Psychiatric Malpractice

• Author: Jenny P. Stephenson
• Pages: 1147-1168

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CHAPTER 54

Psychiatric Malpractice

Jenny P. Stephenson

I. INTRODUCTION

Medical malpractice occurs when the acts or omissions of a physician fall below an acceptable standard,

causing damage to a patient. In Canada, malpractice suits against psychiatrists that proceed to the trial

stage are relatively uncommon. Successful actions are even more infrequent.

A civil action against a psychiatrist is usually based in tort. A tort is a civil wrong, not based on a

breach of contract, which will be rectied by the court by an order for damages or nancial compensa-

tion against the defendant. Torts are generally classied as intentional and unintentional. (Strict liability

is another category of tort, in which liability may be imposed without intent so long as the conduct is

proved.) Examples of intentional torts include assault, battery, false imprisonment, trespass to property,

and slander; an example of an unintentional tort is negligence.

Although malpractice actions against psychiatrists are typical ly framed in negligence, other kinds

of claims may also be raised, for example, breach of contract, assault, false imprisonment, or breach of

duciary duty. Today, it is most uncommon for a Canadian court to base its ndings in a case involving

medical misadventure on breach of contract. is can be explained on the basis that the essence of most

malpractice claims is improperly performed professional services, i.e., services that do not comport with

an appropriate professional standard. e law of contract involves agreements or promises to supply

goods or services on dened terms at a particular price, oen within a specied time. In a breach of con-

tract claim against a physician, a plainti must allege that there was a contractual term that the care de-

livered would meet standard. However, in doctor-patient relationships, contractual terms are not usually

discussed. e “payor” for the services is oen a government health plan or a private insurer, rather than

the patient, even though the patient is the recipient of the services. Also, as a general rule, physicians do

not warrant or guarantee a particular result. is is particularly true in t he eld of psychiatry. For all of

these reasons, a contractual remedy is less oen utilized.

Physicians owe a duty to their patients to act in the patients’ best interests, and to conduct themselves

with the utmost good faith and loyalty. ey breach this duciary duty if they engage in a sexual activ-

ity with a vulnerable patient, or put themselves in a conict of interest with a patient, to the patient’s

detriment. Breach of duciary duty claims oen accompany claims of sexual assault, which are allega-

tions of non-consensual, sexualized touching. Physicians may mistakenly assume that a personal, sexual

relationship with a patient will be lawful if the patient consents, or if the patient initiates the personal

relationship. is is not so. It can be extremely dicult for a physician to establish consent in doctor-

patient sex cases, because plaintis and regulatory bodies argue that a power imbalance, and the patient’s

vulnerability, make a true consent impossible. Such relationships may be viewed as exploitive. While the

provincial medical bodies all regulate this issue, not infrequently patients seek damages in the courts

through civil actions for sexual assault and breach of duciary duty.

When an action in malpractice is commenced against a psychiatrist, the court will seek ev idence

from the psychiatrist’s peers to determine whether the conduct in question was below an appropriate

Jenny P. Stephenson

professional standard. In those circumstances, one or more peers may be called to testify as to the ap-

propriateness of the psychiatrist’s actions in the case before the court. Compliance with a reasonable

standard of care, as dened by one’s peers, is the best form of protection against a plainti’s claims. e

nal sections of this chapter will address some of the issues relevant to the role of an expert witness in a

malprac tice suit.

In a malpractice action, as in any civil action, the plainti must prove her case against the defendant

on a balance of probabilities, which simply means that given the evidence, it is more likely than not that

the alleged oence occurred. is legal requirement is referred to as the burden of proof. e burden

of proof is substantially lower in civil than criminal cases, in which the prosecution must prove its case

against the accused beyond a reasonable doubt.

II. NEGLIGENCE

Negligence occurs when someone does something that a prudent and reasonable person would not

have done under the circumstances, or fails to take action that a reasonable person would have taken;

hence, negligence may result from an act or an omission. e concept of negligence involves a duty to

avoid injuring one’s neighbour — someone whose relationship is suciently close, or proximate, to the

defendant, that it is foreseeable that the latter’s acts or omissions will aect that person. e duty requires

exercising reasonable care under all circumstances. e standard is that of the average, ordinary, pru-

dent, person, originally described as the “man on the Clapham omnibus.” A successful negligence action

requires proof of the following elements:

a. e defendant owed the plainti a duty of care.

b. e defendant’s actions did not meet the standard of care, hence breached the duty owed to the plainti.

c. ere was a causal connection between the negligent act or omission and the harm done to the plainti.

d. e harm done to the plainti was foreseeable.

e. e harm caused the plainti provable damages.

A. Existence of a Duty of Care

e rst step that must be taken in a malpractice action is to determine whether the physician owed

a duty of care to the party commencing the lawsuit. If the plainti was a patient, then the answer is

straightforward: a physician clearly owes a duty of care to his patients.

While the duty of care owed by a doctor to a patient is clear, the Canadian courts have consistently

rejected, with some notable exceptions, the argument that a physician owes a duty of care to third parties

who are not directly involved in the treatment of the patient by the physician. e third party initiating

the action may be a spouse or other family member who is unhappy with the treatment provided to the

patient, and who claims to have suered damage as a result of the physician’s negligence. For example,

spouses of patients have brought legal actions against physicians based on failed sterilization procedures

(Freeman v. Sutter, 1996; Kovacvich v. Ortho Pharmaceutical, 1995). A spouse of a depressed or bipolar

patient may sue the patient’s psychiatrist for damages the spouse suered as a result of inadequate treat-

ment of the mental disorder. (Please note, however, that there is an important distinction between the

situation in which the spouse launches a derivative Family Law Act claim (which is permitted) for loss

of care, guidance, and companionship, and the situation in which the spouse launches an independent,

stand-alone claim based on a duty of care owed to him (which is generally not permitted).) Generally,

such actions have been unsuccessful because the physician’s duty is owed only to the patient. e courts

are concerned about indeterminate liability.