by the PCP and overseen by the psychiatrist. The Care Manager additionally oversees the course of treatment and ensures proper follow-up to keep treatment on track.

Though the CoCM increases access to psychiatric treatment and allows for coordinated behavioral health and physical health treatment, it also has the potential to pose certain legal risks that may hinder treatment goals and impose civil liability to healthcare professionals. Such potential liabilities lurk within issues including effective communication, scope of individual practice, vicarious liability, joint and several liability, and ethical concerns stemming from working with multiple providers and working through telemedicine platforms.

Communication

Perhaps the most vital element to an effective and efficient CoCM is clear and thorough communication. As in any healthcare setting involving multiple professionals across different disciplines, the potential for miscommunication or a failure to adequately communicate in a CoCM is increased. Such miscommunications or failures to communicate can have serious consequences, ranging from delays in achieving clinical goals to actual patient harm or adverse events, in turn leading to allegations of malpractice.

To avoid potential liabilities stemming from such failures, a clear method and means of communication between CoCM team members should be established and routinely followed. Take the example of a patient presenting to the PCP for certain behavioral health concerns for which the PCP desires a psychiatric consult. Does the PCP reach out to the Care Manager, who then contacts the consulting psychiatrist? Or does the PCP speak with the psychiatrist directly and inform the Case Manager afterwards? If the PCP does not speak with the psychiatrist directly, how does the psychiatrist’s recommendation make its way back to the PCP? While teams may develop their own unique procedures for communication among members, those procedures need to be communicated clearly and universally adhered to, so that each member of the team answers the above questions uniformly and without hesitation.

CoCM teams should additionally develop standards for how members are to communicate. Written communications are generally preferable to verbal communications from a liability standpoint, and if the communication is verbal, it should be followed with a written confirmation of the verbal communication that contains as much substance as practicable.

The CoCM team must also decide how communications are to be saved. (For example, are these communications to be made part of the patient’s electronic medical record? Are they accessible to all members of the team?) Finally, practitioners must be mindful of, and comply with, laws and regulations regarding the storage of patient records and transmission of patient information.

Scope of Practice

Members of a CoCM team must take special care to ensure that they are practicing squarely within the confines of their specialties/professional roles. In the integrated system the CoCM offers, lines between practice areas can become blurred and professionals may find themselves encroaching on another’s area of expertise. Stepping beyond the confines of one’s professional role or area of practice may result in ethical and licensing issues ranging from the unlicensed practice of medicine to practicing medicine in an area in which one is not board-certified.

Aside from the ethical and licensing concerns, practicing beyond one’s scope increases exposure to legal liability. Of course, questions of competency automatically arise in a lawsuit involving a physician practicing in a specialty in which he or she is not trained and certified — an often-difficult position to defend. Moreover, practicing outside of one’s certification or specialty may result in the forfeiture of certain protections afforded by the legal system to licensed or specialized individuals.

For example, in some states, a plaintiff in a lawsuit must offer expert testimony — a critical element to sustaining a medical malpractice action against a physician in most jurisdictions — from a similarly credentialed expert against a specialized defendant physician. In other words, a plaintiff must produce an expert physician board-certified in internal medicine to opine against a defendant physician board-certified in internal medicine, and so forth. However, if a physician were to be found practicing outside his or her board certification, the requirement may be loosened or deemed inapplicable altogether, allowing any legal expert to opine against the physician.

To help avoid the blending of practice areas, CoCM team members should have a clear delineation of clinical and non-clinical roles and responsibilities documented in writing. Professionals must also be particularly mindful of whether a certain action falls outside the scope of his or her role and/or professional licensure or certification. Though a goal of the CoCM is to effectively treat patients and reach clinical goals solely within the team, professionals should not hesitate to make a referral outside of the CoCM when necessary.

Vicarious Liability and Joint and Several Liability

Most jurisdictions recognize some form of vicarious liability and joint and several liability in the context of medical malpractice actions. Under the doctrine of vicarious liability, physicians/professional staff members may be held liable for the actions of those whom they supervise, just as an employer may be held liable for the actions of its employees. Under the doctrine of joint and several liability, if more than one party is responsible for the injury caused to another, each individual party or “tortfeasor” may be held liable for the full amount of damages, regardless of the individual tortfeasors’ “percentage” of contribution to the injury.

