Hostname: page-component-848d4c4894-nr4z6 Total loading time: 0 Render date: 2024-05-17T12:40:29.913Z Has data issue: false hasContentIssue false
  • English
  • Français

Professional Liability and the Quality of Mental Health Care

Published online by Cambridge University Press:  28 April 2021

Richard J. Bonnie
Get access Rights & Permissions [Opens in a new window]

Extract

Any lawyer in a gathering of health professionals, especially physicians, can expect to be bombarded by complaints about the law of professional liability and the high cost of malpractice insurance. It is well-established, of course, that the number of medical malpractice claims significantly increased in the 1960s, precipitating the first insurance crisis in the early 1970s, and leading to a wave of legislative reforms. Now, after a quiescent period, the number of claims filed and the cost of insurance are rising again, and the legislatures have responded with a new wave of reforms.

According to the American Medical Association's socio-economic monitoring system, the number of claims filed against physicians increased from an average annual rate of 3.2 per 100 physicians before 1981 to 8.2 from 1981-1984 and to 10.1 in 1985. The annual cost of insurance premiums, which had increased only by 4 percent per year from 1976 to 1982, increased by an annual average of 21.9 percent between 1983 and 1985. The cost of insurance represents about 4 percent of the gross revenues of the average self-employed physician.

Type
Psychoanalysis, Psychiatry, and Law
Information
Law, Medicine and Healthcare , Volume 16 , Issue 3-4 , Winter 1988 , pp. 229 - 239
Copyright
Copyright © American Society of Law, Medicine and Ethics 1988

