Psychiatric malpractice cases are dramatically different than other types of medical malpractice cases. In medical endeavors the physicians are working to cure the patient. However, in the psychiatric malpractice case the patient is working at a cross-purpose to that of the physician and may not be interested in curing himself or following the instructions of the physician. In a psychiatric malpractice case the physician should know that.
In a psychiatric malpractice case the principle hurdle is conveying to members of the jury what it is the patient has experienced. Most people have not experienced mental illness themselves. They do not have a concept of what a psychiatric illness really is and how difficult it is to treat such a condition. The best way to explain the condition is through the use of analogies. For instance, clinical depression is akin to walking through a desert, shielding your eyes from the blistering sun, attempting to breathe in the suffocating heat while carrying a heavy weight on your shoulders and knowing that the desert will never end.
Many people will say that a mental illness is something that the person should be able to “snap out of”. It is that attitude that actually aggravates the patient’s condition and sense of weakness and futility and further traps the patient within the desert.
In terms of establishing the standard of care, especially in a suicide case, typically both sides can agree that the standard of care requires psychiatrists to exercise reasonable care to protect the patient from self-inflicted injury. The more compelling question becomes one of establishing causation. The defense will try try to assert that it is impossible for the psychiatrist to predict who will commit suicide. The ability to predict is not, however, the standard for establishing causation. What is required is simply whether or not it is reasonably foreseeable that the patient will inflict self-injury. That concept of foreseeability is evaluated by looking at the risk factors for suicide:
- Does the patient have any history of suicide attempts?
- When was the last attempt?
- How potentially lethal was the attempt?
- Is there a family history of suicide?
These factors and more need to be weighed before making a decision about the course of treatment.
In addition, the defense may frequently raise the defenses of contributory negligence and assumption of the risk. Most courts that have dealt with these issues have concluded that it is somewhat anomalous to hold that the mental health care provider has a duty to treat the patient’s high risk behavior but then to fault the patient for engaging in that very same behavior. To put it another way as the patient’s capacity decreases, the health care provider’s responsibility increases.
To put psychiatric malpractice issues in perspective visit the other pages on this site dealing with medical malpractice.
If you or a loved one have been injured as a result of psychiatric malpractice, contact us.
