Professional Liability and the Quality of Mental Health Care

See generally Robinson Glen O. , “Malpractice Crisis of the 1970's: A Retrospective,” Law & Contemporary Problems, 49 (1986): 5–35.

Id: 31, n.136 and related text.

For a list of states and summary of reforms proposed and enacted, see Medical Liability Monitor, Special Report, July/Aug. (1985).

Gonzalez Maitin L. , “Trends in Physicians' Professional Liability Claims and Insurance Premiums,” in Gonzalez Martin & Edmonds David , eds., Socioeconomic Characteristics of Medical Practice (American Medical Association 1986): 12.

Reynolds Roger Rizzo John Gonzalez Martin , “The Cost of Medical Professional Liability”, Journal of the American Medical Association, 257 (1987): 2776.

Slawson Paul & Guggenheim Frederick , “Psychiatric Malpractice: Review of the National Loss Experience”, American Journal of Psychiatry, 141:8 (Aug. 1984): 981. (These data pertain to claims filed betwen 1974 and 1978.)

Roback Gene Mead Diane & Randolph Lillian , eds., Physician Characteristics and Distribution in the U.S., (American Medical Association 1986): Table A-2 at 20.

Id.: 54 and 68. (These statistics indicate that psychiatrists treat one-third as many patients as the “average” physician.)

Slawson Paul , “Psychiatric Malpractice: The Emerging Pattern”, paper presented to the 141st Annual Meeting of the American Psychiatric Association, May 9, 1988.

Gonzalez, supra note 4, at 13.

Id.: 16.

Id.

Wright Rogers , “Psychologists and Professional Liability (Malpractice) Insurance: A Retrospective Review”, American Psychologist, 36 (1981): 1489.

Telephone conversation with an insurance specialist of the American Psychological Association, May 1987.

Gerhart Ursula and Brooks Alexander , “Social Workers and Malpractice: Law, Attitudes, and Knowledge”, Social Casework: The Journal of Contemporary Social Work, 66 (Sept. 1985).

Id.: 413.

See Randall Bovbjerg, “Medical Malpractice on Trial: Quality of Care is the Important Standard,” Law & Contemporary Problems, 49 (1986): 326–28.

Id.: 328–329.

Law Sylvia , “A Consumer Perspective on Medical Malpractice,” Law & Contemporary Problems, 49 (1986): 315–16.

Id.

Zuckerman Stephen Koller Christopher F. & Bovbjerg Randall , “Information on Malpractice: A Review of Empirical Research on Major Policy Issues”, Law & Contemporary Problems, 49 (1986): 87.

Id.

For discussion of the basis for this reliance on professional custom in medical malpractice, see McCoid Allan , “The Care Required of Medical Practitioners,” Vanderbilt Law Review, 12 (Jun. 1959): 549–632; Morris Clarence , “Custom and Negligence,” Columbia Law Review, 42 (Sep. 1942): 1147–68.

Bovbjerg, supra note 17, at 326.

The available data are summarized in Allan Meyers, “Lumping It: The Hidden Denomination of the Medical Malpractice Crisis,” American Journal of Public Health, 77 (1987): 1544–48.

Steel K. Gertman P. Crescenzi C. and Anderson J. , “Iatrogenic Illness on a General Medical Service at a University Hospital”, New England Journal of Medicine, 304:11 (Mar. 12, 1981): 638–41.

Danzon Patricia , Medical Malpractice: Theory, Evidence, and Public Policy, (Cambridge, Harvard University Press, 1985), p. 24.

“Malpractice Claims for Suicide Top List,” Psychiatric News, (April 3, 1987(.

Slawson, supra note 9. (Only one claim filed between May, 1984 and April, 1987 was associated with ECT.)

Slawson and Guggenheim, supra note 6, at 980.

According to a consultant's report prepared for the American Psychiatric Association in 1985, about three-fourths of all claims filed do not result in any payment to the claimant.

