An introduction

to tort law

Connie M. Santana, PGY-3

Forensic Psychiatry seminar
 Introduction

Scenario: A former patient has accused her

psychiatrist of engaging in sexual activity
with her during the course of treatment.
Tort law:
Criminal law: Seeks to resolve disputes over
Civil law: attribution of blame and
Punish or reform the offender.
responsibility for harm.
Charges most be prove beyond a Involves settle disputes
Charges most be prove with
reasonable doubt (90-95% Contacts and torts
preponderance of the
certainty)
evidence (greater than 50%
certainty)
 During the past thirty years the

Introduction
chances that a psychiatrist will
be sued have increased
dramatically.

Chances of being sued in a single

year:
- In the1970s, 1:45
- In 1980s increase to 1:25
- By 1998 jumped to 1:12.
 Justifications for tort law
• Tort law has developed into a system that assigns
responsibility for harm to wrongdoers and compensates
injured parties for their losses.
• Theorists justify tort law primarily on 4 grounds:
1. Maintains public order
2. Alleviates the hurt suffered by victims of wrong doing
3. Compensates those victims for their losses
4. Deters harmful behavior
 Justifications for tort law
• Recent studies show that 90% of accident victims who recover for
their losses are paid by third-party insurers or compensation
plans, not through tort actions.
• The high emotional and monetary cost of taking a case to trial
discourages many victims from making claims.
 The costs of obtaining tort compensation are higher than for other
compensation systems.

