| Abstract|| |
Malpractice is civil wrong actionable by law. It is true, we have statistically an outside chance of getting sued. Among physicians of all specialties, we have, between 2.6% in North America and 1.3% in Europe, chance of facing malpractice suit. But, that is no comfort for one being sued. Malpractice generally involves, among others, wrongdoing or professional misconduct. It may or may not lead to legal action. I describe two cases of malpractice and its impact on the morale of my mental health team. In one case, the family were seeking compensation by claiming “medical negligence” in a trivial mishap. They had involved the local press to “publicize” their claim. In another case, the grievance arose due to anti-electroconvulsive therapy views of the patient's sister. The families decided not to sue us and accepted decisions of local inquiry. Not much is written on this subject in our country. The cases are almost 20 years old but are still relevant. The author describes the harrowing experience of the team members while the investigation was on. Fortunately, the inquiry panel concluded the proceedings in just 4 weeks. In addition, the author advises how one can prepare the defense. The readers would find informative the case vignettes and strategy to deal with the crisis.
Keywords: Defense in litigation, litigation, malpractice
|How to cite this article:|
Dhadphale MR. Psychiatrist facing litigation. Indian J Psychiatry 2019;61:405-8
| Introduction|| |
Malpractice and its various implications have been described by many scholars. It is beyond the scope of this short paper, I advise my colleagues to read articles by Leahy  and Anderson. Clinicians facing litigation undergo highly distressing experiences. Scholars have labeled it as malpractice stress syndrome., In their 45-year-long study in Canada, Mela et al. highlight significant issues faced by physicians in malpractice suits; these are failure to follow best clinical practice and guidelines (Standard operating procedures (SoPs)); poor documentation of informed consent; incompetence; and lack of expertise in case management. Assessment of dangerousness and failure to caution about drugs' side effects are also crucial, and the Bolam case law states that “If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent” (Bolam, 2011). Bolitho (1991) considers court as the final arbiter in disputes. As patients become assertive and knowledgeable, we have higher chance of facing litigation. Dondershine et al. discuss malpractice under the following four points: prescribing, liability of suicide, informed consent, and duty to protect. Physical involvement with patient has catastrophic consequences. We as a specialty have an outside chance of facing legal action;, nevertheless, we must not drop our guard and be complacent. Most writers agree that psychiatric malpractice is an emotionally devastating experience for those sued. I believe, seniors must make younger specialists aware of malpractice suits and prepare them to defend themselves. Although the reported cases are from the UK, the lessons learned are relevant to India.
I describe, how my experienced team faced litigation and tackled the crisis. Local inquiry absolved us; nevertheless, we continued to suffer the psychological sequelae for months.
| Case Vignettes|| |
Maria (78 years old): Diagnosis of advanced Alzheimer's disease
It was in the winter of 1997, my 1st day at work was to prove a most disturbing event. It was due to a tragic accident that involved my elderly patient. She had accidentally sustained superficial burns on her feet. On entering the ward, a worried ward sister showed me frightening cuttings from local papers; one headline read “an elderly patient admitted for routine care sustained grievous burns due to incompetence of nurses.” While the other predicted, “the hapless, confused patient had suffered such extensive damage to her legs that she would never walk again!!” Both papers were judgmental and held negligent ward staff responsible for the tragedy! The patient's daughter and son-in-law were furious with us for making Maria a cripple. They accused us of being incompetent and negligent and were eager to sue us for compensation.
The sequence of events was as follows: seventy-nine-year-old Maria was under my care for 3 years for advanced dementia. She needed assistance in all activities of daily living. She had a full-care package that included day care thrice a week, i.e., 2:8 (2 weeks in every 8 weeks), respite care, and regular home visits by a community nurse. On that fateful day, she was going home after respite admission. Before discharge, she was being given a bath. While in the tub, she soiled herself, and the nurse ran to get tissues to clean up and was back in a minute. In that minute or two, a little warm water had accumulated in the bath as the hot and cold taps were slightly open that caused superficial burns to Maria's feet. The nurse promptly closed the taps and removed Maria from the bath. The ward doctor came within minutes; he saw her and advised to just apply soothing cream on the feet.
