Psychiatric Malpractice and Standard of Care
The definition of malpractice is “the omission by a professional while acting out his/her professional duties that causes or aggravates an injury which is the direct result of the failure of the professional to exercise reasonable care, diligence, knowledge, or skill”. The psychiatrist must either do something that he/she should not do, or fail to do something that he/she should have done, and that, that professional act or omission of an act is clearly below the standard level of care expected in the field of psychiatry that any average psychiatrist in similar circumstances would have been expected to do or not do, which ever the case may be.
Psychiatrists are generally not sued as often as physicians in medical practice tend to be. Those psychiatrist that work in primarily hospital-based care or that participate in medication managed care of psychiatric patients tend to have more law suits filed against them then those in general psychiatric practices do. Psychiatric malpractice claims are less likely to be won due to the fact that liability and negligence are much more difficult to prove in psychiatric cases than they are in medical cases.
Standard of Care:
A person practicing psychiatry must exercise reasonable care when evaluating, diagnosing, treating, monitoring, or discharging a patient. There must be a reasonable degree of clinical knowledge, skill and performance of care that is expected of a member of the psychiatric profession.
A psychiatrist that fails to obtain an adequate amount of information such as the patient’s prior psychiatric records or previous laboratory test can be grounds for a claim of negligence.
There are “Four Ds” or elements that make up an alleged negligence charge. The “Four Ds”, are:
Duty – it must be evident that, that particular psychiatrist had a duty to the patient.
Dereliction of Duty – the psychiatrist breached that duty.
Direct Causation – the dereliction of duty, directly caused the alleged damage to the patient.
Damages – there must be actual damages present.
There must be an expert testimony to establish that there was negligence that is below the “standard of care” in most malpractice cases.
The most common reasons cited for cases of psychiatric malpractice are for:
Incorrect Treatment
Negligent usage of psychiatric medications, which also may include the failure to obtain informed consent
Attempted and/or completed suicide
Incorrect diagnosis
Improper supervision and or improper commitment
Informed Consent:
The simple principle that all patients have a right to make treatment decisions on their own without being coerced in any way and with knowledge of any information that is available through their physicians is known as the concept of informed consent. It is evident that this concept was practiced as far back as 1914, when Justice Benjamin Cardozo wrote in the case files of Schloendorff v. Society of New York Hospital, “every human being of adult years and sound mind has a right to determine what shall be done with his own body”. The actual term of “Informed Consent”, was not coined until 1957, when it was introduced in the case of Saglo v. Leland Stanford Jr., University Board of Trustees.
There are three elements of informed consent:
Disclosure of information
The patient’s decision must have been made on a voluntary basis without any type of coercion
Competency and although adults are assumed to be competent there must be no evidence of incompetency.
Competency assessments are based on four abilities. These are: understanding, appreciating, reasoning, and choosing.
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