Medical malpractice in the absence of a doctor-patient relationship: the potential liability of psychiatric examiners in New York State.

In New York, psychiatrists (and all physicians) have a duty, in every circumstance with respect to such functions as they are required to undertake, to conduct themselves and all their examinations in a thorough and proper manner. Especially in a forensic setting, psychiatrists must bear in mind that they have a legal duty to perform a competent examination before they render an opinion. It is well established that malpractice liability does not require the preexistence of a doctor-patient relationship based on an undertaking for the purpose of treatment. The author discusses a long line of cases in New York State which holds that psychiatric examiners are potentially liable in malpractice for any breach of duty with respect to those functions that are undertaken. Failure to conduct a proper, careful, and competent examination may result in liability in a variety of areas: competency examinations, commitment proceedings, workers' compensation claims, and so on. Limitations on such malpractice liability are discussed. Unlike some jurisdictions, New York does not accord judicial immunity to psychiatric examiners.