PSYCHIATRIC MALPRACTICE
Phillip J. Resnick, MD, Professor of Psychiatry, Case Western Reserve University School of Medicine, and Director
of Forensic Psychiatry, University Hospitals of Cleveland
From Forensic Psychiatry Review Course, presented by the American Academy of Psychiatry and the Law
| Basic malpractice law: in malpractice cases, compensation to plaintiff more closely correlated with severity
of injury rather than to degree of negligence; tort can be intentional or unintentional; intentional tort defined
as deliberate commission of injurious act; unintentional tort, called malpractice when committed by physician,
defined as failure to exercise standard of care
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| Duty: psychiatrists have duty to “exercise that reasonable degree of knowledge and skill ordinarily possessed by
other members of his or her profession in similar circumstances”; most states apply “reasonably prudent practitioner”
standard, which means physician can be held liable for failure to “exercise prudence in certain instances,
whether or not it is the general practice of the profession”
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| Errors of fact vs errors of judgment: errors of fact include failure to obtain relevant data (eg, failure to obtain
history of suicidality or suicide attempt in depressed patient); law unforgiving of errors of fact; law relatively
forgiving of errors of judgment if no errors of fact involved
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| Dereliction of duty: must be established by expert; psychiatrist’s falling below standard of care must be established
by another psychiatrist, cannot be established by, eg, psychologist, social worker, or nurse; however,
psychiatrist can comment on standard of care for those practitioners; standard of care “is not what you would
do; [it] is what the average or prudent practitioner would do”
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| Res ipsa loquitur: Latin phrase meaning “the thing speaks for itself”; in lawsuit, plaintiff normally has burden
of showing negligence by preponderance of evidence, but if judge declares situation res ipsa loquitur, it
means that something so outrageously and obviously below standard of care (eg, leaving surgical instrument
in patient’s abdomen) that burden shifts to defendant to prove that he or she not negligent; to declare res ipsa
loquitur, 4 elements necessary 1) harm would rarely occur in absence of negligence; 2) situation under sole
control of defendant (eg, anesthetized patient); 3) plaintiff did not contribute to bad result; 4) only defendant
had access to what actually happened
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| Proximate cause: in study, one third of jurors misunderstood “proximate cause” to mean “approximate
cause”; proximate cause defined as “the initial act that sets off a natural and continuous sequence of events
that produces injury”; elements of proximate cause are cause in fact and foreseeability; cause in fact—means
that but for act of commission or omission, result would not have occurred; foreseeability—“that event which
in the natural sequence, unaltered by an intervening event, is a substantial factor in bringing about the injury”;
does not have to be sole cause or one of small number of causes, but must be substantial cause in bringing
about injury
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| Malpractice claims: of all physicians, 1 in 6 sued every year; psychiatrists sued less often than other physicians,
but frequency of lawsuits against psychiatrists doubled between 1982 and 1996 and continues to grow;
psychiatrists can expect to be sued on average every 12 yr; “patients don’t die from lack of documentation;
they die from an act of omission or commission”; document, document, document!
