Psychiatric Malpractice Flashcards
4 Largest Categories of Psych Malpractice Claims
Suicide/SA (27%)
Incorrect tx (23%)
Breach of confidentiality (15%)
Medication issues (8%)
7 Sources of Standard of Care
Research articles
Texts
Practice guidelines
Statutes/case law
Expert testimony
Pharmaceutical package inserts
PDR
Telepsych Considerations (3.2)
SOC same
Know pt’s location
Safety protocols/contingency plans for:
- Clinical emergencies
- Technical failures
2 Types of Clinical Errors (& which one more likely to find negligence)
Error of fact (more likely)
Error of judgment
4 Elements of Negligence
Duty
Dereliction
Direct Cause
Damages
BOP for 4 Elements of Negligence
Plaintiff has BOP by POTE for all 4
Stand of Care Def
“degree of skill and learning that is ordinarily possessed by members of that profession in good standing.”
2 Standards of Care (& point)
Average Practitioner
Reasonably Prudent Practitioner
- Depends on jurisdiction
Average Practitioner Standard
Custom/norm in the area, general knowledge/skill by other members of profession in similar circumstances
Reasonably Prudent Practitioner Standard
Can still be held liable if failed to provide reasonable/prudent care in all circumstances, even though adhered to customary practice in the field
Average vs Reasonably Prudent Practitioner State Proportions
> 50% have moved towards reasonably prudent practitioner
Res Ipsa Loquitur (translation, gen, legal and medical significance)
“The thing speaks for itself”
Plaintiff just has to show particular result occurred & wouldn’t have occurred except for negligence
- Basically means so obvious that expert testimony might not even be needed
- Rare in medical malpractice, some states prohibit it for this
4 Components of Res Ipsa Loquitur
- The harm rarely occurs in absence of negligence
- Means of harm within def’s exclusive control
- Plaintiff did not contribute
- Def has exclusive access to facts about harm
2 Prongs of Direct Causation
Cause-in-fact (“actual cause”)
Proximate cause (“legal cause”)
Cause-In-Fact (Def & Other Name)
Necessary antecedent to injury
“But for” test: but for def’s act of negligence, injury would not have occurred
Proximate Cause (Def, Other Point, and Crux)
Event in natural unbroken sequence produces particular foreseeable result, without which wouldn’t have occurred (substantial factor in injury)
- Analyzed in terms of foreseeability: liable if reasonably foreseeable
Intervening Cause (other name and what it is)
“superseding cause”
Event that takes place after negligence, breaks chain of causation. Often rapidly precipitates injury and may supersede def’s negligence in causing injury
2 Doctrines Considering Plaintiff’s Role in Injury
Comparative and contributory negligence
Comparative Negligence
Plaintiff’s damages offset to degree fact finder determines plaintiff contributed to harm
50% Rule of Comparative Negligence
Many states have rule where plaintiff recovers nothing if >50% responsible
Contributory Negligence
Plaintiff found by fact finder to be negligent; recovery may be totally barred
Defensive Medicine (& ethical problem)
Primary goal to limit future risk of successful lawsuit, only secondarily to adhere to standard of care
- Ethical: moves focus away from best interests of pt towards best interests of physician
3 Goals of Malpractice Litigation
- Deter unsafe practices
- Compensate injured persons from negligence
- Exact corrective justice
Duty
Once doctor-pt established, doctor has fiduciary obligation to treat patient according to prevailing standards of good medical practice, legal contract to continue to treat or properly terminate relationship
When Doctor-Pt Relationship Formed
When doc affirmatively acts in pt’s case by examining/diagnosing/treating, or agreeing to do so
3 Considerations for Respondeat Superior
- Committed w/in time & space limits of agency?
- Incidental to/same nature of responsibilities servant authorized to perform?
- Motivated to benefit master by committing act?
Possible Employer Defense for Respondeat Superior/Vicarious Liability
Employee engaged in “frloic and detour” (major or minor departure from service to employer)
Respectable Minority Doctrine (other term, what it is, & justification)
“Two schools of thought” rule
- Preclude liability if can show physicians divided over appropriate tx course and def picked acceptable option “respectable” by peers generally
- Protects medical innovation
Suicide Malpractice History
Generally had been quite rare, couldn’t hold responsible. Then in 1970-80s, started as possibility, by 2000 was leading cause of financial malpractice judgments
2 Primary Elements of Suicide Malpractice (& gen summary)
- Foreseeability
- Precautions taken
When foreseeability established, psychiatrist automatically incurs duty to take reasonable precautions to ensure pt’s safety
6 Common Bases for Suicide Malpractice Suits
- Failure to conduct adequate risk assessment
- Failure to assess risk at key clinical times (changing precautions, discharge, worsening situation)
- Communication breakdowns
- Failure to provide safe physical environment
- Inadequate d/c plan/f/u
- Premature d/c
Most Common Sentinel Event Reported to JCAHO
Inpatient Suicide
Most Common Inpt Suicide Method
Hanging
High Risk Times for Suicide (in relation to hosp)
1st week of admission and shortly after d/c
3 Problems Relying Only on Self-Report for Inpt Suicide
- Psych as adversary - once decided to die by suicide
- Alienated/unsure perspective as new pt
- Respond honestly but misunderstand own sx/impulsivity
3 Suicide Malpractice Defenses
- Lack of foreseeability
- Lack of deviation - appropriate precs for risk level
- Lack of causation (proximate cause) - intervening cause or no causal nexus
6 Probable Standards of Care for SRA
- Gathering Info from Pt
- Gathering Data from Other Sources
- Estimating Suicide Risk
- Tx Planning
- Documentation
- Monitoring
3 Requirements of Informed Consent
