Empirical findings on legal difficulties among practicing psychiatrists
Department of Psychiatry, University of California, San Francisco, San Francisco, CA, USAJose Maldonado, MD
Department of Psychiatry and Behavioral Sciences, Stanford School of Medicine, Stanford, CA, USA
BACKGROUND: This article reviews the published literature on areas of legal difficulty among practicing psychiatrists.
METHODS: A literature search using PubMed identified studies of malpractice lawsuits or medical board discipline of psychiatrists between 1990 and 2009. Eight studies of physician discipline in the United States and one from the United Kingdom were identified. Information from 3 insurance companies and 3 sets of aggregated insurance company data also were available. One follow-up study of hospitalized psychiatric patients also was reviewed.
RESULTS: Studies of medical board discipline indicate that, compared with other specialties, psychiatrists are at an increased risk of disciplinary action. Psychiatrists who were female, board certified, and in practice for a short period of time had a lower chance of medical board discipline. Psychiatry claims accounted for a very small proportion of overall malpractice claims and settlements. The amount of patient disability secondary to alleged malpractice was the most important variable predicting insurance payout.
CONCLUSIONS: Psychiatrists appear to be disciplined by medical boards at an above-average frequency compared with other medical specialties. However, few malpractice suits reach the courts, and psychiatry represents a very small proportion of overall physician malpractice claims and dollars of settlement.
KEYWORDS: malpractice, medical board discipline, psychiatrists
ANNALS OF CLINICAL PSYCHIATRY 2011;23(4):297-307
Psychiatrists who experience legal difficulties as a consequence of lawsuits or complaints to medical review boards present a challenging area of research because of the paucity of published empirical studies. The goal of this article is to examine the published literature to identify which psychiatrists might eventually have difficulty with the law or medical boards and to see how these findings might inform psychiatric practice and training.
Although this article focuses on empirical studies, a good general review of psychiatrists’ legal difficulties was conducted by Menninger,1 who reviewed the elements of malpractice and how it relates to the practice of psychiatry. As described by Menninger, malpractice is an act or omission by a physician in his or her professional capacity. Furthermore, the act is a consequence of failure to take the ordinary degree of care and/or utilize the adequate degree of knowledge as measured by professionals in the same field. As a result, the act causes direct damage to the patient, either by creating a new injury or aggravating an old one. The article then discusses the main liabilities in psychiatry, including patients’ acts of violence (eg, suicide and homicide); patient injuries following negligent diagnosis or treatment; faulty initiation, process, or termination of treatment; and liability from employer, supervisor, or consultative relationships.
Conte and Karasu2 reviewed the issue of malpractice in psychotherapy. They discussed the areas of potential legal concern in psychotherapy, including mismanagement of the therapeutic relationship (eg, therapists exploiting their relationship with the patient, breach of confidentiality, economic exploitation, undue intimacy, and sexual exploitation), failure to prevent patients from harming themselves or others, and inappropriate treatment. They noted that negligence by psychotherapists rarely causes physical injury but, rather, exacerbates a preexisting emotional disorder or creates a new disorder. They concluded that unless there is a blatant violation of standards of practice, the courts are less likely to support a claim that does not involve physical injury.
Inappropriate treatment and the duty to third parties were reviewed by Slovenko,3 who discusses the psychiatric patient’s right to effective treatment (exemplified by the case of Osheroff v Chestnut Lodge, 1984) and the issue of duty to third parties (eg, Tarasoff v Regents of the University of California, 1974 and 1976). Although Osheroff v Chestnut Lodge never reached final adjudication, the case generated widespread discussion and the consensus that patients have a right to effective treatment and that treatments with established efficacy have priority over treatments that do not.4Tarasoff v Regents of the University of California was a well-publicized case that established the psychotherapist’s liability to a third party who was the victim of a patient the therapist was treating. The California Supreme Court ruled that “once a therapist does in fact determine or under applicable professional standards reasonably should have determined that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.” This duty might require the therapist to take one or more steps, depending on the nature of the case, to fulfill the duty to protect. The court’s initial decision in the case, handed down in 1974, was modified on rehearing in 1976, after the presentation of an amicus brief by the American Psychiatric Association (APA). The emphasis on protecting, rather than merely warning, the victim was the most important practical change from the initial 1974 decision.
