Security Company Can Be Held Liable for Patient's Attack on Physician, but Public Entity that Designed or Maintained the Conditions Within the Facility Can Not

Facility Liability:
Ursua v. Alameda County Med. Ctr., No. C 04-3006 BZ, 2005 WL 3002175 (N.D. Cal. Oct. 27, 2005)

County Liability:
Ursua v. Alameda County Med. Ctr., No. C 04-3006 BZ, 2005 WL 3002175 (N.D. Cal. Nov. 8, 2005)

Security Agency Liability:
Ursua v. Alameda County Med. Ctr., No. C 04-3006 BZ (N.D. Cal. Nov. 9, 2005)

Although incidents of violence are relatively infrequent in facilities that provide housing to individuals with mental illness, protecting the safety of residents and staff is a continuing concern.  After a physician was killed by a patient who had been admitted and held pursuant to California law for a seventy-two­ hour evaluation as a person who is dangerous or gravely disabled as the result of a mental disorder, family members of the physician sued the facility where the attack occurred, the County responsible for the facility, and the privately owned entity that had contracted to provide security services at the facility...

Found in DMHL Volume 25 Issue 2

Lawsuit Can Continue that Alleges Inadequate Mental Health Care Contributed to Suicide of Inmate in Virginia Maximum Security Prison

Simmons v. Johnson, No. 7:05 CV 00053, 2005 WL 2671537 (W.D. Va. Oct. 20, 2005)

The United States Supreme Court, in Estelle v. Gamble, 429 U.S. 97 (1976), established that the Eighth Amendment is violated when prison officials are deliberately indifferent to an inmate's serious illness or injury.  This ruling has been widely interpreted to encompass an inmate's serious mental health needs as well.  When an inmate commits suicide, a lawsuit may be filed that asserts that the inmate's constitutional rights were violated because prison officials failed to provide the requisite adequate mental health services despite knowing of the inmate's mental health needs, and the absence of these services contributed to the inmate's suicide...

Found in DMHL Volume 25 Issue 2

Mental Health Provider Engaged in an "Inappropriate and Extraprofessional Relationship" with a Client Can Not Be Sued for Alienating the Client's Affections for a Spouse

Doe v. Swelling, 620 S.E.2d 750 (Va. 2005)

When a mental health provider has become sexually involved with a client, the client may have a claim for malpractice.  If this relationship results in discord between the client and the client's spouse, including divorce, the spouse may assert a similar right to sue the therapist...

Found in DMHL Volume 25 Issue 2

U.S. Attorney General's Effort to Block Oregon's Assisted Suicide Law Through Physician Registration Requirements Struck Down as Exceeding His Authority

Gonzalez v. Oregon, 126 S. Ct. 904 (2006)

Physician-assisted suicide was authorized in Oregon in 1994 following a state-wide voter referendum, and reaffirmed following a second referendum in 1997. The Oregon Death with Dignity Act permits an individual who has been diagnosed with a terminal illness that will lead to death in six months to obtain from a willing physician a prescription for a medication that will hasten death, although the individual must self-administer the medication...

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

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

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

HIPAA Did Not Preclude Psychotherapist from Reporting That 16-Year-Old Boy Saw Child Pornography on His Father's Home Computer

United States v. Mathis, 377 F. Supp. 2d 640 (M.D. Tenn. 2005)

A sixteen-year-old boy disclosed to his psychotherapist that he saw (1) pornographic images of children on his father's computer at home and (2) his father sitting naked at his computer in front of a webcam.  Although there was no indication the father had sexually abused his son, the psychotherapist reported the disclosure to law enforcement authorities, which ultimately led to the arrest of the father. The father asserted that this report violated the Health Insurance Portability and Accountability Act (HIPAA) and, thus, all evidence generated as a result of this report, including a search of the father's computer, should be suppressed...

Found in DMHL Volume 25 Issue 1

Children's Therapist Can Not Testify at Divorce Proceedings About Mother's Behavior

Schwartz v. Schwartz, 616 S.E.2d 59 (Va. Ct. App. 2005)

A court presiding over divorce proceedings in Virginia must consider the "mental condition of each parent" in making custody or visitation arrangements.  At the same time, as in most states, statements made to a licensed mental health care provider by a client are privileged (i.e., the provider cannot testify regarding any information obtained while examining or treating a client without the client's permission).  Formerly, this privilege was often disregarded during custody or visitation proceedings because the client was considered to have placed his or her mental condition at issue in these proceedings. However, a new law (VA. CODE § 20-124.3:1) was passed that limits the admissibility of mental health records in these proceedings.

