Psychotherapeutic injury: reshaping the implied contract as an alternative to malpractice

Despite the enormous number of Americans who seek psychiatric aid for their emotional problems, malpractice actions against psychiatrists are surprisingly rare. In this Article, Professors Feldman and Ward suggest that this stage of affairs is caused not by the extraordinary competence of the psychiatric profession, but rather by the particularly severe legal obstacles that confront injured psychiatric patients. The elements of the traditional tort cause of action--especially causation--are not easily proved by plaintiffs claiming psychiatric injury. Moreover, recent cases show that courts are growing even more unsympathetic to those patients who suffer most grievously from unscrupulous psychiatrists. To remedy this problem, the authors reach to the historical origins of medical malpractice liability, and advocate the revival of an implied contract to treat with skill and care. By imposing a fiduciary obligation on the psychiatrist in the performance of this contract, the authors overcome the obstacles of proof that arise from traditional tort law. This alternative approach should bring a new balance to the law of psychiatric malpractice, in which aggrieved patients will be compensated for thier injuries, but innovative practitioners will not be unduly deterred from medical experimentation.