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Mental Health Malpractice Lawsuits: 4 Common Claims

Oct 21, 2021
Man Talking To A Doctor — Los Angeles, CA — Spiga and Associates
Americans' collective mental health has faced some extraordinary challenges in recent years, making the therapeutic role of mental health practitioners more critical than ever. However, patients may file lawsuits against psychiatrists, psychologists, and other mental health professionals if they have allegedly suffered from malpractice.

As a mental health professional, you need to understand why a patient or patient's representative has decided to sue you for malpractice, what kinds of transgressions may constitute mental health malpractice, and how to exercise your legal defense options. Start by examining the following four common types of claims.

1. Breach of Trust or Privacy
A breach of professional trust or patient privacy counts as grounds for a mental health malpractice lawsuit. Sexual harassment of a patient would obviously constitute such a professional breach, as would maintaining a close personal relationship with a patient under your care since it represents a conflict of professional interest.

Mental health professionals must adhere to the same standards of medical record privacy as other kinds of doctors. Although patients cannot sue individual doctors who violate the Health Insurance Portability and Accountability Act (HIPAA), they can bring legal action against the offending doctor's workplace.

Patients who feel that a mental health professional has violated their HIPAA rights may file a lawsuit on the grounds that the practitioner violated one or more state laws. For example, a patient may sue a practitioner for breach of personal data, breach of fiduciary duty, breach of contract, or data theft.

2. Patient Suicide or Murder
Mental health practitioners must often treat individuals who display suicidal tendencies, have attempted suicide in the past, or run an elevated risk for suicide. Despite a high standard of professional care, some of these patients may eventually succumb to their suicidal impulses and kill themselves.

In such cases, the patient's surviving loved ones may understandably try to blame the practitioner's treatment methods. They may argue that the practitioner failed to take the suicidal tendencies seriously, take the appropriate notes, assess the patient's everyday environment for risks, or discuss the issue with the patient's loved ones.

On the surface, disclosing a patient's problems with others without that patient's consent might seem like a violation of professional ethics. However, in the world of mental and behavioral health, doctors may choose to discuss specific elements of a case and recommended treatments when it involves possible self-harm.

The same flexibility holds true in cases where mental health patients have expressed the intention or desire to hurt or kill someone else. If a mental health practitioner knows about this situation and keeps quiet about it, the survivors of a murder victim may then try to sue the practitioner for not warning them or notifying the police.

3. Faulty Documentation
Failure to keep appropriate medical records can make you vulnerable to a mental health malpractice suit. If you have not maintained detailed patient records, you may have little evidence that you can use in your defense. The failure to keep adequate documents represents an ethical violation in itself.

You could also get into trouble for documenting the wrong kinds of data. Acceptable documentation typically includes details about a mental health patient's medical diagnosis, case history, treatment, suicide risk, and informed consent. Unacceptable records include interpersonal conflicts, the names of other individuals, and sexual details.

4. Faulty Diagnosis or Prescription
A faulty mental health diagnosis can prove just as disastrous for a patient (and for the doctor accused of making the error) as any other medical misdiagnosis. These mistakes may occur when the practitioner prescribes treatment based mainly on surface symptoms, such as a thyroid imbalance masquerading as depression.

A misdiagnosed condition can cause a patient to receive ineffective care for years. The mental health practitioner may compound the damage done by prescribing medications that could make the patient's mental or physical health even worse than before.

