86: Malpractice and Boundary Violations

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CHAPTER 86 Malpractice and Boundary Violations


Approximately every 10 years, American medicine finds itself in the midst of a “malpractice crisis”1; the first decade of the twenty-first century has been no exception. As with the previous crises, there is ongoing debate as to the nature and cause of the crisis. Are there more lawsuits? Are the awards higher? Are insurance premiums higher because plaintiff’s lawyers are running amok and destroying medicine as we know it, or are they higher because the investment market has cooled and insurers need more dollars to fund their activities and pay dividends to their investors? Additional fundamental questions include the following: “Are premiums, relative to the overall cost of medicine and incomes, actually up at all?”24 and “What is the overall impact of malpractice claims on health care costs?”5,6

The responses of researchers and commentators to these highly charged questions are not always consistent with the most dire perceptions of the medical community. Contrary to the concern that every error leads to a lawsuit, only a small percentage of cases involving injury due to medical errors actually become the basis for claims or litigation,79 and defendants continue to prevail in the majority of cases that result in litigation, in part because a substantial proportion of those cases appear to lack merit.10 From 1956 to 1990, the number of malpractice claims for all specialties rose tenfold: from 1.5 per 100 to 15 per 100 covered physicians.11 Overall, it appears that the median malpractice award (both jury awards and settlements) doubled in real dollars between 1990 and 2001, but it has remained essentially flat since then, albeit with variation among the states.

Kilgore and colleagues12 studied the impact of various proposed tort reforms on malpractice premiums and determined that imposition of caps on malpractice damage awards resulted in significantly lower malpractice premiums. They estimated that a nationwide cap of $250,000 on non-economic damages would result in a premium savings of $16.9 billion per year. They also found that malpractice premiums had an inverse relationship with the Dow Jones Industrial Average.12 In other words, in periods of strong stock market performance, premiums went down, and in periods of weak market performance, premiums went up. This observation supports the hypothesis that insurers raise premiums in order to pay their stockholders when other investments are performing less well.

It is certainly the case that malpractice premiums have increased over the years, and that multiple causes are to blame.13 It is not at all clear, however, that malpractice premiums have increased significantly relative to other expenses. In an in-depth analysis of data from nine regions from 1970 to 2000, Rodwin and associates14 examined actual premiums paid (as opposed to advertised rates) relative to overall physician income and expenses. They found that premiums for self-employed physicians rose from 1970 to 1986, declined from 1986 to 1996, and rose thereafter. Premiums were lower in 2000 than they were in 1986, however, and other practice expenses continued to increase while spending on malpractice premiums fell from 1986 (11% of total expenses) to 2000 (7% of total expenses).14

There is no end in sight to arguments over the causes of medical malpractice litigation,7,15 the need for tort reform, and the assignment of blame for dissatisfaction with medical practice.16,17 Whether or not there is an actual crisis, or whether premiums are a relatively smaller or a larger portion of practice expenses, there is no contesting the fact that the prospect of a lawsuit and actually being sued have a major impact on the personal and professional lives of defendant physicians, and the relationships these physicians have with their patients.1821 The threat of malpractice litigation is unlikely to diminish significantly, given the Institute of Medicine’s 1999 estimate that 44,000 to 98,000 deaths per year are due to preventable medical errors. While the personal injury system is not without its problems, hopes for a significant decrease in medical malpractice claims appear to lie with changes in how medical care is delivered, rather than on doing away with personal injury law.22


A tort is an injury to another party that gives rise to a right on the part of the injured person to sue for damages.23 Personal injury or tort law embodies the principle that a person injured by the acts of another should receive compensation for the harm done. This concept dates back more than 2,000 years.24 Medical malpractice is a subset of tort law that is concerned with alleged negligence by medical professionals. Medical malpractice as a concept represents the application of tort principles to the actions of professionals, and like tort law itself, is an ancient phenomenon.2426

There are two types of torts, intentional and unintentional.23 Both may be the subject of malpractice claims in psychiatry. Intentional torts are injuries that result from some intentional action on the part of the actor, also referred to as the “tortfeasor,” who will ultimately be the defendant if a lawsuit is pursued. In psychiatric malpractice claims, typical intentional torts are battery, assault, false imprisonment, abandonment, intentional infliction of emotional distress, and undue familiarity (i.e., sexual misconduct and other boundary violations). Each of these intentional torts is discussed later in this chapter. Unintentional torts arise out of negligent acts or omissions (e.g., misdiagnosis or failure to diagnose, failure to protect the patient from self-harm or harm to others). These are also discussed later in this chapter.