Found in DMHL Volume 25 Issue 1

Lay Testimony to Support an Insanity Defense Permitted Only When Accompanied by Expert Testimony; Testimony by Licensed Clinical Social Worker Excluded

White v. Common­ wealth, 616 S.E.2d 49 (Va. Ct. App. 2005)

The challenge faced by the defendant at trial was that the court-appointed evaluator had determined that, although the defendant experienced psychotic symptoms (including hearing voices that he believed to be from God) at the time of the offense, the defendant's cocaine use had initiated and exacerbated these symptoms and thus the defendant was not legally insane at the time of the crime. In response, the defendant sought to introduce the testimony of a licensed clinical social worker who worked at the jail where the defendant was held and who saw the defendant two weeks after the offense and ten times over the next six months. Because the symptoms continued during incarceration when the defendant had no access to illicit drugs, the social worker was prepared to testify that the psychotic symptoms were unrelated to drug use...

Found in DMHL Volume 25 Issue 1

Random Drug Tests of State Employees Providing Mental Health Services to Prisoners and to Residents of State Hospitals Upheld; Ruling Not Disturbed

lnt'I Union v. Winters, 385 F.3d 1003 (6th Cir. 2004), cert. denied, 125 S. Ct. 1972 (2005)

The U.S. Supreme Court declined to review a decision by the Sixth Circuit that upheld a random drug testing program imposed by the State of Michigan on various state employees. Among the employees subject to testing are psychiatrists, psychologists, social workers, and nurses who provide health and mental health services to prisoners and residents at state hospitals for the mentally ill and developmentally disabled.  It has been established that random drug tests constitute a "search" and the Fourth Amendment generally protects individuals from searches without an "individualized suspicion'' justifying the search.  However, an exception to this requirement exists when a state can show a special need for the drug test...

Found in DMHL Volume 25 Issue 1

Guardian Ad Litems, Social Workers Given Immunity for Efforts to Protect Individuals Lacking Decision-Making Capacity; Ruling Not Disturbed

Dalenko v. Wake County, N.C., Dep't of Human Servs., 578 S.E.2d 599 (N.C. Ct. App. 2003), cert. denied, 124 S. Ct. 1411 (2004)

Every state has a mechanism that enables a state or local agency to intervene to protect vulnerable individuals when the care they are receiving is deemed inadequate.  This protection is typically afforded children, elder persons, and adults who lack decision-making capacity.  Among the interventions this agency may pursue are periodically monitoring the care being provided, obtaining a protective order, removing the person from the custody of the current care giver, or initiating guardianship proceedings.  When guardianship proceedings are initiated, a guardian ad litem will often be appointed to insure the person at risk is represented and has a spokesperson in the proceedings.  The current care provider may contest the actions taken, assert they are unwarranted and improper, and file a lawsuit for damages that resulted.  The Court of Appeals of North Carolina has established that it will be rare in North Carolina that such cases can be successfully  pursued...

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

Sixth Circuit Refuses to Vacate Tennessee Consent Decree Involving Conditions in Arlington Development Center

United States v. Tennessee, 615 F.3d 646 (6th Cir. 2010)

The 6th Circuit Court of Appeals has refused to vacate a consent decree and court orders entered in the 1993 lawsuit concerning conditions at the Arlington Development Center. In the lawsuit originally brought by the Department of Justice under the Civil Rights of Institutionalized Persons Act, the trial court had found that the Tennessee Department of Mental Health and Developmental Disabilities had failed to provide individuals residing in ADC with medical care, and keep them free from abuse and neglect and undue bodily restraint. Tennessee sought to have the consent decree vacated on the grounds that there was a change in the law between the time the federal trial court approved the consent decree and entered orders enforcing its terms. Tennessee argued that “state control” changed the standard for determining when a resident is voluntarily confined as opposed to a person being placed involuntarily in a state-operated facility.

The Court stated that even though there was a split in the courts as to whether the state owes an affirmative constitutional duty of care and protection to voluntarily admitted residents as it owes to involuntarily committed individuals under Youngberg v. Romeo, the 6th Circuit had not ruled on the issue. It also noted that although individuals with intellectual disabilities are considered “voluntary” residents in Tennessee and are free to leave the facility at any time they wish, they are admitted with the consent of their parents or guardians and are at their mercy as to whether they will remain placed at the facility. The Court also recognized the comprehensive involvement of the state in every facet of a resident’s daily life, including provision of their food, transportation, shelter, medical care and protection, and that they generally remain in the state’s care for years. The Court therefore held that there had been no change in the law since entry of the consent decree and subsequent orders that would warrant vacation of the consent decree.

