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

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

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

Army Veteran Can Pursue a Claim for Alleged Failure to Tell Him He Had Been Diagnosed as Having Schizophrenia

Thomas v. Principi, 394 F.3d 970 (D.C. Cir. 2005)

A U.S. Army veteran claimed the Department of Veterans Affairs (VA) was aware that a physician had diagnosed him as having schizophrenia during an examination, but that the VA failed to inform him of this diagnosis for eight years and thus should be held liable for the damages he incurred as a result. A trial court dismissed the lawsuit after concluding that federal law dictates that all questions regarding the awarding of veterans' benefits are to be decided by the Secretary for Veterans Affairs...

Found in DMHL Volume 24 Issue 2

Mandatory Child Abuse Reporting Requirements in Kansas Do Not Apply to Sex Between Age-Mates When Injury Is Not Suspected

Aid for Women v. Foulston, 327 F. Supp. 2d 1273 (D. Kan. 2004)

Kansas, like all states, mandates that suspected child abuse or neglect, including sexual abuse, be reported to a designated state agency.  Under the relevant Kansas statute, a wide range of professional groups, including mental health professionals, must file a report if there is reason to suspect that a child has been injured as the result of sexual abuse, as well as physical, mental, or emotional abuse or neglect.  A failure to submit a required report is punishable as a misdemeanor...

Found in DMHL Volume 24 Issue 2

Psychiatrist and Psychologist Not Liable for Traffic Accident That Occurred When Patient Fell Asleep While Driving After Taking Prescription Medication

Weigold v. Patel, 840 A.2d 19 (Conn. App. Ct. 2004), cert den. 847 A.2d 314 (Conn. 2004)

In 1997, a registered nurse fell asleep at the wheel and struck another vehicle head on, killing the driver of that vehicle.  Initially, a wrongful death action was brought against the nurse...

Found in DMHL Volume 24 Issue 1

Psychotherapist Alerted by a Patient's Immediate Family of a Threat by the Patient Can Be Held Liable for Failing to Warn the Patient's Victim; Expert Testimony Not Required to Establish Liability

Ewing v. Northridge Hosp. Med. Ctr., 16 Cal. Rptr. 3d 591 (Cal. Ct. App. 2004)

Tarasoff v. Regents of Univ. of California, 551 P.2d 334 (1976), the first judicial opinion to rule that a psychotherapist may have a legal duty to take reasonable steps to protect a third party who has been threatened by the psychotherapist's  patient, reverberated across the country.  A number of states, including California and Virginia, enacted legislation to specify more clearly when this duty arises...

Found in DMHL Volume 24 Issue 1

Law enforcement and health care providers at hospital emergency rooms: questions on their abilities to treat individuals who do not desire their assistance

Tinius v. Carroll County Sheriff Dep't, 321 F. Supp. 2d 1064 (N.D. Iowa 2004)

Law enforcement officials are often the first to respond to emergent mental health crises and health care providers at hospital emergency rooms are often the first to treat an individual in the midst of a mental health crisis, frequently after a law enforcement official has brought the individual to the emergency room. Questions have arisen about their respective abilities to respond to and treat individuals who do not desire their assistance.  A federal court in Iowa afforded relatively wide latitude to the law enforcement officials, but less so to emergency room health care providers...

Found in DMHL Volume 24 Issue 1

Jury Verdicts Split on Medical Malpractice Claims of Negligent Administration of Pain­ Relief Medicine by Psychiatrists

Estate of Feury v. Member (Spotsylvania Co. Circ. Ct. 2004)

The family of a woman who died of an overdose of a strong pain-relief medicine given to her by a psychiatrist was awarded $1.4 million by a Virginia jury. The woman, who suffered from menstrual cramping and endometriosis, obtained four Fentanyl patches from the psychiatrist, allegedly without proper instructions, warning, medical exam, or a prescription. At the time she obtained the patches, the woman was an administrative clerk at the psychiatrist's clinic and in the process of obtaining a divorce from him. The woman was apparently unaware of the strength and potency of Fentanyl, a Schedule II drug, and applied all four patches simultaneously plus a heating pad, which increased the circulation of the medication. Criminal charges were subsequently brought against the psychiatrist and he was found guilty of prescribing a Schedule II narcotic without a written prescription...