• Another problem with justifying tort law on the ground that it restores
plaintiffs to their pre-accident status is that many damage awards
include sums to cover losses, but there are other types of unquantifiable
losses (pain or suffering).
 Response -> damages for pain and suffering serve as offsetting
substitute pleasures
• Thethree broad
categories of torts are:
1. Intentional -
intentionally bad acts
VARIETIES
2. Negligence- careless
behavior harms others OF TORT
3. Strict
liability - is
confined almost solely
to cases involving the
marketing and Tort duties arise from the
distribution of voluntary undertaking of
dangerous products activities or roles instead of a
contract.
 Negligence
• Plaintiff must prove four essential elements to prevailing a tort
suit based on negligence:
 Duty
 Breach of duty
 Causation
 Harm/Injury
• That is, he or she must show that the alleged wrongdoer owed
him/her a duty of care, that the defendant breached that duty, and
that the breach resulted in (caused) harm.
 Ex: store owner - has a duty to the public to maintain the sidewalk in
front of his store in a safe and passable condition.
• Intention is irrelevant
 Psychiatric Malpractice
• Medical malpractice refers to negligent torts committed by
healthcare professionals acting in the course of their
professional duties.
• Mental health practitioners are subject to liability for
negligence when their practice deviates from
professionally accepted standards and a client (or a
third party) is harmed as a result.
 Justifications for tort law
• Duty – establish by doctor-patient relationship
 Also owe duties to third parties: 1. When patient poses an
imminent threat of serious harm to an identifiable third party; 2.
Cases involving recovered memory of sexual abuse and ritual
satanic abuse in which an individual could by misidentify
• Breach of the duty- Failure to exercise that standard of care
• Cause and Injury - prove that the breach caused injury
 Causation could be divided in 2 categories:
 cause-in-fact (‘but for’ analysis) - considers whether the injury
would have happened regardless of the psychiatrist’s bad act.
 proximate cause – Is the next question -> reasonable
foreseeability
MAJOR AREAS OF
LIABILITY FOR
PSYCHIATRIC
MALPRACTICE
 Negligent Treatment
• The law does not demand successful treatment, it
merely requires that a psychiatrist perform in a manner
consistent with the way an average reasonable
psychiatrist would perform under similar
circumstances.
• This include:
 Duty to obtain a complete clinical history
 Disclose adequate information to gain informed consent for treatment
 Document all decisions made during the course of treatment
 Supervise the patient’s progress – both during and after treatment
 Monitor reactions to medication.
 Confidentiality
• When doctor–patient relationship has been established, a psychiatrist
owes his or her patient a duty to maintain the privacy of all confidential
communications between them.
• Duty of confidentiality = ethical obligation that protects a patient’s
privacy by preventing disclosure of confidential information to third
parties.
• Testimonial privilege = refers to the patient’s right to prevent a
physician from disclosing information in a judicial proceeding.
• Exemptions to the confidentiality ->
 Waives the right to confidentiality: When patient request that
medical records be sent to potential employers or insurers, disability
hearing or litigation.
 When patient poses a risk of committing violence to self or
others, and the violence can only be prevented by intervention.
 Confidentiality
Exemptions to the confidentiality -> Statutory disclosure requirements
typically apply in the following scenarios:
 when there is evidence of child abuse
 on the initiation of involuntary hospitalization
 when an identifiable third party has been threatened
 where there is evidence of a past treasonous act
 where there is intention to commit a future crime.
• Exceptions to the testimonial privilege:
 criminal proceedings
 child custody disputes
 child abuse proceedings
 civil commitment proceedings
 when a patient-litigant’s claim or defense rests on his or her mental state
 Negligent release and suicide
• Failureto prevent a patient from harming him/herself is one
of most common psychiatric malpractice claim.
• Psychiatristshave a duty to protect their patients from
themselves and the standard of care owed to all patients,
regardless of the initial complaint, includes suicide risk
assessments.
• Failure either to diagnose the risk who was reasonably
foreseeable or to take adequate precautionary measures can
result in liability when the patient commits or attempts to
commit suicide.
 the risk of liability is greater for inpatient (a more controlled
setting) than for outpatient suicides.
 Negligent release and
suicide
• CASE:
“This case arises out of the tragic
events of 26 January 1995, when
Wendell Williamson (“plaintiff”) shot
and killed two people in downtown
Chapel Hill, North Carolina.
Plaintiff brought suit against Myron
B. Liptzin (“defendant”), a
psychiatrist at Student Psychological
Services of the University of North
Carolina at Chapel Hill (“Student
Services”) who treated plaintiff, on the
grounds that he was damaged by the
negligence of defendant.”
Wendell Williamson
 Negligent release and suicide
• Williamson was tried for murder and found not guilty by
reason of insanity. While in a psychiatric hospital following
the trial, Williamson filed suit against his psychiatrist,
claiming misdiagnosis, inadequate supervision, and improper
referral.
• The jury accepted these claims and awarded $500000 in
damages as compensation for being confined to a mental
institution.
• Psychiatrist breached his duty to Williamson by failing to tell
him how sick he was or to advise him on the necessity
of strictly following his drug regimen. The jury believed that
a reasonable psychiatrist would have foreseen that
Williamson would act violently without such a warning.
 Duty to protect
• “…once a therapist does in fact determine, or under
applicable professional standards reasonably should have
determined, that a patient poses a serious danger of
violence to others, he bears a duty to exercise
reasonable care to protect the foreseeable victim of
that danger. While the discharge of this duty of due care
will necessarily vary with the facts of each case, in each
instance the adequacy of the therapist’s conduct must be
measured against the traditional negligence standard of
the rendition of reasonable care under the circumstances.
(Tarasoff v. Board of Regents of the University of
California, p. 345)”
 Duty to protect
• Duty to act to prevent their patients from harming third
parties.
• Since1976 with the decision Tarasoff v. Board of Regents of
the University of California, the psychiatrist’s duty to third
parties has expanded dramatically.
• Thekey issues are whether the violent act was foreseeable,
whether there was an identifiable victim, and whether the
psychiatrist implemented an affirmative, preventive act by
warning the victim or notifying appropriate authorities.
 Sexual exploitation
• Psychiatrists have a duty to refrain from having sex with their
patients, and the states have been particularly resolute in
enforcing this duty.
• Subjects a psychiatrist to a host of severe legal and professional
consequences.
• In the context of a malpractice claim, a plaintiff generally must
prove that sexual contact took place in breach of the duty, and
that caused a harm, typically a deterioration in psychological
condition.
• Defenses: claims that the patient had consented or that treatment
had already ended
• But once the court finds that sexual activity took place, it is
exceedingly difficult for the defendant to prevail.
Intentional Torts
The general rule is that a person is liable for harmful or
offensive contact if he or she engages in a willful act with
either:
(i) the intent to harm or offend
(ii) substantial certainty that harmful or offensive contact
will result
 Intentional torts
• Characteristic intentional torts include:
 Assault
 Battery
 False imprisonment
 Defamation
• Tothe extent that a plaintiff must prove what was in the
defendant’s mind at the time he or she acted, it is
generally more difficult to prove intent than negligence, but
once is proved becomes much easier to prove causation.
• Intention is what matters
 Defendant meant to do something harmful or offensive, there is
no requirement that success be highly likely.
 Intentional torts
• Defense:
 Self defense
 argue that his/her acts were reasonable responses to the
plaintiff’s own threatening behavior

