Liability for harm by patient to third parties; “special relationship” doctrine

Rodriguez v. Catholic Health Initiatives, d/b/a Chi Health, et al., 899 N.W.2d 227 (Neb. 2017)

Nebraska Supreme Court rules that psychiatric hospital and involved medical staff asserting custodial authority over a patient due to the patient’s mental illness and danger to self or others have a duty to take action to prevent harm to “reasonably identifiable” third parties.

Found in DMHL Volume 36, Issue 3

Physician Employed as a "Physician Extender" by a State Psychiatric Facility Is Not Protected by Sovereign Immunity and Thus May Be Sued for Malpractice

McCloskey v. Kane, 604 S.E.2d 59 (Va. 2004)

Unless waived, the state is protected by the doctrine of sovereign immunity from malpractice claims. Employees of the state may be similarly protected. In Virginia, the greater the control of an employee's actions by the Commonwealth, the greater the likelihood of immunity. However, state­ employed physicians may not be entitled to this immunity because they must exercise their professional skill and judgment when treating patients and thus tend not to be subject to the control and direction of others. James v. Jane, 282 S.E.2d 864 (Va. 1980)...

Found in DMHL Volume 24 Issue 1

Without Evidence of Specific Acts Demonstrating Actual or Likely Serious Bodily Injury, Discontinuation of Prescribed Medications Can Not Serve as Basis for Involuntary Hospitalization

In re B.T., 891 A.2d 1193 (N.H. 2006)

The New Hampshire Supreme Court reversed an order to involuntarily hospitalize a woman with a history of mental illness who had discontinued her prescribed medications. In 1999, a judge had ordered the woman involuntarily hospitalized after she overdosed on prescribed medications. The commitment was for a maximum of two years but she was conditionally discharged prior to the expiration of that period. In New Hampshire, an individual who has been involuntarily committed can spend the remainder of the period of commitment in the community if the individual agrees to comply with imposed conditions...

Found in DMHL Volume 25 Issue 2

Officials at Designated Hospital That Refused to Admit Emergency Detainee Can Be Held in Contempt, but Permitted to Refuse Admission if Hospital Lacks Adequate Space or Staff

In re Contempt of Wabash Valley Hosp., Inc., 827 N.E.2d 50 (Ind. Ct. App. 2005)

In a case characterized as exemplifying "a national trend," the Indiana Court of Appeals held that a trial court has the authority to determine that hospital officials violated the law when they refused to admit a man deemed mentally ill and dangerous and judicially  committed for a seventy-two-hour emergency detention.   However, the appellate court vacated a contempt order and ordered a rehearing because the trial judge failed to give hospital officials an opportunity to explain their decision to deny admission...

Found in DMHL Volume 25 Issue 1

Use of Five-Point Restraints on Inmates for 46-48 Hours Without Procedural Checks Ruled Unconstitutional

Card v. D.C. Dep't of Corr., No. 2:00CV631, 2005 WL 2260167 (E.D. Va. Sept. 13, 2005)

Incarcerated individuals with a mental illness may be particularly prone to engage in disruptive behavior.  When an inmate engages in disruptive behavior, correctional officials may respond in various ways.  They may reduce the inmate's privileges, place the inmate in isolation or segregation, or employ four- or five-point restraints to subdue the individual.  Under Virginia state policy, an inmate who tried to escape or demonstrated violent or unmanageable behavior could be positioned face up on a bed with leather straps applied to the wrists, ankles, and across the chest for up to forty-eight hours if initial approval had been provided by the Warden or Administrative  Duty Officer.  This policy was challenged by an inmate who had been placed in five-point restraints for 46-48 hours on five occasions (six to nine meal and restroom breaks were provided each time)...

Found in DMHL Volume 25 Issue 1

Defendant Detained in Mental Health Facility for Restoration to Competency is Prisoner under Prison Litigation Reform Act

Gibson v. City Municipality of New York, 692 F.3d 198 (2012)

The Second Circuit Court of Appeals has upheld the district court’s dismissal of a petitioner’s motion to proceed in forma pauperis, resulting in dismissal of his complaint against a number of city, corrections and mental health officials alleging they violated his civil rights. The petitioner had filed three previous petitions as a prisoner that had been dismissed as frivolous, malicious, or failed to state a claim upon which relief may be granted. The Court held that although the petitioner was being detained in a mental health facility, he was still a “prisoner” for purposes of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), and thus subject to the Act’s limitation on proceeding in forma pauperis in federal court.