Found in DMHL Volume 24 Issue 1

Ruling That Dismissed Suit Against Therapist for Alleged Role in Conspiracy to Deny Child Custody to Mother Not Disturbed

Elwood v. Morin, No. 02- 56077, 2004 WL 26713 (9th Cir. 2004), cert. denied 125 S. Ct. 271 (2004)

Child custody disputes are frequently bitterly contested.  Mental health professionals may be asked to play a pivotal role by formulating and submitting a report regarding who should be assigned custody.  A disappointed party may subsequently file a lawsuit alleging improper behavior by the mental health professional in reaching his or her opinion. The U.S. Supreme Court declined to review a ruling by the Ninth Circuit that affirmed the dismissal of a lawsuit that alleged that a therapist had participated in a conspiracy to deprive a mother of the custody of her children...

Found in DMHL Volume 24 Issue 1

Hospital and Physician Liable Under EMTALA for Transferring Suicidal and Intoxicated Patient to Jail for Protective Custody

Carlisle v. Frisbie Mem'I Hosp., 888 A.2d 405 (N.H. 2005)

A recently completed national survey of hospitals found that 55% of all hospital admissions  (excluding  pregnancy  and childbirth)  in 2003 entered the hospital  through the hospital's emergency  department, a total of 16 million patients.  The fifth most­ often given reason for admission was mental health and substance abuse disorders  (5.8% or nearly 1,000,000 patients, with 387,500 patients admitted for the treatment of mood disorders).   Anne Elixhauser & Pamela Owens, Reasons for Being Admitted to the Hospital  Through the Emergency  Department, 2003, Healthcare Cost and Utilization Project (H·CUP) (Feb. 2006), http://www.hcup­

Found in DMHL Volume 25 Issue 2

Psychiatrist's Professional License Permanently Revoked for Sexual Misconduct

Schechter v. Ohio State Med. Bd., No. 04AP-1115, 2005 WL 1869733 (Ohio Ct. App. Aug. 9, 2005)

Licensing boards and reviewing courts have become less tolerant of sexual conduct by a mental health professional during therapy, with a number of jurisdictions  adopting a per se rule that sex with a client violates professional rules of conduct.  However, less attention has been given to the sanctions to be attached to such misconduct, particularly when the misconduct can be construed as a single instance rather than a pattern of misconduct...

Found in DMHL Volume 25 Issue 1

Medical Center Has a Duty to Protect Emergency Room Patients from Attacks but Not When the Attack Was a Surprise

Lane v. St. Joseph's Reg'I Med. Ctr., 817 N.E.2d 266 (Ind. Ct. App. 2004)

The Indiana Court of Appeals ruled that although a medical center has a duty to protect emergency room patients from criminal attacks, a hospital is not liable for the injuries that resulted when a teenage boy attacked a woman seated in the waiting area of its emergency room...

Found in DMHL Volume 25 Issue 1

Commonwealth Pays $85,000 After Resident at Geriatric-Psychiatric Facility Attacks Another Resident; Greater Number of Violent Attacks on Geriatric Residents in General Linked to Increase in Lawsuits

Fink, Ex'r Estate of Sarah Ann Lipscomb v. Commonwealth, Med-ma/ Death Settles for $85,000 Prior to Trial, 19 VA. LAW. WKLY. 1204 (Apr. 25, 2005)

A medical malpractice claim brought against the Commonwealth  of Virginia following the death of a resident at a state-operated geriatric/psychiatric  facility was settled prior to trial for $85,000.  Two days after being admitted, the resident was attacked by another resident, suffered a cerebral hematoma from being knocked down, and died a week later of complications from her injuries.  Family members in their lawsuit alleged the Commonwealth failed to provide a safe environment and inadequately supervised the aggressive resident, especially in light of evidence that staff knew or should have known about the aggressive resident's threatening behavior and violent tendencies. Depositions revealed facility staff were aware of previous acts of violence by the aggressive resident and the facility had the ability to separate and restrict aggressive residents from coming into unsupervised contact with other residents.  Fink, Ex'r Estate of Sarah Ann Lipscomb v. Commonwealth, Med-ma/ Death Settles for $85,000 Prior to Trial, 19 VA. LAW. WKLY. 1204 (Apr. 25, 2005)...

Found in DMHL Volume 25 Issue 1

Social Workers Immune from Liability for Failure to Adequately Investigate and File Documents Concerning Reported Child Abuse; Ruling Not Disturbed

Forrester v. Bass, 397 F.3d 1047 (8th Cir. 2005), cert. denied, 126 S. Ct. 363 (2005)

Every state has a mechanism for the reporting and investigation of child abuse and neglect, with many states, including Virginia, establishing similar mechanisms for abuse and neglect involving "aged or incapacitated adults." The United States Supreme Court in DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1989), held that although a state may violate the federal constitution when it fails to protect individuals who are placed in state custody or who are exposed to danger created by the state, the Constitution does not require a state to protect individuals from abuse committed by private actors. A series of lawsuits since then have attempted to find means by which DeShaney can be side-stepped to hold state officials responsible under the federal constitution for a failure to adequately investigate reports of child abuse in the community...