See, e.g., “Malpractice and the Quality of Care,” New England Journal of Medicine, 317 (1987): 1353 (Letters to Editor).

Charles Sara C. Wilbert Jeffrey and Franke Kevin , “Sued and Non-Sued Physicians' Self-Reported Reactions to Malpractice Litigation” American Journal of Psychiatry, 142:4 (Apr. 1985): 439.

Bovbjerg, supra note 17, at 333.

Experience rating of individual providers is likely to be difficult due to the low frequency of claims and unclear risk factors for individual physicians.

E.g., Hillman , “Special Report, Financial Incentives for Physicians in HMO's”, New England Journal of Medicine 317 (1987): 1743.

But see Bovbjerg, supra note 17, at 330.

See Brook Robert Brutco Rodolf and Williams Kathleen , “The Relationship Between Medical Malpractice and Quality of Care,” Duke Law Journal, 1975 (Jan. 1975): 1216.

See Richard Kusserow Elizabeth Handley and Mark Yession , “An Overview of State Medical Discipline,” Journal of the American Medical Association, 257:6 (1987): 823. In this study of state licensure and disciplinary processes by the DHHS Inspector General, the investigators found that most complaints were filed by consumers and law enforcement agencies, and that individual health care professionals, hospitals, peer review organizations and medical societies provided “strikingly few reports.”

Public Law 99–660, tide IV, amended by Public Law 100–177.

The Department of Health and Human Services has recently issued a notice of proposed rulemaking to implement the Health Care Quality Improvement Act, “National Data Bank for Adverse Information on Physicians and Health Care Practitioners,” Federal Register, 53 (March 21, 1988): 9264.

It is generally agreed that none of the available institutional mechanisms have been particularly effective in identifying and protecting the public from incompetent practitioners. The number of practitioners disciplined by professional societies or licensing boards remains small. Only rarely is such a proceeding initiated on grounds of malpractice adjudication. See Brook, Brutco & Williams, supra note 38, at 1216.

Iglehart John , “Special Report: The Professional Liability Crisis”, New England Journal of Medicine, 315:17 (1986): 1105–06.

Bovbjerg, supra note 17, at 334.

See generally Frank Marsh, “Health Care Cost Containment and the Duty to Treat,” Journal of Legal Medicine, 6 (1985): 157–90.

Peters Douglas Nord Steen & Woodson Donald , “An Empirical Analysis of the Medical and Legal Professions' Experiences and Perceptions of Medical and Legal Malpractice”, Michigan Journal of Law Reform, 19 (1986): 611–13.

Robinson Glen , “Rethinking the Allocation of Medical Malpractice Risks Between Patients and Providers”, Law & Contemporary Problems, 49 (1986): 176–77.

Id.

American Medical Association, Special Task Force on Professional Liability and Insurance, Professional Liability in the 8o's, Report 1 (1984): 6.

Robinson, supra note 47, at 177.

Reynolds, Rizzo & Gonzalez, supra note 5, at 2781.

Project, The Medical Malpractice Threat: A Study of Defensive Medicine, Duke Law Journal, 1971 (1971): 956.

Id.: 983.

Id.: 964. It should be noted that in assessing the effect of allegedly unnecessary practices an important issue is whether or not cost constraints exist. If so, the magnitude of the problem would be reduced.

Id.: 949.

42 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr 14 (1976). (This was the modified version of the original Tarasoff decision.)

Appelbaum Paul , “Hospitalization of the Dangerous Patient: Legal Pressures and Clinical Responses”, Bulletin of the American Academy of Psychiatry and the Law, 12 (Dec. 1984): 323–28.

Charles, Wilbert & Franke, supra note 33. (Physicians reported they were likely to stop seeing seemingly high-risk patients). Such a practice may not constitute malpractice, but even if it does, it is surely more difficult to detect and prove than more conventional forms of substandard practice.

Note, “Where the Public Peril Begins: A Survey of Psycho-therapists to Determine the Effects of Tarasoff,” Stanford Law Review, 31 (1978): 181–82.