The petitioner, Bennie Gibson, had been charged with third degree criminal mischief under New York law and was being detained at Kirby Psychiatric Center in the custody of the Commissioner of Mental Health on a temporary order of observation for restoration of his capacity to stand trial. While federal law generally permits a district court to waive filing fees for individuals who cannot pay and to proceed in forma pauperis, Congress enacted the Prison Reform Litigation Act in 1995 to limit abuse of the legal system by prisoners who file repetitive frivolous complaints. “Prisoner” is defined under the Act as “any person…detained in any facility who is accused of…violations of criminal law.” 28 U.S.C. § 1915(h). Under New York law, criminal charges are not dismissed against a defendant held in the temporary custody of the Commissioner of Mental Health, but are merely suspended pending his treatment and restoration to capacity. Gibson therefore met the definition of a prisoner as a person detained as a result of an accusation, conviction, or sentence for a criminal offense. Had Gibson been held under a final order of observation as a civil unrestorable patient, been found not guilty by reason of insanity, or been civilly committed as a sexually violent predator, the result may not have been the same.

Found in DMHL Volume 32 Issue 1


Trial court complied with statutory criteria for ordering inpatient hospitalization vs. conditional release of NGI acquittee

Bates v. Com., 287 Va. 58, 752 S.E.2d 846 (2014)

After being found not guilty by reason of insanity on a charge of arson pursuant to Va. Code Ann. § 18.2-77, Tanisha Bates was remanded to the temporary custody of the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services (the “Commissioner”) in order to evaluate options for her treatment or release. The clinical psychologist who performed the evaluation recommended inpatient hospitalization whereas the psychiatrist recommended conditional release coupled with outpatient treatment. The Northern Virginia Mental Health Institute (“NVMHI”) then prepared a court-ordered conditional release plan in advance of hearing “to determine the appropriate disposition of the acquittee” in accordance with Va. Code Ann. §§ 19.2– 182.3 and 19.2–182.7. At the request of the Commissioner, the Forensic Review Panel also submitted a report, concluding that “Bates' continued delusions, risk of suicide, lack of substantial response to treatment, and history of deadly and dangerous behavior” all supported a recommendation that Bates should remain committed to inpatient hospitalization. The circuit court followed that recommendation and entered an order committing Bates to the custody of the Commissioner.

Bates appealed the order, contending that the circuit court misapplied the relevant Virginia Code sections in reaching the decision that she required inpatient hospitalization. The Virginia Supreme Court affirmed the commitment order of the court below, holding that it had correctly applied the statutory criteria. Although the court below had acknowledged that the NVMHI report stated that Bates was “ready to leave” inpatient treatment, the finding that there was “no means for controlling her on an outpatient basis” was enough to warrant an order committing Bates to inpatient hospitalization. Further, the Supreme Court held that the provisions in Va. Code Ann. § 19.2–182.7 do not require lower courts to “fashion an appropriate plan for [] outpatient treatment and supervision when it [has] already determined that [a defendant] [is] not eligible for conditional release, and that she require[s] inpatient hospitalization.”

Found in DMHL Volume 34 Issue 1

Involuntary commitment (Alabama)

Hospital mental health professionals have sovereign immunity protection for decision-making regarding discharge of involuntarily committed patients, provided that required procedures regarding such discharge are followed

Ex parte Kozlovski, No. 1140317, 2015 WL 1877656 (Ala. Apr. 24, 2015) (not yet released for publication)

Jeffrey Brown, a 19-year-old man with a long history of mental illness as well as chronic runaway behaviors and periodic violent outbursts, was involuntarily committed to an Alabama psychiatric hospital after physically attacking his father. After a course of treatment at the hospital, the treatment team, led by Dr. Kozlovski, found Mr. Brown met the criteria for discharge and return to the community, and arranged for his placement in a group home, against the wishes of family members who feared the consequences of his runaway behaviors. Within a day of his admission to the group home, Mr. Brown ran away from the group home. He was found dead three days later, apparently struck and killed by a motor vehicle. Mr. Brown’s estate filed a wrongful death action against the hospital and Dr. Kozlovski. After discovery, Dr. Kozlovski filed a motion for summary judgment based on “State agent immunity,” but the trial court denied the motion. Following that denial, Dr. Kozlovski appealed to the Supreme Court of Alabama and requested a writ of mandamus requiring the trial court to grant the summary judgment motion.

