Duty of Care and Informed Consent

Psychiatric TimesPsychiatric Times Vol 36, Issue 3
Volume 36
Issue 3

Medical malpractice, a form of professional negligence, remains a heavily criticized legal solution for ensuring patient autonomy and competent health care.

psychiatry and malpractice

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Editor's note: We thank Dr Knoll for lending us his expertise for A Malpractice Marathon, introduced by the Portrait of a Psychiatrist Series Editor, H. Steven Moffic, MD: A Relay HandoffFor the Malpractice Grand Rounds invitation, see: A Call for Articles: Psychiatric Malpractice Grand Rounds.


Medical malpractice, a form of professional negligence, remains a heavily criticized legal solution for ensuring patient autonomy and competent health care. From caps on damages, to alternative dispute resolution, to so-called “communication and resolution programs,” the main concerns have included: unfairly exposing physicians to hindsight bias, stifling medical progress, and encouraging “defensive medicine.” Psychiatrists’ concerns about medical malpractice claims can affect the way in which they deliver care. When a psychiatrist is the target of a malpractice claim, the stress involved may produce intense feelings of shame, anxiety, and depression. Although only 2.6% of psychiatrists face a malpractice claim each year (the lowest among medical specialties), about 16% will be sued for malpractice at some point in their careers.1,2

With the series Psychiatric Malpractice Grand Rounds, our objective is to provide constructive, educative, and pragmatic pieces on the subject of psychiatric malpractice. Readers should feel free to submit their cases and/or questions with the expectation of collegial and respectful responses. Those who submit are welcome to use their own name or submit with a request of confidentiality. Our goals are to reduce stress by offering psychiatrists knowledge about a typically unfamiliar subject, and exploring the limits of psychiatric standards and certainty. Our responses cannot be considered legal advice or a complete analysis of any case. Rather, we hope to choose cases that present common themes seen in psychiatric malpractice cases that allow for optimal learning.

Duty of care

In his Portrait of a Psychiatrist piece, Dr Jon Betwee graciously allows us to learn from his lamentable experience of back-to-back malpractice cases, which initially raised the specter of neuroleptic malignant syndrome (NMS).

In a medical malpractice case, to prevail a plaintiff must prove by a preponderance of evidence the four “Ds”: Duty of care to the patient, but Deviated from the standard of care-which Directly caused the patient’s Damages. Thus, even if we assume that NMS “caused” the patient’s death, the plaintiff would still need to prove that this directly resulted from Dr Betwee’s deviation from acceptable standards of care. Based on the author’s description, it appears that evidence was insufficient to prove that NMS played a causal role in the patient’s death.

Neuroleptic malignant syndrome

NMS is typically characterized by the tetrad of fever, mental status change, rigidity, and dysautonomia. Ever a fan of medical mnemonics, I like to remember the acronym “RAD” for NMS symptoms:

Rigidity: “lead-pipe” rigidity or cogwheel rigidity

Autonomic instability: tachycardia, labile or high blood pressure, fever (typically higher than 100.4°F [38.0°C], although fever may be delayed or sometimes absent)

Delirium: reduced or fluctuating level of consciousness

It is important to keep in mind that the presentation of NMS can vary substantially. The incidence of NMS is approximately 3% or less among patients taking antipsychotic medications.3 Mortality due to NMS is usually a result of the autonomic instability and related comorbid medical problems. The mortality rate is about 5% to 20%. This represents a substantial decrease from early NMS reports in the 1960s when the rate was as high as 76%.4 It seems likely that greater awareness, earlier identification, and more aggressive treatment are responsible for reduced mortality rates.

Symptoms of NMS may occur after a single dose of antipsychotic or after many years of treatment. Most research suggests a recent or rapid dose escalation, or an abrupt switch from one medication to another, can increase the risk of NMS.5 Other risk factors associated with NMS are acute catatonia, extreme agitation, use of lithium plus an antipsychotic, higher potency antipsychotics, depot antipsychotics, and dehydration.

