Civil Topics
Topics of relevance as identified by the
American Board of Psychiatry & Neurology Board Certification Examination Content Outline.
Learn Forensic Psychiatry is not affiliated with nor endorsed by ABPN.
Professional Liability
Medical Errors
How Common Are Medical Errors?
Medical errors are common, but they don’t always result in harm.
Some of the most common types of medical errors are related to diagnosis and prescribing. In psychiatry, claims related to suicide are among the most common.
Most patients who experience medical errors don’t take legal action. Of those who do, only a fraction of cases proceed to trial, and an even smaller amount are found in favor of the plaintiff.
Psychiatrists have one of the lowest malpractice rates when compared to other medical specialties
Preventing & Disclosing Medical Errors
Prevention
A systems-based approach to medical error involves viewing errors as systems-level failures rather than pointing blame at specific individuals.
Disclosure
Typically encouraged by professional medical ethics.
Many states have apology statutes which provide immunity for healthcare professionals in disclosing medical errors.
Condolences may not be used as evidence of negligence in legal proceedings, but statements of fault often aren’t protected.
Medical Malpractice
Basics of Malpractice
Medical malpractice falls under tort law (civil)
The 4 D’s of Medical Malpractice
Duty (Doctor-patient relationship)
Dereliction of duty (deviation from the standard of care due to negligence)
Damages (actual harm or injury occurred)
Direct cause
The burden of proof is on the plaintiff (patient) to demonstrate that a doctor-patient relationship, and thus a duty of care, existed; that a deviation from the standard of care occurred; and that negligent care was the direct and proximate cause of damages.
The standard of proof is preponderance of the evidence, meaning it’s more likely than not that malpractice occurred.
Standard of Care
Physicians have a duty to provide the standard of care- the level and type of care that a reasonable, competent physician of the same specialty would’ve provided under similar circumstances.
The standard of care may be established using professional society guidelines, policies, or expert witness testimony.
Types of Negligence
Comparative Negligence: both parties are at fault. Plaintiff may recover damages depending on their percentage of fault.
Ex: car accident where both parties played a role.
Contributory Fault: if the plaintiff is at all at fault, they may not recover damages.
Ex: pedestrian hit while jay-walking.
Negligence Per Se: violation of a statute or law is automatically considered negligent if someone protected by that law is harmed.
Ex. hitting a pedestrian while driving over the speed limit.
Gross Negligence: Severe, reckless disregard for the safety and wellbeing of others.
Ex: operating while intoxicated.
Types of Causation
Cause in Fact (Actual Cause)
Would the damage have occurred “but-for” the negligent act?
Proximate Cause (Legal Cause)
Was the damage reasonably foreseeable- in other words, a natural and probable- outcome of the negligent act?
Types of Damages
Compensatory damages aim to make the patient whole, compensating for losses suffered as a result of the malpractice. They may include economic damages (such as medical bills or loss of income), and non-economic damages (such as pain and suffering, loss of quality of life, or loss of consortium)
Many states limit non-economic damages.
Punitive damages serve to punish the defendant and serve as a deterrent. They are generally awarded when conduct was reckless or malicious.
Professional Liability Insurance
Occurrence-Based Policies cover claims that arise from events that occurred during the policy period, regardless of when the claim is filed.
Claims-Made Policies only cover claims filed during the policy period- if the event occurred while the policy was active, but the claim isn’t filed until after the policy is terminated, it wouldn’t be covered.
With the latter, Tail Coverage may be required to ensure continuous coverage for claims filed after the policy ends.
Liability insurance generally doesn’t cover punitive damages, nor claims unrelated to malpractice (such as sexual misconduct).
Personal Injury Basics
Key Legal Principles
“Eggshell” Plaintiffs
In personal injury cases, plaintiffs are taken “as-is”, meaning that a defendant is still liable for damages even if the plaintiff had pre-existing conditions which made them more vulnerable to, or predisposed them to, injury.
Bystander Recovery
Bystanders may be able to recover damages due to emotional distress if they witness injury to another, even if they weren’t directly injured. Rules vary by jurisdiction.
Impact Rule: Damages cannot be recovered for emotional distress without physical impact
Zone of Danger: Bystander was at immediate risk of harm due to physical proximity
Dillon Rule/ Foreseeability Test - Dillon v. Legg, 1968
Proximity to scene of accident
Emotional impact from direct observation
Close relationship to victim
Workplace Issues
Worker’s Compensation
State and federal programs that provide compensation, in the form of medical and financial benefits, to workers for work-related injuries, regardless of fault.
Typically includes a percentage of lost wages during recovery and medical costs at the employer’s expense.
Requires a nexus (causal link) between the injury and employment- “injury arises out of and in the course of employment.”
Employee was at greater risk for injury than during everyday life because of employment.
Occurred on the employer’s premises while performing work-related duties (some exceptions)
Typically serves as an exclusive remedy, meaning workers cannot also sue their employer for negligence.
Psychiatric Workers’ Compensation Claims
Physical-Mental: physical injury leads to a mental condition.
