MALPRACTICEMALPRACTICEHarvey Dondershine, MD, JDHarvey Dondershine, MD, JD

COMPENSATE INJURED PARTIESCOMPENSATE INJURED PARTIES RETROSPECTIVE REGULATION (DICTA)RETROSPECTIVE REGULATION (DICTA) EFFECT ON HEALTH CARE SYSTEMEFFECT ON HEALTH CARE SYSTEM

IMPROVE QUALITY OF CAREIMPROVE QUALITY OF CARE INCREASE COSTINCREASE COST

EFFECT ON CLINICIANEFFECT ON CLINICIAN PRACTICE DEFENSIVE MEDICINEPRACTICE DEFENSIVE MEDICINE NARCISSISTIC INJURY / THREAT TO NARCISSISTIC INJURY / THREAT TO LIVELIHOODLIVELIHOOD

WHERE DOES IT FIT?WHERE DOES IT FIT?

MALPRACTICE IS A TORTMALPRACTICE IS A TORT A TORT IS A CIVIL WRONGA TORT IS A CIVIL WRONG

SEEKS COMPENSATORY (MONEY) DAMAGES SEEKS COMPENSATORY (MONEY) DAMAGES THREE TYPES OF TORTSTHREE TYPES OF TORTS

INTENTIONALINTENTIONAL UNINTENTIONAL (NEGLIGENCE)UNINTENTIONAL (NEGLIGENCE) STRICT LIABILITYSTRICT LIABILITY

TERMS: BURDEN OF PROOF, STANDARD OF TERMS: BURDEN OF PROOF, STANDARD OF PROOFPROOF

NO INSURANCE FOR INTENTIONAL WRONGNO INSURANCE FOR INTENTIONAL WRONG

NO MALPRACTICE NO MALPRACTICE UNLESS DR-PT RELATIONSHIPUNLESS DR-PT RELATIONSHIP

FORMATION, DURATION, TERMINATIONFORMATION, DURATION, TERMINATION DUTIESDUTIES

FIDUCIARYFIDUCIARY QUID PRO QUO QUID PRO QUO OBJECTIVITY, CONFIDENTIALITY, ABSTINENCE, NEUTRALITY, OBJECTIVITY, CONFIDENTIALITY, ABSTINENCE, NEUTRALITY,

UTMOST BEST INTERESTSUTMOST BEST INTERESTS PROFESSIONALPROFESSIONAL

CLINICAL COMPETENCE / STANDARD OF CARECLINICAL COMPETENCE / STANDARD OF CARE ADHERE TO STANDARDS SET BY LAWADHERE TO STANDARDS SET BY LAW

ELEMENTSELEMENTS

DUTYDUTY TO WHOM, WHATTO WHOM, WHAT

DERELECTIONDERELECTION A BREACH OF STANDARD OF CARE THAT A BREACH OF STANDARD OF CARE THAT

CREATES AN UNREASONABLE RISK OF CREATES AN UNREASONABLE RISK OF FORESEEABLE HARMFORESEEABLE HARM

DAMAGEDAMAGE DIRECT CAUSATIONDIRECT CAUSATION

BUT FOR BUT FOR PROXIMATEPROXIMATE

DEFENSESDEFENSES STATUTE OF LIMITATIONSSTATUTE OF LIMITATIONS

STANDARD OF CARESTANDARD OF CARE

STANDARD OF CARESTANDARD OF CARE MIXED QUESTION OF LAW & FACT MIXED QUESTION OF LAW & FACT NOT SAME AS OPTIMAL CARE, BEST PRACTICES, ETCNOT SAME AS OPTIMAL CARE, BEST PRACTICES, ETC ““ORDINARY, REASONABLY PRUDENT, PSYCHIATRIST ORDINARY, REASONABLY PRUDENT, PSYCHIATRIST

UNDER SAME OR SIMILAR CIRCUMSTANCES”UNDER SAME OR SIMILAR CIRCUMSTANCES” DOCTOR DOES RISK:BENEFIT CALCULUS BEFORE DOCTOR DOES RISK:BENEFIT CALCULUS BEFORE

ACTINGACTING SOURCESOURCE

EXPERT TESTIMONY EXPERT TESTIMONY SCIENTIFIC PUBLICATIONS, GUIDELINES, ETC.SCIENTIFIC PUBLICATIONS, GUIDELINES, ETC. JURYJURY JUDGEJUDGE STATUTESSTATUTES CAPTAIN-OF-THE-SHIP DOCTRINECAPTAIN-OF-THE-SHIP DOCTRINE

COMMON CAUSES OF ACTIONCOMMON CAUSES OF ACTION GENERAL GENERAL

BREACH OF FIDUCIARY DUTIESBREACH OF FIDUCIARY DUTIES PROCEDURAL NEGLIGENCE PROCEDURAL NEGLIGENCE

DIAGNOSIS, MEDS, CHARTING, FOLLOW-UPDIAGNOSIS, MEDS, CHARTING, FOLLOW-UP

SPECIFIC TO PSYCHIATRYSPECIFIC TO PSYCHIATRY SUICIDESUICIDE

INADEQUATE RISK ASSESSMENT / RISK REDUCTIONINADEQUATE RISK ASSESSMENT / RISK REDUCTION INJURY TO THIRD PARTIES INJURY TO THIRD PARTIES

TARASOFF, RELEASE / RESIDENTIAL PLACEMENTTARASOFF, RELEASE / RESIDENTIAL PLACEMENT DEFECTIVE INFORMED CONSENT DEFECTIVE INFORMED CONSENT PROCESSPROCESS FAILURE TO REPORTFAILURE TO REPORT

