Introduction

Over the years, psychiatry has generally not been considered a high-risk medical specialty, at least in regard to the risk of being sued based on a cause of action for medical negligence.  The authors in a NEJM article titled Malpractice Risk According to Physician Specialty (8/18/2011) found that only 2.6% of psychiatrists faced a medical malpractice claim as compared to 19.1% for neurosurgeons. The amount of malpractice payments for psychiatrists was next to last of all medical specialties, exceeding only dermatologists. More recently, physicians responding to a 2013 malpractice survey reported a sharp spike in psychiatrist malpractice suits up to 8% (Medscape Report: The Top 10 Specialties Sued- 2013 Malpractice Report.)[1]

Definitions

Here are some important definitions which the jury ultimately considers, as instructed by the Court when these cases are to be decided.

1)  “Negligence”, when used with respect to the conduct of the Defendant means the failure to exercise ordinary care that is, failing to do that which a physician of ordinary prudence would have done under the same or similar circumstances or doing that which a physician of ordinary prudence would not have done under the same or similar circumstances.

2)  “Ordinary care” when used with respect to the conduct of the Defendant means that degree of care that a physician of ordinary prudence would use under the same or similar circumstances.

3)  “Proximate Cause” when used with respect to the conduct of the Defendant means that cause, which, in a natural and continuous sequence, produces an event, and without which cause, such event would not have occurred.  In order to be a proximate cause, the act or omission complained of must be such that a physician using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.  There may be more than one proximate cause of an event.

Reasons for Malpractice Claims

Some of the common reasons that a psychiatric medical malpractice suit may arise

Include, but are not limited to:

• Failure to Prevent Suicides or Self Inflicted Injuries

In these cases, finding proximate cause is often a significant challenge, much more so than finding actual negligence of the doctor or involved supporting staff.

Inpatient Suicides

In the case of an inpatient suicide, the issue comes down to whether the hospital authorities in the circumstances could reasonably anticipated that the patient might harm himself.

Unconfined Patients

With respect to a suicide of an unconfined patient, a physician may be found liable a) he writes a prescription ordering a number of pills, which could be fatal if taken in one dose, and b) the risk of suicide is great and c) the patient uses the pills to commit suicide.  Again though, these cases are very difficult to show proximate cause.

• Sexual Relations with a Patient

These cases are often found to constitute professional negligence and this activity in not seen as acceptable in virtually any legal grounds. In these cases an issue may arise as to whether these intentional acts are covered by the malpractice insurer.

3) Failure to Obtain Informed Consent

This can form the basis for professional negligence lawsuits, but is not a cause of action that is commonly asserted.

• Inappropriate Administration of Electro Convulsive Therapy

• Inappropriate Use or Non-Use of Physical or Chemical Restraints

• Inappropriate Involuntary Hospitalization

 

Additional Reasons for Psychiatric Malpractice Claims

Other less common but possible suits that have been brought to the Court include injuries resulting from escapes and elopements, medication errors, failure to diagnose intracranial lesions, and the psychiatric duty to warn third parties of potential dangerousness of their patients (Tarasoff).   These are examples and in no way does the above list intend to be exhaustive.

Elements of Medical Malpractice

In order for there to be a case for malpractice, four elements must be present:

• There must be a doctor-patient relationship.
• The psychiatrist has to breach the duty of reasonable care. In other words, there is negligence if there has been a breach of duty of reasonable care.
• Harm must have occurred. Physical and/or emotional harm are included here.
• A causal link must be demonstrated between the negligence and the injury. Here, we are again speaking towards “proximate cause”, and as stated before, this can be the most difficult to establish.

Example 1:

One example of a practice that would uniformly be considered malpractice is sexual contact between psychiatrist and their patients as it is not within the standards of good practice and in virtually every context it would be considered malpractice.   

Example 2:

Mr. C. was admitted to a psychiatric hospital for depression and suicidal ideation.  He was discharged 48 hours later without medications, to follow up with an outpatient psychiatrist.  An antidepressant was prescribed by that clinician but a complete history was not obtained.

The patient had a strong family history of bipolar disorder and became frankly manic after beginning the medication, drove his car erratically at high speeds, and was involved in a car accident that eventually led to his death.

Example 3:

Mr. D. had depression and intermittent suicidal ideation.  He was treated as an inpatient and upon discharge, still had some symptoms of depression, but denied suicidal ideation.   He was scheduled for an outpatient follow-up appointment approximately two months later, but one day after discharge, Mr. D. committed suicide.

Although a case of neglect was originally brought forth for the psychiatrist giving such a late follow-up appointment, a more appropriate deviation might have existed in the area of premature discharge, though more analysis would need to be done to determine whether this could be considered the proximate cause of Mr. D.’s suicide injury.

Conclusion

While the number of psychiatric medical malpractice claims in relatively small, the consequences of malpractice can be devastating resulting in suicide or other deaths. More recent statistics suggest a substantial increase in the number of psychiatric medical malpractice claims.

 

About the Author

Fred R. Moss, MD is a psychiatrist and expert witness with over 26 years of experience. He received his MD from Northwestern University with his residency in Psychiatry. He is board certified by the American Board of Psychiatry and Neurology. He can be reached at 916-671-0007 or fmoss301@gmail.com.

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[1] www.physicianweekly.com/malpractice-report-2013