In a typical referral scenario, a referring practitioner would generally not be vicariously liable for the actions of the practitioner to whom he or she referred a patient. Similarly, practitioners independently treating a patient are less commonly subject to joint and several liability than practitioners treating a patient jointly. In the CoCM, the risk of joint and several liability being imposed among the members of the team is significantly higher as, by definition, the professionals within the team work together to treat the patient. Additionally, depending on the structure of the team and the supervisory roles, if any, certain team members have over others, vicarious liability for the actions of a subordinate may be extended to the supervisor.

In the usual CoCM design, the PCP serves as the “main” provider in charge of patient care whereas the psychiatrist serves as a consulting physician. In this case, it is particularly important for a psychiatrist team member to understand whether he or she is providing a formal consultation on the patient — where the PCP formally requests the consult, which is typically documented in the patient record and a patient/physician relationship between the patient and psychiatrist is created — or whether he or she is providing a “hallway” consultation, where the PCP informally seeks the advice of a colleague regarding the patient’s course of treatment. A “hallway” consult is usually not documented in the patient record and a patient/physician relationship between the patient and psychiatrist is less commonly created.

In the case of a formal consult within a CoCM, joint and several liability between the practitioners is likely to attach. Whether joint and several liability, or any liability at all, attaches to the psychiatrist in the case of a “hallway” consult is a highly fact-specific question and differs among jurisdictions; however, generally speaking, the risk of exposure in these situations is lower. As a result, consulting psychiatrists, and all CoCM team members, should be aware of the possibility of the extension of joint and several liability and take adequate measures to mitigate this risk.

Further, vicarious liability may be extended among members of the CoCM team, depending on the structure and functioning of the team. Practitioners, and particularly consulting psychiatrists, should be aware of whether they are supervising any members of the team, including non-medical team members. To that end, it is imperative that practitioners be familiar with their employment contracts and whether these contracts delineate any supervisory duties. It is further recommended that CoCM contracts address the issue of supervisory duties and clearly set forth whether any team members have a supervisory relationship.

Potential Ethical Issues in Technology and Communication

In typical CoCM structures, the Case Manager and PCP are present within the same facility while the consulting psychiatrist is located outside of the PCP’s office. Treatment sessions and/or consultations are often provided via telemedicine or other electronic methods, which present certain unique ethical concerns.

CoCM team members should be aware of local laws and regulations regarding telemedicine, especially if any team members are practicing across state lines. Moreover, the team must ensure that the patient’s condition can be appropriately evaluated via telemedicine. Finally, practitioners must ensure patient identity, confidentiality, and documentation of the visit are appropriate and in accordance with all applicable regulations and standards.

Though the CoCM involves several team members providing coordinated care to the patient, HIPAA obligations and other regulatory standards regarding the exchange and disclosure of personal protected health information may still apply. Practitioners must be mindful of such regulations and know when consent to disclose is required. In such a case, appropriate authorization from the patient must be obtained.

Conclusion

The CoCM provides a unique opportunity for coordinated care and increased access to psychiatric services for patients. However, as with any form of integrated care, potential liabilities are inherent in the CoCM structure and practitioners and team members must pay special attention to avoid these legal pitfalls. With prudent steps taken to mitigate risk and reduce exposure, potential liabilities should in no way serve as a barrier to implementing a CoCM.

Gina Brignola_SM

About the Authors

Gina Brignola. Esq. is an Associate at Wilson Elser. Gina handles a variety of professional malpractice actions, and represents health care facilities, physicians and other medical professionals in medical malpractice actions.

 

 

Maxwell BillekMax Billek, Esq., a Partner at Wilson Elser, is a co-chair of the firm’s Lawyers Liability practice, and handles a variety of professional malpractice actions and defense of lawyers, accountants, medical professionals, directors and officers, and design professionals, in addition to employers in employment liability matters.

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