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| Suicide: 50% of inpatient suicides followed by malpractice lawsuit; number–one reason for psychiatric malpractice
suits is suicide or attempted suicide, and highest dollar amounts paid for attempted or completed
suicide; outcome of lawsuit often determined by documentation; psychiatrist has duty to keep patient in
least restrictive environment consistent with patient’s safety
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 | Foreseeability of suicide potential and taking precautions to prevent suicide: suicide not predictable, and courts
usually fairly forgiving if suicide not foreseen; but once suicide risk identified, courts not forgiving of failure
to implement appropriate precautions; in April 2005, American Psychiatric Association (APA) published
guidelines for assessing and managing suicidal patients (www.psych.org/psych_pract/treatg/quick_ref_guide/
SuicidalBehaviorsQRG_04-15-05.pdf); to avoid being harmful in court, documentation must contain more than
“patient denies suicidal ideation”
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| Take home message: when patient ambivalent about suicide or wants to live, he or she sees psychiatrist as
ally, but as soon as patient decides to commit suicide, he or she sees psychiatrist as adversary because psychiatrist
will try to prevent that suicide
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| Informed consent: court decisions made it clear that patient must be informed of all treatment alternatives,
even if therapist providing that information does not provide all those alternatives; eg, psychoanalyst must inform
patient of availability of psychotropic medications and electroconvulsive therapy (ECT) even if psychoanalyst
does not or cannot prescribe them
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| Negligent psychotherapy: 418 methods of psychotherapy available, and very difficult to establish negligence
unless situation involves gross misconduct; practitioner usually protected by “respectable minority doctrine,”
which says that as long as group of reasonable people practice that particular school of therapy, if it is respectable
minority, then it provides legitimate defense, even though practitioner did not do what mainstream therapists
were doing
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| Abandonment: once practitioner has accepted patient, he or she has responsibility to treat that patient; therapist
who works in private domain may elect to “fire” patient for number of reasons, but must give him or her
enough time to arrange alternative care and, in most states, be available for 30 days to help with transition;
therapist not required to provide names of specific alternative therapists, but must inform patient about how to
find alternative (eg, referral to mental health clinic or to Web site of local psychiatric association), and must
help patient make smooth transition
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| Duty to third parties: psychiatrist’s first duty is to patient, but courts have extended that duty to parties “who
may be a direct victim” of patient’s actions; psychiatrist can create duty to third party by instructing patient to
take certain actions or to make public accusations; for example, if patient plans on getting divorced, therapist
may discuss pros and cons of divorce, but if therapist directs patient to obtain divorce, patient’s spouse may
have cause to bring action against therapist; state supreme courts differ in approach to direct-victim claims,
some saying they do not want to create conflict in which therapist, trying to do right by his or her patient, has
to worry about duty to third party; other state supreme courts accept doctrine of direct victim
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| Breach of contract: never guarantee safety or success of any mode of therapy; if something goes wrong, psychiatrist
guilty of breach of contract; discuss risks and benefits of therapy with patient and do not guarantee
safety or improvement
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| Medication issues that may lead to malpractice: prescribing large quantities; creating dependence on medication;
in some jurisdictions, practitioner who goes outside guidelines established by Physicians’ Desk Reference
(PDR) may be liable; for example, practitioner in Illinois who goes outside PDR guidelines presumed to
be guilty of malpractice and must prove why he or she not negligent (as opposed to plaintiff’s proving that
practitioner was negligent)
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| Sexual relations between therapist and patient: absolutely taboo; survey in 1980s showed that ≈7% of male
psychiatrists and 3% of female psychiatrists admitted to having had at least 1 sexual liaison with patient (no
recent surveys done because of criminalization of sexual misconduct; physicians even reluctant to participate
in anonymous surveys); all national mental health organizations now say it is categorically unethical to have
sex with current or former patient; sexual misconduct often not covered by malpractice insurance, so plaintiff’s
attorneys sue for mishandling of transference, which is covered; court decisions consistently say psychiatrist-patient
relationship analogous to guardian-ward relationship, in which ward cannot consent because
of strong power differential in relationship, and therefore, consent not valid defense; courts have ruled if policy
does not explicitly exclude intentional tort, insurance must pay
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| Sanctions for sexual misconduct: include revocation of license to practice medicine, ethical complaints, and
expulsion from APA; >24 states have criminalized sexual misconduct, with sentences ranging from 1 to 20
yr in prison; civil causes of action include malpractice, negligence, battery, fraud, breach of contract, and
