This forensic arena, among health caregivers, remains among the most controversial areas of civil forensic practice. Standards of care may diverge from “best care” practices, and even from how care is rendered in real-world situations. Tort regulations further demonstrate tensions within the medical community to establish thresholds that distinguish bad outcomes from bad care.
- Duty to care
- Deviation from standard
- Direct causation
At first blush, one might conclude that forensic cases involving disfigurement, suicide and homicide are the only matters where damage might be sufficient to inspire a plaintiff’s attorney - usually at his own expense in a contingency arrangement - to bring a malpractice action. Yet loss of consortium, quality of life, and loss of employment might have substantial and long-term personal and economic impact on the plaintiff. Malpractice actions stemming from these consequences may therefore be genuinely viable.
The nature of informed consent about potential risks, benefits, side effects, and alternatives of a treatment assumes importance in such later malpractice actions. Side effects such as diabetes, cardiac arrest and hyperlipidemia were never before so closely attributed to medications as they are now. Suicides have been attributed to unanticipated reactions to antidepressants. Weight gain and impaired sexuality are no longer so readily accepted as unavoidable byproducts of treatment. At the same time, patient self-education and interactivity through the internet informs and occasionally inflames consumers.
Not all medical and psychiatric malpractice cases are rooted in prescribing choices and neglectful care. Inappropriate relationships, sexual or otherwise exploitative, are the dark side of psychotherapy’s history. Breaches of confidentiality can have far reaching impact on a person’s life and welfare.
Forensic psychiatrists in malpractice cases do well to speak to treatment staff whenever possible, in addition to reviewing medical records and documented staff protocols. Regrettably, sanitized medical charts and scant treatment notes are too frequently tolerated in contemporary medical and psychiatric treatment. Cynicism is not mandated – but diligence is, in the form of scrutiny beyond face value. The same investigation will expose spurious and opportunistic claims.
Malpractice may involve cases where the causal agent has a circumstantial link to the damaging effect. These cases require an appraisal of possible causation, applying the available research, to determine the relationship between the care provided (or not) and the outcome. Perhaps there are additional factors pertinent to the complaint raised. Financial stresses, strained relationships, genetic considerations, or underlying major psychiatric illness, and incompetent medical care systems can all be discovered with a comprehensive investigation of the plaintiff, the environment, and the defendant.
The investigative diligence of The Forensic Panel is another of the reasons why our examinations are of unequaled quality. The Forensic Panel’s peer review ensures an accounting of information that may be pivotal to explaining the cause effect relationship of medical care; we engage witnesses and pursue background with the determination needed to establish facts and life histories so vital to presenting and rebutting expert testimony. The Forensic Panel’s peer review ensures oversight to the examination of medical, psychiatric, and nursing practice standards and whether a bad outcome suggests a deviation from standard, a judgment call or merely unfortunate circumstances.