Tort law serves two purposes. First, it fulfills the long-established concept that individuals who are injured by the negligent actions of others should receive compensation for the damage they have suffered. Second, the threat of liability serves as a deterrent to negligent behavior.27,28

Malpractice insurance also serves two purposes. First, it ensures that injured patients can receive compensation when they are harmed; second, it protects the defendant physician from having to pay damages personally, thus risking potential financial ruin.28 Malpractice insurance is designed to insure physicians in the event that harm results from negligence (i.e., the allegedly wrongful act was inadvertent rather than intentional).

Medical treatment also involves intentional actions, and liability may therefore arise from both intentional and unintentional acts and omissions that are part of the treatment. As a result, certain intentional acts are also covered by malpractice insurance. For example, a patient injured during a restraint, or hospitalized against his or her will, may sue for battery or false imprisonment, respectively, and the malpractice insurer will both defend the claim and pay any damage award. The same is not true if the psychiatrist punches the patient during a fit of anger, for example, as this action is outside the scope of psychiatric treatment and therefore has nothing to do with acts performed in the course of caring for the patient.29 Sexual misconduct by psychiatrists raises similar questions about what actions by psychiatrists should be considered part of the scope of treatment and therefore covered by insurance, or separate from treatment and therefore not covered by malpractice insurance, as will be discussed later in this chapter.

To establish a claim of malpractice, whether the defendant’s action was intentional or unintentional, a plaintiff (the party bringing the suit and claiming to have been injured) must prove four things.23,30 (The plaintiff may be the injured party himself or herself, or a representative of the injured party, e.g., the parent of an injured child or the executor of the estate of the deceased in a wrongful death action.) First, the plaintiff must prove that the defendant owed a duty to the injured party. All individuals owe a general duty of reasonable care, such that their ordinary behavior does not result in harm to others (e.g., drivers have a general obligation not to drive recklessly). The duty to behave in a non-negligent fashion toward a specific individual or group arises when there is a special relationship.23 Thus, while a physician does not have a specific duty to a person until a doctor-patient relationship is established, once that relationship begins the physician has a duty to perform in accordance with the standard of care of the average physician practicing in that specialty.23

In order to prove the existence of a duty, the plaintiff must establish that a doctor-patient relationship existed. Simply put, a doctor-patient relationship is established when the physician accepts responsibility for the patient’s care by becoming involved with the treatment.31 Curbside or informal consultations, or even more formal consultations, will not establish the existence of a relationship, so long as the consultant does not assume a treatment role.3235

States differ as to whether clinicians owe a duty of care to individuals other than patients with whom they have entered into a doctor-patient relationship.36,37 Specifically, one may wonder what happens when a non-patient is injured by the actions of the clinician’s patients.36,37 This concept of duty to third parties is discussed more fully later in this chapter.

The second element of a malpractice claim is dereliction of duty or negligence. It can be characterized as a departure from the standard of care that results from failure to exercise the level of diligence or care exercised by other physicians of that specialty. An error or injury does not constitute malpractice, if it occurs in the course of treatment where the physician has exercised due diligence.38,39