No sooner the family, waiting to collect Maria, were informed about the mishap than they rushed in and looked at her reddish feet. They became furious and aggressive. They shouted insults and demanded to refer her to a special unit for the “extensive burns.” We sent her to the accident and emergency unit. Under pressure from the family, she was referred to the “burns unit” but was sent back to us as her burns were “insignificant.” The irate son-in-law went to the Press, took pictures, and flashed them on front pages! To the dislike of the family, she was back in my ward.
I had carefully listened to the ward sister. I was stunned and dismayed by these events. Without delay, I convened a meeting to try to reconstruct hour-by-hour situation from the nurses and carefully documented the sequence of events. My staff were demoralized by bad publicity, threats of legal action, and constant nagging by the family. Many of them were anxious and needed assurance to talk freely. We concluded that (a) this was a minor accident and regretted it, (b) there was no evidence of incompetence or negligence by anyone, and (c) we were happy that Maria was “back to normal” within 4 days. Further, we resolved to be more vigilant while bathing a confused patient. In my report to the inquiry board, I stated that (a) the patient has fully recovered from the superficial burns, (b) the issue of compensation does not arise, (c) there is no evidence of negligence or incompetence by anyone, (d) we shall discharge Maria from our care as the patient's family have lost trust in us, and (e) should the family sue us, we shall vigorously defend ourselves. A fortnight later, at a Section 117 (discharge planning, Mental Health Act [MHA], 1983) meeting of all carers and the family, I read our conclusions that (a) it was a trivial accident and (b) the burns have healed without loss of function. They were warned, and we were discharging Maria from our care as they had cast aspersions on our competence. (Remember, we also have a right to not treat a patient, but must give reasons for it.) They refused to accept the report and were going to sue us.
Agnes (83 years old): Diagnosis of severe depression
I visited 83-year-old Agnes at her general practitioner's (GP) request, in 1999, because “she has stopped eating for 4 days, is withdrawn, and is depressed.” She also had multiple physical problems for the last 18 years that included ileostomy, heart failure, advanced osteoarthritis of the ríght hip and knee, and impaired kidney and liver. She lived with her caring husband. For the last 2/3 weeks, she had been refusing meals and looked unhappy and tearful. She had lost 2 kg in 4 weeks and looked dehydrated. The husband thought that she was getting depressed again. Eight years ago, she was treated for depression. Her physical condition was deteriorating. The husband and GP were worried about her deteriorating physical state. Hence, the GP sought my opinion. During my domiciliary visit, she was in bed and could barely sit up and talk, looked dehydrated, and was in poor health. Her mood was depressed, and she had psychomotor retardation. She reluctantly answered questions in monosyllables and was getting irritable as the interview progressed. After 7 or 8 min, she closed her eyes and told us to go. We learned her past history of depression and slow recovery from her husband. We believed that she was clinically depressed and may be suicidal. She had a complicated medical history; hence, we admitted her to medical ward under a physician. Once physically stabilized, I thought of treating her mental illness. I believed that many antidepressants would be contraindicated and electroconvulsive therapy (ECT) may be a safer option. A week later, after investigations and medical care, she was declared fit for ECT. We believed that her capacity to sign informed consent was impaired, and therefore, arranged Sec 3 assessment (Treatment Order, MHA 1983). The procedure would include seeking a second opinion of an approved specialist before prescribing ECT. We discussed at length with her husband and son why ECT was a safer option and Section 3 was considered. They agreed with the management plan. Our social worker and I addressed their concerns.
The first ECT was uneventful. On the following morning, she was cheerful and started eating a little but relapsed 4 days later. Hence, three more ECTs were given in the following fortnight. The response was satisfactory. After the last treatment, we decided to wait for a week and review her condition. She was getting better, but 5 days after the last ECT, she suddenly died (of multiple organ failure – physician's view).
A week later, Agnes's sister complained to the hospital management accusing that ECT had killed Agnes. She was furious, accused doctors and nurses, but singled me out for her sister's death. She demanded an inquiry into the incident. She wondered, how in today's world, the inhuman and barbaric treatment such as ECT is still used in this advanced country!! A panel to deal with the complaint was appointed. During the hearing, I submitted that ECT was carefully considered as the least risky option to treat her depression. I added, due legal procedure was followed and the husband was kept informed. The second-opinion independent specialist had also assessed Agnes and approved our care plan that included ECT. I tried to convince the skeptical sister, “in certain situations, ECT may be the best and safest option.” She remained unmoved though. The inquiry panel concurred with our assessment and absolved us of malpractice. (We learned later, the patient's sister was a member of anti-ECT movement and wanted ECT banned.)
