I have a friend who was sexually abused by a relative as a child. In
her mid-twenties she went into therapy, and saw a psychiatrists on a
more-or-less weekly basis for a six year period. After not being in
therapy for a few years, she recently began seeing a different
therapist. When the second therapist contacted the psychiatrists to
discuss my friend's condition, she found out the psychiatrists never
took any notes and had no written documentation whatsoever regarding
my friend's condition or therapy! My question is this: is this an
example of medical malpractice? I do not think her therapy was covered
by insurance, but paid for everything out of her own pocket. Does she
have an adequate case for a lawsuit? She is now disabled (due to an
unrelated physical injury) and could not afford to hire a lawyer; is
this an example of a case that a lawyer would take on a contigency
basis?

This is very difficult. I am not an expert and my comments should not
be taken as gospel...
You must be very sure about the 'therapists' 'psychologists' and
'psychiatrists'. Psychiatrists are doctors with a medical degree and,
as such, are protected by - and held accountable to - all the various
medico-legal rules. I find it hard to beleive that a 'psychiatrist'
would not have taken any notes. 'Therapists' and 'psychologists',
however, are not bound by the same rules.
Also, if you are intending to sue - you need something to sue about.
Simply not having a record is probably not good enough unless you can
prove that not having a record has directly had a negative effect on
your friend's mental health.

James

I am 100% positive that the original person was a psychiatrists; he is
a MD (medical doctor) and prescribed many different types of
mood-altering medications for her over the years. The second therapist
is NOT a doctor, but a social worker w/ some advanced degrees. She has
diagnosed my friend w/ D.I.D. As far as sueing the original
psychiatrists: I am not the stereo-typical lawsuit-seeking American
looking to find some free money (and regardless I wouldn't personally
profit from this lawsuit). However, it seems unconscionable to me that
any professional (be it psychiatrists, psychologists, or therapist)
would not keep records for a patient's treatment over a six year
period! Has this lack of record keeping had a negative effect on her
mental health? I can't say, but I would suspect that the second
therapist would have gained some insights into their patient had they
been able to review that patient's medical history. Additionally (and
I understand that this is something she can't sue for), IMHO the
skills and competence of any doctor who operates their practice in the
above manner is automatically suspect.

I'm not a lawyer, but my understanding of malpractice is that it
typically requires proving either gross negligence (leaving surgical
instruments in a patient, amputating the wrong foot, etc) or a
providing treatment which deviates significantly from the 'standard of
care' for a given disease.  While I agree that all doctors should keep
some minimum of medical records and notes on visits, I'm not sure that
having poor or abscent notes constitutes either gross negligence or
deviating from the standard of care.  And, as the previous post
mentioned, you'd obviously need to show that there was some adverse
outcome due to the inadequate records.

There is a difference between not keeping records and not having records. 

I would expect state law to require the maintaining of records for a
certain period of time after the last contact-- in my business it is
three years-- and allowing for the confidential destruction of them
after that period. Are you quite certain that this is not the case
here? We are getting the report that thre are no records filtered
through several people (original psychiatrist to current
psychotherapist to patient to you to us), which is a rather extended
game of telephone.

Keep in mind that the records are the property of the psychiatrist. A
patient may have a right to the information in them but not the actual
records, except in certain rare cases.

Failure to properly maintain records is something you would complain
to the state licensing board about.

Anyone considering a lawsuit should consult an attorney. Many will
provide a free initial consultation.

Mark seems to have a couple of good points.
I am wondering if the psychiatrist is obligated to pass on his notes,
either at all (as the later therapist seems to expect); or to someone
who is not an MD; or without specific instructions by the patient.
Being a suspicious cynic, I can imagine a scenario in which the
psychiatrist took umbrage at the fact that his erstwhile patient went
to "junior" practitoner and gave him or her the brush-off.
As to records maintenance, from a couple of other questions here, I
got the impression that MDs' records eventually get archived in a
state medical depository (closed practices, etc.), but I may be wrong.

I'm not sure how the system works in America. In the UK, however... 

1. The patient notes are the property of the hospital or clinic in
which they are kept - and not the property of the treating doctor. The
treating doctor, however, has a legal obligation NOT to share the
notes with any third party where he thinks it would be inappropriate
and has control over who the notes are shown to.

2. The patient has a right to see their own notes and can apply to the
hospital directly. They're not allowed to remove them from the
premises but can make photocopies.

3. Doctors are not legal obliged to keep notes per se but they would
be wise to do so to record exactly what went on for possible future
legal action.

4. A lack of notes, therefore, is not a legal issue but rather a
'professional' one and could be taken up with the GMC (General Medical
Council).


Has your friend asked to see her notes herself - or has the therapist
asked to see them?
It may be, as others have said above, that the MD felt sharing the
notes with a non-medically qualified 'therapist' was inappropriate and
fobbed her off. However, if your friend asks to see them, he is
probably legally obliged to share them (he would be in the UK).

James

What was the psychiatrist's reason for not having the notes?  How many
years passed when the second therapist requested them?  Did your
friend have any written agreement with the psychiatrist about the
notes from her treatment?  Did she ever obtain copies of her records
after her treatment ended?  Do psychiatrists have a professional duty
to maintain notes from treatment years after a patient ends her
treatment?  All details about the treatment and the missing notes are
critical for a potential malpractice case.

If failing to maintain notes from psychiatric therapy is found by a
court to be malpractice, the only thing the court could do is award
your friend for the damages caused by the lack of psychiatric
treatment notes.  Generally, the court cannot order the psychiatrist,
hospital or other responsible parties to do anything but pay her a sum
of money, and provide copies of records and other things belonging to
her.

If she wins, the court would try to "make her whole", generally, by
awarding the monetary losses that can be attributed to the
psychiatrist's alleged breach of professional dutes.

How was your friend damaged by the psychiatrist's failure to take or
maintain notes on her therapy?  What has it cost her in expenses,
limitations, hardships, and such?  How badly does she need records
that the psychiatrist, clinic or hospital possesses but refuses to
release?

If there are significant monetary damages caused by a breach of
professional duty, an attorney would probably represent your friend
for a percentage of her recovery.

She should talk to a lawyer and should not rely solely on someone's
online comments for legal advice.