Consent
 If the plaintiff willingly consented to the conduct, the
defend-ant will prevail.
MAJOR AREAS OF
PSYCHIATRIC
LIABILITY
- Battery
- False imprisonment
 Battery
• When a patient alleges treatment was provided
without informed consent, and false
imprisonment, typically in cases involving
involuntary commitment.
• Informed consent must be competent, knowing, and
voluntary.
• Competence is context-specific and involves
considerations of a patient’s ability to understand
treatment options, make treatment choices, and
communicate those choices.
 Battery
• Informed consent requirement is met by providing the
patient with sufficient information to make an informed
choice.
• Measure in professional standard vs patient
standard.
• Though there are no absolute rules regarding what
kind of information is material, courts look favorably on
the following:
 assessments of the patient’s condition
 nature and purpose of the proposed treatment
 risks and benefits of the treatment
 viable alternatives to that treatment and risks and
benefits of the alternative treatments
 projected outcome with and without treatment
 Battery
•There are four limited exceptions to the consent requirement:
1. When emergency treatment is necessary to save a patient’s
life or to prevent imminent bodily harm, the law presumes
consent if the patient cannot give consent and there is not
adequate time to seek substitute consent.
2. If the patient is deemed incompetent, his/her consent is not
required; nevertheless, consent must be obtained from a
substitute decision maker.
3. If a psychiatrist believes that full disclosure would be
injurious to the patient’s health, in a narrow set of
circumstances, then full disclosure may not be required
4. If the patient competently, knowingly, and voluntarily waives
his or her right to information, then the consent need not be
informed.
 False imprisonment
• Under certain limited conditions, states grant psychiatrists
the authority to hospitalize patients against their will under
civil commitment schemes.
• Patient must be mentally ill, he or she must present a threat
to self or community, and he/she must be unable to provide
for his/her own basic needs
Specific issues in
psychiatric malpractice

Connie M. Santana, PGY-3

Forensic Psychiatry seminar
 • Errors in medicine are not necessarily
equivalent to negligence, and may or may not
Error in be necessarily preventable, or harmful to the
patient.
medicine • No one knows the true incidence of medical
errors in general medical populations.
• Available empirical research indicates that
medical negligence is not rare, occurring
in as many as 4 per cent of hospital
admissions, resulting in 44000 to 98000
deaths every year in American hospitals.
• Fewer than half of patient-plaintiffs receive
any payment, and only about 10 per cent of
medical malpractice cases proceed to trial. At
trial, about ¼ of medical malpractice plaintiffs
prevail, compared with 1/2 of plaintiffs in
other tort cases, nationwide
 • Inpsychiatry, the incidence of
Error in malpractice litigation against
medicine psychiatrists has ranged from
4% to 8% annually, in the
1980s and 1990s.
• Public health approach to
medical error: Mandatory
reporting of serious patient
injuries or deaths due to
medical error which is not
presently required in the
United States
 • Medical malpractice litigation is
therefore fault-based, and deviations in
Law of the standard of appropriate care occur by
errors of omission or commission.
negligence • In the litigation, the plaintiff and
defendant attempt to establish the
standard of care, and its breach, through
the use of authoritative professional
literature, practice parameters and
guidelines, applicable government
regulation, hospital and clinic policy,
accreditation standards, and expert
witness testimony. However these can
widely differ.
• Evidence base medicine has been
introduced as a source of empirical
knowledge to medicine practice and what
can be consider as appropriate care.
 • Prescription of medication constitutes a large

Psychopharmacology
proportion of medical error and iatrogenic patient
injuries in the United States.
• APA professional liability insurance program inform
that improper medication was the most common
allegation from 1973 to 1984.
• Liable actions usually pertain to the physician who
inappropriately administers, prescribes, dispenses,
or fails to keep proper records for controlled
medications such as opioids, benzodiazepines, or
amphetamines.
• Information obtained from one state’s medical board,
for example, revealed that inappropriate prescribing,
primarily benzodiazepines and opiates, constituted
most of physician investigations in this state.
 • Also pharmaceutical manufacturers are often sued