Breach of confidentiality was addressed in Lawson.5 Here the key issues include whether the standard of care was breached, whether there was a legal requirement to release information, and whether the patient was harmed. The criminal aspects of psychotherapist/patient sex are discussed in detail by Strasburger et al,6 concluding that patient/therapist sex is not only malpractice, but the weight of the evidence indicates that it is also criminal behavior. In the case of Roy v Hartogs (1976), the New York State Supreme Court Appellate Division held that the injury to the plaintiff was not merely caused by seduction but also by the defendant’s failure to treat the plaintiff with professionally acceptable procedures. Therefore, this injury constituted a viable cause of action for malpractice, independent of any seduction. The presiding justice pointed out that “psychiatric literature and authorities always viewed sexual contact between the patient and therapist as harmful and a deviation from accepted standards of treatment.”
A literature search using PubMed was performed to identify studies of malpractice lawsuits or medical board discipline of psychiatrists between 1990 and 2009. Search terms used were physicians, discipline, psychiatrists, and malpractice. Appropriate references cited in these articles also were reviewed as were suggestions from colleagues and reviewers. Studies were selected that had a representative sample base, used empirical measures, and included at least 50 psychiatrists. In addition, insurance companies that provide malpractice insurance for psychiatrists were contacted to determine if additional published or unpublished information on this topic was available.
Eight reports of physician discipline in different states in the United States as well as one from the United Kingdom were located (TABLE 1). Information was available from 1 insurance company over 3 time frames and 3 insurance companies over 1 time frame, and there were 2 sets of aggregated insurance company data (TABLE 2).
Empirical studies of legal difficulties among psychiatrists
|Morrison et al, 19987
||Physicians disciplined by the Medical Board of California from October 1995 through April 1997 (N = 375)
||The most frequent causes for discipline were: negligence or incompetence, 34%; abuse of alcohol or drugs, 14%; inappropriate prescribing, 11%; inappropriate contact with patients, 10%; and fraud, 9%. There was a higher rate of discipline for physicians who were male, involved in direct patient care, lacked specialty board certification, and were in practice >20 years
Psychiatrists had an increased rate of discipline vs other specialists (OR, 1.47; CI, 0.82 to 2.65)
|Results of discipline were medical license revoked, 21%; suspension of license, 13%; stayed suspension of license, 45%; and reprimand, 21%
|Kohatsu et al, 20048
||Physicians disciplined by the Medical Board of California from July 1, 1998 to June 30, 2001 (N = 890)
||Male sex, lack of board certification, increasing age, and international medical school education were associated with an elevated risk of disciplinary action
Psychiatrists had an increased risk of discipline vs internists (OR, 1.87; P = .001)
|Disciplinary actions included license revocation, practice suspension, probation, and public reprimand
|Morrison et al, 20019
||Psychiatrists (N = 75) out of a group of physicians disciplined by the Medical Board of California
||Physician discipline over 30 months by California medical board as reported by the Action Report, with a comparison group drawn from the AMA directory of physicians
||Psychiatrists more likely to be disciplined than general population of physicians
Specific areas of risk include sexual contact and child psychiatry
Fewer disciplined psychiatrists were women
|Probability of discipline was greater for psychiatrists
|Clay et al, 200310
||Physicians (not limited to psychiatrists) disciplined by the State Medical Board of Ohio
||The Ohio public records of professional discipline that could be matched with physician controls, (N = 308), for the period January 1997 to June 1999
||Most common offenses: Impairment due to alcohol and/or drug use, 21%; inappropriate prescribing or drug possession, 14%; previous state actions, 15%; negligence or incompetence; 7%; drug-related charges, 7%
Although offenders were significantly less likely to be women (P < .05; OR, 0.46; CI, 0.28 to 0.75), the authors found no difference in severity of disciplinary action based on gender (OR, 1.23; CI, 0.54 to 2.82) or type of medical training, ie, osteopathic and allopathic physicians (OR, 0.70; CI, 0.39 to 1.26)
Compared with controls matched for location, sex, practice type, and self-designated specialty, offenders were significantly less likely to be board certified (OR, 0.65; CI, 0.46 to 0.92) and significantly more likely to have been in practice ≤20 years (OR, 1.51; CI, 1.08 to 2.13)
There was a trend toward a greater percentage of psychiatrists being disciplined vs other specialties, but small sample size precluded finding significance (OR, 0.73; CI, 0.33 to 1.60)
|Legal and financial outcomes were not addressed
