This article focuses on 4 issues in psychiatric malpractice: prescribing, liability for suicide, informed consent, and duty to protect under the Tarasoff v Regents of the University of California ruling. Malpractice is a civil wrong actionable by law. There are 2 goals of malpractice suits: the first is to make an injured plaintiff whole by an award of money, and the second is to inform the profession how courts will decide similar cases in the future.
Since there is no malpractice unless there is a physician-patient relationship, it is critical that psychiatrists know how the relationship comes into existence. A jury may seize on relatively small acts performed by the psychiatrist to construe that a reasonable person would think a professional relationship had formed. It is equally important to know when the relationship ends. So long as it exists, the psychiatrist owes the patient a duty to practice with the skill and competence that is possessed by the reasonable and prudent psychiatrist under similar circumstances.
Although courts rely on the profession to determine standards of care, this reliance is not absolute. In special cases, it can be the court that sets the standard.1 As one judge put it, "Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission."2 Informed consent and the Tarasoff duty are examples of judge-made duties. Today, this doctrine, though limited in application, suggests that psychiatrists keep a careful eye on emerging technologies.
Before proceeding, we recognize that psychiatric malpractice is as emotionally devastating as it is a fact of life for the practitioner. A recent New Yorker cartoon showed Hippocrates addressing medical students. The caption read, "First. Treat no lawyers!" Why such negativity? It may be because a call from a patient's lawyer or from a lawyer working for a state licensing agency can be terrifying. Law is a negative contact sport and psychiatrists are ill-equipped by their nature to play. Lawyers, on the other hand, are by nature adversarial. You can anticipate that a lawyer go- ing against you will be more logic-driven than scientific and will hold con- siderable skepticism concerning your expertise.
Prescribing drugs
Any drug requiring a prescription is by law "dangerous" (California Business and Professions Code §4022) and the act of prescribing a drug establishes the existence of the psychiatrist-patient relationship.3 Therefore, the act of prescribing gives rise to legal duties. The discharge of these duties requires not only our expertise but also our time.4 These duties cannot be accomplished by a quick review of a chief complaint and a brief mental status examination.
The traditional dyadic psychiatrist-patient relationship now often includes a variety of others relationships, such as nonmedical therapists, clinical laboratories, institutional administrators, and fiscal intermediaries. In shared-care situations, a physician may think he or she is the only member of the team, but a judge may consider the psychiatrist to be the "captain of the ship."5 In O'Reata v Yusuf (2006), the Court reversed a judge who refused to instruct the jury on the captain-of-the-ship doctrine.6 In finding that the captain-of-the-ship doctrine was applicable, the court focused on the doctor's "temporary special relationship" with a nurse and his overall authority and responsibility and not on any right to exercise control over the how and when. Consider the psychiatrist in a community mental health center who is responsible for making the diagnosis and developing, or signing off on, a treatment plan that delegates therapeutic issues to a psychiatric nurse, a clinical social worker, and a family therapist. Although the doctrine may not extend to a coprovider psychologist, it is arguable that it applies to all the others.
The psychiatrist must resist pressure to take prescribing shortcuts. The psychiatrist should have a basis to believe that all coinvolved parties are competent and acting within their scope of practice. Psychiatrists who ignore these issues of competency risk direct liability for uninformed decisions as well as indirect or vicarious liability for the wrong acts of others. Divisions of responsibility should be made clear to all, including the patient.
