In this article we're going to discuss psychiatric malpractice, what it means, by what criteria it's judged and how it's proven. Malpractice is tough enough to both defend and prove in a court of law as it is but add to the mix a branch of medicine where there is no surgical procedure and where drugs are rarely even administered and it's easy to see why people are baffled by how anyone can claim psychiatric malpractice and have any chance of winning the case. Because psychiatric malpractice is so difficult to understand, what we first need to do is give some examples where a patient might be inclined to sue for malpractice. Example 1. During a patient's last visit with his psychiatrist in a hospital setting, the patient felt wronged because the psychiatrist ordered him to be put into restraints when he didn't feel this was necessary. Example 2. A patient visits her psychiatrist for five minutes each month to be given a certain medication for a mental disorder that she has. The psychiatrist fails to notice that the medication is causing her disfigurement on her face. Example 3. A patient has been seeing her psychiatrist for over 24 years for various mental problems. In all this time he has never had her sign a medical consent form. Yes, this can be cause for a lawsuit as crazy as it sounds. Example 4. A female patient's psychiatrist says he needs to conduct a physical exam. During the exam he fondles her breasts. Example 5. A patient is concerned about the risks of a certain procedure and declines to have it done. The psychiatrist, believing that he must have this procedure because of the instability of his mental health, says he must have the procedure or he will have the patient committed. Afraid, the patient agrees to the procedure. All of the above examples may seem unfair and unjust. But under certain conditions, not all of the above would be considered malpractice. To begin with, there must be certain factors that exist for malpractice to even be considered. 1. There must be a relationship between the doctor and patient and thus be under the umbrella of providing "reasonable care." 2. The doctor must violate the duty of reasonable care. In other words, there has to be negligence. 3. Some form of harm must have occurred, either injury, memory loss or emotional trauma. 4. A link must be established between the negligence and the injury. The legal term for this is "proximate cause." It is this 4th item that is the most difficult to prove. There may be cases where the psychiatrist breaches his duty and there is actual harm done but it is difficult to prove that the actual harm was caused by the breach of duty. There may have been other factors involved which were outside of the psychiatrist's control. For example, in a suicide case it may be very difficult to prove that it was the psychiatrist's actions that sent the patient over the edge. In the second and last part of this series we'll go over the above examples in more detail and also discuss the legal guidelines for psychiatric malpractice and the procedure for filing. |
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