Psychopharmacology
because of the manufacture, distribution, and marketing
of psychotropic medications.
• In general, the law of products liability requires that a
manufacturer directly warn the ultimate consumers of the
known risks of the use of the product.
• However for most classes of prescription medication the
pharmaceutical manufacturers are governed by the
‘learned intermediary rule’
 This rule states that the manufacturer has a duty to inform
the prescribing physician, but not the patient, of important
information.
 Relieves manufacturers of tort liability when adequate
warning has been provided to the prescribing physician.
 Psychopharmacology
Psychiatrists risk negligence liability in when they prescribe psychotropic medication if:

1. Failure to take an adequate 8. Failure to recognize, monitor,

history prior to prescription. and treat side effects.
2. Failure to obtain an adequate 9. Failure to abate drug–drug or
physical examination. food–drug reactions and
interactions
3. Failure to obtain an adequate
laboratory examination. 10. Failure to consult with other
physicians
4. Lack of indication for a
prescription, and off-label use. 11. Failure to properly diagnose
and treat the patient’s disorder.
5. Contraindication for a
prescription. 12. Failure to obtain informed
consent to treatment.
6. Prescription of an improper
dosage. 13. Improper record-keeping.
7. Prescription for an improper
duration.
 • Leal v. Simon (1989)
 An institutionalized mentally retarded man
Failure to take had been stabilized on haloperidol (4mg) for
self-abusive behavior.
an adequate  He transferred to a community facility and
history began treatment with the defendant
psychiatrist. The patient was stable for over
a year, and the psychiatrist changed his
medication to 2mg only needed.
 Within a month of the medication
discontinuation, the patient deteriorated,
requiring hospitalization and larger doses of
haloperidol. Eventually patient was returned
to the state developmental center again and
develops contractures and became
wheelchair-confined.
 Jury found that the psychiatrist was
negligent in failing to review the patient’s
history, failing to obtain the patient’s
complete medical records from the
transferring agency, and in reducing the
medication so abruptly.
 Failure to take an adequate history
• Watkins v. United States
(1979)
 The prescribing physician was
found negligent for prescribing a
50-day supply of Valium
(diazepam) to a patient without
taking an adequate psychiatric
history or reviewing the patient’s
psychiatric records, which led to a
motor vehicle accident
 Lack of • Munsell v. Lynk(1983)
indication for a  Psychiatrist prescribed fifty 10mg
diazepam tablets fora man who,
prescription while driving his car, alleged under
the influence of alcohol and
benzodiazepine, collided head-on
with a motorcycle.
 The plaintiff, who sustained serious
injuries, also alleged that it was
negligent to prescribe diazepam
without indication and to a person
who was likely to abuse drugs.
 A $410,000 out-of-court settlement
was reached with the psychiatrist
and other parties.
 • Miller v. U.S.(1976)
Contraindication • Upon admission to a hospital, a male patient
informed the staff that he was allergic to
for a prescription antihistamines because they caused urinary
retention.
• Nevertheless he was provided at discharge with
hydroxyzine (100mg,q.i.d.) and trifluoperazine,
which caused urinary retention
• Hydroxyzine was was reduced and later
discontinued, but complications developed
including a prostatic infection, Foley catheter
for four years, and eventual prostatic resection.
• Expert testimony indicated that the
hydroxyzine prescription was negligent given
the patient’s history, and that the hydroxyzine
caused the bladder damage.
• A judgment for the plaintiff of $20,000 was
awarded.
 • Ferrara
v. Berlex
Contraindication Laboratories,Inc.(1990)
for a prescription  Psychiatrist treated a depressed
patient with phenelzine
[monoamine oxidase (MAO)
inhibitor], but subsequently
another physician diagnosed patient
with chronic sinusitis and
prescribed a decongestant with
pseudoephedrine.
 Patient suffered a hypertensive
crisis and a stroke and was
awarded a judgment against the
second physician for his
negligence.
Failure to recognize, monitor, and treat
side effects
• Clites v.Iowa (1980)
 The parents of a mentally retarded male at a state facility sued
the state for negligence and failure to obtain informed consent.
 legal guardians were never informed of the potential side
effects of the use, and prolonged use of major tranquilizers