Any of these four infractions can provide plaintiffs with serious ammunition against a mental health professional whose patient suffered losses or even death as a result. If you face such accusations, Spiga & Associates can analyze your case and provide you with skilled legal counsel. Contact our office today.
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By Carlo A Spiga, Lead Attorney 24 Feb, 2021
You see him or her on your television, in your professional journals, and on your home page . . . the “Poster Child.” The Physician existing on the fringe of the profession, who gets arrested for overwriting prescriptions for Schedule II substances . Their example is easy to dismiss. The average M.D. engaged in legitimate practice seemingly has nothing to worry about. This fate befalls the slacker, the greedy, the foolhardy. Don't be so sure, any M.D. who prescribes Schedule II substances as a regular part of their practice is only one adverse patient outcome away from California Medical Board and possibly criminal investigation. For example, Surgeons and Physicians practicing in Emergency Medicine, Oncology, and Pain Management, routinely write hundreds, if not thousands of prescriptions for Schedule II substances. There is no way for a Physician to control the patient’s use of controlled substances, yet a dangerous and influential myth is being propagated that a physician is a fortune teller and can predict which patients will misuse the substances provided. Further complicating the issue is the difficult ethical landscape navigated by Physicians dealing with patients presenting legitimate symptoms demanding treatment with Schedule II and III substances, but who are nevertheless, drug dependent. Long term pain management patients are at particular risk of overdose due to their high tolerances leading to increasing dosages and the difficulty in weaning them off the substances they have become dependent upon. Should a patient die or suffer an adverse outcome that is somehow connected to a prescription for a schedule II substance, a criminal and California Medical Board investigation is sure to follow. Oftentimes the investigation will be spearheaded by investigators for the California Department of Consumer Affairs working in conjunction with local law enforcement but who also work on behalf of the Medical Board of California. These investigators are sworn peace officers and have the power to arrest and working with the Attorney General or local District Attorney also have the ability to bring criminal charges against a Physician. These investigations start out invisibly with scrutiny of CURES II reports detailing a Physician’s prescription history. All patients receiving scheduled substances will be given particular attention. Soon after, the physician will receive a request for patient records, followed by a letter of investigation from a California Department of Consumer Affairs Investigator indicating that a complaint has been made and requesting an interview. They do not inform the Physician of his or her right to counsel or whether the Physician even has the right to refuse the interview. Nor do they inform him or her of their right to review the complaint. Believe it or not, one of the common mistakes Physicians make in dealing with these investigations is not taking it seriously. They will delay responding or not respond at all. Often Physicians confident in their prescribing practices will have a false sense of confidence going in to such an interview and will wing it without consulting consul. Those Physicians learn the error of that approach through hard experience. If you are facing such an inquiry. Take it very seriously, Your medical license is your most important asset. If you have an adverse patient outcome that has come to the attention of your Hospital Administration, The Medical Board of California or local law enforcement, call Spiga and Associates immediately. Because of our 25 years of experience in both Criminal and Administrative defense we are uniquely qualified to defend you and your medical license.
nurse texting
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WHAT DO YOU DO WHEN AN INVESTIGATOR ACTING ON BEHALF OF THE CALIFORNIA MEDICAL BOARD CALLS YOU DEMANDING AN INTERVIEW?
By Carlo A Spiga Attorney 24 Feb, 2021
Doctors, Dentists, Veterinarians, Nurses and all California Licensees in the healthcare profession are unfortunately rarely aware of their right to inspect and copy their entire central file maintained by their licensing agencies. Under Business and Professions’ Code § 800 (3)(c)(1) the licensee has a right to inspect his central file and the Licensing Board must specifically disclose to the licensee any: “personal information that could be considered detrimental, disparaging or threatening to a licensee’s reputation, rights, benefits, privileges or qualifications or be used by the Board to make a determination that would affects a licensee’s rights, benefits, privileges or qualifications.” The reason most licensees do not know about this right is the various Licensing Boards and their investigators do not tell licensees that they have the right to see the complaints against them (minus the identities of informants and patients etc . . ) and any negative item in their file. A licensee has no more important right than this. Whether you are facing a Board investigation as a Doctor , Dentis t , Nurse , Veterinarian, Chiropractor , Psychologist etc . . . one of the first things your lawyer should do is request a copy of your central file. Knowledge is power. Once you see the administrative agencies information, it is like getting a copy of their playbook. There is no better way to prepare yourself for an interview than to inform yourself of the basis of their investigation. Your answers can be more precise and you can more easily avoid a perjury trap. Like a surgeon’s scalpel, these statutes are a good lawyer’s tools. This is but one tool. There are many more. Like any specialized tool they can be useful but not optimum in the hands of an inexperienced layman. If you are under investigation call Spiga and Associates where an experienced medical and nursing license defense attorney is standing by.
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