Psychiatrist-patient privilege; defendant’s Sixth Amendment right to present a defense

State v. Fay, 326 Conn. 742 (Conn. 2017)

The Connecticut Supreme Court rules that where a defendant shows a “compelling need” for privileged psychiatric records of a homicide victim as material to his defense, “the interests of the accused must prevail over the victim's psychiatrist-patient privilege” and an in camera review of the records may be undertaken.

Found in DMHL Volume 36, Issue 3

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

Liability to injured third parties; special relationships; duty of care

Gottschalk v. Pomeroy Development, Inc., 893 N.W.2d 579 (Iowa 2017)

The Iowa Supreme Court holds that the state owed no duty of care to a private facility resident who was sexually abused by another resident who had been discharged by a court from a state violent sex offender program and then ordered by another court into the private facility due to dementia; further, no duty of care was owed to the private facility.

Found in DMHL Volume 36, Issue 2

Administration of psychotropic medication; due process

Johnson v. Tinwalla, 855 F.3d 747 (7th Cir. 2017)

Seventh Circuit reverses summary judgment awarded by the district court to facility physician who prescribed and arranged for dispensing of psychotropic medication over an inmate’s objection, finding that an inmate can pursue claims that his resulting unknowing taking of the medication violated his constitutional due process rights and constituted common law medical battery.

Found in DMHL Volume 36, Issue 2

Mental Health Providers, Privilege

Bradley v. Eighth Judicial Dist. Court of Nev., 405 P.3d 668 (Nev. 2017)

The Supreme Court of Nevada ruled that psychologist-patient privilege applied and was not waived where counseling records concerned only treatment and no substantial part was shared with anyone, treatment was not substantively at issue in any claim or defense, and neither state law, due process, nor the right to confrontation required disclosure.

Found in DMHL Volume 37, Issue 1

Hospital Not Liable for Disappearance of Mentally Ill Daughter Even Though Mother Only Left Her Alone for 45-Minute Meeting with Counselor Because Nurse Promised to Look After Daughter

Nash v. Sisters of Providence, No. 28295-0-11, 2003 WL 21791593 (Wash. Ct. App. Aug. 5, 2003); 12(33) BNA's Health Law Reporter 1278 (Aug. 14, 2003)

A Washington Court of Appeals ruled that a hospital could not be held liable for the promise made to a mother by a nurse to look after her mentally ill 15-year-old daughter while the mother conferred with a counselor. The family's physician had arranged for the daughter to be evaluated at the hospital after he concluded the daughter showed symptoms similar to the manic phase of a manic­ depressive disorder.  The mother took her daughter to the hospital's emergency room where the hospital's notes indicated the daughter was acting "manic and paranoid," had a six-month history of depression and mania, and her status was "urgent."  The hospital's crisis services counselor asked to meet privately with the mother.  When the mother said she did not want to leave her daughter alone in an examination room, the counselor asked a nurse from the nurses' station across the hallway to watch the daughter.  The nurse explained she could watch the room from a video monitor. Finding this acceptable, the mother left to meet with the counselor in another room. When they returned 45 minutes later, the daughter was gone. The nurse said she had left her station to administer an l.V. to another patient. The parents have not seen their daughter since then...

Found in DMHL Volume 23 Issue 1

De Facto Therapist-Patient Relationship Necessary for Medical Malpractice Claim May Have Existed When Psychologist Gave Employee Advice on Family Problems

Thayer v. OrRico, 792 N.E.2d 919 (Ind. Ct. App. 2003)

An Indiana appeals court ruled a therapist­ patient relationship may have existed between a psychologist and a woman who worked as an employee in the clinic of which the psychologist was half-owner. During her employment, the woman sought advice about problems she was having with her marriage and her children from the psychologist and from her co-workers. After a number of years at the clinic, the woman and the psychologist began a sexual relationship, which continued for approximately one year. At that time, both the employment and sexual relationships were ended.  The woman and her husband sued the psychologist for malpractice, claiming in part that the psychologist had mishandled the transference phenomenon that had arisen. The trial court dismissed the lawsuit after determining that no therapist-patient relationship existed between the woman and the psychologist because the psychologist had merely counseled the woman as his employee and friend...

Found in DMHL Volume 23 Issue 1

Malpractice Action for Sexual Relationship that Developed Subsequent to Treatment Provided by Psychologist Settled for 225000

18(16) Virginia Lawyers Weekly 389 (Sept. 22, 2003)

A lawsuit in which a woman filed a medical malpractice action against a psychologist from whom she sought treatment for major depression was settled for $225,000 in the Circuit Court of Fairfax County.  The woman alleged she was harmed by an inappropriate
romantic and sexual relationship that developed between them.  Reportedly, as part of the settlement the defendant acknowledged an inappropriate  relationship developed between them subsequent to treatment, that such relationships are forbidden by the regulations governing the practice of clinical psychology in Virginia and the ethical principles of the American Psychological Association, and that such relations are defined as unethical because of the high likelihood of harm to the patient...

