Electroconvulsive Therapy Related Psychiatric Malpractice Lawsuits – a Recent Verdict
Though rare, malpractice cases alleging ECT-related brain damage arise and call for expert medical review services to establish the injury and identify the nature and extent of treatment provided.
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Though rare, malpractice cases alleging ECT (electroconvulsive therapy) related brain damage arise and call for expert medical review services to establish the injury and identify the nature and extent of treatment provided. ECT involves a brief application of electric current to the brain to induce a seizure. It is usually used to treat patients suffering from severe depression, mania and other mental illnesses, when other forms of therapy fail or when the patient is so ill that his/her life is in danger. The response rate for this treatment ranges from 50% to 60% among patients who do not respond to other therapy such as antidepressants. Though safe and among the most effective treatments available for depression, ECT is the most controversial therapy for psychiatric illness. Most side effects and risks reported about this treatment are related to incorrect administration, misuse of equipment, and inadequately trained staff. As mentioned at the beginning, ECT is rarely a basis for malpractice. Most psychiatric malpractice claims filed concern the side effects, complications or appropriateness of ECT, as studies show. When providing the treatment, the attending physician is required to enter in the patient’s medical chart a summary of the reasons for the selection of ECT. Accurate documentation before, during and after the procedure, which emerges during a detailed medical chart review is the best tool for the defense in the face of a malpractice claim. The Recent Case of a Practising Cardiologist In a significant verdict on Wednesday, November 2, jurors cleared a South Florida psychiatrist of responsibility for the brain damage a cardiologist alleged he suffered following the electroshock treatments the psychiatrist delivered without obtaining proper consent. However, the Palm Beach County Circuit Court jury decided that the psychiatrist did not act negligently in either obtaining consent or administering the ECT in 2010, when the plaintiff cardiologist was hospitalized for depression. The plaintiff side argued that:
The plaintiff cardiologist had never properly agreed to the treatment.
The current used for the treatment was excessive and it damaged the frontal lobe of his brain and destroyed functions ranging from cognitive thought to memory.
The treating doctors never informed the plaintiff of the risks of ECT.
The plaintiff agreed to the treatment only after declining it several times during his hospitalization.
He suffered up to $29 million in economic damages alone.
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Throughout the trial the focus largely was on whether the plaintiff provided informed consent to the ECT, and whether the treatment had in fact damaged his brain. The plaintiff side did bring testimony from a doctor who concluded that the plaintiff showed tell-tale signs of frontal lobe syndrome that may have been caused by the ECT. The Defense Argument The defense side contended that:
The plaintiff provided informed consent to the treatment that was prescribed to curtail his alleged suicide risk.
He suffered severe depression prior to the ECT treatment, and that depression had made him unfit to work as a cardiologist.
The doctors attending to him at the time he gave the consent agreed that he had the capacity to agree to the ECT.
A clear link couldn’t be established between the ECT and the plaintiff’s alleged brain damage. ECT is a safe and effective treatment according to expert testimony, and is the recognized treatment for severe depression and suicidal behavior. Hundreds of thousands of patients receive the treatment annually worldwide.
Medical malpractice cases such as the above can be successfully defended during trial, when there is adequate medical evidence and expert testimony, as the verdict demonstrates. Undoubtedly therefore, accurate documentation and medical records review to unearth the medical facts become highly significant in this regard. Ensuring Adequate Informed Consent “Informed consent” was one of the two major considerations in the above mentioned litigation. How can physicians ensure adequate informed consent when delivering ECT or before recommending this treatment to a patient? Specific requirements for ECT consent may vary with jurisdiction, but here are some steps doctors can follow:
Make sure that the patient has all the information required – explain the reasons for the ECT, describe the procedure details, suggest alternative treatment options, explain all the benefits and risks involved, inform about the expected number of treatments, risk of relapse and the possible need for continuing treatment.
Inform the patient that a successful outcome cannot be guaranteed.
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Ensure that the patient is capable of understanding what is being told to him/her and acting reasonably on this information. Ensure that the patient knows he/she can refuse treatment at any time.
Ensure that the patient understands that the consent is voluntary and can be withdrawn. If the treatment needs to be provided as an emergency measure, the patient should know that he/she is consenting to it.
Inform patients about any behavioral restrictions possible – for e.g. whether a family member/friend may be required to monitor the patient, or drive the patient to the treatment facility and back home, during evaluation, treatment and recovery.
A physician who is careful enough to address all concerns of the patient and family throughout the treatment is less likely to face malpractice risk. Usually, family members who don’t have adequate information about ECT may have strong negative opinions regarding the same. This may persuade them to file a malpractice lawsuit in case of an injury or death of the patient. On the other hand, an adequately informed, supportive family is less likely to file a malpractice claim.
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(800) 670 2809