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Book Forum: PSYCHIATRY AND LAW   |    
Psychiatric Malpractice: Stories of Patients, Psychiatrists, and the Law
Elissa P. Benedek, M.D.
Am J Psychiatry 1998;155:445-446.
View Author and Article Information

by James L. Kelley. New Brunswick, N.J., Rutgers University Press, 1996, 219 pp., $29.95.

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James Kelley is a lawyer and author who became fascinated with recent high-profile psychiatric malpractice cases. In this book, Mr. Kelley explores these cases in depth after reviewing court records, interviewing psychiatrists, and then documenting the convoluted path of malpractice cases through our legal system. Mr. Kelley introduces his book by saying, "This is a collection of true stories about people in pain who went to psychiatrists for help and ended up suing them for malpractice" (p. 1). Mr. Kelley based his book on court cases; he did not have information about the actual therapeutic encounters of these patients. He closes his opening paragraph by saying, "Betrayal and violence are recurring themes" (p. 1). Indeed, these are recurring themes in malpractice cases, but it is unclear who has betrayed whom. Has the patient been betrayed by the therapist or the therapist by the patient or the patient's family? Occasionally, the betrayer is very clearly identified—for example, when there is a sexual encounter between a patient and therapist, the betrayer is always the therapist. On other occasions, the villain is not so clearly identified. In these scenarios, expert witnesses battle one another in the courtroom, each presenting compelling testimony that vilifies the psychiatrist (defendant) or the patient (plaintiff). One witness is an advocate for the patient, the other is an advocate for the therapist. One witness alleges that the patient has been betrayed, the other claims that the therapist has been betrayed. From Mr. Kelley's description of courtroom battles, it would appear that no experts are impartial scientists and that all experts are advocates. Nevertheless, this book is interesting to read.

Mr. Kelley recognizes that many psychiatric malpractice cases have no merit and are a nightmare for the psychiatrist involved, even if he or she is ultimately exonerated. As a defendant, a psychiatrist may have to sit in a courtroom and listen while other psychiatrists with impressive credentials describes conscientious and compassionate work as below the standard of care. Mr. Kelley recognizes that a psychiatrist's most valuable asset, his or her reputation, is put at risk before jurors who may not understand the science and art of psychotherapy and psychopharmacology and who may ultimately bring in a finding of malpractice.

I was very surprised to find my name and highlights of my testimony included in one of the landmark cases Mr. Kelley includes in his book. I have to say that he did a good job of disguising the principal figures and some of the details that would make this case more recognizable. Mr. Kelley reports that although he was legally free to use real names and places, he respected the privacy of the litigants involved and took the liberty of fictionalizing some of the cases. With regard to this particular case, I found the general scenario he described accurate. Some of the more colorful and dramatic details he included are different from my memory of the facts but do illustrate some of the points he attempts to emphasize.

Mr. Kelley mentions that he had a personal bias in writing this book. He reports a longstanding interest in mental illness and describes his experience with the diagnostic process and his own problematic treatment. We do not know whether he was a litigant in a malpractice suit. However, he says that despite his belief that he has benefited from his current psychotherapeutic and pharmacological treatment, he has "some unconscious bias against psychiatrists and other mental health professionals growing out of my long and sometimes negative experience with them" (p. 6). He recognizes that he might not have been entirely successful in eliminating bias and judgment.

This volume serves as a primer for those who are interested in details of some of the more notable courtroom dramas of the past 10 years. Mr. Kelley reports in depth on cases dealing with four common types of psychiatric malpractice cases: a patient's suicide, a patient's violence against others, a psychotherapist's sexual misconduct, and the use of unconventional treatments. Before describing the courtroom dramas, Mr. Kelley initiates the reader with a discussion of the basics of applicable law. His clear elucidation of the principles of malpractice law might be helpful to medical students and first-year residents. It is brief, accurate, and clearly written. The case histories that follow in succeeding chapters are interesting, well researched, and well documented.

Mr. Kelley credits three forensic psychiatrists who reviewed his text, submitted to interviews, and assisted him—Thomas G. Gutheil, Seymour L. Halleck, and Robert L. Sadoff. Mr. Kelley comments that he feels more comfortable with the legal than the medical issues; indeed, one of the weaknesses in this book is that it focuses heavily on the courtroom drama and not the problems of therapeutic encounters with difficult patients. Having said that, I found the stories recounted by Mr. Kelley engrossing, absorbing, and worth reading.

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