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

See generally Robinson, Glen O., “Malpractice Crisis of the 1970's: A Retrospective,” Law & Contemporary Problems, 49 (1986): 5–35.Google Scholar
Id: 31, n.136 and related text.Google Scholar
For a list of states and summary of reforms proposed and enacted, see Medical Liability Monitor, Special Report, July/Aug. (1985).Google Scholar
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.Google Scholar
Reynolds, Roger Rizzo, John Gonzalez, Martin, “The Cost of Medical Professional Liability”, Journal of the American Medical Association, 257 (1987): 2776.Google Scholar
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.)Google Scholar
Roback, Gene Mead, Diane & Randolph, Lillian, eds., Physician Characteristics and Distribution in the U.S., (American Medical Association 1986): Table A-2 at 20.Google Scholar
Id.: 54 and 68. (These statistics indicate that psychiatrists treat one-third as many patients as the “average” physician.)Google Scholar
Slawson, Paul, “Psychiatric Malpractice: The Emerging Pattern”, paper presented to the 141st Annual Meeting of the American Psychiatric Association, May 9, 1988.Google Scholar
Gonzalez, supra note 4, at 13.Google Scholar
Id.: 16.Google Scholar
Id.Google Scholar
Wright, Rogers, “Psychologists and Professional Liability (Malpractice) Insurance: A Retrospective Review”, American Psychologist, 36 (1981): 1489.Google Scholar
Telephone conversation with an insurance specialist of the American Psychological Association, May 1987.Google Scholar
Gerhart, Ursula and Brooks, Alexander, “Social Workers and Malpractice: Law, Attitudes, and Knowledge”, Social Casework: The Journal of Contemporary Social Work, 66 (Sept. 1985).Google Scholar
Id.: 413.Google Scholar
See Bovbjerg, Randall, “Medical Malpractice on Trial: Quality of Care is the Important Standard,” Law & Contemporary Problems, 49 (1986): 326–28.Google Scholar
Id.: 328-329.Google Scholar
Law, Sylvia, “A Consumer Perspective on Medical Malpractice,” Law & Contemporary Problems, 49 (1986): 315–16.Google Scholar
Id.Google Scholar
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.Google Scholar
Id.Google Scholar
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.Google Scholar
Bovbjerg, supra note 17, at 326.Google Scholar
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.Google Scholar
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.Google Scholar
Danzon, Patricia, Medical Malpractice: Theory, Evidence, and Public Policy, (Cambridge, Harvard University Press, 1985), p. 24.Google Scholar
“Malpractice Claims for Suicide Top List,” Psychiatric News, (April 3, 1987(.Google Scholar
Slawson, supra note 9. (Only one claim filed between May, 1984 and April, 1987 was associated with ECT.)Google Scholar
Slawson and Guggenheim, supra note 6, at 980.Google Scholar
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.Google Scholar
See, e.g., “Malpractice and the Quality of Care,” New England Journal of Medicine, 317 (1987): 1353 (Letters to Editor).Google Scholar
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.Google Scholar
Bovbjerg, supra note 17, at 333.Google Scholar
Experience rating of individual providers is likely to be difficult due to the low frequency of claims and unclear risk factors for individual physicians.Google Scholar
E.g.,Hillman, , “Special Report, Financial Incentives for Physicians in HMO's”, New England Journal of Medicine 317 (1987): 1743.Google Scholar
But see Bovbjerg, supra note 17, at 330.Google Scholar
See Brook, Robert Brutco, Rodolf and Williams, Kathleen, “The Relationship Between Medical Malpractice and Quality of Care,” Duke Law Journal, 1975 (Jan. 1975): 1216.Google Scholar
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.”Google Scholar
Public Law 99–660, tide IV, amended by Public Law 100–177.Google Scholar
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.Google Scholar
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.Google Scholar
Iglehart, John, “Special Report: The Professional Liability Crisis”, New England Journal of Medicine, 315:17 (1986): 1105–06.Google Scholar
Bovbjerg, supra note 17, at 334.Google Scholar
See generally Frank Marsh, “Health Care Cost Containment and the Duty to Treat,” Journal of Legal Medicine, 6 (1985): 157–90.Google Scholar
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.Google Scholar
Robinson, Glen, “Rethinking the Allocation of Medical Malpractice Risks Between Patients and Providers”, Law & Contemporary Problems, 49 (1986): 176–77.Google Scholar
Id.Google Scholar
American Medical Association, Special Task Force on Professional Liability and Insurance, Professional Liability in the 80's, Report 1 (1984): 6.Google Scholar
Robinson, supra note 47, at 177.Google Scholar
Reynolds, Rizzo & Gonzalez, supra note 5, at 2781.Google Scholar
Project, The Medical Malpractice Threat: A Study of Defensive Medicine, Duke Law Journal, 1971 (1971): 956.Google Scholar
Id.: 983.Google Scholar
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.Google Scholar
Id.: 949.Google Scholar
42 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr 14 (1976). (This was the modified version of the original Tarasoff decision.)Google Scholar
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.Google Scholar
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.Google Scholar
Note, “Where the Public Peril Begins: A Survey of Psycho-therapists to Determine the Effects of Tarasoff,” Stanford Law Review, 31 (1978): 181–82.Google Scholar
Robinson, supra note 47, at 17–18.Google Scholar
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.Google Scholar
Stone, Alan, “Informed Consent: Special Problems for Psychiatry”, Hospital & Community Psychiatry, 30 (1979): 321.Google Scholar
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.Google Scholar
Id.: 38–39.Google Scholar
Appelbaum, Paul S., “The Right to Refuse Treatment with Antipsychotic Medication: Retrospect and Prospect”, American Journal of Psychiatry,145:_(1988): 413–19.Google Scholar
Applebaum, Paul S. and Gutheil, T.G., “Clinical Aspects of Treatment Refusal”, Compr. Psychiatry 23 (1982): 560–66.CrossRefGoogle Scholar
Appelbaum, supra note 66, at 418.Google Scholar
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.Google Scholar
Tarasoff v. Board of Regents, supra note 56.Google Scholar
Rachlin, Stephen & Schwartz, Harold, “Unforeseeable Liability for Patients' Violent Acts”, Hospital and Community Psychiatry, 37:7 (1986): 725.Google Scholar
See generally, Stuart Schwartz & Stephen Goldfinger, “The New Chronic Patient: Clinical Characteristics of an Emerging Subgroup”, Hospital & Community Psychiatry, 32:7 (1981): 470.Google Scholar
See, e.g., Appelbaum, Paul, “Tarasoff and the Clinician's Problems in Fulfilling the Duty to Protect”, American Journal of Psychiatry, 142:4 (1985): 426.Google Scholar
“The Professional Liability Crisis: An Interview with Joel Klein,” Hospital and Community Psychiatry, 10 (1986): 1012–16.Google Scholar
Rachlin and Schwartz, supra note 70.Google Scholar
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.Google Scholar
Appelbaum, supra note 66, at 418.Google Scholar
Rachlin and Schwartz, supra note 71, at 729.Google Scholar
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.Google Scholar
See generally Klein, Joel & Glover, Stephen, “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.Google ScholarPubMed
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.Google Scholar
Virginia Birth Related Neurological Injury Compensation Act, Va. Code Ann. §§38.2-5000-21 (1987 Supp.).Google Scholar
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.Google Scholar
American Psychiatric Association, Task Force Report of Seclusion and Restraint: The Psychiatric Uses. (Washington, D.C. 1984).Google Scholar
Roth, L. (ed.), Clinical Treatment of the Violent Person, DHHS Publication No. (ADM) 85–1425(1985).Google Scholar
See Robinson, supra note 1, at 11–12.Google Scholar