Medicolegal Aspects of Clinical Practice

Medicolegal Aspects of Clinical Practice

Malpractice and Risk Management

A lawsuit in which a plaintiff sues a defendant for damages re-sulting from some act of negligence is called a tort (which is characterized as a civil, as opposed to a criminal, wrong). A mal-practice suit is a type of negligence case; it shares with all negli-gence cases four broad elements – the “four Ds’’ – which must be proved if the plaintiff is to be awarded damages (Table 6.5).

The first element involves duty. A psychiatrist in private practice has no duty to treat or care for a patient unless he or she has made an agreement to do so. Once the psychiatrist agrees to treat the patient, however, the psychiatrist is legally and ethi-cally obligated to treat the patient until treatment is properly terminated.

Once the psychiatrist–patient relationship is established, the psychiatrist is obligated to provide treatment at the standard of care. Since the duty comes into being when the relationship is established, psychiatrists need to be mindful of whether they are in fact entering into a psychiatrist–patient relationship. Com-monly, psychiatrists in private practice see patients for a one-time consultation and then decide whether they wish to provide treat-ment. The psychiatrist should make it clear at the time of the ini-tial contact that the first appointment is an opportunity for the psychiatrist and patient to see if their relationship is going to be a useful one. If this is not clearly spelled out and agreed to, it might be argued that the psychiatrist assumed a duty to provide care at the initial consultation. The second element of malpractice is neg-ligence (or dereliction of duty). The test of negligence is whether the psychiatrist’s actions deviated from the standard of care prac-ticed by other professionals of the same level of training.

The third element that needs to be demonstrated is harm or damage. Once the plaintiff has proven that the psychiatrist has a duty to the patient and has performed in a derelict manner, there must be proof that the patient has suffered harm. Even a grossly negligent act that results in no harm will not result in a finding of liability for malpractice.

The fourth factor is direct or proximate cause. The damage that the patient has suffered must directly result from the derelic-tion of duty by the psychiatrist. Without this connection, a claim of malpractice will not be successful.