Psychiatrists and the Issue of Medical Malpractice

Psychiatrists and the Issue of Medical Malpractice

Medical records review of the complete medical and psychiatric records is an important process to help prove/disprove psychiatric malpractice.

Psychiatrists are at the risk of medical negligence and medical malpractice just as doctors belonging to any other medical field. Medical records review of the complete medical and psychiatric records is an important process to help prove/disprove psychiatric malpractice.

In fact, psychiatrists’ risk of malpractice liability is widening with courts taking into consideration the uncertainties of off-label prescribing, confidentiality and telemedicine.

Juries may hold psychiatrists accountable for the harm psychiatric patient’s cause to others, as well as the harm done to these patients.

To determine malpractice many factors are considered, including the following: 

Failure to diagnose properly

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Failure to treat

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Failure to prevent patients from harming themselves or others

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Negligent use of psychotherapy or psycho-pharmacologic agents

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Failure to evaluate risk of violent behavior or suicide in a psychiatric patient

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Failure to obtain informed consent

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Sexual misbehavior

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Breach of confidentiality

Increasing Number of Deaths from Psychiatric Drug Overdose Studies show that in 2014, 10,574 people died of heroin overdose whereas those that died from an overdose of psychiatric medications are 15, 778 – a shocking 50% more. Between 1999 and 2014, deaths from heroin overdose increased five times and deaths from psychiatric drug overdoses increased nearly fourfold. Sedatives such as Xanax and Z-drugs such as Ambien; psychostimulants such as amphetamine, methamphetamine and Ritalin; antidepressants and antipsychotics are found to be among the most dangerous. Factors that are held responsible for this steep rise in death rates include increased prescribing, increased off-label prescribing, prescribing multiple drugs to the same person at the same time (polypharmacy), and increased prescribing of psychiatric drugs by non-specialists such as general practitioners, nurse practitioners and others not trained in psychiatry.

Medical Malpractice/Negligence Risk Scenarios In what circumstances is a psychiatrist likely to be sued?

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Inappropriate prescriptions: If a psychiatrist prescribes the wrong medication or the wrong dosage of the correct medication, it can have a serious negative impact on the patient. Consider a case wherein a psychiatrist prescribes an antipsychotic drug that carries a certain amount of risk of causing a negative reaction in some patients with a history of heart disease. The psychiatrist is expected to review the patient’s cardiac history, along with blood work and ECG. Suppose he/she foregoes one of these evaluations and the patient dies from a fatal complication after taking the prescribed medication, they could be sued.

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Failure to warn or third party liability: If a patient makes threats against another person during sessions, the psychiatrist has a duty to warn the latter of the potential threat. If the psychiatrist does not warn and the patient carries out the threat, the victim’s family can sue the doctor for malpractice.

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Breach of trust and misconduct: Psychiatrists should not take advantage of the trust relationship that exists between them and the patients. Patients expect professional and competent conduct from their doctors and if psychiatrists fail to meet those standards and cause harm (especially emotional harm stemming from a breach of trust) to the patient, they are very likely to be sued.

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Failure to perform a proper suicide risk assessment: To stay compliant with the standard of care requirements, psychiatrists have to conduct a proper risk of suicide assessment on their suicidal patients. All relevant factors such as patient history, gender, age, sexual orientation, living standards, employment and so on have to be taken into account when performing this evaluation. The medical records should not only show what the patient says about suicide but also what the psychiatrist did in response to it. The notes should clearly specify whether the patient expressed a plan and the way to carry out the plan, and also whether the psychiatrist considered hospitalization of the patient as an option.

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Failure to prevent a patient’s suicide: According to the American Foundation for the Prevention of Suicide reports, suicide is the 10 th leading cause of death in the U.S. Approximately 42,773 people are estimated to die every year as a result of harm inflicted on themselves. Thousands more attempt suicide and sustain grievous injuries. Psychiatrists and treatment facilities must take apt steps to prevent a patient from committing suicide if it is proven from an evaluation that the patient is likely to commit suicide. Otherwise there is always the risk of medical negligence or malpractice. Typically, these are cases associated with people admitted to a psychiatric facility since they are found to be at risk of suicide. Psychiatric inpatient

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care must be designed to provide a safe environment to protect the patient failing which the facility and the treating doctors may be held accountable.

Proving Psychiatric Malpractice To establish malpractice, three basic elements have to be proved: 

Existence of a doctor-patient relationship (borne out by treatment records, medical bills etc.)

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Negligence (2 things have to be proved, namely, standard of care and breach of that standard of care)

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Harm/negative impact caused by the alleged negligence (such as pain and suffering, medical costs associated with future treatment, loss of the ability to enjoy life, loss of earning capacity etc.)

The new malpractice risk that exists is with regard to doctors providing medical and psychotherapy services via the internet and via telephone. The problem arises when these services constitute unlicensed practice in the state where the services are received.

Psychiatrists have to be very cautious and be aware of the different malpractice risks that exist so as to avoid potential lawsuits.

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