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Caring and respect can reduce malpractice risk

Vol. 9, No. 1 / January 2010

As an attorney with 2 decades of experience representing plaintiffs in suits against mental health facilities and professionals, I can say that Dr. Douglas Mossman is right on target about the drawbacks of defensive medicine (“Defensive medicine: Can it increase your malpractice risk?” Malpractice Rx, Current Psychiatry). This is particularly true in psychiatry, where an alliance and trusting relationship between doctor and patient are crucial. It’s hard for a patient to perceive a clinician’s empathy and concern if the clinician’s actions amount to treating the patient as a potential litigant or adversary.

The psychiatrists I admire and respect focus on caring and empathy, understanding the patient’s needs, and respectful treatment, and these professionals tend not to get sued. On the rare occasions that these psychiatrists initiate involuntary interventions—because these interventions often do disrupt therapeutic relationships, as Dr. Mossman says—they are straightforward and honest with the patient about their reasons (caring and concern, not fear of litigation) and apologize for the distress they are causing. Patients can tell that a doctor sincerely cares about and respects them, and they forgive a lot when they perceive that attitude. Patients hate being coerced and threatened with the psychiatrist’s power to involuntarily commit hanging over every interaction if the patient is not “compliant.”

I have seen psychiatrists negotiate with their patients brilliantly and respectfully, and, as Dr. Mossman suggests, patients generally don’t sue these doctors. The doctors who get sued often are those who are afraid to apologize or admit error, are controlling and disrespectful, really aren’t listening, and care more about following institutional rules than about their patients. I have never represented a patient in a lawsuit who would not have been satisfied with a sincere apology, even after pretty terrible events. These patients sought legal help only after being rebuffed or ignored when they sought to complain or protest their treatment.

Obviously, there are exceptions to all generalizations, but my observation is the product of 20 years of this work.

Susan Stefan, JD
Center for Public Representation
Newton, MA

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