Elsevier

Comprehensive Psychiatry

Volume 48, Issue 4, July–August 2007, Pages 309-312
Comprehensive Psychiatry

A basic review of psychiatric medical malpractice law in the United States

https://doi.org/10.1016/j.comppsych.2007.03.002Get rights and content

Introduction

The legal system of the United States is complex because each of the 50 states of the United States is a separate jurisdiction, as is the US federal government. This review looks at the basics of psychiatric medical malpractice law across the United States. Some background statistics on psychiatric malpractice claims are initially provided. Next, common causes of malpractice action and the legal elements of negligence are discussed. Finally, defenses to malpractice claims are reviewed.

Section snippets

Background

According to a study conducted by researchers at Harvard University, in excess of 20 times more people in New York are injured by physicians of all specialties than those who file malpractice suits [1]. In a report by the Physician Insurers Association of America, which compiled medical malpractice claim data from more than 20 member companies, psychiatrists are among the least frequently sued of all specialty groups. Of the 28 medical specialty groups listed in the report, psychiatry ranked

Causes of action

There are a number of possible causes of actions against psychiatrists. These include suicide [7], [8], [9], medication adverse effects [10], electroconvulsive therapy–related adverse effects [11], [12], [13], [14], sexual misconduct [15], [16], [17], lack of informed consent [18], negligent psychotherapy [19], third-party injury [20], [21], [22], [23], abandonment, false imprisonment, breach of confidentiality, and negligent supervision [24]. The most frequent malpractice claims against

Elements of negligence

In basic tort law, in order to prove negligence on the part of a defendant, a plaintiff must prove by a preponderance of the evidence each of the 4 elements of negligence: (a) dereliction of a (b) duty that constitutes (c) direct causation of specified (d) damages [27].

The psychiatrist has a duty to provide for the care and safety of his patients. The standard of care is described as follows: “A psychiatrist is required to exercise that reasonable degree of skill and knowledge which is

Defenses to malpractice claim

In addition to procedural defenses, for example, lack of jurisdiction or expiration of the statute of limitations, several defenses to a malpractice suit are available to a defendant psychiatrist. The usual defense to a negligence suit is denial of 1 or more of the elements of negligence. The psychiatrist answers that there was no duty owed to a patient; that even if there was a duty, there was no dereliction of the duty; or that even if there was a dereliction of duty, it did not directly

First page preview

First page preview
Click to open first page preview

References (44)

  • Physician Insurers Association of America

    A risk management review of malpractice claims

    (2001)
  • M. Blinder

    Suicide, psychiatric malpractice, and the bell curve

    J Am Acad Psychiatry Law

    (2004)
  • R.I. Simon

    Taking the “sue” out of suicide: a forensic psychiatrist's perspective

    Psychiatr Ann

    (2000)
  • Clites v Iowa, 322 NW2d 917 (Ia...
  • P. Slawson

    Psychiatric malpractice and ECT: a review of 1,700 claims

    Convuls Ther

    (1991)
  • P. Slawson

    Psychiatric malpractice: the electroconvulsive therapy experience

    Convuls Ther

    (1985)
  • I.N. Perr

    Liability and electroshock therapy

    J Forensic Sci

    (1980)
  • L.W. Krouner

    Shock therapy and psychiatric malpractice: the legal accommodation to a controversial treatment

    J Forensic Sci

    (1975)
  • P.S. Appelbaum et al.

    Psychotherapist-patient sexual contact after termination of treatment: an analysis and a proposal

    Am J Psychiatry

    (1991)
  • Mazza v Medical Mutual, 319 SE2d 217 (NC...
  • J. Cannel et al.

    Standards for informed consent in recovered memory therapy

    J Am Acad Psychiatry Law

    (2001)
  • P. Appelbaum et al.

    Psychotherapists' duties to third parties: ramona and beyond

    Am J Psychiatry

    (1996)
  • Cited by (10)

    • Do-not-resuscitate orders in suicidal patients: Clinical, ethical, and legal dilemmas

      2010, Psychosomatics
      Citation Excerpt :

      Such claims, which are based in the concept of negligence, may arise out of failure to foresee a patient’s suicide attempt, failure to supervise a suicidal patient, and/or failure to fulfill a duty to carefully protect the patient from self-harm.18 Claims arising out of patient suicide are the most frequent type of malpractice lawsuits filed against psychiatrists and result in some of the highest judgment payouts and settlements.19 Providers taking action to prevent a suicide attempts by overriding a DNR order also may be vulnerable to legal claims on the theory of battery,20and this may include a charge of failure to obtain the patient’s informed consent.

    • Ethics and Risk Management in Administrative Child and Adolescent Psychiatry

      2010, Child and Adolescent Psychiatric Clinics of North America
      Citation Excerpt :

      For a legal finding of medical malpractice to occur, it must be established that: the alleged malfeasor had a duty to care for the patient; the accused was derelict in that duty; the patient consequently experienced harm or injury; and the accused's actions or inactions were the proximate cause (ie, were the direct precipitants of the harm or injury).13,14 Although some derelictions may seem self-evident, because of legitimate differences in perspective among the protagonists, malpractice suits against institutions and practitioners are commonly dismissed or withdrawn in the course of legal disputations.15 It seems that psychiatrists are less likely than other physicians to incur malpractice claims,16,17 and that approximately three-fourths of suits brought against psychiatrists prove unsuccessful.18

    • Geriatric psychiatry

      2022, Malpractice and Liability in Psychiatry
    • Emergency room psychiatry

      2022, Malpractice and Liability in Psychiatry
    • Outpatient psychiatrists’ practices for requesting prior treatment records

      2015, Journal of the American Academy of Psychiatry and the Law
    • Suicide: Rationality and responsibility for life

      2014, Canadian Journal of Psychiatry
    View all citing articles on Scopus
    View full text