Successful treatment of NMS requires identifying and stopping the causative agent and implementing supportive care (eg, rehydration, ICU level care if necessary). In severe cases, the use of dantrolene, bromocriptine, or amantadine may be warranted. It is also reasonable to treat NMS emergently with a benzodiazepine along with dantrolene or bromocriptine.6 ECT is also a reasonable treatment consideration, yet prospective, randomized controlled studies are lacking. While most episodes of NMS resolve within 2 weeks, negative prognostic risk factors can include depot antipsychotic use and underlying structural brain disease. Nevertheless, most patients recover without sequelae if there has been an absence of significant hypoxia or hyperthermia for extended periods.


Returning to Dr Betwee’s case, it is a fact that the vast majority of malpractice cases settle or resolve before a trial, and the deposition of the defendant doctor can play a key role in the outcome. Dr Betwee raises two points regarding malpractice depositions I would like to address. First, he notes that plaintiff’s attorney seemed eager, inexperienced, and animated, and the deposition was, at best, disorganized and took the better part of the day.” This may indeed be the case; however, I would humbly offer that my psychiatric colleagues not be too quick in dismissing similar circumstances. Skilled attorneys have different styles and strategies. The clueless, eager presentation may merely disguise a well-planned strategy to lower the defendant’s guard, thereby encouraging him or her to offer up more information than was requested. A seemingly random or unstructured approach to questioning may conceal a similar effort to intentionally keep the defendant psychiatrist off balance and confused. Good preparation and productive meetings with one’s defense attorney will go a long way toward defeating these strategies.

Furthermore, Dr Betwee notes that the plaintiff’s attorney requested, among other things, a list of every book in his professional library. His defense attorney declined, likely arguing this was too expansive a request. Such “fishing” strategies serve to remind that, in general, defendant psychiatrists should decline to be deposed in their own offices. The problem here is that every book, picture, plaque, and so on is fair game for plaintiff’s attorney to begin asking questions about. Instead, the defendant psychiatrist should seek to have the deposition somewhere else, such as an attorney’s conference room, a hotel conference room, or some other neutral venue.

Informed consent

Dr Betwee’s second suit focused on the important issue of informed consent. Breach of informed consent may be actionable as battery or as malpractice.

The legal development of informed consent has stressed the functionalist model of competence, which holds that the individual’s capacity is determined by demonstrable abilities as opposed to diagnoses or psychiatric labels. In obtaining authentic informed consent from patients, it is important to assess whether they possess the following : the ability to understand information relevant to the decision; the ability to appreciate the situation and its consequences; the ability to apply the relevant information rationally; the ability to communicate a stable, voluntary choice.

Guidelines have been developed for assessing a patient’s competence to make treatment decisions, although currently, use of such tools in most clinical practice would exceed the standard of care. The MacArthur Competence Assessment Tool (MacCAT-T) is one of the most recognized guidelines and contains standard questions that focus on the four main areas of treatment capacity.7 The prescribing clinician should first strive to approach a patient’s medication refusal as a clinical problem. Many incidents of treatment refusal are not due to a lack of treatment capacity, but rather to a host of other clinical factors such as poor therapeutic alliance, inadequate time spent with the patient, objection to specific medication adverse effects, previous bad experiences with treatment, and fear of the stigma of receiving psychiatric treatment.

Dr Betwee faced a perplexing challenge-how to obtain informed consent “with a disorganized, delusional person”? Depending upon the severity and nature of the symptoms, it may be more helpful to reframe the question as how can one ascertain, via evaluation, whether the patient’s symptoms preclude him or her from demonstrating competence to make treatment decisions? Although Dr Betwee assumed consent because “absent refusal, consent is assumed,” there was enough supporting evidence to allow the jurors to find in Dr Betwee’s favor. In general, however, the mere absence of a patient’s refusal on its own, does not allow the psychiatrist to conclude “consent is assumed.”