The rate of discipline from all referred cases was 0.37% per year
|Khaliq et al, 200511
||Physicians (not limited to psychiatrists) disciplined by the Oklahoma Medical Board (N = 396)
||Records of the medical board were reviewed for infractions and disciplinary actions, 2001
These were compared with physicians not disciplined
|Men (P < .04), nonwhites (P < .001), non–board-certified physicians (P < .001), and those in family medicine (P < .001), psychiatry (P < .001), general practice (P < .001), obstetrics-gynecology (P < .03), and emergency medicine (P < .001) were found to be at greater risk of discipline than other medical specialty groups
The proportion of physicians disciplined increased with each successive 10-year interval since first licensure
|Specific causes of discipline were not broken out by specialty, but for the entire group, complaints against physicians originated most often from the general public, 66%; other physicians, 5%; and staff, 4%
The complaints most often involved issues related to quality of care, 25%; medication/prescription violations, 19%; incompetence, 18%; and negligence, 17%
|Cardarelli et al, 200612
||Physicians disciplined by the Texas Medical Board from January 1, 1989 and December 31, 1998 (N = 1129)
||Case-control study involving license revocation
||Anesthesiologists (OR, 2.45; CI, 1.05 to 5.74), general practitioners (OR, 1.80; CI, 1.01 to 3.19), and psychiatrists (OR, 2.68; CI, 1.41 to 5.13), as well as those with multiple disciplinary actions (OR, 1.91; CI, 1.29 to 2.83) were most susceptible to license revocation
The more years a disciplined physician was in practice, the greater risk he or she had of license revocation (OR, 1.05; CI, 1.04 to 1.07)
|Examined only license revocation
|Nanton et al, 200613
||Disciplinary actions from the North Carolina Medical Board from 2000 to 2005 with infractions against licenses (N = 469)
400 physicians and 69 physician extenders
|Records from North Carolina Medical Board
||The most common infractions were substance abuse, 26%; administrative, 24%; and improper prescribing practices, 22%
By specialty, for impairment by substance abuse, were anesthesiologists, 43%; followed by psychiatrists, 37%
||Disciplinary problems with physicians in the Northern Health Region of the National Health Service in Great Britain
Physicians (N = 850), 49 of whom had disciplinary problems, including 11 psychiatrists
|All cases in which serious concerns had been expressed about a hospital doctor employed during the period June 1986 to June 1991
||Concerns serious enough to warrant consideration of disciplinary action for ~6% of senior medical staff (49 of 850)
Problem encountered were categorized as poor attitude and disruptive or irresponsible behavior, 32; lack of commitment to duties, 21; and poor skills and inadequate knowledge, 19; dishonesty, 11; sexual matters, 7; disorganized practice and poor communication with colleagues, 5; and other, 1
Psychiatrists represented the largest group within the problem doctors (n = 11, 22%)
|5 of the 49 doctors retired or left the employer’s service; 21 remained in employment after counseling or being under supervision
|Morlock et al, 199115
||Psychiatrists and psychiatric institutions in Maryland (N = 68 claims)
||All claims filed by HCOA between 1978 and 1985
||Incidents: At hospital, 55%; at physician’s office, 25%
Alleged damage: Emotional only, 41%; temporary injury, 20%; death, 24%
Claimants more likely to be teenagers or young adults than nonpsychiatric claims.
Patient diagnoses: Schizophrenia/psychosis, 20%; depression/affective disorders, 24%; alcohol/substance abuse, 13%; anxiety/personality disorder (“neuroses”), 11%
Suicide attempt or completion, 43%
Alleged cause of injury: Inadequate supervision, 30%; failure to diagnose, 24%; medication problems, 20%; sexual relations, 20%; failure to adequately treat/improper treatment, 22%
|Of claims filed by HCOA: Dismissed, 27%; settled privately, 35%; required a formal hearing, 38%
Of claims at formal hearing, 47% were found in favor of plaintiff
The most expensive cases were failure to supervise in a suicide case, followed by failure to diagnose and treat medical problems, and sexual misconduct and misdiagnosis/failure to adequately treat
Results from studies of state medical boards
Comparisons of disciplinary action against psychiatrists vs other specialties. Three case-control studies examined disciplinary actions by the Medical Board of California. The first study, covering the period from October 1995 through April 1997, indicated that psychiatrists had an increased rate of discipline compared with other specialties (odds ratio [OR], 1.47).7 A second study, covering the period from July 1, 1998 to June 30, 2001, also found a higher rate of discipline among psychiatrists (OR, 1.87).8 A third study,9 which also supported this finding, did not specify a time period, but probably covered the years 1996 through 1998, based on a 30-month study period and an August 1999 manuscript submission date. This study found an increased risk of disciplinary action for psychiatrists, who were disciplined at twice the rate of other specialties.