Found in DMHL Volume 30 Issue 1

Eleventh Circuit Holds Florida Medicaid Program Required to Provide ABA Therapy When Medically Necessary As Treatment for Autism Spectrum Disorders

Garrido v. Interim Secretary, Florida Agency for Health Care Administration, 731 F.3d 1152 (11th Cir. 2013)

The Eleventh Circuit Court of Appeals upheld on September 30, 2013 the district court’s determination that Applied Behavioral Analysis (“ABA”) is not an experimental treatment and therefore must be provided to children screened under Florida Medicaid’s Early Periodic Screening, Diagnostic and Treatment Services (“EPSDT”) when the child’s physician determines the services are medically necessary.

Plaintiff K.G., through his next friend, Iliana Garrido, filed a complaint in federal district court in February 2011 against the Secretary of Florida’s Agency for Health Care Administration (“AHCA”) and Florida’s Medicaid administrator alleging that Florida’s denial of ABA therapy violates the Medicaid Act’s EPSDT provisions. Several months thereafter, I.D. and C.C. by their next friends were joined as plaintiffs. All three were Medicaid recipients under age 21 who had been diagnosed with autism or autism spectrum disorders during EPSDT screenings and had been prescribed ABA treatment by their physicians.

Medicaid is a jointly funded federal-state program that assists states in providing medical services to their needy citizens. Subject to the provisions of the Medicaid Act, states design their program. A state’s participation is voluntary, with all states now participating. But once a state decides to participate, it must comply with all federal statutory and regulatory requirements. One service states must provide is EPSDT for Medicaid-eligible minors under the age of 21. The EPSDT catch-all provision requires states to provide Medicaid-eligible minors “[s]uch other necessary health care, diagnostic services, treatment, and other measures…to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” 42 U.S.C. § 1396(r)(5). Such services, including preventive and rehabilitative services, must be provided if the service is medically necessary to “correct or ameliorate” a condition or defect discovered during an EPSDT screening.

Medicaid permits states to place appropriate limits on services based upon medical necessity. Under Florida’s regulatory scheme medically necessary services excludes treatment that is experimental or investigational. Florida defines a treatment as “experimental” when “reliable evidence shows that the consensus among experts regarding the drug, device, or medical treatment or procedure is that further studies or clinical trials are necessary to determine its maximum tolerated dose, toxicity, safety, or efficacy as compared with the standard means of treatment or diagnosis.” Fla. Admin. Code r.59G-1.010(84)(a)3. Florida’s Medicaid Handbook enumerates the specific behavioral health services covered by Florida Medicaid, and specifically excludes community behavioral health services for treatment of autism or pervasive developmental delay.

At a four-day bench trial, AHCA employees testified that the Agency did not follow the standard process for determining whether ABA therapy was experimental. By contrast, the plaintiffs presented testimony from numerous experts that ABA is the standard means for treating autism spectrum disorders. Experts also testified that ABA treatment was medically necessary for the individual plaintiffs. The district court thus found that ABA is a preventive or rehabilitative service that is medically necessary and not experimental. It therefore found that Florida is required to provide the service to Medicaid eligible minors under age 21 if necessary to correct or ameliorate a condition discovered in an EPSDT screen. The district court then entered a permanent injunction and declaratory judgment in favor of the plaintiffs and ordered Florida to provide ABA services.

On appeal, the Eleventh Circuit upheld the decision of the district court as not an abuse of discretion, but remanded the case to the district court to clarify its order that the declaratory judgment order and permanent injunction did not eliminate the requirement that Florida make individual medical necessity determinations, consistent with that court’s own findings and written decision.