The Supreme Court of Alabama granted the writ, holding that the psychiatrist was discharging duties imposed by state statute, rules, and regulations, and so was entitled to state agent immunity. The Court also noted that, although the State agent asserting immunity bears the initial burden of demonstration that the plaintiff’s claims arise from actions that would normally entitle the agent to immunity, that burden shifts to the plaintiff to show that an exception to state-agent immunity is applicable.

Found in DMHL Volume 34 Issue 2

Not guilty by reason of insanity commitment

In proceeding by the state to extend NGRI acquittee’s commitment beyond the length of the maximum prison sentence for the originally charged offense(s), the individual facing extended commitment has the right to refuse to testify in the proceeding

Hudec v. Superior Court Orange County, 339 P.3d 998 (Cal. 2015)

Charles Hudec, a person diagnosed with paranoid schizophrenia, was found not guilty by reason of insanity of killing his father and was committed to a state hospital for a period of time reflecting the maximum sentence for voluntary manslaughter. In March 2012, the district attorney petitioned to extend Hudec’s commitment pursuant to Cal. Penal Code § 1026.5. That section allows a person’s commitment to be extended if, because of mental disorder, he “represents a substantial danger to others.” The section also states that a person so tried is “entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings.” The California Supreme Court noted that, although § 1026.5 does not “expressly grant NGI [sic] extension respondents all the rights of a criminal defendant,” the statute “reflects a legislative effort to prescribe procedures fair to both the respondent and the People.” The Court found the right to refuse to testify among those afforded because recognition of the right would not result in “any absurd consequence”—such as would ensue were a respondent to attempt to assert the right not to be tried while mentally incompetent.

Found in DMHL Volume 34 Issue 2

Due process requirements for involuntary hospitalization

J.R. v. Hansen, 803 F.3d 1315 (11th Cir. 2015)

Florida’s statutory structure for involuntary commitment of persons with intellectual disability violates the 14th amendment, as it allows for indefinite commitment without periodic review

Background: Plaintiff-Appellant J.R., an intellectually disabled man with an IQ of 56, was charged with sexual battery and, after being found incompetent to stand trial, was admitted to non-secure residential services under F.S.A. § 393.11. He claimed that Florida’s involuntary commitment laws denied due process because they permitted the State to keep intellectually disabled people committed indefinitely without periodic review. When a person is admitted, the circuit court that first ordered the admission keeps jurisdiction over the order, and the person “may not be released except by order of the court.” The court, however, is “never required to review a continuing involuntary admission” (emphasis in original). Admitted persons may only challenge their support plans in administrative proceedings, but administrators cannot change or vacate the admission order or require release. Thus, the only means of securing release was by writ of habeas corpus.

Holding: The Eleventh Circuit held that Florida’s statutory scheme was facially unconstitutional because it violated the Due Process Clause of the Fourteenth Amendment by failing to require periodic review of continued commitments “by a decision-maker with the duty to consider and the authority to order release.” Even if the statutory scheme did require administrative agencies to conduct period reviews, however, it would still be facially unconstitutional because the agency did not have the authority to order release nor was it required to petition the circuit court.

Notable Points:

The availability of habeas corpus does not provide constitutionally adequate process: The Eleventh Circuit, relying on Williams v. Wallis, 734 F.2d 1434 (11th Cir. 1984), stated that “habeas corpus is not adequate in and of itself” and “can be at most a backstop.” The Court distinguished habeas from periodic review because habeas is only available if a petitioner seeks it.

Found in Found in DMHL Volume 34, Issue 4

Administration of Psychotropic Medication over Objection of NGRI Patient

People v. Marquardt, 364 P.3d 499 (Co. 2016)

In the case of a person who is a hospitalized NGRI acquittee and currently receiving antipsychotic medication that is preventing further deterioration of the person but is insufficient to improve person’s condition, the Colorado Supreme Court rules that the person’s objection to increased medication must be honored despite state’s claim that more medication is needed for any improvement.

