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Liability risks associated with mental health care can be managed :

December 29, 2016

In response to the well-documented dearth of child and adolescent psychiatrists and increase in mental illness in the pediatric population, many primary care pediatricians have assumed a substantial role in providing these services. In so doing, they also have assumed potentially significant but manageable liability.

Following is a description of the legal risks and how general pediatricians can reduce them in order to provide vital mental health services in the medical home.

Basic competencies

Most pediatricians have received training and are comfortable diagnosing and treating attention-deficit/hyperactivity disorder (ADHD). However, they may be less confident diagnosing and treating anxiety, depression, autism and other disorders. Yet primary care pediatricians have a growing sense of responsibility and unique opportunities to prevent and address mental health and substance use problems in the medical home, according to the Academy.

Basic competencies to provide good mental health care include the ability to make the correct diagnosis and to differentiate the condition from normal behavioral variation, symptoms not rising to the level of a disorder, and a primarily physical illness such as sleep deprivation, fatigue, endocrine or metabolic disorder. These skills improve care and are the basis for medical liability risk management.

Mental health training and experience might enable the pediatrician to focus on the etiology, severity of the illness and available practical modalities for therapy. Most conditions warrant consideration of non-medication treatments before the use of medications. As in the treatment of medical conditions, the severity of the illness dictates whether and for how long non-specialty therapy can be employed.

Mental health competency can be bolstered by attending continuing medical education, relying on evidence-based clinical guidelines, using objective screening and diagnostic tools, and implementing practice resources.

Off-label psychotropic medications

The use of psychotropic medication may pose significant liability risk for the pediatrician if prescription of the medication is outside the expected competencies for pediatrics. Providing and documenting informed consent regarding the potential benefits and risks are essential, especially when prescribing off-label drugs for children. The documentation must include indications for treatment, lack of availability of or inadequate response to non-pharmacologic therapies, what medications have been ordered, and the plan for monitoring positive and adverse effects.

Should a malpractice allegation arise with off-label medication use, these two elements will help defend the case 1) whether the decision to prescribe off-label is evidence-based; and 2) whether supporting documentation reflects the clinical judgment and decision-making for prescribing this drug in this instance for this patient.

ADHD medications

Pediatric patients with ADHD are more likely than their peers to develop substance use disorders. Diversion of stimulants also is a concern. The Academy has provided clear guidance on safe stimulant prescribing practices (see resources).

Anorexia, sleep disorders and other potential side effects should be discussed, monitored and documented. Although the Academy has stated that medications used to treat ADHD have not been shown to cause sudden cardiac death, most physicians feel that families should be informed about the controversy in keeping with the manufacturer warnings.

In addition to documenting improvement in ADHD symptoms, providers should monitor and document height, weight, heart rate and blood pressure at baseline and at follow-up visits. Not only is this good care, it can be invaluable in responding to a malpractice claim.


It has been reported that 11% of adolescents are affected with a major depressive disorder in a single year. This behooves pediatricians to equip themselves to provide care to these pediatric patients and take prudent steps to minimize relevant malpractice risks.

In October 2004, the Food and Drug Administration directed pharmaceutical manufacturers to add a black box warning to antidepressants describing an increased suicide risk in children and adolescents. The black box warning was updated in 2007. Primary care pediatricians who see and treat depressed patients need to know that the risk posed by untreated depression is far greater than the very small risk of suicidal ideation associated with antidepressant medications. Although they cannot ignore that rare risk, it can be managed by carefully monitoring patients during pharmacotherapy.

Most families would prefer to get mental health care for their children in their pediatrician’s office, and pediatricians can equip themselves to meet those needs. The pediatric mental health crisis remains acute, and resources are limited. While the liabilities for the pediatrician are significant, they are manageable.

Risk management pointers

  • Be competent to identify, treat and manage mild to moderate psychological conditions by availing yourself of policy guidance, manuals, toolkits and educational programming for general pediatricians. Keep your knowledge and skills up to date.
  • Use psychotropic medications in a responsible manner and consider referral or co-management if a drug outside your area of competence or multiple drugs seem indicated.
  • Document the evidence basis for the diagnosis and treatment plan, medications and changes with full informed consent.
  • Implement practice policies and procedures to facilitate follow-up care (e.g., laboratory testing, medication management and follow-up visits, etc.).
  • Know your responsibilities when prescribing medications with black box warnings. Be consistent and complete in obtaining informed consent. Document carefully.
  • Have qualified specialists available for consultation and referral if you have concerns about the diagnosis or progress. Track referrals, reports and follow-up appropriately.

Dr. Oken is a member of the AAP Committee on Medical Liability and Risk Management.

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