Psychiatrists’ Liability for Patient’s Violence Against Other People: Washington Supreme Court Abolishes the Inpatient-Outpatient Distinction

By Alex Stein

In a recent decision, Volk v. DeMeerleer, 386 P.3d 254 (Wash. 2016), the Washington Supreme Court relaxed the “control” prerequisite for psychiatrists’ duty to protect third parties against violent patients.

The Court made this decision in a case involving a psychiatric patient who murdered his girlfriend and her nine-year old son and then committed suicide (after attempting to kill the girlfriend’s older son as well). For nine years leading up to that tragedy, the patient received outpatient care from the defendant psychiatrist, during which he expressed suicidal and homicidal ideations (without naming the potential victims).

The Court held that the psychiatrist had a “special relationship” with the victims because he was able to control the patient. Correspondingly, the psychiatrist had a duty to exercise “reasonable care to act consistent with the standards of the mental health profession, in order to protect the foreseeable victims of his or her patient.” The Court reasoned in this connection that some ability to control the patient’s conduct is sufficient for the “special relationship” and the consequent duty of care to exist. For that reason, psychiatrists should assume responsibility not only for an inpatient’s actions, but also in connection with an outpatient’s violence against third parties. Continue reading

American Psychiatric Association Releases Formal Position Statement on Euthanasia

By Wendy S. Salkin

End of Life Care, NIH

Image Source: NIH Consensus Development Project

Last month, the American Psychiatric Association (APA) released a position statement on medical euthanasia. The statement, approved by the APA Assembly in November and approved by the Board of Trustees in December, states:

The American Psychiatric Association, in concert with the American Medical Association’s position on medical euthanasia, holds that a psychiatrist should not prescribe or administer any intervention to a non-terminally ill person for the purpose of causing death.

According to the APA Operations Manual, APA position statements “provide the basis for statements made on behalf of the APA before government bodies and agencies and communicated to the media and the general public.”

For those who are wondering, What’s the American Medical Association’s [AMA] position on medical euthanasia?, here is your answer: From Section 8 of Chapter 5 (“Opinions on Caring for Patients at the End of Life”) of the AMA Code of Ethics: Continue reading

Outpatient Psychiatric Treatment: The Duty to Prevent Patient Suicide

By Alex Stein

In Chirillo v. Granicz, — So.3d —- (Fla. 2016), 2016 WL 4493536, the Florida Supreme Court formulated an important rule for psychiatric malpractice cases. Back in 2001, the First District Court of Appeal decided that psychiatrists assume no liability for an outpatient’s suicide because it is generally unforeseeable. Tort liability, it held, can properly be imposed on a psychiatrist only for a custodial psychiatric malpractice. According to the First District, an inpatient’s suicide is foreseeable and psychiatrists can effectively prevent it by restraining the patient. Lawlor v. Orlando, 795 So.2d 147 (Fla. 1st DCA 2001).

The Florida Supreme Court has now overruled Lawlor. Continue reading

“Medical Malpractice or Ordinary Negligence?” in the Context of Psychiatric Treatment

By Alex Stein

“Medical Malpractice or Ordinary Negligence?” is an issue that will stay on the courts’ agenda for long. See hereherehereherehere, here, and here.

As I explained in these posts and in a foundational article on medical malpractice, categorizing a plaintiff’s action as “medical malpractice” rather than “ordinary negligence” determines whether it must satisfy rigid limitations and repose provisions, comply with special and costly requirements with regard to expert testimony, face the difficult burden of proving the defendant’s deviation from the medical profession’s customary practices and protocols, and suffice itself with the compensation amounts allowed by the statutory caps on damages.

A recent Florida court decision, Shands Teaching Hosp. & Clinics v. Estate of Lawson, — So.3d —- 2015 WL 5057325 (Fla. 5th DCA 2015), illustrates the centrality of this issue for suits complaining about a psychiatric hospital’s neglect. Continue reading

Mental Therapist’s Duty to Prevent Patient’s Crime

By Alex Stein

A clinical social worker hears from his patient about the patient’s interest in child pornography, but does nothing to solve the problem. Later on, the police raids the patient’s house to find evidence that he illegally downloaded, viewed and possessed child pornography. The patient now faces criminal charges.

Can he sue the social worker for malpractice? Would a similar suit be available against a psychiatrist? Continue reading

Daubert as a Problem for Psychiatrists

By Alex Stein

Most psychiatrists don’t know about it, but the switch from Frye to Daubert in the admission of expert testimony matters for them a lot. Psychiatrists treat patients with second-generation antipsychotics: Zyprexa, Risperdal, Clozaril, Seroquel, and similar drugs. A reputable, but still controversial, body of research links those drugs to tardive dyskinesia: a serious neurological disorder involving uncontrollable facial grimacing, repetitive tongue thrusting, and other untoward bodily movements. Under Frye, expert evidence can only be admitted upon showing that it received “standing and scientific recognition” from the relevant community of experts. Absence of a solid consensus disqualifies the evidence. Expert testimony linking tardive dyskinesia to antipsychotic drugs consequently would not be admissible under Frye. Under Daubert, however, it would go into evidence because its underlying research is grounded in scientific method and procedure that can be replicated, examined, and properly explained to the jury.

This is exactly what happened in a recent case decided by the United States District Court for the District of Columbia: Patteson v. Maloney— F.Supp.2d —-, 2013 WL 5133495 (D.D.C. 2013). Continue reading

Proximate Cause in Georgia

By Alex Stein

Two days ago, Georgia’s Court of Appeals decided Georgia Clinic v. Stout, — S.E.2d —-, 2013 WL 3497703 (Ga. App. 2013).

This tragic case features an elderly patient with an arthritic knee. Her doctors injected that knee with medication drawn from a multi-dose vial. They did so at their clinic under non-sterile conditions that included poor infection controls, failure to maintain sterile field, and poor hand-washing facilities (the clinic had no sinks and alcohol hand cleaners in the examination rooms). As a result, the patient’s knee was infected with methicillin-sensitive staphylococcus aureus (“MSSA”). Four other patients of the same clinic were also infected with MSSA from the same multi-dose vial.

The patient developed excruciating pain in her knee and became depressed. The doctors treated her for the pain in the knee but neglected the depression. They failed to refer the patient to a psychiatrist. After a short period of time, the patient committed suicide by jumping from the window of her 14th floor apartment. She left behind a suicide note saying that she can’t take her pain anymore and prefers to die. Continue reading