A basic review of psychiatric medical malpractice law in the United States
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
References (44)
Managed care, liability, and ERISA
Psychiatr Clin North Am
(1999)Double jeopardy: suicide and malpractice
Gen Hosp Psychiatry
(1984)Therapist-patient sex: from boundary violations to sexual misconduct
Psychiatr Clin North Am
(1999)Malpractice in psychotherapy: an overview
Psychiatr Clin North Am
(1999)The clinician's duty to protect third parties
Psychiatr Clin North Am
(1999)The aftermath of suicide on the psychiatric inpatient unit
Gen Hosp Psychiatry
(1987)- et al.
Relation between malpractice claims and adverse events due to negligence
N Engl J Med
(1991) Psychiatric malpractice: the low frequency risks
Med Law
(1993)Psychiatric malpractice: recent clinical loss experience in the United States
Med Law
(1991)- et al.
Psychiatric malpractice: a review of the national loss experience
Am J Psychiatry
(1984)
A risk management review of malpractice claims
Suicide, psychiatric malpractice, and the bell curve
J Am Acad Psychiatry Law
Taking the “sue” out of suicide: a forensic psychiatrist's perspective
Psychiatr Ann
Psychiatric malpractice and ECT: a review of 1,700 claims
Convuls Ther
Psychiatric malpractice: the electroconvulsive therapy experience
Convuls Ther
Liability and electroshock therapy
J Forensic Sci
Shock therapy and psychiatric malpractice: the legal accommodation to a controversial treatment
J Forensic Sci
Psychotherapist-patient sexual contact after termination of treatment: an analysis and a proposal
Am J Psychiatry
Standards for informed consent in recovered memory therapy
J Am Acad Psychiatry Law
Psychotherapists' duties to third parties: ramona and beyond
Am J Psychiatry
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Do-not-resuscitate orders in suicidal patients: Clinical, ethical, and legal dilemmas
2010, PsychosomaticsCitation 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 AmericaCitation 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 PsychiatryEmergency room psychiatry
2022, Malpractice and Liability in PsychiatryOutpatient psychiatrists’ practices for requesting prior treatment records
2015, Journal of the American Academy of Psychiatry and the LawSuicide: Rationality and responsibility for life
2014, Canadian Journal of Psychiatry