Found in DMHL Volume 25 Issue 1

Qualified immunity

Pena v. Givens, No. 14-11020, 2015 WL 7434253 (5th Cir. Nov. 23, 2015)

State psychiatric ER employees are entitled to qualified immunity against claim by the estate of a man who died in the ER

Background: After arriving at a fire station and complaining that he was being chased, George Cornell was taken by police to the Parkland psychiatric emergency room (the “Psych ER”). Cornell resisted when technicians tried multiple times to take his vitals, and tried to leave the Psych ER. Cornell was taken into a seclusion room, held on a mat on the floor, and given a mixture of Haldol, Ativan, and Benadryl to calm him. When Cornell became agitated again and ripped up a floor tile, the technicians attempted to move him to a new room, but he resisted and they administered another injection of the same three medications. Cornell was held on his stomach for some amount of time (possibly up to 15 minutes) following the second injection before the technicians left the room. A nurse found him lying prone in the room, and Cornell was transferred to the main emergency room, where he died. Following Cornell’s death, the medical examiner found the cause of death to be undetermined but listed three potential causes: (1) mechanical compression; (2) underlying cardiac issues; or (3) effects of the medication he received in the Psych ER. Cornell’s representatives sued technicians, doctors, nurses, and hospital supervisors alleging excessive force, physical restraint, denial of adequate medical care, staff supervision violations. The United States District Court for the Northern District of Texas denied defendants’ motions for summary judgment on grounds of qualified immunity, and the defendants brought an interlocutory appeal.

Holding: On interlocutory appeal, the Fifth Circuit held per curiam that the technicians, nurse, doctor, and supervisors were all entitled to qualified immunity. The Court noted a lack of binding authority holding that “a medical professional’s restraint of an individual in an emergency medical situation constitutes a Fourth Amendment seizure.” Further, the Court noted that “even police officers’ use of restraint does not implicate the Fourth Amendment if they are acting in an emergency-medical-response capacity” (emphasis in original). Important to the Fifth Circuit on both the excessive force and substantive due process claims was the fact that Cornell resisted the Parkland staff. Regarding the substantive due process violation due to physical restraint, the Fifth Circuit noted that the staff’s conduct violated hospital policy but did not amount to conduct that “shocks the conscience.” 

Regarding the denial of adequate medical care, the Fifth Circuit noted the “recognized…special relationship for incarcerated and involuntarily committed individuals,” which requires a state to protect the citizen from harm.2 Plaintiffs must demonstrate that state official acted with “deliberate indifference.” Thus, the defendants must have been “on notice” of Cornell’s heart condition and then consciously refused to provide further care. Here, the Fifth Circuit pointed out that “Cornell resisted the officers when they tried to provide care,” and posited that they could not say “that a reasonable jury could conclude that the failure to treat a heart condition after a patient refuses care and begins attacking staff amounts to deliberate indifference.” Finally, regarding the lack of supervision claim, the Fifth Circuit noted that the subordinates’ actions had not been found to be a constitutional violation, therefore the supervisors could not be held liable for constitutional violations.

Notable Points:

Restraint while rendering emergency medical aid: Even though the training given to technicians warned not to hold patients in a prone position for extended periods of time, the Fifth Circuit cited Sheehan in saying that “if an officer acts contrary to her training…that does not itself negate qualified immunity where it would otherwise be warranted.”

Found in Found in DMHL Volume 34, Issue 4

Confidentiality of Medical Records

Stuckey v. Renaissance at Midway, 2015 IL App (1st) 143111, 45 N.E.3d 1151 (Il. Dec. 18, 2015)

In litigation over nursing home liability for a resident’s assault on another resident, state confidentiality laws prohibit and prevent discovery by the plaintiff of the medical records of the resident who committed the assault.

Background: While a resident at a long-term care facility operated by defendants, Robert Holman was physically assaulted by another resident. Plaintiff Johnnie Stuckey— as attorney-in-fact for Holman—filed a personal injury action to recover damages incurred in the assault. Plaintiff moved to compel defendants to produce partially redacted records regarding the resident who assaulted Holman. Defense counsel refused and was held in “friendly contempt.” On appeal, defendants contended that the circuit court erred in ordering production of the records, arguing that both the Illinois’ Mental Health and Developmental Disabilities Confidentiality Act (the “Confidentiality Act”) and physician-patient privilege prohibited disclosure of the records.

