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What is psychiatric malpractice?

By Patricia E. Deegan, Ph.D.

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  • During John's last hospitalization he felt humiliated and wronged because his psychiatrist ordered that he be put into restraints for reasons that John felt were unjustified.
  • Mary's psychiatrist sees her for only five minutes each month for a medication visit. He failed to notice that Mary was developing tardive dyskinesia until the condition became very disfiguring and permanent.
  • Laurie has been seeing various psychiatrists over the past 24 years in both inpatient and outpatient settings and has never been asked to sign a medication consent form.
  • Joan's psychiatrist told her that he wanted to conduct a physical exam and fondled her breasts during that "exam".
  • Ted fully understands the risks associated with using neuroleptic medications and told his psychiatrist that he had come to the decision not to take them. In the privacy of the consulting room, the psychiatrist told Ted, "Either you take the medications or I will have you involuntarily committed." Frightened, angry and confused, Ted "agreed" and took the medications.

All of the above scenarios may strike us as unfair, unjust, wrong and/or unethical. However, not all of these examples would meet the criteria for a psychiatric malpractice lawsuit. As consumers of mental health services it is very important for us to be informed about what malpractice is. What does it look like? How do we know if it is happening to us? These were the questions that were on my mind when I interviewed Robert Fleischner, Attorney at Law with the Center for Public Representation in Northampton, Massachusetts.

Attorney Fleischner helped me to understand that, from a legal standpoint, there is a difference between feeling wronged and unjustly treated, and psychiatric malpractice. Under the law, malpractice has a very specific definition. Malpractice means the failure to exercise a degree of skill that would be reasonably expected of a doctor in similar circumstances. In order for there to be a case for malpractice, four elements must be present:

  1. There must be a doctor-patient relationship. "This is important because the doctor-patient relationship establishes the duty of "reasonable care," Fleischner said.
  2. The psychiatrist has to breach the duty of reasonable care. "In other words," Fleischner said, "there is negligence if there has been a breach of duty of reasonable care."
  3. Harm must have occurred. Fleischner went on to say, "The definition of harm could include injury such as broken bones or memory loss, but also includes emotional injury."
  4. A causal link must be demonstrated between the negligence and the injury. The legal term for this is "proximate cause." Attorney Fleischner said that often this fourth element can be the most difficult to establish. "There may be cases in which there is duty (a doctor-patient relationship), and the doctor breaches the duty and there is harm but it is difficult to prove the harm was caused by the breach of duty because there may have been other intervening factors that could also account for the harm. For instance, in cases involving suicide it can be difficult to prove proximate cause."

Because of the legal definitions and criteria that must be met to call an incident malpractice, it is difficult to give a lot of general examples of what constitutes psychiatric malpractice. In fact, Attorney Fleischner cited only one example of a practice that would uniformly be considered malpractice. He said, "Sexual contact between psychiatrists and their patients is considered not to be within the standards of good practice. That is universally condemned and in virtually every context it would be malpractice."

Attorney Fleischner also advised that we think carefully about whether to seek to bring a malpractice lawsuit. He said that such lawsuits can be quite expensive and that they can take many years to conclude. He also cautioned that such lawsuits can be "traumatic" and very demanding for all parties involved.

Fleischner said that compared to medical malpractice cases, the amount of money that the court awards in psychiatric malpractice cases is usually much less: "Settlements in psychiatric malpractice cases may not be as high as they are in some medical malpractice cases. You don't often see the million dollar kind of settlements. But there are some settlements in psychiatric malpractice cases in the hundreds of thousands of dollars." When I asked him why people often get less money when injured by psychiatrists, he stated , "I don't know. It may be that people are willing to settle earlier (before going to trial). It may be that there is a fear that juries will not be as sympathetic to people with mental illness as they are to someone who loses their leg."

I asked Attorney Fleischner to give some examples of successful malpractice lawsuits. He cited the following cases:

  • a settlement in a case in New York over prescription and negligent monitoring of Haldol resulting in harm to the patient
  • improper monitoring of Prolixin by a psychiatrist resulting in harm to a patient in California
  • negligent mixing of medications in a state facility in Florida resulting in harm to the patient

There are many other examples of successful and unsuccessful malpractice lawsuits. If you are interested in reading about more of these, we suggest checking out a book called Medical Malpractice: Psychiatric Care by Joseph T. Smith. The "Pocket Update" of this book was published in 1995. It is an expensive book but can be found in most law libraries where you can read it for free.

I asked Attorney Fleischner what we can do to protect ourselves against unlawful and unethical psychiatric practices. He suggested the following:

  • The most important thing to do is talk with the psychiatrist and ask questions about why she or he is proposing a particular treatment. If you are uncertain, ask again. Seek a second opinion if you feel that would help.
  • It is very important to keep notes, to keep your own records, or to keep your own independent diary of what happens at each visit with your psychiatrist.
  • If you are on an inpatient unit, write letters to friends or relatives that you trust and tell them about the things that are going on from day to day.
  • Periodically review your clinic record and to ask that the record be corrected if there are mistakes in it or to seek to add your own statement to the record if something is inaccurate. Of course the laws regarding access to psychiatric records varies from state to state so you will have to know what the state law allows.
  • It makes a lot of sense to keep records of what medications you have been taking, the dosages, when your medications were changed, and keep your receipts from the pharmacy."

If you do decide that you want to pursue a malpractice case against a psychiatrist, Attorney Fleischner offers this advice: "If a person suspects he or she has been a victim of malpractice she/he should consult with an attorney who specializes in medical malpractice or, if you can find one, an attorney who specializes in psychiatric malpractice. There are even some attorneys who specialize in cases of sexual exploitation. "To find these specialists, look in the yellow pages for the telephone number of your state's Bar Association or Lawyer Referral Service. You might also try contacting the Protection and Advocacy Program in your state. If you don't know that number, contact your local consumer organization, Department of Mental Health or the National Empowerment Center (1-800-power2u (800-769-3728) or 1-800-TTY-POWER) and ask for the phone number of your state's Protection and Advocacy Program. They should be able to give you a referral.

Bringing a malpractice lawsuit is not our only option if we feel we have been treated unjustly or unethically by a psychiatrist. Our other options include these:

  • filing a human rights complaint with your local human rights officer
  • filing a complaint with the psychiatrist's employer-e.g., the hospital that employs them, the agency or State for which they work, etc.
  • filing an ethics charge against a psychiatrist. All licensed psychiatrists work under a code of ethics and can have their license to practice taken away if they are found by a review board of their peers to have acted unethically. For more detailed information on the principles of medical ethics as well as guidelines for filing complaints look for the booklet The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry (1995). We found it at a medical school bookstore for 3 dollars. Your can also write to the American Psychiatric Association, 1400 K Street, N.W., Washington D.C. 20005 to request a copy.
  • speaking directly to the psychiatrist and telling him/her your complaint or gathering together a group of people who hold a similar complaint against the same psychiatrist and deciding on action as a group.

In summary, it is important for us to learn our rights and to insist on being treated respectfully and with dignity. We do not have to sit back and assume there is nothing we can do about the injustices we may have suffered at the hands of professionals who seem so much more powerful that we may feel. Not all psychiatrists are bad and many of us can recall professionals that have been very helpful to us. But for those of us who have been injured physically or emotionally by a psychiatrist, there is action we can take. If you have successfully taken action against a psychiatrist or other mental health professional who has hurt you or treated you unjustly, we would love to hear from you. Please write out your story and send it to us at the address listed below.