Psychiatry - November 2008 - (Page 49)

Risk Management Duty of care. The physician owes a duty of care to the patient (to meet the standard of care). The duty of care arises from the special, legally recognized relationship between the physician and the patient. The psychiatrist owes a legal duty of care to his or her patients, but the obligation is not simply to care for them in any way she or he sees fit. The psychiatrist must care for patients in accordance with the standard of care. The standard of care, like the duty of care, is a legal concept, not a clinical concept; however, the legal concept is based on the clinical care. The exact definition of the standard of care varies from state to state and can have a great deal of nuance. Breach of duty. The physician is negligent (the care provided fell below the standard of care). The failure to meet a legal duty is called negligence. In a medical malpractice lawsuit, the plaintiff must show that the physician was negligent. Malpractice actions must contain allegations of negligence (e.g., negligent treatment, negligent prescribing). Negligence can be defined as the failure to meet the standard of care. It is important to understand that negligence in this context is accidental. It is an unintentional wrongdoing, as distinguished from an intentional wrongdoing (e.g., assault and battery). Damages. The patient suffers an adverse outcome (injury). Malpractice is more than simply negligence; there must be an injury as well. Legal injuries can be physical, emotional, or financial. Medical/professional malpractice is the act(s) or continuing conduct of a physician that does not meet the standard of professional care and results in injury/damage to the patient, such as an error or omission. It does not include the exercise of professional judgment even when the results are detrimental to the patient. In other words, if a psychiatrist’s [NOVEMBER] THREE RISK MANAGEMENT BASICS Psychiatry (Edgemont) 2008;5(11):49–51 This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice. We invite questions from our readers. The answers are provided by PRMS, Inc. (www.prms.com), a manager of medical professional liability insurance programs with services that include risk management consultation, education and onsite risk management audits, and other resources to healthcare providers to help improve patient outcomes and reduce professional liability risk. The answers published in this column represent those of only one risk management consulting company. Other risk management consulting companies or insurance carriers may provide different advice, and readers should take this into consideration. The information in this column does not constitute legal advice. For legal advice, contact your personal attorney. QUESTION: When I hear about medical malpractice lawsuits involving doctors in my community or reported in the media, it often leads to discussions with my colleagues about what is involved in malpractice litigation. What must a plaintiff prove in order to prevail in a medical malpractice lawsuit? ANSWER: There are four elements to a malpractice lawsuit, and the plaintiff must prove all four in order to prevail (i.e., in order for the defendant to be found liable). Those elements are 1) a duty of care, 2) a breach of the duty, 3) damages, and 4) proximate cause. Psychiatry 2008 49 http://www.prms.com

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Psychiatry - November 2008 Editor's Message Editorial Advisory Board Contents PsychRx Letters to the Editor Measuring Adverse Events in Psychiatry Nonsuicidal Self Injury in Adolescents Relative Tolerability of Alzheimer's Disease Treatments Biracial Identity Development and Recommendations in Therapy Depression and Cardiovascular Disease: Just an Urban Legend? Three Risk Management Basics Journal Watch Classified Advertising Information for Authors

Psychiatry - November 2008

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