Holdings: The appellate court agreed with the defendants, reversing the circuit court’s discovery orders and vacating the order imposing a fine on defendants for refusal to comply with those discovery orders. The appellate court concluded that the records were protected by the Confidentiality Act and that, because the plaintiff had not shown any exception to the provisions of the Act, the defendant could not be compelled to produce the records.

Notable Points:

Plaintiff failed to raise any possible exception to the Confidentiality Act that would authorize disclosure: Because plaintiff sought records including patient information forms, nurse’s notes, care plans, and social service progress notes—all documents that constitute “records” or “communications” under the Mental Health and Developmental Disabilities Confidentiality Act—plaintiff was required to demonstrate a specific exception to the Confidentiality Act that allowed disclosure. Statutory exceptions, however, are “narrowly crafted” and plaintiff never asserted the applicability of any exception.

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

Provider Liability; Claims by Third Parties

Kuligoski v. Brattleboro Retreat, 2016 VT 54 (Vt. 2016) 

Vermont Supreme Court rules that individuals who are known to residential and outpatient mental health providers as the caretakers of a patient have a right to be informed by those providers of the patient’s mental health status, his danger to the caretakers or others, and how to perform their caretaker role in light of these warnings; thus, a claim that the failure of the providers to so inform resulted in injury to the caretakers or other third parties survives a motion to dismiss for failure to state a claim.

Background: In October 2010, E.R. was voluntarily admitted to the Psychiatric Department at Central Vermont Medical Center (CVMC) with a “psychotic disorder” after having threatened young children in his home. A few days later he was involuntarily committed with a diagnosis of schizophreniform disorder and was subsequently transferred to the Retreat, a nonprofit psychiatric hospital in Vermont. At the Retreat, there were reports indicating E.R. had auditory and visual hallucinations, menacing behavior, and homicidal and suicidal ideation. In November of 2010, E.R. was discharged from the Retreat with an aftercare treatment plan that was shared with his parents. In mid-December, E.R. told his mother that he had stopped taking his medication. His mother reported this to Northeast Kingdom Human Services (NKHS), part of his aftercare treatment plan, but was told that E.R. had to decide to take care of himself. Between mid-December 2010 and March 2011, E.R. did not meet with anyone from NKHS and no one from NKHS reached out to E.R. On February 26, 2011, E.R. assaulted Michael Kuligoski at an apartment building. Kuligoski sued both the Retreat and NKHS. The superior court granted defendants’ motion to dismiss concluding that the defendants owed no duty to plaintiffs under Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61 (1985).

Holding: On appeal, the Supreme Court of Vermont held that the failure-to-warn claims against defendants were improperly dismissed, but that the failure-to-treat and negligentundertaking claims were properly dismissed. The court found that the defendants had a duty to provide information to parents, as patient's caretakers, to warn them of patient's risk of violence to themselves and others and to advise them on how to manage patient's conduct. However, the court concluded that neither defendant had a duty, as a matter of public protection, to refrain from releasing E.R.

Notable Points:

Peck and other precedents bar duty-to-treat and negligent-undertaking claims: The general rule is that there is no duty to control the conduct of another in order to protect a third person from harm. Previous Vermont cases held in favor of rehabilitation in a non-institutional setting, which precluded the plaintiffs’ duty-totreat and therefore duty not to release argument. Further, a negligent-undertaking claim requires plaintiffs to show that defendants’ failure to exercise reasonable care increased the risk of the harm that occurred. In this case, plaintiffs did not allege and could not show that defendants’ care increased the risk to third persons.

Peck extends to identifiable and foreseeable victims, and plaintiffs' duty-to-warn claims should not be dismissed at this stage in the litigation: The Court noted that Peck and Tarasoff established the clear duty of the mental health professional or institution to warn identifiable third parties of threats of harm made by patients, but that many courts have been reluctant to extend that duty beyond identifiable third parties. This reluctance, the Court wrote, was based on those courts’ recognition of the interests of the mental health profession in honoring the confidentiality of the patient-therapist relationship and in respecting the humanitarian and due process concerns that limit the involuntary hospitalization of the mentally ill. However, the Court went on, several courts have extended the duty to foreseeable victims or to those whose membership in a particular class—such as living with the patient— places them within a zone of danger. Here, the Court found that Peck is not limited to circumstances in which there is an identifiable victim. Rather, the defendants did have a duty to warn E.R.’s caretakers based on their assumption of custody and caretaking responsibilities of E.R.

Chief Justice Reiber’s dissent: The Chief Justice filed a strong dissent to defining a “new common-law duty” for mental health care providers: to train or assist caretakers in order to protect the public. Justice Skoglund also filed a dissent on the same grounds.

Found in DMHL Volume 35, Issue 2