| Comments and Discussion|| |
Physicians facing litigation will find Leahy's  article extremely helpful to prepare the defense. The most essential skill for any multiprofessional team in the face of a crisis is its ability to competently defuse it promptly. If one has followed clinical guidelines and taken corrective action, no one should feel intimidated by adverse Press reports or threats of legal action. Moreover, I believe that we ought to predict intimidating behavior from some aggrieved families but must always act in the best interest of the patient. The team must also be familiar with the Bolam  and Bolitho tests. They play crucial part in some malpractice suits. A good team should be able to predict who is likely to indulge in litigation. We had observed that one member of a patient's family had a tendency to threaten us. He was intimidating and had rushed to the Press and threatened us with legal action. If the team is well gelled, competent, and dedicated, any crisis situation can be managed satisfactorily. It is the consultant's duty to lead his/her team, quickly assess the gravity of the crisis, and promptly deal with it. One must confess that all team members had harrowing weeks although the complaint was speedily heard and we were absolved.
Most of my colleagues went through a devastating experience, being unsure when and how would this disaster end? Albeit as a specialty we have a small chance of facing litigation,, compensation neurosis, or malpractice stress syndrome (Sanbar and Firestone), the latter is a label given to the symptoms litigants had suffered. Mendelson  calls compensation neurosis an invalid diagnosis. Whatever the diagnostic label, until the verdict was delivered, we suffered symptoms similar to those of posttraumatic stress disorder (Reading 1986, 2001)., The bath nurse was seriously affected and took a year to recover! Unless the authorities initiate a thorough inquiry that is followed by prompt and appropriate action, mental health teams would suffer anxiety and guilt feeling. In my long experience, nurses and doctors do their best for the patients and do never willfully neglect patients. However, relatives may have their own concepts of mental illness and “proper” management. In the first case, the family had hoped to get compensation, whereas in the second, the patient's sister had anti-ECT view. We successfully faced the challenges and were absolved of any blame. The success or failure of the challenge squarely rests on the psychiatric team's experience and competence. Immaculate clinical notes are a cornerstone as they build a minute-by-minute scenario. The quality of notes and personality of a consultant to remain calm in the crisis are vital ingredients in litigation cases. It is seniors' duty to support their young or less experienced staff.
Complaints often arise due to failure of rapport between patients or their families and us. In our country, little is written on litigation and its impact on psychiatrist. We went through tormenting emotional turmoil, unsure when and how this disaster would end. The authorities ought to initiate quick and thorough inquiry and take prompt action, lest the staff would suffer litigation stress syndrome. In a study on the self-reported reactions of physicians sued for malpractice, Charles et al. estimated that 53% of the sample had anger cluster and 27% had depression cluster. It simply means, litigation affected the mental health of as many as 80% of physicians. In the first case, the family were after compensation, whereas in the second, the sister had anti-ECT view. Leadership quality of the consultant and a good team are vital ingredients for defense in litigation.
We should frankly address the reality of malpractice or litigation in mental health. Fortunately, psychiatrists have only 2.6% chance, in the list of doctors getting sued. They are mostly sued in suicidal cases (Figueroa and Dalack, 2013). While facing litigation, the following four factors are essential: (a) identify or predict the potential litigant, (b) good support from the administration, (c) consultant's ability to stand firmly with the involved staff, and (d) writing good quality notes. The consultant remains the lynchpin of the team and his/her resources are tested to the limit.
To reduce litigation, I believe that (a) the administration should establish a “grievance redressal system” in every mental health unit, (b) first endeavor to settle matters at his/her level, if not, (c) convene a meeting of the involved staff to prepare a detailed log of events related to the complaint, (d) the staff are invariably are under stress and need support from the seniors, and (e) to arrange an internal inquiry, to speedily thresh out the complaint. Most problems are solved at this level; otherwise, the next forum is the court.
I am grateful to Eileen Anchor who stood by me during difficult times and to Dr. Raajini for support to the team. Thanks to Sanhita for critical review of the manuscript.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
| References|| |
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Prof. Manohar R Dhadphale
Department of Psychiatry, Kamala Nehru Hospital, Mangalwar Peth, Pune - 411 005, Maharashtra
Source of Support: None, Conflict of Interest: None