A report examining discipline from the State Medical Board of Ohio from January 1997 to June 1999 found a nonsignificant trend for a greater percentage of psychiatrists being disciplined by the medical board (OR, 0.73).10 Findings of the disciplinary action by the Oklahoma Medical Board of Licensure and Supervision for the year 2001 indicated an increased risk of disciplinary action against psychiatrists (P < .001).11 A report on physicians disciplined by the Texas Medical Board from January 1, 1989 to December 31, 1998 found that psychiatrists were among the specialties at highest risk of license revocation (OR, 2.68).12
Actions of the North Carolina Medical Board from 2000 to 2005 involving physicians with infractions against their licenses have been reported.13 Although the report did not specifically compare psychiatrists with other specialties, it did report that the most common difficulty involved substance abuse and that impairment by substance abuse in psychiatrists was second only to that of anesthesiologists. This could possibly indicate that psychiatrists might have an increased risk of infractions.
A published review of physicians with disciplinary problems in the United Kingdom during the period June 1986 to June 1991 found that psychiatrists represented the largest group of physicians disciplined, at 22%.14
Overall, it appears there is a trend for psychiatrists to be at higher risk of discipline by medical boards.
Effect of sex. Studies on the relationship of sex and disciplinary action indicate a tendency for male physicians to receive more disciplinary actions—a finding that is not significant in all studies. Morrison and Wickersham7 found an increased incidence of disciplinary action among male physicians. The OR for female physicians and disciplinary action was 0.44. Kohatsu et al8 found male sex to be associated with a significant elevated risk of disciplinary action (OR, 2.76). Morrison and Morrison9 also found that male physicians had a significant risk of being disciplined by a medical board. Women had reduced risk as estimated by the binomial proportions test (P = .002).
Clay and Canatser10 found a trend toward male physicians being the subject of more disciplinary actions than female physicians (OR, 1.23) but this was not significant at the P < .05 level. Khaliq et al11 found a strong trend (P < .04) for male physicians to be at greater risk of being disciplined by a medical board. After Bonferroni correction, this would not be significant.
Overall, it appears there is a trend for more male than female psychiatrists to be disciplined.
Effect of years in practice. Four reports address the effect of years of practice, with similar findings. Clay and Conatser10 found that physicians who had been in practice for ≥20 years were more likely to be subject to disciplinary action (OR, 1.51). Khaliq et al11 found that the proportion of physicians disciplined significantly increased with each successive 10-year interval since first licensure. Kohatsu et al8 also found that increasing age increases the risk of disciplinary action (OR, 1.64), which most likely indicates these psychiatrists had more years in practice. Cardarelli et al12 found that the longer a physician was in practice, the greater the risk that he or she had of license revocation (OR, 1.05).
Overall, it appears that length of time in practice may increase the risk of discipline.
Effects of medical training. Morrison and Wickersham7 found that board certification was negatively associated with the probability of discipline (OR, 0.42). Similarly, Clay and Conatser10 found that physicians who had been disciplined were significantly less likely to be board certified (OR, 0.65) and also found no difference in disciplinary action by type of medical training (ie, medical vs osteopathic schools) (OR, 0.70). Kohatsu et al8 found an increased chance of disciplinary action for those who graduated from international medical schools (OR, 1.36).
The strongest finding here appears to be that board-certified psychiatrists have a lower likelihood of board discipline compared with psychiatrists who are not board certified, which is most likely a proxy variable for overall level of training.
Areas of most frequent legal difficulty. Several areas seem to cause most frequent legal difficulty for psychiatrists. Morlock et al15 found that 43% of legal complaints involved patient suicide or attempted suicide and that 20% of legal complaints involved sexual relations with a patient. Morrison and Wickersham7 found that 10% of cases involved inappropriate contact with a patient. Morrison and Morrison9 noted that sexual relations was an area of legal difficulty for the physician group they examined (inappropriate contact with patients occurred in 10% of cases).
Physician substance abuse or inappropriate prescriptions for patients were another source of legal difficulty. Morrison and Wickersham7 found that physicians’ alcohol or drug problems accounted for 14% of complaints, and inappropriate prescribing accounted for 11%. Clay and Conatser10 found that among the most common offenses were impairment due to drugs or alcohol (21%) and inappropriate prescribing for patients (14%). Nanton et al13 found that among the most common infractions were alcohol/substance abuse (26%) and improper prescribing for patients (22%).
Overall, it appears that the most important areas of legal and disciplinary action against physicians are patient suicide or attempted suicide, inappropriate sexual contact, inappropriate prescribing for patients, and physician alcohol/substance abuse.