Background: After being found not guilty by reason of insanity and being diagnosed with schizoaffective disorder, bipolar type, with prominent paranoia, Larry Marquardt was committed to the Colorado Mental Health Institute at Pueblo (“CMHIP”). Marquardt, at first, took ten milligrams of antipsychotic medication daily, and refused to take more. Because his attending psychiatrist felt that a dose of ten milligrams was only partially effective, the State petitioned to have the dosage increased to the maximum of twenty milligrams daily. The trial court found that an increased dosage was “necessary to prevent a significant long-term deterioration in [Marquardt’s] mental condition.” Because the court determined that Marquardt would not be released from the institution unless his condition improved, and that that was unlikely without an increased medication, the trial court ordered Marquardt to submit to the increased dose. Marquardt appealed, arguing that the trial court had misapplied the controlling case law, People v. Medina, 705 P.2d 961 (1985).

Holding: The Supreme Court of Colorado found that the trial court had applied the incorrect legal test—misapplying Medina by relying on evidence that Marquardt was not improving on the lower dose. Rather, the court explained, Medina required that a court must find a patient to be deteriorating in order to justify increased medication against the patient’s wishes.

Notable Points:

Deterioration, not just lack of improvement, is required for an order of forced medication: People v. Medina, 705 P.2d 961 (1985) sets forth a test to determine whether non-consenting treatment by antipsychotic medication may be administered to an involuntary committed mental patient. The test is one that involves mixed questions of law and fact, and is a four-factor test. The State must show: “(1) that the patient is incompetent to effectively participate in the treatment decision; (2) that treatment by antipsychotic medication is necessary to prevent a significant and likely long-term deterioration in the patient's mental condition or to prevent the likelihood of the patient's causing serious harm to himself or others in the institution; (3) that a less intrusive treatment alternative is not available; and (4) that the patient's need for treatment by antipsychotic medication is sufficiently compelling to override any bona fide and legitimate interest of the patient in refusing treatment. To determine whether a patient is “in danger of long-term deterioration” it is not enough to show that a patient will not likely recover without an increased dose of medication—the State must show that there is a danger of long-term deterioration in the patient’s condition. Although the state has a legitimate interest in institutional security, that interest is not sufficient to expose those in its care to increased or nonconsensual medication “solely for the purpose of alleviating the risk of some possibility of future injury or damage to the patient or others.”

Found in Found in DMHL Volume 35, Issue 1

Psychiatric Hospital Liability in Patient’s Suicide

P.W. v. Children's Hosp. Colorado, 364 P.3d 891 (Co. 2016)

Hospital’s affirmative defenses of comparative negligence and assumption of risk in the case of a minor admitted to the psychiatric hospital as a “known suicidal patient” rejected based on finding that the hospital’s “professional duty of care encompasses, and is shaped by, the plaintiff-patient’s medical condition” as it is known to the hospital.

Background: P.W. sued Children’s Hospital Colorado (“the Hospital”) for negligence when his son, K.W., attempted to kill himself by hanging while at the Hospital. When K.W. was first transferred to the psychiatric unit, notes stated that he was admitted for treatment of depression and suicidal ideation—specifically mentioning cutting and hanging—and was placed on “high suicide precautions.” These precautions included the requirement that patients remain in staff sight at all times except for when using the bathroom. When in the bathroom, however, staff should communicate with the patient every 30 seconds. K.W. was allowed use of the bathroom at 9:55 p.m., and at 10:15 p.m., he was discovered to have hanged himself with his scrub pants. K.W. was diagnosed with severe, permanent anoxic brain injury and not expected to recover. P.W., K.W.’s father, sued the Hospital individually and on behalf of his son for negligence, and the Hospital asserted affirmative defenses of comparative negligence and assumption of risk. P.W. moved to dismiss the defenses, and, treating the motion as one for summary judgment, the district court granted the motion. Holding: The Supreme Court of Colorado affirmed, holding that the Hospital could not assert either a comparative negligence or assumption of risk defense as a matter of law. Although the Hospital had also petitioned for an order to gain access to K.W.’s preincident mental health records, the Supreme Court did not address the trial court’s discovery order. 