CHILD ABUSE, DMVCHILD ABUSE, DMV ABUSE OF TRANSFERENCE ABUSE OF TRANSFERENCE NEGLIGENT SUPERVISION / SUPERVISEE NEGLIGENCE NEGLIGENT SUPERVISION / SUPERVISEE NEGLIGENCE

QUALITY ASSURANCE – RISK QUALITY ASSURANCE – RISK MANAGEMENTMANAGEMENT

THERAPEUTIC ALLIANCETHERAPEUTIC ALLIANCE BE NICEBE NICE

PRACTICE IN RIGHT WAY PRACTICE IN RIGHT WAY PRACTICE ONLY W/I COMPETENCE PRACTICE ONLY W/I COMPETENCE HISTORY / EXAMINATION / RECORD REVIEW / DOCUMENTATIONHISTORY / EXAMINATION / RECORD REVIEW / DOCUMENTATION IDENTIFY RISK: PATIENTS / SITUATIONS / TRIGGERSIDENTIFY RISK: PATIENTS / SITUATIONS / TRIGGERS

RISK IDENTIFIED NEEDS PLAN, PLAN NEEDS ACTION AND FOLLOW-RISK IDENTIFIED NEEDS PLAN, PLAN NEEDS ACTION AND FOLLOW-UPUP

KNOW WHEN LESS REQUIRES MOREKNOW WHEN LESS REQUIRES MORE PRESCRIBING DANGEROUS DRUGS PRESCRIBING DANGEROUS DRUGS AVOID SMALL BORDER VIOLATIONSAVOID SMALL BORDER VIOLATIONS YOUR CHART MUST SPEAK FOR ITSELFYOUR CHART MUST SPEAK FOR ITSELF

ANTICIPATE EVIDENTIARY USE OF CHARTANTICIPATE EVIDENTIARY USE OF CHART

SECOND OPINIONSECOND OPINION

LIMITATIONS ON LIABILITYLIMITATIONS ON LIABILITY

DUTYDUTY FORESEEABILITYFORESEEABILITY ENTITY IMMUNITYENTITY IMMUNITY

GOVERNMENTGOVERNMENT HMOHMO

MEDICAL INJURY COST RECOVERY ACT MEDICAL INJURY COST RECOVERY ACT (MICRA)(MICRA)

STATUTE OF LIMITATIONSSTATUTE OF LIMITATIONS

ANATOMY OF A SUITANATOMY OF A SUIT PRELITIGATION PHASEPRELITIGATION PHASE

INCIDENT DATE, PRE-LITIGATION SUBPOENA, INCIDENT DATE, PRE-LITIGATION SUBPOENA, CERTIFICATIONCERTIFICATION

PLEADINGS PHASEPLEADINGS PHASE COMPLAINT & SUMMONS, ANSWERCOMPLAINT & SUMMONS, ANSWER

DISCOVERY PHASEDISCOVERY PHASE DISCOVERY SUBPOENA, INTERROGATORIES, DISCOVERY SUBPOENA, INTERROGATORIES,

DEPOSITIONS, EXAMINATIONS, REQUEST FOR DEPOSITIONS, EXAMINATIONS, REQUEST FOR ADMISSIONSADMISSIONS

MOTIONS PHASEMOTIONS PHASE DEMURRERDEMURRER SUMMARY JUDGMENTSUMMARY JUDGMENT

TRIAL PHASETRIAL PHASE

INSURANCEINSURANCE

UNDERSTAND POLICYUNDERSTAND POLICY OCCURRENCE, CLAIMS-MADE, NOSE, TAILOCCURRENCE, CLAIMS-MADE, NOSE, TAIL LITIGATION EXPENSES, INDEMNIFICATION COSTSLITIGATION EXPENSES, INDEMNIFICATION COSTS INCIDENT DATE VS INCIDENT REPORTINGINCIDENT DATE VS INCIDENT REPORTING

KNOW WHAT ACTIVITIES COVEREDKNOW WHAT ACTIVITIES COVERED FORENSICS, COMMITTEES, SUPERVISION, OTHER?FORENSICS, COMMITTEES, SUPERVISION, OTHER? MOONLIGHTING (INDEPENDENT CONTRACTOR?)MOONLIGHTING (INDEPENDENT CONTRACTOR?) MBC / OTHER ADMIN ACTIONMBC / OTHER ADMIN ACTION

OTHEROTHER HAMMER CLAUSEHAMMER CLAUSE

MEDICAL BOARD OF MEDICAL BOARD OF CALIFORNIACALIFORNIA

PRIMARY CONCERN IS PUBLIC SAFETYPRIMARY CONCERN IS PUBLIC SAFETY SECONDARY CONCERN IS IMPAIRED PHYSICIANSECONDARY CONCERN IS IMPAIRED PHYSICIAN RECEIVES INPUT FROM VARIOUS SOURCES RECEIVES INPUT FROM VARIOUS SOURCES

805 REPORTS805 REPORTS COURTSCOURTS PATIENTSPATIENTS MALPRACTICE ACTIONSMALPRACTICE ACTIONS

INVESTIGATES, LIMITS/ REVOKES, INVESTIGATES, LIMITS/ REVOKES, REHABILITATES REHABILITATES

COST RECOVERY PROGRAMCOST RECOVERY PROGRAM NO DIVERSION PROGRAMNO DIVERSION PROGRAM WHAT TO DO IF YOU GET A CALLWHAT TO DO IF YOU GET A CALL