Legal perspective

It is important to distinguish between assent to treatment and informed consent. Assent merely means willingness to accept treatment-the patient may or may not have the capacity to make a decision about the type of treatment. In other words, the patient acquiesces to treatment without having true legal capacity. In contrast, informed consent means that the patient has legal capacity to make a decision about treatment. The US Supreme Court addressed the issue of consent versus assent in Zinermon v Burch when it held that a psychiatric patient’s constitutional rights were violated when he was allowed to sign into the hospital voluntarily-yet was incompetent to give informed consent to do so.8

Some further details about Zinermon v Burch may be enlightening. Darrell Burch was found by police wandering along a Florida highway in bad shape. He was taken to a mental health facility where he was found to be bloodied, bruised, hallucinating, confused, and believed he was “in heaven.” Burch was asked to sign forms giving his consent to admission and treatment, which he did. He remained at the facility 3 days, and received a diagnosis of paranoid schizophrenia and was treated with antipsychotic medication.

It was later determined that Burch needed continued hospitalization, and he was referred to Florida State Hospital (FSH). Upon referral, he signed forms requesting voluntary admission. Once at FSH, under Dr Zinermon’s care, Burch signed additional forms for voluntary admission and treatment. The forms contained the proviso that his voluntary admission would be “in accordance with the provisions of expressed and informed consent.”

At FSH Burch was confused, unable to state the reason for his hospitalization and still believed that he was “in heaven.” Subsequent records describe Burch as extremely psychotic, paranoid, and hallucinating. After 5 months of treatment, his symptoms improved. However, there was never a hearing regarding his hospitalization and treatment.

After his release, he complained that he had been admitted inappropriately and did not remember signing voluntary admission forms. Burch filed a civil rights suit alleging that he was incompetent to give informed consent, and the failure to initiate Florida’s involuntary commitment procedure denied him constitutionally guaranteed procedural safeguards. Ultimately, the Supreme Court held that it was foreseeable that persons requesting treatment might be incapable of informed consent, and only hospital staff are in a position to ensure that proper procedures and safeguards are afforded to those unable to give consent.

In a scholarly critique of Zinermon, Winick9 believes the decision was correct; however, the opinion contains broad dicta that, if followed stringently, could undermine the therapeutic advantages of voluntary admission and convert the voluntary admission process into a form of involuntary commitment. Winick argues that the need for a hearing should be limited to facts similar to Zinermon-a grossly incompetent patient seeking admission. That is to say, the mere fact that an individual seeking voluntary admission is mentally ill and in need of hospitalization should not rebut the presumption of competence. Research on decision- making capacity has suggested that many individuals hospitalized with mental illness do possess competence.10,11


Dr Knoll is Director of Forensic Psychiatry and Professor of Psychiatry, SUNY Upstate Medical University, Syracuse, NY.


1. Anupam BJ, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365:629-636.

2. American Medical Association. Policy Research Perspectives. https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/public/government/advocacy/policy-research-perspective-medical-liability-claim-frequency.pdf. Accessed February 13, 2019.

3. Levenson JL. Neuroleptic malignant syndrome. Am J Psychiatry. 1985;142:1137-1145.

4. Shalev A, Hermesh H, Munitz H. Mortality from neuroleptic malignant syndrome. J Clin Psychiatry. 1989;50:18-25.

5. Keck PE Jr, Pope HG Jr, Cohen BM, et al. Risk factors for neuroleptic malignant syndrome. A case-control study. Arch Gen Psychiatry. 1989;46:914-918.

6. Verma K, Jayadeva V, Serrano R, Sivashanker K. Diagnostic, treatment, and system challenges in the management of recurrent neuroleptic malignant syndrome on a general medical service. Case Rep Psychiatry. June 2018. https://www.hindawi.com/journals/crips/2018/4016087/. Accessed February 11, 2019.

7. Grisso T, Appelbaum P. MacArthur Competence Assessment Tool for Treatment (MacCAT-T). Sarasota, FL: Professional Resource Exchange, Inc; 1998.

8.Zinermon v Burch, 494 US 113, 110, 975; 1990.

9. Winnick B. Civil Commitment: A Therapeutic Jurisprudence Model. Durham, NC: Carolina Academy Press; 2005.

10. Grisso T, Appelbaum PS. The MacArthur treatment competence study. III. Abilities of patients to consent to psychiatric and medical treatments. Law Hum Behav. 1995;19:149-174.

11. Owen GS, Richardson G, David AS, et al. Mental capacity to make decisions on treatment in people admitted to psychiatric hospitals: cross sectional study. BMJ. 2008;337:a448.

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