1. Psychiatric Malpractice Litigation: Risk Management Issues STANLEY J. SPERO, ESQ. S.J. SPERO & ASSOCIATES TELEPHONE: (617) 491-1200 SPEROANDJORGENSON@MSN.COM 1 Copyright © 2015, Stanley J. Spero | All rights reserved

2. American Medical Association  1989 Ethical Opinion “Sexual Misconduct in the practice of medicine violates the trust the patient reposes in the physician and is unethical.” *** In 1991, the AMA undertook an effort to define sexual misconduct, which led to the conclusion that: “…Sexual contact or a romantic relationship with a patient concurrent with the physician-patient relationship is unethical. Sexual or romantic relationships with former patients are also unethical if the physician uses or exploits the trust, knowledge, emotions, or influence derived from the previous professional relationship.” 2

3. Investigation  How did it happen?  Whose responsibility is it?  What harm is caused to direct victims?  Who is affected and how?  What legal rights do they have? 3

4. Sexual Exploitation in Fiduciary Relationships Nationwide Surveys of Incidence Respondent’s Who Self-Reported Having Had Sexual Contact With Patients _________________________________________________________________________________ Discipline MalesFemales Source __________________________________________________________________________________  Non-Psychiatric Physicians 10.0%4.0% Gartrell, 1992 __________________________________________________________________________________  Psychiatrists 7.1% 3.1% Gartrell, 1986 __________________________________________________________________________________  Psychologists 12.1% 2.6% Pope, 1979 ___________________________________________________________________________________  Social Workers 3.8% 0.0% Gabbard, 1989 4

5. Whose Responsibility Is It? A. All major Mental Health Organizations have ethical rules prohibiting B. Twenty-four states criminalize 5

6. What Forums Are Available?  Options:  Criminal  Civil  Licensing Board  Ethics Committees 6

7. Liability of Subsequent Employer to Subsequent Victim  Negligent Hiring  Negligent Retention  Negligent Supervision 7

8. Insurance Issues  Intentional Acts  Exclusions  Impaired Physicians  Proximate Cause  Concurrent Proximate Cause  Notice to Insurer  Failure to Cooperate 8