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?
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MALPRACTICE IS A TORT
A TORT IS A CIVIL WRONG
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THREE TYPES OF TORTS
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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
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FORMATION, DURATION, TERMINATION
DUTIES
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FIDUCIARY
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QUID PRO QUO
OBJECTIVITY, CONFIDENTIALITY, ABSTINENCE, NEUTRALITY,
UTMOST BEST INTERESTS
PROFESSIONAL
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CLINICAL COMPETENCE / STANDARD OF CARE
ADHERE TO STANDARDS SET BY LAW
ELEMENTS
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DUTY
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DERELECTION
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A BREACH OF STANDARD OF CARE THAT CREATES
AN UNREASONABLE RISK OF FORESEEABLE HARM
DAMAGE
DIRECT CAUSATION
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TO WHOM, WHAT
BUT FOR
PROXIMATE
DEFENSES
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STATUTE OF LIMITATIONS
STANDARD OF CARE
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STANDARD OF CARE
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MIXED QUESTION OF LAW & FACT
NOT SAME AS OPTIMAL CARE, BEST PRACTICES, ETC
“ORDINARY, REASONABLY PRUDENT, PSYCHIATRIST UNDER
SAME OR SIMILAR CIRCUMSTANCES”
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DOCTOR DOES RISK:BENEFIT CALCULUS BEFORE ACTING
SOURCE
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EXPERT TESTIMONY
SCIENTIFIC PUBLICATIONS, GUIDELINES, ETC.
JURY
JUDGE
STATUTES
CAPTAIN-OF-THE-SHIP DOCTRINE
COMMON CAUSES OF ACTION
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GENERAL
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BREACH OF FIDUCIARY DUTIES
PROCEDURAL NEGLIGENCE
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DIAGNOSIS, MEDS, CHARTING, FOLLOW-UP
SPECIFIC TO PSYCHIATRY
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SUICIDE
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INJURY TO THIRD PARTIES
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TARASOFF, RELEASE / RESIDENTIAL PLACEMENT
DEFECTIVE INFORMED CONSENT PROCESS
FAILURE TO REPORT
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INADEQUATE RISK ASSESSMENT / RISK REDUCTION
CHILD ABUSE, DMV
ABUSE OF TRANSFERENCE
NEGLIGENT SUPERVISION / SUPERVISEE NEGLIGENCE
QUALITY ASSURANCE – RISK MANAGEMENT
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THERAPEUTIC ALLIANCE
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BE NICE
PRACTICE IN RIGHT WAY
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PRACTICE ONLY W/I COMPETENCE
HISTORY / EXAMINATION / RECORD REVIEW / DOCUMENTATION
IDENTIFY RISK: PATIENTS / SITUATIONS / TRIGGERS
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KNOW WHEN LESS REQUIRES MORE
PRESCRIBING DANGEROUS DRUGS
AVOID SMALL BORDER VIOLATIONS
YOUR CHART MUST SPEAK FOR ITSELF
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RISK IDENTIFIED NEEDS PLAN, PLAN NEEDS ACTION AND FOLLOW-UP
ANTICIPATE EVIDENTIARY USE OF CHART
SECOND OPINION
LIMITATIONS ON LIABILITY
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DUTY
FORESEEABILITY
ENTITY IMMUNITY
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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
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UNDERSTAND POLICY
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OCCURRENCE, CLAIMS-MADE, NOSE, TAIL
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LITIGATION EXPENSES, INDEMNIFICATION COSTS
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INCIDENT DATE VS INCIDENT REPORTING
KNOW WHAT ACTIVITIES COVERED
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FORENSICS, COMMITTEES, SUPERVISION, OTHER?
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MOONLIGHTING (INDEPENDENT CONTRACTOR?)
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MBC / OTHER ADMIN ACTION
OTHER
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HAMMER CLAUSE
MEDICAL BOARD OF CALIFORNIA
 PRIMARY CONCERN IS PUBLIC SAFETY
 SECONDARY CONCERN IS IMPAIRED PHYSICIAN
 RECEIVES INPUT FROM VARIOUS SOURCES
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805 REPORTS
COURTS
PATIENTS
MALPRACTICE ACTIONS
INVESTIGATES, LIMITS/ REVOKES, REHABILITATES
COST RECOVERY PROGRAM
NO DIVERSION PROGRAM
WHAT TO DO IF YOU GET A CALL