Other pertinent variables. In general, the study findings indicate that the more severe the patient’s illness, the greater the probability of legal action. However, this is not absolute. Slawson16 examined low-frequency risks or problems that were fairly uncommon for psychiatrists and found that electroconvulsive therapy (ECT) had a relatively low rate of problems despite the severity of the patient’s illnesses (see also Slawson and Guggenheim,17TABLE 2). However, this might be explained by increased regulation of ECT.
An interesting area reported on by Khaliq et al11 describes how patients learned about problems with their treatment. These complaints against physicians originated most often from the general public (66%), other physicians (5%), and staff (4%).
Results of complaints. Morlock et al15 have published results specific to psychiatrists only. In their findings, 27% of claims filed at the Health Claims Arbitration Office (HCAO) were dismissed, 35% settled privately, and 38% required a formal hearing. Of the claims at formal hearings, 47% were found in favor of the plaintiff.15 The most expensive case reported was failure to supervise in a suicide case; the next expensive were failure to accurately diagnose and failure to treat medical problems.15
Risk management information from insurance companies
|Slawson et al, 198417
||Outcome of 217 malpractice actions against psychiatrists from 1974 to 1978
||National Association of Insurance Commissioners initiated a nationwide study of medical malpractice claims
||Claims against psychiatrists represented only 0.3% of the 71,788 claims against all physicians
Among the many procedure categories, 10 psychiatric procedures accounted for 50% of the psychiatric claims. The major procedure categories were: Use of medication (mainly psychoactive), 16% (35 claims); patient examination, 13.4% (29 claims); psychotherapy, 7.4% (16 claims); and ECT, 6% (13 claims)
The 10 most frequent injuries found in psychiatric claims accounted for 44% (95) of the total claims. Diagnostic errors constituted the largest cluster of injuries, and false-positive diagnoses accounted for fully one-third of such claims. Suicide and self-injury was the second highest grouping under injury and accounted for 12% (26 claims)
Injury as a result of ECT accounted for only 0.02% (15) of all closed claims
|At least 50% of cases were settled without payment, some of relatively small amount
|Slawson PF, 199118
||Psychiatrists (N = 800, 22% female)
||Closed claim study from APA for the insurance period 1984 to 1990
||Claims of ineffective or incorrect treatment, 50% (medication a major aspect of this); incorrect diagnosis, ~10%; improper hospital detention, 9%
Female psychiatrists were underrepresented in proportion of claims
55% of patients were females, most frequent diagnosis was depression, and patients tended to have significant psychiatric illness
|Complaints were filed in two-thirds of the cases, 21% settled, there was a summary judgment in 6%, and 2% of cases were tried
The most costly claims were undue familiarity (highest) followed by suicide
|Meyer DJ, 200619
||2 sets of cause of loss information from different insurance companies
||APA, 1998 to 2005
ProMutual Insurance, Boston, 1996 to 2005
|Causes of loss: Incorrect treatment, 31%; suicide/attempted suicide, 15%; other, 15%; drug reaction, 9%; incorrect diagnosis, 9%; unnecessary commitment, 6%; improper supervision, 6%
Negligent treatment, 27%; medication related, 26%; failure to prevent suicide/homicide, 14%; sexual misconduct, 12%; other, 10%; failure to diagnose, 6%
|APA insurance program
||Psychiatrists from APA insurance program; psychiatric claims by cause of loss
||APA insurance psychiatric claims January 1, 2007 to December 31, 2007, for policy years 1998 to 2007
||Causes of loss: Incorrect treatment, 25.28%; suicide/attempted suicide, 21.06%; other, 19.36%; confidentiality breach: 17.32%; drug reaction: 9.62%
|Taragin et al, 199220
||Evaluated the malpractice experience of physicians practicing in New Jersey to determine demographic predictors of legal difficulties (N = 9,250)
||This is described as a retrospective cohort study. Data was from the New Jersey Inter-Insurance Exchange, a physician-owned insurance company that insured approximately 60% of physicians in New Jersey. This was done for physicians insured ≥2 years during the period 1977 to 1987
||Male physicians were 3 times as likely to be in the high-claims group as female physicians, even after adjusting for other demographic variables (RR, 3.1; CI, 2.2 to 4.4)
Specialty was strongly associated with claims rate, with neurosurgery, orthopedics, and obstetrics/gynecology having 7 to 12 times the number of claims per year as psychiatry, which had the fewest claims
The rate of claims varied with age (P < .001) and peaked at about age 40
No association was evident between claims rate and a physician’s site of training or type of degree
|Schwartz et al, 198921
||This report studied physicians who had lost their standard malpractice insurance due to adverse claim histories or “various behavioral problems”
(N = 920)
||This included all physicians who applied for surplus lines of malpractice insurance from Warschaw Insurance Agency from 1983 through 1987
||Compared with averages of physicians not applying for surplus line insurance, physicians age 45 to 54 were overrepresented, but there was no difference in board certification or proportion of foreign medical graduates
Surgical specialties tended to be overrepresented in this group, whereas psychiatrists were underrepresented
|Physicians Insurers Association of America (PIAA), 200622
||This organization pools data from the insurance industry to help members control risk (does not include APA insurance)
Psychiatrists (N = 1513) (although not all calculations have data on all subjects)
|Member insurance organizations pool claims data, which is aggregated and sent back to insurers in the form of a report. Only claims are reported not physicians without claims.