Robinson, supra note 47, at 17–18.

The emergence of specialty journals on medico-legal topics, such as this one and the Bulletin of the American Academy of Psychiatry and the Law also support my argument, although the more pertinent journals are those directed to the general professional audience.

Stone Alan , “Informed Consent: Special Problems for Psychiatry”, Hospital & Community Psychiatry, 30 (1979): 321.

Gutheil T.G. Bursztajn H. and Brodsky A. , “Malpractice Prevention Through the Sharing of Uncertainty: Informed Consent and the Therapeutic Alliance”, New England Journal of Medicine, 311: (1984): 49–51. See also, Malcolm John , “Treatment Choices and Informed Consent in Psychiatry: Implications of the Osteroff Case for the Profession,” Journal of Psychiatry & Law, 1986 (Spring 1986): 33–37.

Id.: 38–39.

Appelbaum Paul S. , “The Right to Refuse Treatment with Antipsychotic Medication: Retrospect and Prospect”, American Journal of Psychiatry,145:_(1988): 413–19.

Applebaum Paul S. and Gutheil T.G. , “Clinical Aspects of Treatment Refusal”, Compr. Psychiatry 23 (1982): 560–66.

Appelbaum, supra note 66, at 418.

Appelbaum Paul S. and Hoge S.K. , “The Right to Refuse Treatment: What the Research Reveals”, Behavioral Sciences and the Law, 4 (1986): 279–92.

Tarasoff v. Board of Regents, supra note 56.

Rachlin Stephen & Schwartz Harold , “Unforeseeable Liability for Patients' Violent Acts”, Hospital and Community Psychiatry, 37:7 (1986): 725.

See generally, Stuart Schwartz & Stephen Goldfinger, “The New Chronic Patient: Clinical Characteristics of an Emerging Subgroup”, Hospital & Community Psychiatry, 32:7 (1981): 470.

See, e.g., Paul Appelbaum, “Tarasoff and the Clinician's Problems in Fulfilling the Duty to Protect”, American Journal of Psychiatry, 142:4 (1985): 426.

“The Professional Liability Crisis: An Interview with Joel Klein,” Hospital and Community Psychiatry, 10 (1986): 1012–16.

Rachlin and Schwartz, supra note 70.

For an explicit elaboration of this concept in the context of release decision-making, see Poythress N. , “Avoiding Negligent Release: A Risk-Management Strategy”, Hospital and Community Psychiatry, 38 (1987): 1051–52.

Appelbaum, supra note 66, at 418.

Rachlin and Schwartz, supra note 71, at 729.

Givelber Daniel Barnes Willia & Blitch Carolyn , “Tarasoff, Myth and Reality: An Empirical Study of Private Law in Action”, Wisconsin Law Review 1984 (1984): 483–85.

See generally Joel Klein & Stephen Glover, “Psychiatric Malpractice”, International Journal of Law and Psychiatry, 6 (1983): 135; Winslade W.J. Liston E.H. Ross J.W. & Weber K.D. , “Medical, Judicial and Statutory Regulation of ECT in the United States”, American Journal of Psychiatry, 141 (1984): 1349.

Council on Psychiatry and Law of the American Psychiatric Association, Resource Document on the Duty to Protect (1987). The proposal was offered as a guide to District branches in those states in which case law has expanded the liability of psychiatrists.

Virginia Birth Related Neurological Injury Compensation Act, Va. Code Ann. §§38.2-5000-21 (1987 Supp.).

American Psychiatric Association, Task Force Report on Electroconvulsive Therapy (1978). See also Consensus Development Panel, “Electroconvulsive Therapy,” Journal of the American Medical Association 254:15 (1985): 2103.

American Psychiatric Association, Task Force Report of Seclusion and Restraint: The Psychiatric Uses. (Washington, D.C. 1984).

Roth L. (ed.), Clinical Treatment of the Violent Person, DHHS Publication No. (ADM) 85–1425(1985).

See Robinson, supra note 1, at 11–12.