The patient began treatment with a Ph.D-level licensed psychologist whom she alleged practiced out of her apartment in New York City. She was diagnosed with a multiple personality disorder and the psychologist implemented a treatment plan. The diagnosis and the treatment resulted in significant depression and distress to the woman, particularly when she concluded that the diagnosis was incorrect.
The patient terminated treatment and filed a negligence claim against the psychologist and two colleagues who had subsequently treated her. According to Anna Stern of Manhattan, attorney for the patient, one of the colleagues had a Ph.D. in history and the other a Masters in Social Work.
The psychologist sought to have the action dismissed on the grounds that it was a medical malpractice claim and was time barred. (In New York, medical malpractice claims must be brought within two and one half years.) The patient argued that her claim was one of ordinary negligence and was governed by a three-year statute of limitations. According to Attorney Stern, there has never been a New York case where a psychologist was considered to have rendered medical treatment and was governed by the rules for medical malpractice claims. The lower court agreed that medical malpractice could only be committed by a medical doctor. The suit was allowed to proceed.
The defendant appealed and the New York Supreme Court, Appellate Division, was asked to examine whether a psychiatric misdiagnosis by a non-physician constitutes medical treatment for the purposes of a malpractice claim, so that the shorter statute of limitations period applied.
Holding: Psychiatric diagnosis "is an activity properly and squarely situated within the field of medical practice." The Court said that the allegations of misdiagnosis are claims of medical malpractice and the vocational title of the defendant should not determine the categorization of the claim.
With the two and one half year statute of limitations applying, the suit was time-barred. Two of the five judges dissented.
Editor's Note: Attorney Stem has submitted a motion for leave to appeal to the Court of Appeals. She has asked the Court to address (1) whether a misdiagnosis by a psychologist who is not affiliated with a medical facility constitutes medical malpractice, and (2) whether the legislature intended for services rendered by such psychologists to fall within the ambit of medical malpractice. The lawsuit is continuing against the remaining two defendants under a standard negligence claim. Peter Sholli of Manhattan, attorney for the defendant psychologist, said in response to a question from The Forensic Echo regarding the implications of the court's ruling for psychologists: "Courts have always considered a diagnosis to be medical treatment. Psychologists would not be liable unless they made a medical diagnosis.
| Robert Miller, M.D. Professor of Psychiatry University of Denver |
Dr. Miller comments: Can a licensed psychologist be liable for medical malpractice? In a series of court and legislative battles over the past decade and a half, organized psychology has increasingly sought to achieve parity in a variety of areas of practice formerly reserved for licensed physicians. The first battle was fought (and won) to grant licensed psychologists access to direct reimbursement from third party payers for their psychotherapy services; at the time, health insurance was dominated by Blue Cross and Blue Shield, which itself was dominated by physicians, and did not reimburse for any services unless provided under the supervision of a physician.
Allegations of misdiagnosis are claims of medical malpractice.
Psychiatrists created a cottage industry of "supervising" psychologists for a cut off the top. This practice was challenged in Virginia (see Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 624 F. 2d 476 (4th Cir. 1980)). The U.S. Supreme Court let the decision stand by declining review. As a result, psychologists won the right to bill directly for their services without paying psychiatrists to sign off on their cases. With managed care, this victory has become somewhat pyrrhic, since many HMO's are substituting masters-level and unlicensed mental health providers for licensed psychologists and psychiatrists.
Psychiatrists created a cottage industry of "supervising" psychologists for a cut off the top.
The next battle was fought over the largely symbolic issue of full admission to psychoanalytic training, whose major organization, The American Psychoanalytical Association, restricted full accreditation to physicians, despite Freud's clear instructions to the contrary. In an unpublished consent decree, the Association agreed to allow psychologists access equal to that of physicians (see Welch et. al. v. American Psychoanalytical Association, no. 85-Civil 1651 (S.D.N.Y, filed January 1986)).
The next major battle that is still ongoing is over admission privileges to hospitals, long a medical domain. Because of policy decisions by organizations such as the Joint Commission on the Accreditation of Health Care Organizations, psychologists had won the right to serve on "professional staff organizations", but the economically more significant privilege to admit patients was still denied. The American Psychological Association has funded legislative and court challenges to this practice on a state-by-state basis, with mixed results. Some legislatures and courts have granted psychologists admitting privileges, albeit usually with the proviso that they (1) obtain medical evaluations on their clients to ensure that medical conditions that might be contributing to their psychological symptoms are diagnosed and (2) provide access to medical treatments (See California Association of Psychology Providers v. Rank, 793 P2d 2 (Cal. 1990)). Other legislatures and courts have continued to hold that hospitals are for the medical treatment of patients and only physicians may admit.
The latest conflict is over psychologists obtaining privileges to prescribe psychotropic medications after participating in a training program in psychopharmacology. Psychologists were able to persuade the Department of Defense to establish such a training program and to permit psychologists to prescribe. The program, however, was troubled from the start and was recently abolished by Congress after significant lobbying from the American Psychiatric Association. An organization independent of the American Psychological Association (which, after considerable internal controversy, is now supporting prescribing privileges for its members) has been established to continue the fight.
The Karasck case provides another example of a psychologist asserting coverage under the medical umbrella, but for technical reasons. Politics aside, the Court's majority argument that the defendant was practicing medical psychotherapy appears to be more persuasive, since there is no significant difference in the psychotherapy practiced by a psychiatrist and a licensed psychologist. That point was established in the Blue Shield of Virginia case, and it is just as applicable here.