Dates covered are January 1, 1985 to December 31, 2005
|The age of psychiatrists reporting claims was lower than other specialties, but not greatly so
A higher number of female psychiatrists had claims compared to other physician specialties (10.6 vs 7.7%)
71% of psychiatrists with claims were board certified compared with 78.7 % of other physician specialties
77% of psychiatrists were graduates of US medical schools (other specialties, 74%)
56% of psychiatrists had previous claims experience (vs 75% of other specialties)
Of 28 specialty groups, psychiatry ranked 20th in number of claims reported
Percentage of paid to closed claims was 20.0% in psychiatry (9.5% less than other specialty groups)
Psychiatry claims were a relatively small percentage of claims reported to the PIAA
Only 1% of claims and 0.3% of indemnity dollars were attributable to psychiatry claims
In order of frequency, the most common “misadventures” of claim were none (no physician negligence), failure to supervise, medication errors, errors in diagnosis, improper performance, procedure not indicated or contraindicated, and failure to communicate with a patient
Of the 2,121 psychiatry claims closed between 1985 and 2006, almost 43.1% involved the performance of a psychological and psychiatric evaluation and psychotherapy The most common diagnostic condition involved in claims was depression
|In 2006, the average indemnity paid on behalf of psychiatrists was $506,250. This payment value is 1.55 more than the overall average indemnity paid for all physician specialties ($317,239)
In 2001, the average indemnity payment for psychiatrists, $595,000, was 2 times higher than the overall average of $295,885. The average amount of expenses paid to defend psychiatry claims in 2006 was $23,379
Data from insurance companies
Data from individual insurance companies (TABLE 2).
AMERICAN PSYCHIATRIC ASSOCIATION INSURANCE. Three sources of information were available from the APA insurance program. Slawson18 reported on a study of closed claims from 1984 to 1990. Claims included ineffective or incorrect treatment in half of cases (often involving use of medication), incorrect diagnosis in about 10%, and improper hospital detention in 9%. Female psychiatrists were underrepresented in the proportion of claims. Characteristics of patients who sued were as follows: female (55%), most frequently diagnosed with depression, and tending to have significant psychiatric illness. In terms of litigation outcomes, complaints were filed in two-thirds of cases; of these, 21% settled, 6% were resolved by summary judgment, and only 2% were actually tried. The most costly claims were for undue familiarity (highest) followed by suicide (next highest).
Meyer19 reviewed claim loss information from the APA for the period 1998 to 2005. Causes of loss were reported as follows: incorrect treatment, 31%; suicide/attempted suicide, 15%; other, 15%; drug reaction, 9%; incorrect diagnosis, 9%; unnecessary commitment, 6%; and improper supervision, 6%.
During the preparation of this article, the authors contacted the APA insurance agency, which provided claim loss information for January 1, 2007 to December 31, 2007, for policy years 1998 to 2007. Causes of loss were: incorrect treatment, 25.28%; suicide/attempted suicide, 21.06%; other, 19.36%; confidentiality breach, 17.32%; and drug reaction, 9.62%.
PROMUTUAL INSURANCE COMPANY. Meyer19 also reported loss information from ProMutual Insurance in Boston from 1996 to 2005. Here the causes of loss were: negligent treatment, 27%; medication related, 26%; failure to prevent suicide/homicide, 14%; sexual misconduct, 12%; other, 10%; and failure to diagnose, 6%.