Found in DMHL Volume 32 Issue 4

California Court Finds Unconstitutional Probation Condition Requiring Sex Offender to Waive Privilege against Self-Incrimination; PsychotherapistPatient Privilege Waiver Narrowed

People v. Friday, 225 Cal.App.4th 8, 170 Cal.Rptr.3d 38 (March 27, 2014)

Under California law, Penal Code § 1203.067, any person placed on probation for a registerable sex offense must waive his Fifth Amendment right against self-incrimination and submit to regular polygraph examinations, and must also waive his psychotherapist-patient privilege. The California Court of Appeals of the Sixth Appellate District held on March 27, 2014 that this statutory requirement that an offender waive his Fifth Amendment privilege against self-incrimination is overly broad and all-inclusive, and is therefore unconstitutional. The Court also held that the requirement that the offender waive the psychotherapist-patient privilege is only valid insofar as necessary to enable communication between the probation officer and psychotherapist as to the offender’s progress in treatment and his risk assessment scores.

Jeffrey David Allen Friday pled no contest to possession of child pornography that he had downloaded to his computer in August 2012. Information revealed that he had been downloading pornography since he was 14 or 15 years old and was 19 at the time of the offense with which he was charged. Because there was “no identifiable victim,” his level of risk as a future offender was not assessed. He had no prior convictions.

As part of a plea agreement, Friday agreed to spend six months in jail without early release. The trial court suspended imposition of the sentence and imposed a three-year term of probation, including six months in jail and mandatory participation in a sex offender management program as a condition of probation. The court required Friday to comply with the following probation conditions: (1) to waive any privilege against self-incrimination and participate in polygraph examinations, which must be part of the sex offender management program; (2) to waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the probation officer; (3) not to purchase or possess any pornographic or sexually explicit material as it relates to minors, as defined by the probation officer; (4) not to possess or use any data encryption technique program; and (5) not to frequent, be employed by, or engage in any business where pornographic materials are openly exhibited. Both the conditions requiring waiver of the privilege against self-incrimination and the psychotherapist-patient privilege are required under California law.

Friday appealed the conditions of probation arguing that the requirement that he waive his privilege against self-incrimination and the psychotherapist-patient privilege were overbroad and therefore in violation of his constitutional rights. He also challenged as overbroad the condition requiring him to participate in polygraph examinations. He further challenged as vague and lacking a requirement of scienter or knowledge of the conditions prohibiting purchase or possession of pornography, possession or use of data encryption, and frequenting businesses where pornography is exhibited. The Appellate Court agreed with most of his arguments.

The Appellate Court first reviewed the requirements of the California law, Penal Code § 1203.067, that were enacted in 2010 to amend the Sex Offender Punishment, Control, and Containment Act of 2006. The amendments mandate that any person placed on formal probation for any offense requiring registration as a sex offender after July 1, 2012 successfully complete a sex offender management program. Subdivision (b)(3) requires the offender to waive his privilege against self-incrimination and participate in polygraph examinations as part of the program. Subdivision (b)(4) requires the offender to waive any psychotherapist-patient privilege to enable the sex offender management professional to communicate with the supervising probation officer. Specifically, the sex offender management professional must communicate with the probation officer at least once a month about the offender’s progress in the program and dynamic risk assessment issues and share pertinent information with the certified polygraph examiner as required. The professional must also administer the State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO) in two forms, the “SARATSO dynamic tool” and the “SARATSO future violence tool,” and provide these scores to the probation officer. The probation officer must in turn provide the scores to the Department of Justice which makes the scores accessible to law enforcement on its website.

The statute also requires the California Sex Offender Management Board to publish certification requirements for sex offender management programs and professionals. All certified programs must implement a “Containment Model” of treatment, the goal of which is “community and victim safety.” In direct contradiction of the statute, the certification standards state that “invocation of the Fifth Amendment right not to incriminate oneself during a sexual history polygraph cannot legally result in revocation.” Also, polygraphs must be used to enhance the assessment process and to help monitor the sex offender’s deviant fantasies and external behaviors, including access to potential victims.

The Court then reviewed the language of the Fifth Amendment and its jurisprudence. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” Under Minnesota v. Murphy, 465 U.S. 420 (1984), the Fifth Amendment right may be asserted in any proceeding, civil or criminal or judicial, investigatory or adjudicatory, and protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or lead to other evidence that could be so used. The Fifth Amendment does not, however, provide an absolute right to remain silent. Under “use and derivative use immunity,” a witness may be compelled to testify provided the state does not use the testimony or any use derived from it in a criminal prosecution against the witness.

The Court then found that the probation condition in this case required Friday to waive any privilege against self-incrimination and forgo any claim of immunity from prosecution. The Court found that the waiver included any claim of immunity Friday might have from prosecution for any past acts, whether sexual offenses or otherwise, that might be revealed through treatment or polygraph examination, and not just those related to the offense for which he was convicted. Although the Court recognized that convicted felons lose some of those constitutional rights that law-abiding citizens enjoy, Murphy held that the privilege against self-incrimination applies to both prisoners and probationers.

