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First, do no harm: psychiatrists and medical negligence claims

I. Medical Negligence with Emotional Distress

Many laypeople may not realize that mental health counseling, which has seen amazing modern pharmaceutical breakthroughs, faces arguably greater duties and responsibilities than any other doctor. Laymen often think the personal side of counseling makes it more art, than medicine. Part of this special duty, and potential legal liability for medical malpractice, may come from the intimacy and duration of a psychiatric treatment. In some cases, unfortunately, wrongdoing by mental health professionals may also use the same incorrect laypeople’s assumption to try to protect itself. Because of the intimacy and privacy involved in particular treatments, especially psychiatry, violations of sexual standards may occur. In one particularly unfortunate case, a psychiatrist was treating both husband and wife: and began marital relations with the wife. As we will discuss, the psychiatrist in this case even tried to blame the patient/husband’s mental health conditions, for why the psychiatrist should not be liable for the dalliance. In another ‘creative’ argument, the psychiatrist’s medical malpractice lawyers also tried to argue (unsuccessfully) that the claim for particular damages could only be made by the wife as a patient, and not the husband as patient. All of these arguments were successfully rebutted by the husband/patient’s medical malpractice lawyer. As in any medical negligence case, this particular case is a prime example of why only an experienced medical malpractice wire should be entrusted with such a critical, life altering mental health matters.

II. Unpleasant Facts: the need for objective medical malpractice lawyering.

Knowing how to go into public with a legal case of intimate matters is a tough call. The patient in this case had a long history of dangerous, and difficult mental health challenges. In no way should these conditions have been dismissed or treated lightly by a treating medical health professional. In some ways, the arguments presented by the psychiatrist’s lawyers underlines the seriousness of the relationship. It’s even possible that the Court of Appeals judges were as distressed by the legal arguments used as “defenses,” as they were by the alleged medical malpractice. These most deeply sensitive issues of trust also require the awareness of an experienced, and talented medical malpractice lawyer.

Because the legal system maintains healthy respect for medical practice, it will often look to prevailing community standards to deal with many defenses by medical professionals. The court seemed especially irritated by the idea that somehow the standard of care, suggested by the defense, might allow for sex such a sexual practices by someone who is being trusted. In agreeing, however, with the injured patient’s medical malpractice lawyer, the judges said: “(W)e are not prepared to rule as a matter of law that the expert testimony proscribing sexual relations between a psychiatrist and this patient’s wife was a too burdensome… standard of care applicable to a psychiatrist.”

III.   A tangled web we weave, when first we practice to perceive…

As the court noted in its opening analysis, a psychiatrist is hardly freed from the expectations of being a medical doctor. It may even be asserted, in similar counseling cases, that the extent of harm is perhaps even greater. In some ways, this may be attributed to the fact that the deeper, hidden causes of mental health challenges deserve a higher standard of trust: of trust building unlike almost any other medical relationship. It also points to how important it is to have a medical malpractice lawyer who is well-versed in building a complicated psychiatric case.

As an example of one complicated set of treatments was the crucial issue of “transference.” Transference, or the placement or transfer of emotions form one object to another, is common in psychiatric practice. Both the patient and his wife were actually being treated by the psychiatrist in this case. The psychiatrist presented information regarding counter transference; that is, that a psychiatrist may also transfer his feelings to one of the participating patients. In this case, the medical malpractice lawyer rebutted the idea that this somehow excused the psychiatrist’s trust responsibility to the husband. Put another way, the psychiatrist could not claim that transference or counter transference, if it occurred as negligence, could only be claimed by the wife. The court agreed with the medical malpractice lawyer that the husband had demonstrated ample evidence of personal harm under the under the theory of transference or counter transference.

IV. “Imaginative Contentions”

Overall, the psychiatrist showed plenty of nerve: at one point in the trial, actually contending that the patient, in choosing to enter his own bedroom to investigate the situation, did not “exercise ordinary care for his own safety in light of unforeseeable danger and unreasonable risk.” The defense was arguing that a “reasonable person” would have an understanding of seeing what was happening between the psychiatrist and his wife in the bedroom would involve in terms of mental damage. This could loosely be described as an argument of contributory negligence by the patient! The medical malpractice lawyer could have jokingly referred to the psychiatrist’s defense as having the virtue of being very imaginative. The court agreed these arguments might be imaginative. But hardly worth crediting: especially on the grounds of arguing contributory negligence by the patient was involved. In fact, the judges went so far as to say that “we can hardly perceive a situation where an issue of contributory negligence would be less [Emphasis Added] appropriate.” Summarily, the medical malpractice lawyer effectively dealt with six basic (and only somewhat more serious) issues of defense raised by the psychiatrist.

But the psychiatrist’s own lawyers were not done, quite yet. While conceding that they may have lost the damages issues to the medical malpractice lawyer, they also insisted that the psychiatrist was entitled to punitive damages against the patient. The psychiatrist counter claimed for charges of assault and battery destruction of personal property. One other final detail was presented by the defendant: when the patient discovered his wife and psychiatrist in bed together, he apparently was carrying a loaded shotgun. Whether owing to better judgment or being a poor shot, the weapon was discharged over the psychiatrist’s head. However, the medical malpractice lawyer persuasively argued that this issue supposedly “contributory” damage was based only on the psychiatrist’s provoking behavior, and had no business being presented to the jury.


Ultimately, the medical malpractice lawyer had established that none of the defenses by the psychiatrist were based in the facts of the real relationship between the parties. Finally, the medical malpractice lawyer insisted that the patient was entitled to receive all past medical expenses for the failure of the psychiatrist’s treatment plan. Perhaps somewhat euphemistically, the court observed that the psychiatrist “can hardly argue that the services the patient paid for, were not worth the fees paid.” All prior expenditures for professional services were ordered to be returned. So, if you, a family member or a loved one have been hurt in a medical or health care setting—or have questions about insurance claims or need help related to counseling malpractice, or involving related claims or your legal rights or hearings, please contact us.  You will speak with a medical malpractice lawyer who can best answer your questions.  There is never a fee for this initial consultation.

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