Found in DMHL Volume 23 Issue 1

Sanctions for Alleged Sexual Harassment of Medical Students and Social Worker by Psychiatrist Set Aside

Goad v. Virginia Bd. of Med., 580 S.E.2d 494 (Va. Ct. App. 2003); 17(51) Virginia Lawyers Weekly 1291 (May 26, 2003)

The Virginia Court of Appeals reversed the sanctions imposed and set aside a finding by the Board of Medicine that a psychiatrist was guilty of unprofessional conduct because of purported sexual harassment by the psychiatrist....

Found in DMHL Volume 23 Issue 1

Federal Suit by Virginia Physician Fired by State Mental Health Facility Dismissed

Horner v. Dep't of Mental Health, No. Civ.A. 5:02CV00099, 2003 WL 21391678 (W.D. Va. May 1, 2003); 18(13) Virginia Lawyers Weekly 306 (Sept. 1, 2003)

A lawsuit filed by a physician who was fired by a Virginia state mental health facility was dismissed by the Western District of the U.S. District Court in Virginia.  The physician, who was an internist at Western State Hospital from 1995 until May 2001, claimed he was fired because of his criticisms of the patient care provided at the facility.  In response, the physician initiated a grievance procedure under Virginia state law, see DMHL, v. 22, n. 2, p. 29, and also filed a lawsuit in federal court.  The federal district court concluded it was without jurisdiction to hear this case because the physician's claims were "inextricably intertwined" with the retaliation claims set forth in his grievance and his federal claim did not differ in any substantial part from the essential facts presented in the state proceedings.  While noting his grievance was subject to state appellate review and, ultimately, to review by the United States Supreme Court, the court concluded lower federal courts were not authorized to review it....

Found in DMHL Volume 23 Issue 1

Mental Health Facility that Closes May Have to Give Employees 60-Days Notice

Michigan AFSCME Council 25 v. Aurora Healthcare, Inc., 256 F. Supp. 2d 713 (E.D. Mich. 2003); 12(19) BNA's Health Law Reporter 737 (May 8, 2003)

The federal Worker Adjustment  and Retraining Notification Act (WARN) has been applied to the rapid closure of a mental health care facility near Detroit.  WARN requires that workers be given 60 days notice of a mass layoff unless closure followed "unforeseeable circumstances,"  which includes the "unexpected termination of a major contract." The facility provided inpatient, outpatient, and partial hospitalization care for individuals with mental illnesses.  The majority of its patient load came from referrals from the Community Mental Health Agency of the county in which it was located. On Dec. 19, 2001, the agency announced it would no longer refer patients to the facility, it would not renew its contract with the facility effective Dec. 31, 2001, and the facility should make  arrangements to transfer all of its referral patients to other medical providers by Jan. 31, 2002.  Faced with the loss of this business, virtually the entire facility workforce, which consisted of several hundred employees, was laid off. Layoffs began in late December 2001....

Found in DMHL Volume 23 Issue 1

Residents of Community Program Entitled to Written Notice but Not Formal Hearing Prior to Discharge if They Pose Imminent Threat to Other Residents

Cotton v. Alexian Bros. Bonaventure House, No. 02 C 7969, 02 C 8437, 2003 WL 22110501 (N.D. Ill. Sept. 9, 2003)

Two residents of a supportive residence that provides a transitional living program for people with HIV/AIDS were asked to leave because of "inappropriate  behavior" but without a written explanation of the reason they were asked to leave.  The residence received federal funds through the Housing Opportunities for People with AIDS Act (HOPWA).   Both residents had threatened fellow  residents....

Found in DMHL Volume 23 Issue 1

Psychiatrist as HMO Team Leader May Be "Treating Source" Whose Opinion Is Entitled to Greater Weight in Social Security Disability Determination Even Though Psychiatrist Has Minimal Patient Contact

Benton v. Barnhart, 331 F.3d 1030 (9th Cir. 2003); 71(49) U.S. Law Week 1790 (June 24, 2003)

The Ninth Circuit held that the lead psychiatrist on a patient's managed care treatment team may be considered a "treating" source whose opinions are entitled to greater weight in Social Security disability proceedings even though the psychiatrist has minimal contact with the patient and most of the direct patient contact is provided by others on the managed care treatment team...

Found in DMHL Volume 23 Issue 1

Ninth Circuit Refuses to Recognize "Dangerous Patient" Exception to Federal Psychotherapist-Patient Privilege

United States v. Chase, 340 F.3d 978 (9th Cir. 2003); 72(9) U.S. Law Week  1145-46 (Sept. 16, 2003)

The Ninth Circuit of the U.S. Court of Appeals ruled that although therapists have a duty to warn authorities about patients' threats to inflict serious harm on others, this does not mean therapists may testify in subsequent federal court proceedings about these statements.  In this case, the defendant suggested during therapy sessions that he might injure FBI agents and other individuals. The psychotherapist alerted law enforcement personnel and, after the psychotherapist testified at trial about the defendant's threats, the defendant was convicted of threatening to murder federal agents....