Mental-Physical: psychological trauma leads to a physical disorder.
Mental-Mental: psychological trauma leads to mental condition.
Social Security Disability Insurance (SSDI)
SSDI provides replacement income to disabled workers and dependents who have contributed to Social Security via FICA tax on earnings.
State’s Disability Determination Service (DDS) makes the initial determination based upon 5 questions:
Are they engaged in substantial gainful activity?
Is there severe impairment that limits ability to work?
Does the condition meet or equal a listed impairment?
Can they perform relevant past work?
Can they do any other type of gainful activity?
Substantial Gainful Activity (SGA)
Any productive work performed for renumeration or profit, whether or not profit is made, involving significant physical and/or mental duties.
Includes part-time work and work unrelated to past employment.
If earning above a certain threshold, generally not considered to be disabled and disqualified.
Total Disability
Inability to engage in any SGA due to a medically-determinable physical or mental impairment which is expected to result in death or which has, or can be expected to, last for a continuous period of no less than 12 months.
Supplemental Security Income (SSI)
SSI provides a minimum income to those with limited income and blindness, disability, or age 65+.
Uses the same 5 qualifying questions for determining disability as SSDI.
Discrimination at Work
Title VII of the 1964 Civil Rights Act (CRA) prohibits discrimination on the basis of sex, race, color, religion, or national origin.
Enforced by the Equal Employment Opportunity Commission (EEOC)
Hostile Work Environment
Defined by the CRA as unwelcome conduct (uninvited and offensive) that’s:
Based on a protected class
Severe or pervasive enough that a reasonable person would find intimidating, hostile, or abusive
Perceived by the victim as hostile or abusive
Affects employment
Same Sex Harassment
Defined by the CRA as unfair treatment, harassment, or being subject to a hostile work environment on the basis of sex by someone of the same sex.
Includes biological sex, gender identity, sexual orientation, and sex-based stereotypes.
Americans with Disabilities Act (ADA) - 1990
Federal civil rights law that prohibits discrimination on the basis of disability.
Disability: a physical or mental impairment that substantially limits one or more major life activities, having a record of such impairment, or being regarded as having such impairment.
If this definition is not met, the impairment isn’t considered a disability under ADA.
Titles of ADA:
Title I: Employment
Employers are required to provide reasonable accommodations as long as they don’t present undue hardship.
Employers aren’t required to:
Retain employees who are unable to perform essential job functions with reasonable accommodations.
Accommodate employees who pose a direct threat, even if related to disability.
Title II: Public Services
Prohibits discrimination and exclusion from participation in services, programs, or activities of a public entity on the basis of disability.
Generally requires that services be provided in the most integrated setting.
Reasonable modifications must be made when necessary to avoid discrimination, unless the public entity demonstrates that the modifications would fundamentally alter the nature of the service, program, or activity.
Title III: Accommodations required by private entitites
Title IV: Telecommunications services
Title V: Miscellaneous provisions & Specific Exclusions
ADA Amendments Act of 2008 (ADAAA)
Expanded the definition of disability to include those previously excluded by strict interpretations.
Broadened the definition of major life activities, including adding bodily functions.
Broadened the “regarded as” category
Clarified that employer accommodations are not required for those who are regarded as, but not actually, disabled.
Mitigating measures were no longer considered for disability determinations.
Fitness for Duty Evaluations
An evaluation aimed at determining whether an employee is psychologically and emotionally capable of safely and effectively performing their job duties.
Often requested in context of performance issues, behavioral concerns, incidents at work, or safety concerns.
Referrals should be based on both performance issues and known or suspected mental impairment.
Guardianship
Guardian
An adult with formal court-appointed authority to manage the property and personal interests of another individual (the ward).
Holds a fiduciary responsibility (must act in ward’s best interest)
Types of Guardianships:
General Guardian: appointed to provide for the personal needs of the ward due to global incompetence.
Burden of proof is on petitioner to demonstrate clear and convincing evidence of substantial impairment in ability to manage property or inability to care for themselves due to a specific disability.
Guardian has broad authority to make decisions about most aspects of wards’ life.
Conservator/ Limited Guardian: appointed to manage the ward’s financial affairs
Doesn’t require global incompetence of ward.
Guardian has limited authority; ward retains ability to make decisions in other aspects of life.
Guardian doesn’t have legal decision making capacity (such as consenting to treatment)
Guardian ad litem: appointed to protect the interests of a minor or incompetent individual in a legal proceeding.
Testamentary Guardian: appointed for a minor child in a will, responsible for child and their estate until age of majority.
Testamentary Capacity
The capacity of an individual to make a valid and enforceable will.
Testamentary capacity is presumed.
Elements
Requires ability to know and understand:
Nature of the act (making a will)
Nature and extent of property and natural beneficiaries (who would typically inherit property)
Must be of sound mind and free of undue influence (coercion)
“Insane Delusion”
Ex.. testator’s delusional belief that spouse is having an affair
May potentially invalidate a will if it had a direct impact on testator’s decisions while making the will.
May invalidate the entire will, or just a part of it