The Court also recognized that the state may require probationers to answer questions as a condition of probation provided the statements are not used against the probationer in a criminal prosecution. The Court stated that the requirement that the offender waive his right to self-incrimination undoubtedly furthers the public safety when it allows a sex offender who admits to ongoing dangerous offenses that would otherwise go unreported, but the Court found that the scope of the waiver goes too far in this case because it would allow the prosecution of an offender for any offense. The Court found that the state could accomplish the same goal by requiring the offender to answer questions truthfully without requiring a waiver of the privilege. If necessary, immunity could then be given the offender.

The Court also pointed out that a secondary purpose of the program was treatment and rehabilitation of the offender. By encouraging the offender to reveal and discuss mental dysfunctions, but compelling him to disclose incriminating information that could be used against him in subsequent prosecutions would discourage honesty and openness between the offender and his therapist and therefore thwart the purpose of the program. The Court also declined to limit the parameters of the waiver, finding that the statutory language was plain on its face and it had no authority to so limit it other than to hold it unconstitutional.

The Court also found that parameters of the polygraph examinations were overly broad and no limits were placed on the questions that could be asked. Under California case law, the Court found that conditions of probation are invalid when they have (1) no relationship to the crime for which the offender was convicted, (2) relate to conduct which is not in itself criminal, and (3) require or forbid conduct not reasonably related to future criminality. The Court held that the questions that could be posed during polygraph examinations must reasonably relate to the offender’s successful completion of the sex offender management program; the crime for which the offender was convicted; or to criminal behavior, whether past or future.

The Court then reviewed the arguments related to waiver of the psychotherapist-patient privilege, finding that the privilege falls within the zone of privacy first recognized by the United States Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1983). In this case, the statutory language states that the purpose of the waiver is to enable communication between the sex offender management professional and the supervising probation officer. The Court held that it would narrowly construe the requirement that the offender waive the privilege only as necessary to allow the sex offender management professional to communicate with the probation officer and provide the SARATSO scores. The Court also permitted the probation officer to communicate the scores to the Department of Justice to make them available to law enforcement. But beyond those communications, the information would remain confidential and could not be provided to third parties or used to prosecute the offender.

Finally, the Court also agreed with the defendant that the requirements of scienter, or knowledge that the conditions of probation would be violated, must be added to the conditions. The Court found that the offender could inadvertently or unknowingly come into possession of pornographic materials, obtain encryption programs that are readily available, or enter into an establishment that openly displays pornographic materials. The Court determined that the term “frequent” was also imprecise. The Court therefore modified the remaining terms to require that the offender not knowingly purchase or possess pornographic material, not knowingly utilize encryption techniques, and not knowingly enter into an establishment that openly displays pornographic material.

Found in DMHL Volume 33 Issue 2

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

Therapists’ duty to disclose client’s threats to harm third parties

State v. Expose, No. A13-1285, 2015 WL 8343119 (Minn. Dec. 9, 2015)

Minnesota statutory law provides no “threats exception” to privileged mental health client information

Background: Jerry Expose, Jr. was required as a probation condition for a prior conviction to attend anger-management therapy sessions with N.M., a mental-health practitioner. During one session, Expose became increasingly angry and made several threatening statements against D.P., a child caseworker, whom Expose felt was “a barrier to him getting his kids back.” N.M. felt that these “specific threats of physical violence against an identifiable person” had triggered her statutory duty to warn, and she reported Expose’s statements to the police. N.M. testified to the statements at Expose’s trial, and Expose was convicted in the Ramsey County District Court of making terroristic threats. Expose appealed arguing that N.M.’s testimony was inadmissible because it broke the therapist-client privilege. The Court of Appeals reversed and remanded, and the Supreme Court of Minnesota granted review.

Holdings: The Supreme Court of Minnesota affirmed the judgment of the Court of Appeals and remanded the case to the district court. The Supreme Court held that the therapist-client privilege statute, as an evidentiary rule, lacked a “threats exception” either “by implication from the duty-to-warn statute or under our authority to promulgate rules of evidence.” Thus, the Court found that the district court had abused its discretion in allowing N.M. to testify about Expose’s statements without his consent.

Found in Found in DMHL Volume 34, Issue 4

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