Informed Consent

Psychiatrists such as Dr. Bursztajn may have expertise in consulting across a spectrum of medical specialties regarding the quality of the informed consent process. They may also be asked to serve as consultants for guidelines regarding the informed consent process by peer review boards, institutions, state and federal agencies, the courts, or by plaintiffs' or defendants' attorneys to offer expert opinions as to whether meaningful informed consent has occurred. Dr Bursztajn consults and teaches physicians, including psychiatrists, regarding the fundamentals of informed consent. Some of Dr. Bursztajn's articles in this area include:

A wealth of information on Informed Consent within a case study framework can be found in Dr. Bursztajn's book Psychiatric Ethics and Rights of Persons with Disabilities in Institutions and the Community.

Failure to engage in a meaningful informed consent process can motivate successful plaintiff lawsuits in even defense oriented venues. On the other hand, even in challenging circumstances, successful defenses can be developed based on the presence of a meaningful informed consent process:

Some states have expended the circle of liability for negligient informed consent as to prescribed medications to include third parties injured in automobile accidents by prescription impaired but uninformed drivers. Informed consent regarding prescription medication is the key to preventing liability in "driving while impaired by prescription medication" cases.

It is important for the individual patient to be involved in the decision-making process of choosing appropriate treatment. Informed consent can not only help the patient maintain control over his or her health care; it can help to prevent medical malpractice litigation. Lack of adequate information or influence over one's treatment can result in a lawsuit.

Several articles on the Importance of Meaningful Informed Consent for Protecting Patients & Clinical Research Subjects:

Malpractice

Health services often involve an element of risk and consequently decision-making on the part of the provider/practitioner. Whether a treating physician could and should reasonably have made a more informed decision can be addressed by consultation with a physician with a special interest in medical decision-making and the informed consent process. Forensic psychiatric experts include physicians with training and expertise who consult regularly to physicians in other specialties regarding standards for informed clinical decision making. The following cases illustrate how forensic psychiatric and medical expertise can be useful in objectively evaluating malpractice claims.

Medical Malpractice

Dr Bursztajn has over the years been a leader in  educational activities focused on enhancing patient safety and clinical and institutional risk management. Among his special areas of interest has been standards for distinguishing merited from unmerited psychiatric medical malpractice claims: Some psychiatric and medical malpractice suits are merited and some are not. The following case is illustrative of Dr. Bursztajn's concerns for maintaining standards for patient safety in this meritorious case:

Dr Bursztajn has over the years been a leader in educational activities focused on enhancing patient safety and clinical and institutional risk management: Among his special areas of interest has been standards for distinguishing merited from unmerited psychiatric medical malpractice claims: Some psychiatric and medical malpractice suits are merited and some are not. Lake v. WVUH, et al. is illustrative of Dr. Bursztajn's concerns for maintaining standards for patient safety in this meritorious case.

The case below is illustrative of how Dr. Bursztajn's work can also be helpful for physician and institutional risk management in defending good clinical practices from those malpractice claims which lack merit:

Elizabeth Marie Kennedy, et al. v. United States of America

Judge rules in favor of defense.
Defense retained expert: Dr. Harold J. Bursztajn

Excerpt:

"None of the facts known (or that should have been know) by Dr. Diebold and the other medical personnel at the V.A. held any clue that Kennedy would take his own life on February 22, 1994. Unlike the cases cited by the plaintiffs in which the decedent's suicide was found to be foreseeable, see, e.g., Dinnerstein v. United States, 486 F. 2d 34 (2nd Cir. 1973)(decedent's extensive history of mental depression and suicidal tendencies provided notice of need for heightened supervision); Lucy Webb Hayes National Training School for Deaconesses and Missionaries v. Perotti, 419 F. 2d 704 (D.D.C. 1969) (suicide of psychiatric patient who had previously been diagnosed as suicidal and who suffered from 'paranoid depression,' apathy, slowness of speech, delusions of persecution, and depression on day of suicide was foreseeable), nothing known or that should have been known by Dr. Diebold or the other VA personnel should have sent up a red flag that Kennedy posed a danger to himself. As the defendant's reply suggests, Dr. Diebold did not have a crystal ball to foresee that sending Kennedy home (as he insisted) would result in his act of suicide.

Because Kennedy's suicide was not a foreseeable consequence of the defendant's employees' acts, the court grants the defendant's motion for summary judgment." [Case No. 96-4032-SAC, In the United States District Court for the District of Kansas]

Psychiatric Malpractice

EMTLA

Dr. Bursztajn has an active patient care practice and consults to physicians, institutions, judges, and plaintiff and defense counsel nationally.