spousal loss of consortium
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| Psychiatrists most likely to engage in sexual misconduct: typical offender is man 40 to 59 yr of age with troubled
marriage, burnout, depression, and/or excessive alcohol use
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| Natural history: sexual misconduct often begins with disclosure by therapist, leading to role reversal; then
therapist may stop billing for services, shift patient’s appointment to last time slot in afternoon, allowing
extra time with this patient without interfering with other patients; therapist may try to make patient dependent
on him or her, suggesting, perhaps, that therapist only person patient can trust
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| Hugging patients: use clinical judgment and compassion; if patient expressing erotic transference to therapist,
therapist should not consent to hugging; on other hand, if grieving patient reaches out for comfort, unkind
not to hug
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| Bottom line: “the best advice ever given in this area was given by Frieda Fromm-Reichmann [who] said,
‘don’t have sex with your patients; you will only disappoint them’”
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| Summary: to reduce malpractice risk 1) practice good psychiatry; 2) document, document, document; 3) get
consultation when necessary; 4) do not guarantee results; 5) do not make promises that cannot be kept
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| Who gets money for punitive damages? plaintiff who brought lawsuit, and amount usually more than he or
she deserves, but one purpose of punitive damages is to set example for others; “punitive damages relate
more to the size of the treasury of the wrongdoer rather than what’s deserved by the plaintiff”
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| When terminating patient, does therapist have obligation to ensure that patient connects with new therapist? no;
no obligation as long as therapist gives reasonable notice and makes reasonable effort to transfer patient’s care
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| Have APA treatment guidelines led to increase in malpractice suits? no; however, all treatment guidelines include
disclaimer that those guidelines do not set standard of care
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| Can physician be sued for failing to continue treatment, such as prescribing opiates for pain control, that he or
she started? if physician thinks he or she is getting in over his or her head, he or she should not discontinue
medication abruptly, but refer patient to addiction specialist or pain clinic
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| What role does contributory negligence play in suicide malpractice case? in some jurisdictions, patient who
kills self held responsible, even though therapist negligent; state asks if patient in “insane state,” seeking to
know if degree of patient’s illness prevented his or her ability to be responsible; if so, lawsuit against therapist
might be successful; however, patient’s not being in insane state would preclude success of lawsuit
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| How to respond to state medical board about patient complaint? “I’m going to ignore this question and say
something I want to say”; malpractice insurance does not cover legal defense before state medical board;
however, imprudent to submit statement to state medical board without attorney’s having reviewed it or being
present at hearing, and speaker strongly advises paying for attorney out of pocket
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Educational Objectives
| The goal of this program is to educate the listener about psychiatric malpractice and how to avoid being sued.
After hearing and assimilating this program, the clinician will be better able to:
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| 1. Describe how the courts have changed their approach to duty and breach of duty.
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| 2. Discuss the difference between proximate cause and approximate cause.
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| 3. Evaluate the likelihood of being sued for malpractice after a patient commits suicide.
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| 4. Transfer the care of a patient to another therapist without being accused of abandonment.
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| 5. Explore the issue of sexual relations between therapist and patient.
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Suggested Reading
Ash P: Malpractice in child and adolescent psychiatry. Child Adolesc Psychiatr Clin N Am 11:869, 2002; Bates
DW et al: Patient safety forum: examining the evidence: do we know if psychiatric inpatients are being harmed
by errors? What level of confidence should we have in data on the absence or presence of unintended harm? Psychiatr
Serv 54:1599, 2003; Beecher LH, Altchuler IS: Sexual boundary violations: the conduct, the code, and
the consequences. Minn Med 88:42, 2005; Behnke SH: Suicide, contributory negligence, and the idea of individual
autonomy. J Am Acad Psychiatry Law 28:64, 2000; Blinder M: Suicide, psychiatric malpractice, and the
bell curve. J Am Acad Psychiatry Law 32:319, 2004; Celenza A, Gabbard GO: Analysts who commit sexual
boundary violations: a lost cause? J Am Psychoanal Assoc 51:617, 2003; Crausman RS: Sexual boundary violations
in the physician-patient relationship. Med Health R I 87:255, 2004; Elger BS, Harding TW: Avoidable
breaches of confidentiality: a study among students of medicine and of law. Med Educ 39:333, 2005; Faunce
TA, Bolsin SN: Fiduciary disclosure of medical mistakes: the duty to promptly notify patients of adverse health
care events. J Law Med 12:478, 2005; Gabbard GO, Peltz ML: COPE Study Group on Boundary Violations.
