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:
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.
The Chicago Public Schools along with the school board are being sued by the parents of a 12 year-old Chicago girl who committed suicide earlier.
McKenzie Philpot hanged herself on a school day in May 2014. McKenzie was in the 6th grade at the Helen C. Pierce School of International Studies. It is alleged that she had been bullied at that school for over a year not only by other students but also by a teacher.
McKenzie had been active in social media and just days before she ended her life she posted to Instagram, “If I died, would you cry? Would you wonder if I was happy? Would I be on your mind? Would you ever speak my name again? Would you come to my funeral? Would you miss me? Would you think of me? Would you remember all our inside jokes, the memories we created, even if they weren’t that serious? Would your heart drop to your stomach when you found out that it was a suicide?”
Illinois State Senator Heather Steans promised that officials would look into the events that led to McKenzie taking her life. That investigation was just completed in September. According to a statement released by the school district, “no credible evidence of bullying” was found.
McKenzie had been assaulted at school by other students. According to her family’s attorney, Bob Bingle, “A couple girls in particular, for instance, in a gym class, (would run) straight at her with a frozen water bottle and hitting her,” Bingle reported to WGN. “There (were) incidents involving chasing her from the school yard and putting her face up against a fence.”
Psychiatric malpractice may be found in the failure to diagnose a physical illness. That is, many times the psychiatric condition is due to some underlying physical problem that must be diagnosed and treated. The failure to do so may be medical malpractice.
For example, thyroid disorders can cause a wide variety of physical and mental conditions. Hypothyroidism can result in fatigue, lethargy, excessive sleeping, weight gain, puffy skin, thinning hair, disorganized thought, speech changes, etc. Many of these symptoms are associated with clinical depression. The failure to diagnose the underlying hypothyroidism is going to result in improper treatment of the patient.
In order to make a proper diagnosis the psychiatrist should do the following:
Although these types of things are not necessarily always done by psychiatrists in encountering a new patient that does not mean that these things should not be done. As the Supreme Court of the United States has stated, what typically may be done may be some evidence of what should be done, but what should be done is fixed by a standard of reasonable care, regardless of whether it is something that is usually done.
To put psychiatric malpractice issues in proper perspective visit the other pages on this site dealing with medical malpractice.