Introduction
There can be no malpractice until there is doctor-patient relationship. Malpractice includes breach of contract, defamation, undue influence, and false imprisonment in addition to substandard treatment per se. The statute of limitations for malpractice is three years from injury or one year from date the injury was or should have been discovered whichever comes first. In some situations, the statute of limitations is “tolled.” Only 0.3 percent of all malpractice claims are against psychiatrists. This may in part be because patients are reluctant to expose personal secrets and causation is difficult to prove to skeptical juries. One type of malpractice is based on the law of torts. A tort is a civil wrong not based on contract committed by one person that causes injury to another. An action in tort requests compensatory - money - damages. There are three types of torts: intentional, unintentional or negligent, and strict. The four D’s of the tort of negligence are (1) duty, (2) dereliction (breach), (3) damage, and (4) direct causation [I would add a 5th D - a lack of legal defenses]. Click here for malpractice article. Click here for insurance article.
All persons owe a legal duty to do a risk-benefit calculus of their intended acts (or non‑acts under special circumstances) and to then act only when the benefits outweigh the risks. This means all persons are held to a general duty to act as "an ordinary and reasonably prudent person under the same or similar circumstances." An act is negligent if it breaches this duty and thereby creates an unreasonable risk of foreseeable harm. Liability attaches if the harm that actually occurs is within the scope of these foreseeable consequences (this is called proximate cause) and there are no available defenses that can be asserted (such as assumption of risk, last clear chance, contributory negligence, “unclean hands”, statute of limitations, etc.). Simple mistakes are not negligent acts under the law of torts.
Related Concepts
Respondeat superior: "let the master respond."
Res ipsa loquitor: "the thing speaks for itself."
The Suicidal Patient
Maintain and document an appropriate standard of care. Evaluate risk, especially when privileges broadened or care transferred. Document decisional process and reasons for choice among alternatives. Involve family in important decisions whenever appropriate and possible. Make decisions within team model and document this shared responsibility. Adhere to your specific hospital's policies and procedures. Seek consultation and record the consultant’s input. Click here for discussion of risk management issues.
Violent Patient
Law asks if the patient is dangerous. Psychiatrists assess the degree of threat.
1. Obtain records of previous treatments and hospitalizations.
2. Document decision-making process concerning release.
3. Where doubt exists seek consultation with colleague or attorney.
4. Give warnings to potential victims even if they are aware of the danger.
5. Seek commitment if doubt exists about danger posed by discharge or release.
6. Develop a post discharge treatment and care plan prior to discharge.
Principles of Malpractice Prevention
1 Identify high-risk patients and high-risk situations.
2 Share the therapeutic uncertainty (informed consent).
3 Develop and keep a good therapeutic alliance.
4 Maintain a mutually agreed upon treatment contract.
5 Only treat patients within your capability.
6 Avoid little boundary violations because big ones may follow.
7 Act only for benefit of patient. No undue influence over decision-making.
8 Don’t clear patient for activity with language that endorses activity.
9 Courts consider acts not recorded as acts not done. Whenever you take a calculated risk, “think out loud” for the record. Chart risk‑benefit analyses at decision points and comment on patient capacity to participate in the treatment plan. Chart special instructions, warnings, significant telephone conversations, and acts of noncompliance.
Common Causes of Action
1 1 Failure to Treat Properly. Failure to keep adequate records, take a history, diagnose properly, change treatment when indicated, seek consultation, maintain confidences, obtain necessary records from previous therapists or hospitals.
2 Negligent Use or Non-Use of a Somatic Treatment. However, courts do not want to enforce orthodoxy and will not interfere with a "respected minority" opinion.
3 Negligent Application of Psychotherapy. Patients have to establish a link between the "talking" and the harm. This cause of action includes the tort of abuse of transference.
4 Failure to Prevent Suicide. Was patient competent to decide not to follow the treatment? Courts look at the diagnosis, treatment, precautions taken, and the forseeability of the act.
5 5 Failure to Prevent Harm to Others. This is based on duty to control committed inpatients. This cause of action includes duties to report and warn.
6 Undue Familiarity. This is a euphemism for sex between psychiatrist and patient or former patient. It may also constitute a felony! 3.1% of female therapists. 13.7% of male therapists. 4.9% psychiatric residents acknowledge sex with a supervisor. Legal action usually follows the end of the affair. Click here for review article
7 Negligent Supervision: direct and respondeat superior. Consultant, less liability.
8 Abandonment. This tort arising from failure to provide necessary medical care without justification once the physician‑patient relationship is in existence. NB constructive abandonment.
9 Informed Consent. The elements are: (1) information (reasonable patient standard); (2) voluntariness; and (3) competence. Exceptions are: (1) emergencies; (2) patient requests not to be informed; and (3) disclosure would so seriously upset the patient that the patient would not be able to dispassionately weigh the risk of refusing to undergo the recommended treatment.
10 Breach of Contract. There is a strict limitation on the monetary recovery.
11 Breach of Privacy or Confidentiality.
12 Civil Rights Actions ‑ Under 42 USC 1983, "…who, under color of any…
13 False Imprisonment. An intentional tort; therefore, not insurable. No force required. Statute...deprivation... Constitution...liable to the person injured."
14 Fraud. False promise broken or false diagnosis knowingly assigned.
REFERENCES
1 Simon, R.I. Clinical Psychiatry and the Law, Washington, D.C., APA, Inc. 2d Edition, l990.
2 Klein JI, Macbeth JE, Onek JN: Legal Issues in the Private Practice of Psychiatry. Washington, DC, American Psychiatric Press, l984.