National Empowerment Center - Articles
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:
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:
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:
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:
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.
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