In order to establish this element, the plaintiff must introduce evidence of the applicable standard of care. This is perhaps the most critical element in malpractice claims, as the applicable standard varies according to the situation, the type of practitioner, and the jurisdiction. Specialists, or those who claim to have special expertise, are held to a higher standard of practice than general practitioners.23 Under the “School Rule,” practitioners who belong to a defined, recognized school of practice or belief may be judged according to the standard of practice of that school,40 although minimum standards of practice are expected of anyone who holds himself or herself out as being capable of diagnosing and treating illness.23 In the past, the applicable standard was dependent on the community in which the physician was practicing (e.g., urban physicians were held to a higher standard than were rural physicians). That rule, known as the “Locality Rule,” has gradually faded with the wide availability of journals and educational conferences, resulting in a more uniform national standard of care.41 While there has been a move toward a more national standard of practice, jurisdictions continue to differ as to whether residents and other trainees should be held to a standard of practice defined by others at that level of training, of general practitioners, or of specialists.42

The third element, causation, and the fourth element, damages, are closely tied to the first two: The plaintiff must show that the negligent behavior is the direct cause or proximate cause of actual damages.43,44 Causation in personal injury law is assessed in two ways. First, the “but-for” test is applied: “But-for the alleged negligence, would the injury have occurred?” Second, was there proximate or legal cause (i.e., was the injury foreseeable)? The test for foreseeability is whether the claimed harm was “a natural, probable, and foreseeable consequence” of negligence on the part of the actor.23

Under the doctrine of “loss of chance,” causation may also be established where the act or omission by the defendant-physician resulted in a lost opportunity for treatment and therefore subsequent harm.4547 This scenario might occur, for example, where there is a missed diagnosis, delayed referral, or delayed treatment.48 The loss of chance rule has been rejected in professional negligence cases in some jurisdictions49 and retained in others.50

Damages can be of several types. They may be economic (such as lost value of future earnings and medical expenses arising from injuries sustained due to negligence of a physician) or they may be physical (such as the loss of a bodily function). They may also be emotional (e.g., development of psychiatric disorders or pain and suffering).5153 Punitive damages may also be awarded, where the defendant’s behavior was so reckless as to justify imposition of added damages in recognition of gross departure from duty and also to serve as a means of deterring that defendant and other potential defendants who might act similarly in the future.54

These four elements of a malpractice claim are often referred to as the four Ds: duty, dereliction of duty, direct causation, and damages.55 If the defendant convinces the jury, or the judge in a bench trial, that all four elements have been proved by a preponderance of the evidence (i.e., that it is more likely than not to have occurred), the defendant will be required to compensate the victim for the harm suffered.23,55,56 Expert witnesses who offer their opinions on any of the four elements must testify to a “reasonable degree of medical certainty,” that is, they are confident that their opinions are more likely true than not.57


Managed care has had a dramatic impact on the practice of psychiatry and the delivery of mental health services. Early on, psychiatrists recognized the potential liability associated with treatment decisions being influenced, and in some cases controlled, by insurers. One might ask, “Is the psychiatrist or inpatient unit liable if a suicidal patient is refused further insurance coverage for inpatient hospitalization, is discharged, and then succeeds in committing suicide?” In a word, yes. A psychiatrist’s duty to his or her patient continues, regardless of whether the patient’s insurer will continue to pay for services.58,59

The financial liability of employer-sponsored health plans for damages resulting from denial of health care benefits is significantly limited by the Employee Retirement Income Security Act (ERISA).60 ERISA contains a preemption clause that limits the possible damages from denial of care to the value of the actual benefit or service denied, thus shielding managed care plans from liability for negligence or harm resulting from denial of care. The Supreme Court made clear in Aetna v. Davila61 that ERISA applies to all covered plans, in spite of state statutes that attempt to provide state law remedies for denial of care and resultant harm. However, ERISA does not preempt state statutes that require independent third-party reviews of denials of service, according to the Supreme Court.62

The result of this federal statutory scheme is that physicians and health care institutions remain liable for harm that results from withholding or from early termination of treatment, even if the managed care organization has withdrawn funding. Injured patients have no recourse against the managed care plan other than a civil action for the value of the lost benefits under ERISA. They are free, however, to pursue traditional malpractice claims against providers. In order for the physician to avoid liability, he or she must protest the denial of care, appeal it to the highest level that the insurer provides, and take other reasonable steps to ensure the patient’s safety. Providers themselves may pursue administrative and civil remedies to recover the value of the care provided. However, physicians’ entitlements to do so are likely to be limited by their own contracts and agreements with managed care providers.


