TORT LAW PSYCHIATRIC MALPRACTICE
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Transcript TORT LAW PSYCHIATRIC MALPRACTICE
MALPRACTICE
Harvey Dondershine, MD, JD
COMPENSATE INJURED PARTIES
RETROSPECTIVE REGULATION (DICTA)
EFFECT ON HEALTH CARE SYSTEM
IMPROVE QUALITY OF CARE
INCREASE COST
EFFECT ON CLINICIAN
PRACTICE DEFENSIVE MEDICINE
NARCISSISTIC INJURY / THREAT TO LIVELIHOOD
WHERE DOES IT FIT?
MALPRACTICE IS A TORT
A TORT IS A CIVIL WRONG
THREE TYPES OF TORTS
SEEKS COMPENSATORY (MONEY) DAMAGES
INTENTIONAL
UNINTENTIONAL (NEGLIGENCE)
STRICT LIABILITY
TERMS: BURDEN OF PROOF, STANDARD OF PROOF
NO INSURANCE FOR INTENTIONAL WRONG
NO MALPRACTICE
UNLESS DR-PT RELATIONSHIP
FORMATION, DURATION, TERMINATION
DUTIES
FIDUCIARY
QUID PRO QUO
OBJECTIVITY, CONFIDENTIALITY, ABSTINENCE, NEUTRALITY,
UTMOST BEST INTERESTS
PROFESSIONAL
CLINICAL COMPETENCE / STANDARD OF CARE
ADHERE TO STANDARDS SET BY LAW
ELEMENTS
DUTY
DERELECTION
A BREACH OF STANDARD OF CARE THAT CREATES
AN UNREASONABLE RISK OF FORESEEABLE HARM
DAMAGE
DIRECT CAUSATION
TO WHOM, WHAT
BUT FOR
PROXIMATE
DEFENSES
STATUTE OF LIMITATIONS
STANDARD OF CARE
STANDARD OF CARE
MIXED QUESTION OF LAW & FACT
NOT SAME AS OPTIMAL CARE, BEST PRACTICES, ETC
“ORDINARY, REASONABLY PRUDENT, PSYCHIATRIST UNDER
SAME OR SIMILAR CIRCUMSTANCES”
DOCTOR DOES RISK:BENEFIT CALCULUS BEFORE ACTING
SOURCE
EXPERT TESTIMONY
SCIENTIFIC PUBLICATIONS, GUIDELINES, ETC.
JURY
JUDGE
STATUTES
CAPTAIN-OF-THE-SHIP DOCTRINE
COMMON CAUSES OF ACTION
GENERAL
BREACH OF FIDUCIARY DUTIES
PROCEDURAL NEGLIGENCE
DIAGNOSIS, MEDS, CHARTING, FOLLOW-UP
SPECIFIC TO PSYCHIATRY
SUICIDE
INJURY TO THIRD PARTIES
TARASOFF, RELEASE / RESIDENTIAL PLACEMENT
DEFECTIVE INFORMED CONSENT PROCESS
FAILURE TO REPORT
INADEQUATE RISK ASSESSMENT / RISK REDUCTION
CHILD ABUSE, DMV
ABUSE OF TRANSFERENCE
NEGLIGENT SUPERVISION / SUPERVISEE NEGLIGENCE
QUALITY ASSURANCE – RISK MANAGEMENT
THERAPEUTIC ALLIANCE
BE NICE
PRACTICE IN RIGHT WAY
PRACTICE ONLY W/I COMPETENCE
HISTORY / EXAMINATION / RECORD REVIEW / DOCUMENTATION
IDENTIFY RISK: PATIENTS / SITUATIONS / TRIGGERS
KNOW WHEN LESS REQUIRES MORE
PRESCRIBING DANGEROUS DRUGS
AVOID SMALL BORDER VIOLATIONS
YOUR CHART MUST SPEAK FOR ITSELF
RISK IDENTIFIED NEEDS PLAN, PLAN NEEDS ACTION AND FOLLOW-UP
ANTICIPATE EVIDENTIARY USE OF CHART
SECOND OPINION
LIMITATIONS ON LIABILITY
DUTY
FORESEEABILITY
ENTITY IMMUNITY
GOVERNMENT
HMO
MEDICAL INJURY COST RECOVERY ACT (MICRA)
STATUTE OF LIMITATIONS
ANATOMY OF A SUIT
PRELITIGATION PHASE
INCIDENT DATE, PRE-LITIGATION SUBPOENA, CERTIFICATION
PLEADINGS PHASE
COMPLAINT & SUMMONS, ANSWER
DISCOVERY PHASE
DISCOVERY SUBPOENA, INTERROGATORIES, DEPOSITIONS,
EXAMINATIONS, REQUEST FOR ADMISSIONS
MOTIONS PHASE
DEMURRER
SUMMARY JUDGMENT
TRIAL PHASE
INSURANCE
UNDERSTAND POLICY
OCCURRENCE, CLAIMS-MADE, NOSE, TAIL
LITIGATION EXPENSES, INDEMNIFICATION COSTS
INCIDENT DATE VS INCIDENT REPORTING
KNOW WHAT ACTIVITIES COVERED
FORENSICS, COMMITTEES, SUPERVISION, OTHER?
MOONLIGHTING (INDEPENDENT CONTRACTOR?)
MBC / OTHER ADMIN ACTION
OTHER
HAMMER CLAUSE
MEDICAL BOARD OF CALIFORNIA
PRIMARY CONCERN IS PUBLIC SAFETY
SECONDARY CONCERN IS IMPAIRED PHYSICIAN
RECEIVES INPUT FROM VARIOUS SOURCES
805 REPORTS
COURTS
PATIENTS
MALPRACTICE ACTIONS
INVESTIGATES, LIMITS/ REVOKES, REHABILITATES
COST RECOVERY PROGRAM
NO DIVERSION PROGRAM
WHAT TO DO IF YOU GET A CALL