Notable Points:

The Hospital assumed an affirmative duty to protect K.W. from self-harm: When admitting a suicidal patient to a psychiatric in-patient unit, a hospital assumes an affirmative duty of care, which subsumes a patient’s own duty of self-care. Thus, a patient cannot be found comparatively negligent for a suicide attempt. In this case specifically, the Hospital agreed to use reasonable care to prevent a known suicidal patient from attempting to commit suicide. That duty cannot be overcome by a comparative negligence or assumption of the risk defense.

A capacity-based theory of comparative negligence does not apply: A hospital’s duty of care encompasses a patient’s individual characteristics—including known medical conditions—and the duty of care can be continually shaped by those characteristics. As such, the capacity for negligence of a sixteen-year-old patient, known to be suicidal, was not relevant to determining whether he could be held comparatively at fault for injuries sustained in a suicide attempt. While in the Hospital’s care, the hospital had a duty to protect him from foreseeable harm, and when he was known to be suicidal at intake, that foreseeable harm included harm from a possible suicide attempt.

Found in Found in DMHL Volume 35, Issue 1

Liability of Public Entities in Caring for Persons during Involuntary Commitment Process

Anderson v. Marshall Cty., Miss., No. 15-60051, 2016 WL 143303 (5th Cir. Jan. 12, 2016) (per curiam)

Estate of mentally ill person, who was taken into involuntary custody due to mental health crisis and later died in County Sheriff Department’s custody, failed to meet requirements for claims against hospital and County under 42 USC § 1983, as evidence did not demonstrate that defendants had a policy or practice amounting to deliberate indifference, as required under Monell. 

Background: After Princess Anderson arrived at a hospital in Marshall County Mississippi, she became increasingly agitated and physical with emergency room staff. Anderson tested positive for marijuana and opiates, and was diagnosed with acute psychosis. After a mental health evaluation, it was determined that Anderson required psychological care, but she refused voluntary admission. The chancery court granted the doctors’ request to have Anderson involuntarily committed and ordered the DeSoto County sheriff to take custody of her. Because Anderson was a resident of Marshall County, she was transported from DeSoto to Marshall County jail on Tuesday, February 8th. On arrival, DeSoto deputies told the Marshall County jail officer that Anderson had become agitated during the transport requiring that she be restrained. The Marshall jail officer did not review Anderson’s medical records (believing she was not entitled to view Anderson’s health information), and Anderson was placed in a cell. Although other inmates reported that Anderson needed emergency medical attention, she was not taken to a hospital until Friday, February 11th when Anderson’s mother arrived at the jail to take her to a hospital for follow-up tests. Shortly after arriving there, Anderson died of multisystem organ failure. Her mother, Angela Anderson, sued Marshall County and the Sheriff for violations of Princess Anderson’s rights under 42 U.S.C. § 1983. The district court determined that there was no § 1983 violation.

Holding: The Fifth Circuit held per curiam that Angela Anderson did not meet “the high bar required for Monell liability” under § 1983 and upheld the district court’s grant of summary judgment against her. On the failure to train claim, the Court held that the plaintiff failed to establish that Marshall County acted with deliberate indifference to the constitutional rights of inmates when adopting its training procedures. The Court also found the single incident exception to Monell’s general requirement of a pattern of unconstitutional conduct was not applicable given the evidence presented by the plaintiff.

Notable Points:

Plaintiff did not show evidence of a pattern of deliberate indifference: Anderson came forward with no evidence to show or allege a pattern of deliberate indifference to the constitutional rights of prisoners in Marshall County’s training, policies, or procedures. Without evidence of a pattern, Marshall County could not be found to have been on notice that its current training was producing unconstitutional results. Absent a pattern, the plaintiff must show deliberate indifference through the single incident exception.

Plaintiff’s evidence was not sufficient to meet § 1983’s single incident exception: The single incident exception would require that Marshall County’s training be so inadequate that the county was on notice that an untrained officer would have neglected a prisoner in the way Marshall jail officer was alleged to have done. The Fifth Circuit reiterated that “it is not enough to say that more or different training or supervision would have prevented Princess’s injuries.” It is almost always the case that more or better training could have prevented a poor outcome, so that cannot be enough to subject a county to governmental liability. Specifically, the Court said that, given the training provided, Marshall County “could not have anticipated that Officer Anderson and other correctional officers would ignore Princess’s litany of obvious ailments.”

Found in Found in DMHL Volume 35, Issue 1