Legally Bland

So, yesterday a distinguished looking group of four men and one woman came to the mental health center to discuss risky business. No, not the movie. 

Blue blazers, khaki pants, colorful ties and comfortable loafers were the order of the day, as would be expected. There they sat, impanelled as a jury of our (almost) peers, ready to guide us through the whitewater of risk management and professional liability. The journey lasted just under two hours. No canoes, rafts, provisions, or people were lost in the trip down the river. 

The director of the South Carolina Insurance reserve Fund, Division of Budget and Control Board, presented information on the workings of the Fund, how many entities it was required to cover, and how payouts were made for various legal problems that ended up being settled by both parties. 

Another SC Department of Mental Health attorney discussed tort law. To my chagrin, it had nothing to do with Italian cakes. Oh, that would be torte. My bad. So sue me. He also discussed (gasp!) medical malpractice lawsuits. 

Later in the presentation, the whole panel told us over and over and over how important documentation is. The old saw, “if it’s not in the record it never happened”, still holds in this day of the electronic health record. Documenting your thinking, your reasoning, and informed consent is still (and will most likely always be) important. Repeatedly cutting and pasting bits of history and commentary, while tempting to do in this age of computerized records, is not wise. Six notes in a row that state that the patient is perfectly fine, in exactly the same words, followed by a note that says the patient committed suicide, is not cool. Not at all. 

So, there we were, teachers and students, be-knotted barristers and sleepy after-lunch students (some things never change, right?), reviewing the ins and outs of good practice, hazardous areas such as sexual contact with patients, and other things that will put you in hot water quicker than a lobster in a five star restaurant. The session was very good, actually. The presenters were good at their jobs, knew the material cold, had plenty of engaging stories to tell (and you know, dear readers, how I love a good story), and gave useful tips and tricks that all of us could take away and start to use immediately.

The funny thing though? The thing that continues to amaze, but not surprise me even after twenty six years in this business?

The key to this stuff is the relationship between people

It’s that simple when you get down to it.

Those of us who work in the medical or mental health field do not train for years and take the positions and jobs we take with the express intent of hurting people in any way. That’s ludicrous. We do it to help. To heal. To soothe. To make things right. To restore. 

That being said, bad outcomes are part of the equation. Medications cause side effects that are sometimes permanent and disfiguring. Sponges are left inside a person’s body after surgery.  A diagnosis is missed. Therapy is not aggressive enough. Patients kill themselves. Very bad things happen to very good people.

The knee-jerk response to that in our very litigious society is to bring a lawsuit. 

What are some of the very best ways to prevent this terrible, stressful, destructive approach to making things right?


Patients and providers of all stripes need to talk to each other. Openly. Honestly. Candidly. 

Show respect

It is very clear that if the relationship between parties is deep, respectful and mutually supportive, even a very bad outcome will oftentimes not lead to a lawsuit. 

Be honest.

There is no place in medicine and mental health treatment for game-playing, lying, cheating, taking short cuts, backtracking, altering the medical record, or other wise engaging in anything other than truthful interaction and exchange of information. 

The bottom line?

Keep current in your field, do the very best job you know how to do, document exactly what you were thinking, planning, and executing, and keep your patient in the loop. Even if a bad outcome occurs, and it will from time to time as long as you are engaged in clinical practice, constructively working through the problem will be much more likely than heading to opposite corners, attorneys hired and gloves on, ready for a fight.