- Voluntariness
- Information
- Competence
4 Areas Pts Right to be Informed of for Informed Consent
- Nature/extent of illness
- Risks/benefits proposed tx
- Risks declining tx
- Other reasonable alternatives
4 Requirements for Off-Label Rx Negligence Finding
- Proof that use for specific condition not standard
- Peer-reviewed published evidence
- Off-label use is not just a difference of opinion
- Prescriber did not act on good-faith belief that off-label use would benefit
Duty to Nonpatients w/ Prescriptions
Courts generally found can be held liable (e.g., effects from drugs cause them to injure family member)
Psychotropics and School Shootings
No causal association ever found, most were not previously tx with psychotropic medications
Structured Professional Judgment (SPJ) (What it is, SOC, accuracy note)
Elements of both clinical judg and actuarial assessments for identify violence risk
- Not required for standard of care
- More accurate ID’ing low risk (many false positives)
Boundary Crossings vs. Boundary Violation
Crossing - deviation from standard psychotherapy custom of empathic neutrality, harmless/non-exploitive and possibly productive if processed appropriately, may allow for individual response to pt needs
Violation: Harmful/exploitative deviations from customs
Mishandling of the Transference
Cause of action to file under malpractice when insurance cos exclude sexual misconduct coverage
Negligent Psychotherapy
Very difficult to prove bc lack of established standards/efficacy, so most commonly found with unorthodox therapies resulting in physical/mental harm
Attachment Therapies
Controversial alternative child therapies intended for attachment d/o - main technique “holding therapy,” but also like “rage-reduction,” “re-birthing”
Holding Therapy
Child firmly held or laid on by parent or therapist, confronted and made to experience rage/despair/catharsis
3 Situations for Abandonment Claims
Vacation w/o coverage
Failure to f/u after prescribing medication
Failure to properly terminate tx relationship
5 Steps for Termination
- Written notice by certified mail
- Provide brief explanation for terminating relationship
- Provide appropriate referrals for continued tx
- Agree to continue to provide tx for reasonable period to allow secure tx elsewhere
- Offer to xfer records to new provider upon signed authorization
3 Potential Consequences for Breach of Confidentiality
- Breach of Contract (implied)
- Breach of Statutory Duty
- Professional Misconduct
Transferred Negligence Doctrine
3rd Party Direct Vitim
Strong advice given to pts involving 3rd parties, or bring 3rd parties into session, may create legal duty toward 3rd party/make as a “quasi-patient” if harm from actions reasonably foreseeable
Actions Potentially Creating Duty to 3rd Party (5)
- Participating in confrontation of 3rd party
- Instructing patients to take actions implicating a 3rd party
- Recommending pt initiate suit against 3rd p
- Rec pt make public accusations of criminal behavior
- Advising pt to make major changes in relationships
National Practitioner Data Bank (NPDB) (Act, what it is, availability)
Created by Congress 1986 Health Care Quality Improvement Act
- Basically info on medical malpractice payments & other adverse actions related to healthcare practitioners/orgs/etc
- Available to orgs that use them for licensing/credentialing/privileging etc
10 Actions Recorded in NPDB
- Med mal payments
- Adverse clinical privileges actions
- Adverse professional society membership actions
- State licensure/cert actions
- Fed licensure/cert actions
- Neg actions/finding by peer review org
- Neg actions/findings by private accred org
- Exclusions from participation in Medicare/Medicaid
- Other adjudicated actions or decisions
- HC-related civil/crim judgments in Fed or state court
4 Types of Med Mal Reform Approaches (& most common/consistent type)
- Fewer lawsuits by creating barriers to filing (merit reviews pre-filing cert)
- Caps on damages (most common/consistent to reduce, over 50% states, imposing caps on noneconomic damages/suffering)
- DOT vs. large lumpsum settlements
- Alternative dispute resolution (ADR)
Communication and Resolution Programs (CRPs)
Encourage open communication/transparency w/ pts to facilitate restitution for injured parties, and support physicians in disclosure convos
Apology Laws
Gen BS bc don’t go far enough, some protections against statements in apologies being used against you, but not complete enough, so still might leave you more exposed
Affidavit of Merit
Many states require plaintiff show “merit” b4 suit can be brought, usually outlined in some expert report or briefer affidavit
Locality Rule (What it is, purpose, state distr, problems)
- Def physician must provide to same degree of skill/care req’d of physician practicing in same/similar community
- Originally to protect rural physicians from being held to same SOC as academic/city centers, before standardizations of training/accreditation
- 45 states nat’l standard, only 5 w/ some degree of locality rule
- Limits plaintiffs too much providing specific community’s SOC and finding expert from same/similar area
4 Kinds of Bias that Might Interfere as Malprac Expert
Egocentric bias
Hindsight bias
Omniscient perspective
Confirmation bias
Egocentric Bias
Exaggerated view of own abilities or applying own higher SOC
Hindsight Bias
Poor outcome known beforehand, overestimate probability that could’ve been anticipated
Omniscient perspective
Failure to use from def’s perspective due to having access to all records/depositions etc
Ipse dixit (trans and significance)
“He said it himself,” “It is so, because I said it”
Basically unsupported conclusory evidence by expert, just bc it’s his own belief
3 Exceptions Can Testify about SOC in Other Field of Medicine
- SOC essentially same for case at issue
- Methods of tx essentially same for case at issue
- Def adopts tx methods of other school