NEW JERSEY INTER-INSURANCE EXCHANGE. Taragin et al20 evaluated the malpractice experience of physicians practicing in New Jersey to determine demographic predictors of legal difficulties. Data from the New Jersey Inter-Insurance Exchange, a physician-owned insurance company, were reviewed for physicians insured ≥2 years during the period 1977 to 1987. Male physicians were 3 times as likely to be in the high-claims group as female physicians (relative risk [RR], 3.1). Specialty was strongly associated with claims rate, with psychiatry having the fewest claims. The rate of claims varied with age (P < .001) and peaked at approximately age 40.
WARSCHAW INSURANCE AGENCY. Schwartz and Mendelson21 reported information from the Warschaw Insurance Agency from 1983 through 1987. This agency provided “surplus” lines of insurance for physicians who had difficulty obtaining insurance elsewhere— a group at fairly high risk for legal problems. Not all applicants for this insurance accepted the insurance and may have found insurance elsewhere after the initial quote. Schwartz and Mendelson compared average premiums of physicians not applying for surplus line insurance to those who did apply and found that physicians age 45 to 54 were overrepresented, but there was no difference in board certification or proportion of foreign medical school graduates. Surgical specialties tended to be overrepresented in this group, whereas psychiatrists were underrepresented.
Data from aggregated insurance company information.
NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS. Slawson and Guggenheim17 reported on a nationwide study from the National Association of Insurance Commissioners for the period 1974 to 1978, regarding the outcome of 217 malpractice actions against psychiatrists. These claims represented only 0.3% of the claims against all physicians, although the proportion of total physicians who were psychiatrists is not given. Ten psychiatric procedures accounted for half of the psychiatric claims. The major procedure categories that were associated with a malpractice suit were: use of medication (mainly psychoactive medication), 16%; patient examination, 13.4%; psychotherapy, 7.4%; and ECT, 6%. When ECT was examined as a separate category, the insurance company concluded it did not have a high risk of malpractice claims.
For cause of injury, the 10 most frequent injuries in psychiatric claims accounted for 44% of total claims. Diagnostic errors constituted the largest cluster of injuries, and false-positive diagnoses accounted for fully one-third of such claims. Suicide and self-injury was the second highest grouping under injury, accounting for 12% of claims.
PHYSICIAN INSURERS ASSOCIATION OF AMERICA (PIAA). The PIAA22 pools data from the insurance industry to help members control risk. The data they report do not include APA insurance. Only claims are reported, so calculations cannot be made regarding percentage of problems by total number of insured. The PIAA Risk Management Review Psychiatry 2006 report includes 1,513 psychiatric physicians, for the period January 1, 1985 to December 31, 2005. Psychiatry claims were a relatively small percentage of claims reported to the PIAA. Only 1% of claims and 0.3% of indemnity dollars were attributable to psychiatry claims. The percentage of claims paid vs closed was 20.0% in psychiatry—9.5% less than other specialty groups. In order of frequency, the most common “misadventures” of claim were none (no physician negligence), followed by failure to supervise, medication errors, errors in diagnosis, improper performance, procedure not indicated or contraindicated, and failure to communicate with a patient. Of the 2,121 psychiatry claims closed between 1985 and 2006, almost 43.1% involved the performance of a psychological and psychiatric evaluation and psychotherapy. The most common diagnostic conditions involved in claims were depression not otherwise specified, neurotic disorder, schizophrenia, major depression, bipolar disorder, and no diagnosable disorder.
The disorders with the highest average claims were bipolar disorder ($420,802), personality disorder ($130,385), major depression ($137,053), and neurotic disorder ($118,226). In 2001, the average indemnity payment for psychiatrists, $595,000, was 2 times higher than the overall average of $295,885. For comparison, in 2006, the average indemnity paid on behalf of psychiatrists was $506,250, which is 1.55 times the overall average indemnity paid for all physician specialties ($317,239).
Overall, data from the insurance companies indicated that the areas of greatest legal and disciplinary action against physicians were incorrect diagnosis, incorrect treatment (often related to medication), suicide attempt/completion, and improper sexual contact.
DATA OF LONGITUDINAL FOLLOW-UP OF HOSPITALIZED PSYCHIATRIC PATIENTS. One follow-up study of malpractice accusations by hospitalized psychiatric patients was available. This report, by Brennan et al,23 followed 51 malpractice actions brought by hospitalized psychiatric patients in Massachusetts over a 10-year period. At the end of the period, 46 claims had been closed. Variables examined included adverse events and the presence of physician negligence. The only variable that significantly predicted the dollar amount of payout was the presence of disability (P = .03). Neither negligence nor an adverse event were predictive of the dollar amount of payout.
