Endangerment of Psychoanalysis in the U.S.A.

DEAR SIR,

In his paper on 'Possible endangerment of psychoanalysis in the United States' (1979, 6, 15–21) Dr K. R. Eissler shows vividly how psychoanalysis could be subjected to devastating attack before a lay jury through the use of certain imaginative forensic techniques.

Fortunately, readers may be reassured, there are important theoretical legal barriers to the employment of those techniques in malpractice litigation against psychoanalysts.

First, according to conventional doctrine, a physician is entitled to be judged in accordance with the standards of the school of medical thought to which he professes to follow. There can therefore be no issue for a jury whether psychoanalysis is a legitimate form of treatment. The only issue to be litigated is whether the psychoanalyst prescribed and conducted the treatment in accordance with recognized psychoanalytic standards.

Even if there is a difference of opinion among psychoanalysts as to what those standards are, the physician is probably entitled to choose for himself among any professional approaches which are supported by at least a respectable minority of reasonably qualified practitioners in his field. Traditionally, it is not for courts or juries to decide which of such points of view is preferable. Adherence to any of them, it is generally considered, cannot be malpractice as a matter of law. The same principles apply to other professionals as well.

That there is sound theoretical authority for these propositions can be asserted with more confidence than that they are always applied correctly in practice. Some cases probably go to juries in the United States which should instead, under these principles, be dismissed by the trial judge. Apart from such laxity in the application of the law, the traditional structure of substantive malpractice law itself may be crumbling in some jurisdictions. There is reason to suspect that the law of malpractice is beginning to drift in a few courts, without explicit ackno