I’m currently taking my last of 2 Masters in Science classes, and I’m going to share a post I recently made.  Interested very much in YOUR take!

P.S. For some reason, the footnotes are missing (prob because I cut and pasted this) so I just added the references at the end.

Therapist liability or negligence.

Assignment:

Choose one of the malpractice cases described in this chapter. Describe one of the points of law, specific issues, or matters of doctrine that impressed, intrigued or frightened you. Since we have all read this chapter, there is no need to summarize the case. Rather, you should discuss one aspect of the case. You can argue the court’s findings, learn more about the issues involved through outside references, or describe a variation on the case that might have gotten a different outcome.
Me:
You know what scares me? Negligence claims. The fact that the rule put forth by the Court of Appeals of New York in Schrempf v. State, to wit, the physicians duty/professional judgment standard, is only a minority rule utilized by one state is troubling to me.  The physicians duty (basis for the ordinary negligence standard) as explained by the Appellate Court in Schrempf incorporates both physicians duty and professional judgment:

“A Physicians duty is to provide the level of care acceptable in the professional community in which he practices.  He is not required to achieve success in every case and cannot be held liable for mere errors in professional judgment . . . the line between medical judgment and deviation from good medical practice is not easy to draw particularly in cases involving psychiatric treatment.”

This is a rather low standard, but it is hopefully based on the facts of each particular case.  However, the point herein is that this doctrine, which calls for jury instructions when applicable, has only been recognized and not “universally adopted”. This disturbs me in that the states who have not adopted this view instead judge psychologists more harshly and with stricter standards.  While this can be good for egregious offenses where the psychologists ignores the duty to warn, and someone is hurt, it can also lead to ridiculous speculation over the physicians duty and professional judgment, which technically paves the way for counsel to poke holes in an experts testimony, and increases the chance of malpractice liability for the psychologist.  This is a gray area, aside from the direct responsibilities such as duty of care, etc.  Here, the psychologist was found not negligent, based upon exercise of professional judgment, even knowing that the patient had violent propensities and was known for rejecting his medication on an outpatient basis.

The only case I see as a saving grace is Stepakoff v. Kantar, which lays forth safeguards for psychologists acting in a reasonable manner.  Here, the Court reversed a guilty verdict due to the judge’s failure to include the aforementioned jury instructions on a psychiatrists duty to his patients, which is definitely one of the central items in this case.  The Court reiterated the definitions of negligence of the ordinary person and negligence of a specialist (i.e. physician).  The Court then clearly states:

“We are unwilling to disturb our long standing rule that a  physician, practicing a specialty, owes to his or her patient a duty to comply in all respects with the [reasonableness] standard set by the average physician practicing that specialty”.
I would like to say that I myself prefer that psychologists, etc. whom are general practitioners should be subject to the ordinary negligence standard. Those who decide to specialize, and gain additional education on a specific disorder or issue, should be held to the higher standard of good medical practice.

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Schrempf v. State, 66 N.Y.2d 289 (Court of Appeals of New York), p. 134-137 (text).

C. Slobogin, A. Rai & R. Reisner. Law and The Mental Health System: Civil and Criminal Aspects (5th ed. 2009), Page 136

Stepakoff v. Kantar, 393 Mass. 836, (S. Jud. Ct. Of Massachusetts), 1985, p. 130 (text).