Data from these are studies are not directly comparable, as the criteria for inclusion in the database as well as the criteria examined differ. Medical boards, insurers, and follow-up of psychiatric inpatients examine different variables. The study from the United Kingdom came from a very different medical system. Nonetheless, there are enough similarities that a picture emerges.
Although psychiatrists represent a very small proportion of medical malpractice suits, problem areas do exist. For example, psychiatrists appear to receive more disciplinary actions by medical boards than their numbers would warrant. Specific problem areas appear to be missed diagnoses, failure to treat/inappropriate treatment (including inappropriate prescribing), inappropriate sexual contact, and drug and alcohol abuse. It appears that the longer a physician is in practice, the greater the probability of legal or disciplinary problems developing. Cases of suicide, medication error, and missed diagnosis appear to more often subject psychiatrists to litigation.
In summary, a special area of legal difficulty for psychiatrists is sexual relations with a patient. Although the overall dollar amount of psychiatrist malpractice suits is low, some of the payouts can be high. In addition, the National Practitioner Data Bank24 indicates psychiatrists’ claims take the longest to resolve, creating an additional source of stress.
Our data are largely compatible with the review of Meyer,19 whose report is cited above His data indicate that psychiatrists have greater legal difficulty in the areas of negligent treatment, medication related problems, suicide/homicide, and sexual misconduct. Although his figures differ somewhat from some other sources cited above, they are in the same general range.
It appears that some variables tend to predict which physicians might be prone to legal difficulties. Male physicians appear to be more prone to legal difficulty than female physicians. (Although there may be a protective effect of being female, one insurance company report indicates that female psychiatrists have higher rates of legal difficulties than male psychiatrists.) The longer a physician is in practice, the greater the chance of legal difficulties. Physicians with drug or alcohol abuse issues are more prone to legal difficulties. There is some evidence that psychiatrists with board certification have fewer legal difficulties and that international medical school graduates may have an increased incidence of such difficulties. There may also be variables not caused by physician negligence, such as degree of disability, that affect the legal outcome.23
Some of these areas we can address as a profession. It is clear that psychiatrist/patient sexual encounters are extremely destructive and not as uncommon as we would like to think. Gartrell et al25 found that 7.1% of male psychiatrists and 3.1% of female psychiatrists acknowledged sexual contact with their own patients. Clearly, this is an important area for residency education and continuing education.
Difficulties with drugs and alcohol are an issue that the profession must also address. The reports are in fair agreement that this is a source of many regulatory difficulties. Again, education about substance abuse risks to psychiatrists should be emphasized in residency and continuing education thereafter. In this area, it should be recognized that there are sex differences. Women physicians with substance abuse problems may present at a younger age, have more medical and psychiatric problems at intake, and have more suicidal ideation and a greater tendency also to use sedative hypnotic drugs.26 Treatment programs for physicians with alcohol and substance abuse need to recognize these sex differences.
Data indicating that physicians who have been in practice longer have more legal or disciplinary problems reinforce the necessity for effective continuing education and consultation among peer physicians. The trend toward required renewal of board certification may help address this need.
Another interesting finding is that patients usually become aware of potential malpractice from sources other than their treating physician. One wonders whether our reluctance to bring up errors with the patient directly due to fear of lawsuits may actually have a reverse effect—ie, a patient finding out about potential malpractice from other sources may feel betrayed that his or her treating physician did not bring it up, and the patient may be more inclined to initiate legal action against that physician.
Limitations of this review include use of data with differences in demographics or other components, such as years surveyed, which prevent direct comparison of studies or meta-analysis. The data from medical boards and insurance companies also differ, as does the information from the patient follow-up study. Because of the variations of methods within each group as well as differences between the medical board and insurance company data, statistical analysis could not be performed. As a result, we are limited to a descriptive review of the empirical literature. Overall, it appears that we have enough information to identify key legal and disciplinary areas that we as a profession need to address.
It appears that psychiatrists may have more difficulty with medical board discipline than other specialties. Longer time in practice increases the probability of difficulties while board certification reduces it. In spite of the increased difficulty with medical boards, psychiatrists account for a relatively small amount of malpractice dollars paid out. More research is needed to better understand these discrepancies and to provide better guidance to practicing psychiatrists.
DISCLOSURE: The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
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CORRESPONDENCE: James H. Reich, MD, Department of Psychiatry, University of California, San Francisco, 2406 Clay Street, San Francisco, CA 94115 USA, E-MAIL: firstname.lastname@example.org
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