Malpractice Dangers for Psychiatrists

O. Brandt Caudill, Jr, Esq


December 29, 2009

In This Article

Relations With Patients -- or Accusations of Such -- Can Create Problems

For psychiatrists who practice psychotherapy, 2 recurring areas for malpractice are sexual misconduct with a patient, and cases of multiple relationships/dual incidents.

The proscriptions against sexual misconduct are well recognized. There have been a number of high-profile cases against psychiatrists for sexual relationships.

However, in my experience, the bigger risk is the risk of being falsely accused of a sexual relationship. A patient may consciously fabricate a story to get money. Or, the patient may be so disturbed that he or she is distorting reality. Here again, the best protection that a psychiatrist has against false claims is the quality of documentation, particularly if the patient has a borderline personality disorder, which is a typically the case in these types of claims.

With regard to borderline patients, it is especially important for the psychiatrists to keep copies of any communications with the patients including, but not limited to, patients' journals that are provided for him or her to review, copies of e-mail communications from the patient, and greeting cards. If the patient asserts a false claim, these materials can be invaluable in showing that the relationship was a fantasized one, not a real one.

As for real instances of sexual misconduct, they are both indefensible and ruinous.

Many Aspects of This Problem

In recent years, with insurance policies limiting or seeking to exclude coverage for sexual misconduct, plaintiffs have sought to sue the supervisors and employers of therapists accused of sexual misconduct. The plaintiff's hope is that the liability of the supervisor/employer will not be limited by sexual misconduct caps.

The courts are split over whether supervisors are vicariously liable for sexual misconduct. Where such supervisor liability is allowed, a common rationale is that the risk for sexual misconduct is a known risk of employment of therapists. There supervisor liability is not allowed, a common rationale is that sexual misconduct is inherently for the personal interests of the employee engaged in misconduct and not for the interests of the supervisor.

Undue influence or multiple relationship cases are not as clear-cut as sexual misconduct cases. Frequently, these cases involve business relationships with patients. In 1 instance, a psychiatrist was criminally prosecuted by the Securities and Exchange Commission for using information obtained from a corporate executive's wife -- who was a patient -- to take advantage of the stock market.

Areas that can lead to such problems include prescribing medication for family members and non-family significant others. Such prescriptions may be considered acceptable when the relationship is going well, but may be offered as evidence of a psychiatrist-patient relationship when the relationship is over or ends badly.

In cases of prescribing for family members or significant others, the question becomes: would a neutral psychiatrist have prescribed the same medication under the circumstances?


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