Found in DMHL Volume 23 Issue 1

Employee of State Mental Health Care Hospital Can Pursue Lawsuit Claiming She Was Fired in Violation of Her First Amendment Rights for Complaining About Quality of Care in Hospital

Rodgers v. Banks, 344 F.3d 587 (6th Cir. 2003); 12(39) BNA's Health Law Reporter 1500-01 (Oct. 2, 2003)

The Sixth Circuit ruled the director of quality management at a state mental health care hospital who was fired after lodging complaints about the quality of care in the hospital could bring a federal lawsuit alleging she was terminated in violation of her First Amendment right to free speech.  She had complained that the placement of a psychiatrist's office in a patients' unit compromised the patients' privacy, that there was a lack of concern over quality standards, and that restrooms were not adequately kept clean.  The Sixth Circuit determined the focus of these complaints was on patient care, a matter of public concern, and as a result it was necessary to balance the interests of a public employee as a citizen commenting on matters of public concern against the interests of a public employer attempting to efficiently provide public services.  The court found no evidence the complaints either disrupted or threatened to disrupt the efficient functioning of the hospital and management had not established a state interest that outweighed the employee's First Amendment right to call her supervisor's attention to the quality of patient care in the hospital...

Found in DMHL Volume 23 Issue 1

HMOs Not Required to Disclose Financial Incentives Used to Encourage Health Care Providers to Ration Care Except Under Limited Circumstances

Horvath v. Keystone Health Plan, 333 F.3d 450 (3d Cir. 2003); 72(4) U.S. Law Week 2063 (Aug. 5, 2003)

Disagreeing with the Eighth Circuit, the Third Circuit held that a health maintenance organization (HMO) does not breach its fiduciary duties under the Employee Retirement Income Security Act (ERISA) when it fails to disclose the financial incentives it provides to health care providers to ration care unless (1) a member of the HMO requests such information, (2) circumstances have put the HMO on notice that its members require such information to avoid making bad decisions regarding their health care coverage, or (3) an HMO patient was harmed as a result of not having such information disclosed to them...

Found in DMHL Volume 23 Issue 1

Ruling that Physician Can Be Excluded from Federal Health Programs for Factors Not in Place at Time of Misconduct Not Disturbed

Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003), cert. denied, 123 S. Ct. 2652 (2003)

The Supreme Court declined to review a ruling by the Eleventh Circuit that upheld a decision by the Department of Health and Human Services (HHS) to exclude for ten years from all federal health programs a physician who pleaded nolo contendere to a charge of sexual battery of a patient.  The Eleventh Circuit ruled HHS could rely on two aggravating factors in excluding the physician beyond the five-year period provided by statute, even though those factors were added after the occurrence of the physician's conduct.  HHS was permitted to consider that the doctor engaged in a non-consensual sexual act and that his medical license was revoked as a result of the conduct because the regulations adding these factors were intended to protect federal medical program recipients.  Thus, their retroactive application was permissible because they were remedial rather than punitive....

Found in DMHL Volume 23 Issue 1

Ruling Ordering Evidentiary Hearing on Whether Defendant's Confession to Prison Psychiatrist Was Involuntary Because He Believed Statements Were Protected by Confidentiality Agreement Not Disturbed

Beaty v. Stewart, 303 F.3d 975 (9th Cir. 2002), cert. denied, Stewart v. Beaty, 123 S. Ct. 2073 (2003); 71(44) U.S. Law Week 3715 (May 20, 2003)

The Supreme Court declined to review a decision by the Ninth Circuit that permitted a criminal defendant to obtain a new hearing on whether his confession had been involuntary under the Fifth Amendment.  The defendant had been convicted of murder partly on the strength of a prison psychiatrist's testimony regarding a confession the defendant made to him after a group therapy session.  The Ninth Circuit held the defendant was entitled to a hearing on whether he reasonably believed his statements to the psychiatrist were protected by a confidentiality agreement he had signed that promised that "all group communication" would be kept confidential...

Found in DMHL Volume 23 Issue 1

Employment Contract Intended to Limit Psychologist's Ability to Compete with a Group Practice After Employment Relationship Ends Is Not Enforceable

Comprehensive Psychology Sys. v. Prince, 867 A.2d 1187 (N.J. Super. Ct. App. Div. 2005)

When mental health professionals join a group practice, their employment contract may include a restrictive covenant that is intended to limit their ability to compete with the group practice for a period of time should the employment relationship end. In New Jersey, a corporation providing neuropsychological services to clients sued one of its former employees, a licensed psychologist, to enforce a restrictive covenant in their employment contract. The restrictive covenant stated that after the termination of employment the psychologist could not practice his profession within ten miles of the corporation's facility and not solicit any of the corporation's patients for two years...

Found in DMHL Volume 24 Issue 2

Time Period File Malpractice Claim Asserting She Was Not Warned Mental Illness Medication Might Cause Birth Defects Begins at Time of Child's Birth, Not When Ultrasound First Showed Birth Defects

Bailey v. Khoury, 891 So. 2d 1268 (La. 2005)

Every jurisdiction  imposes a limit on how long individuals can wait to file a lawsuit that claims they were injured as the result of the malpractice of a health care provider.  This limit, which is typically one or two years in length, generally runs from the time individuals discover they have been injured. If they wait beyond this time, they are generally precluded from pursuing their claim...

Found in DMHL Volume 24 Issue 2