Assault, Battery, and False Imprisonment

A battery is the touching of another person without consent or justification.23 An assault is an action that causes fear in the victim due to the reasonable apprehension that an unpermitted touching will occur.23 Battery and assault are intentional torts. In the setting of medical malpractice, battery claims typically arise when the clinician departs from the standard of care by providing treatment without obtaining informed consent in the absence of an emergency or other exception to informed consent.63 That is, without consent, treatment is an unauthorized touching, which legally constitutes a battery.

False imprisonment, another intentional tort, results when the tortfeasor causes the victim to have a reasonable belief that his or her movement and freedom are constrained.23,64 This can occur with confinement to a locked ward, room seclusion, or restraints. False imprisonment does not require actual physical restraint or physical confinement. A patient who reasonably believes that the door to his or her room is locked may claim false imprisonment, even if the door is not actually secured. False imprisonment can lead to liability for violation of constitutional rights, as well as personal injury liability.65 Conversely, failure to restrain or confine a patient who is at risk of self-harm or elopement may also give rise to liability.

In addition to claims of false imprisonment, the restraint process also may give rise to claims of assault and battery, as it necessarily involves (1) apprehension of touching, (2) the actual touching of the patient (generally without the patient’s consent), and (3) restriction of movement. The legal aspects of restraint of patients on a medical or surgical ward vary among jurisdictions and are beyond the scope of this chapter but have been explored elsewhere.66

Malpractice claims based on battery or false imprisonment, whether they arise in the general hospital or in psychiatric facilities, are rarely successful. Successful defense of these claims lies in demonstrating that the restraint and seclusion were clinically reasonable, that no less restrictive alternative existed, that they were carried out and documented in a careful manner, that the techniques used complied with hospital polices and procedures, and that the restraint process occurred as required by applicable laws and regulations of the jurisdiction in which it occurred.6769


Both failure to diagnose and erroneous diagnosis can provide a basis for unintentional tort liability, if harm results.70 As noted earlier, a medical error that results in injury does not establish negligence if it occurred in spite of practice in accordance with the standard of care or the adverse outcome was an unavoidable result that might have occurred regardless of the treatment.

Failure to Treat

This broad category of liability risk includes the failure to treat an identified condition, or providing treatment that is unproven, not generally accepted, or disproven. In the simplest cases, the patient who suffers injury because the physician failed to treat the condition can generally recover for harm suffered as a result. Harm allegedly resulting from administering treatments that are either unproven or not yet widely accepted can also be the basis for a claim.71,72 The quest for effective treatments for mental illnesses has included exploration of complementary and alternative treatments.73 Psychiatrists should be aware that all of the same malpractice issues involved in other areas of psychiatry apply here. While treatment with complementary and alternative methods is a field that has not yet attracted substantial numbers of malpractice claims, significant areas of potential risk include lack of informed consent, loss of chance, failure to treat, and fraud and misrepresentation.71,72,74,75 Psychiatry is a field in evolution, with a history of adopting apparently effective treatments that eventually declare themselves to be either unhelpful or harmful. As a result, caution must be exercised with regard to declaring certain treatments to be state of the art, and the failure to provide them as constituting prima facie evidence of malpractice.76,77


Abandonment, as a cause of action for malpractice, is the unilateral termination of the doctor-patient relationship without justification, leading to harm to the patient.23 In nonemergent situations, physicians are not legally obligated to treat every patient who requests care. Refusal to treat a patient on the basis of his or her race, religion, ethnic origin, or disease type (e.g., acquired immunodeficiency syndrome [AIDS]) raises ethical issues and sets the stage for liability under the Americans with Disabilities Act and state antidiscrimination statutes.78,79 The obligation is ethical, as well as legal. Even after the doctor-patient relationship has begun, the physician may choose to terminate the relationship and may legally do so if the method used is reasonable and does not unjustifiably put the patient at risk.23,55 Justifiable bases for terminating the relationship can include failure to pay, threatening behavior, repeated failure to keep appointments, noncompliance with treatment, and abuse of prescribed medication.55

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