In the 33 years since I began medical school, psychiatric knowledge has greatly increased in depth and breadth, rendering much of what I originally was taught about diagnosis and treatment in need of revision. Critical concepts in malpractice have also been codified and studied since that time. We can now educate ourselves on the constituents of malpractice, as opposed to the vague admonitions I received in medical school to “watch out for the lawyers.”
One of the critical concepts that apply to malpractice is the standard of care. As psychiatric knowledge and practice evolve, so does the standard of care. Plaintiffs in malpractice litigation frequently allege that the standard of care was not met by the defendant physician in the treatment he or she provided. What does this really mean? And who determines what the standard of care is?
Fundamentals of malpractice
Before attempting to answer these questions, a brief review of the fundamentals of medical malpractice is in order. An easy alliterative way to remember the elements of malpractice is the 4D’s: “Dereliction (or Deviation) from Duty Directly causing Damages.”1 The duty of the physician is derived from the fact that there is a doctor-patient relationship. Within that relationship, if the physician errs, the patient must be damaged by the error, otherwise there is no malpractice. A simple example is the physician who writes a prescription for the wrong dosage of a particular medication. If this error is caught before the patient actually takes the medication, no damage is done.
Malpractice can exist only when the patient is damaged as a direct result of an action by the physician. If a patient with a psychiatric illness is hurt in a car accident—and if the damage is totally unrelated to any treatment his physician provided—there is no basis for malpractice. If, however, the patient caused the collision, and it can be proved that the psychiatric treatment was somehow responsible for the driver’s error in judgment, a malpractice action may ensue.
Whether the physician was derelict in, or deviated from, his duty to the patient is a critical point at which the concept of standard of care arises in malpractice. In essence, the plaintiff’s attorney seeks to demonstrate that the defendant physician has strayed from an acceptable standard of care. The defense attorney, on the other hand, will attempt to show that the physician’s actions were within an acceptable standard of care.2
Standard of care
Standard of care applies to all phases of the physician-patient interaction. It does not require best practice, where treatment and resources would be unlimited, but rather what the typical psychiatrist would do to render adequate care to the patient.3 Judicial opinions have defined the standard of care, such as the 1976 California case, Landeros v Flood, which stated that “a physician is required to exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill, which is ordinarily possessed and exercised by other members of his profession in similar circumstances.”4
The following are examples of standard of care questions that frequently arise in malpractice:
• Was the diagnosis correct, and how was the diagnosis made?
• Was reasonable care taken in making the diagnosis: Did the physician spend enough time examining the patient? Were appropriate tests ordered? Were necessary consultations requested and performed?
• Was a reasonable treatment plan created and explained to the patient?
• Were the risks and benefits of the proposed treatment modalities explained to the patient?
• Did appropriate follow-up occur: Specifically, were follow-up visits scheduled in a timely fashion? Did the physician determine the patient’s response to treatment? Did the physician check to see whether adverse effects had developed? Was consultation obtained on complicated matters?
A number of sources that make up the standard of care can be used to answer these questions. Certainly, DSM-IV-TR has been used to help determine the standard of care regarding psychiatric diagnosis. DSM-IV-TR cautions against its own use in forensic circumstances, but this reference is widely used, taught, and accepted for psychiatric diagnosis in the clinical setting. Therefore, DSM-IV-TR diagnostic criteria are almost always reviewed in malpractice cases that involve psychiatric diagnoses.
Data in other psychiatric texts, journals, and specific articles also form the basis for the standard of care, although some of these materials may be dated by the time they are published—particularly those that relate to treatment.5 Nevertheless, these written materials and now Web sites can be used to determine standard of care. (Web sites must be carefully scrutinized to make sure they present valid and reliable data.) Examples of Web sites that can be used in standard of care determinations are those of the American Psychiatric Association (APA) and the AMA.
1. Rodgers C. Special topics in psychiatric malpractice. Am J Foren Psychiatry. 2009;30:5-16.
2. Recupero PR. Clinical practice guidelines as learned treatises: understanding their use as evidence in the courtroom. J Am Acad Psychiatry Law. 2008;36:290-301.
3. Simon R. Standard-of-care testimony: best practices or reasonable care. J Am Acad Psychiatry Law. 2005;33:8-11.
4. Landeros v Flood, 17 Cal3d 399, 551 P2d 389, 131 Cal Rptr 69 (Cal 1976).
5. Meyer D, Simon RI. Psychiatric malpractice and the standard of care. In: Simon RI, Gold LH, eds. The American Psychiatric Publishing Textbook of Forensic Psychiatry. Arlington, VA: American Psychiatric Publishing; 2004.
6. Some Frequently Asked Questions About the Pennsylvania Mental Health Procedures Act of 1976. Montgomery County Emergency Services Web site. http://www.mces.org/302FAQs.html. Accessed August 21, 2009.
7. Model Policy for the Use of Controlled Substances for the Treatment of Pain. Federation of State Medical Boards of the United States Web site. http://www.fsmb.org/pdf/2004_grpol_Controlled_Substances.pdf. Accessed August 19, 2009.
8. Professional Risk Management Services (PRMS). Treatment Guidelines vs Standard of Care. Psychiatric News. August 17, 2007;42(16):20. http://pn.psychiatryonline.org/cgi/content/full/42/16/20. Accessed August 17, 2009.
9. Paul R, Lockey C, Hall RCW, Bursztajn HJ. Practice management: managing risks when practicing in three-party care settings. Psychiatric Times. February 3, 2009. http://www.psychiatrictimes.com/display/article/10168/1371129?verify=0. Accessed October 26, 2009.