Committee on Psychoanalytic Education. Speaking the unspeakable: institutional reactions to boundary violations
by training analysts. J Am Psychoanal Assoc 49:659, 2001; Gabbard GO: Post-termination sexual boundary
violations. Psychiatr Clin North Am. 25:593, 2002; Gostin LO: The negative constitution: the duty to
protect. Hastings Cent Rep 35:10, 2005; Grasso BC et al: What do we know about medication errors in inpatient
psychiatry? Jt Comm J Qual Saf 29:391, 2003; Grisso T, Vincent GM: The empirical limits of forensic
mental health assessment. Law Hum Behav 29:1, 2005; Gutheil TG, Simon RI, Hilliard JT: “The wrong handle”:
flawed fixes of medicolegal problems in psychiatry and the law. J Am Acad Psychiatry Law 33:432, 2005;
Gutheil TG: Adventures in the twilight zone: empirical studies of the attorney-expert relationship. J Am Acad
Psychiatry Law 29:13, 2001; Hendin H et al: Factors contributing to therapists’ distress after the suicide of a
patient. Am J Psychiatry 161:1442, 2004; Holder AR: Medical errors. Hematology (Am Soc Hematol Educ Program)
2005, 503; Judge B, Billick SB: Suicidality in adolescence: review and legal considerations. Behav Sci
Law 22:681, 2004; Malmquist CP, Notman MT: Psychiatrist-patient boundary issues following treatment
termination. Am J Psychiatry 158:1010, 2001; Mathiharan K: Some legal and ethical implications for the medical
profession. Issues Med Ethics 10:79, 2002; McPhee J, Stewart C: Recent developments in law. J Bioeth
Inq 2:63, 2003; Meek J: Contributory negligence. Psychiatr Serv 51:817, 2000; Metzner JL: Class action litigation
in correctional psychiatry. J Am Acad Psychiatry Law 30:19, 2002; Murray BJ: Mental health legislation
and decision-making capacity: capacity is of more than practical benefit. BMJ 332:119, 2006; Phillips RT: Expanding
the role of the forensic consultant. Newsl Am Acad Psychiatry Law 30:4, 2005; Prins H: Taking
chances: risk assessment and management in a risk-obsessed society. Med Sci Law 45:93, 2005; Reid WH: Delusional
disorder and the law. J Psychiatr Pract 11:126, 2005; Schoenholtz JC: Psychiatry and police interrogations.
Newsl Am Acad Psychiatry Law 30:26, 2005; Schultz D: Defending the psychiatric malpractice suicide.
Health Care Law Mon 13, 2000; Simon RI, Levenson JL, Shuman DW: On sound and unsound mind: the
role of suicide in tort and insurance litigation. J Am Acad Psychiatry Law 33:176, 2005; Vernick AE: Forensic
aspects of everyday practice: legal issues that every practitioner must know. Child Adolesc Psychiatr Clin N Am
11:905, 2002; Wettstein RM: Ethical practice. Newsl Am Acad Psychiatry Law 30:29, 2005; Wettstein RM:
Quality and quality improvement in forensic mental health evaluations. J Am Acad Psychiatry Law 33:158, 2005;
Zonana H: AAPL’s new ethics guidelines. Newsl Am Acad Psychiatry Law 30:5, 2005.
Faculty Disclosure
In adherence to ACCME guidelines, the Audio-Digest Foundation requests all lecturers to disclose any significant
financial relationship with the manufacturer or provider of any commercial product or service discussed.
For this issue, Dr. Resnick reported nothing to disclose.
Dr. Resnick was recorded at Forensic Psychiatry Review Course, held October 24-26, 2005, in Montreal and sponsored
by the American Association of Psychiatry and the Law. The Audio-Digest Foundation thanks Dr. Resnick and
the AAPL for their cooperation in the production of this program.
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