 Several physicians had treated the patient with antipsychotic
medication since age 18 for ‘aggressive behavior.’ Medication
continued for five years before TD of the face and extremities
was diagnosed.
 The trial court ruled that medication had been inappropriately
prescribed, and the patient was improperly monitored over the
years
 Prescription of an improper dose and
duration
• Hedin v.U.S. (1985)
 Plaintiff was hospitalized for treatment of alcohol abuse and
treated with thioridazine and then chlorpromazine as an
outpatient. He continued to take chlorpromazine (600mg) daily
for nearly four years before his physicians detected his TD and
withdrew the medication.
 Defendant acknowledged having prescribed excessive amounts of
medication over a prolonged period of time without proper
supervision.
 Damages of nearly $2.2 million were awarded because the
plaintiff had become functionally disabled from the dyskinesia.
 Prescription of an improper dose and
duration
• Edward v. U.S. (1990)
• Patient with chronic schizophrenia was treated for 3 years with 500mg
daily of Loxapine, which was double the manufacturer’s recommended
maximum dose.
• Treatment with lower doses resulted in exacerbation of delusional
thinking. He was also seen for counseling on an outpatient basis. After
two brief hospitalizations for anxiety symptoms, the patient was found
dead at home; he had died of sudden heart failure.
• The trial court ruled that the antipsychotic medication did not cause the
patient’s heart failure and death. Also court rejected the plaintiff’s
allegations that the defendant had failed properly monitor the patient.
 should not have prescribed refills for six months at a time
 should have attempted to reduce his medication.
 Failure to diagnose and treat with
medication
• Undertreatment is an area of growing concern.
• Claims experience with the APA insurance program,
reported that patient complaints about the
ineffectiveness or inappropriateness of medication far
exceeded those about medication side effects.
• Failure to use psychotropic medication; a failure to
diagnose a medication-treatable condition may also be
alleged.
 Osheroff v.Chestnut Lodge (1985)
 Cobo v.Raba (1998)
 Standard of care in psychopharmacology
litigation
• As in all medical negligence litigation, the plaintiff must establish
the relevant standard of care in the case at bar and prove that the
defendant deviated from that standard
• Decisions to treat patients with pharmacotherapy, especially in high-
risk clinical situations such as pregnancy, are typically complex, risk–
benefit processes dependent upon factors related to the physician,
patient, and family members.
• In adverse drug reaction liability cases, the plaintiff may introduce the
manufacturer’s labeling (ex: medication package inserts and the
Physicians’ Desk Reference) as evidence of the defendant’s departure
from the standard of care.
 In some jurisdiction could be consider as Prima facie evidence of
negligence, though expert medical testimony will still be necessary to
establish that the patient’s injury resulted from the negligence.
 SECLUSION AND RESTRAINTS
• Seclusionand restraints in mental health or nursing home
settings are highly regulated practices with close monitoring
of multiple entities.
• Youngberg v. Romeo (1982) and Hopper v. Callahan (1990)
• Kusterv. State of New York (1989) – Injury caused to patient
in during restriction process
• Clarkv. Ohio Department of Mental Health (1989)
 Seclusion and restraints were found to have been used for
punitive at her than therapeutic reasons
 Suicide and attempted suicide
• Suicide and attempted suicide are among the most common,
and the most expensive, professional liability claims against
mental health professionals and facilities.
• Winger v. Franciscan Medical Center (1998)
• Psychiatric hospital allegedly failed to properly supervise
a patient or restrict his access to the bathroom after he
hanged himself with his shoelaces from a showerhead.
• Suicide liability is predicated upon an inadequate
assessment of suicide risk, and/or an inadequate response to
that risk, which is proximately related to the suicide.
 Suicide and attempted suicide
• Bates v. Denney (1990)
• A man who had recently attempted suicide and been
hospitalized was sent home from an emergency room
after he denied suicide ideation, though his mother
had brought him there, believing him to be suicidal.
• The treating psychiatrist, contacted by the emergency
physician, did not see the patient, and scheduled an
appointment for him the next day, but he shot
himself. The jury found in favor of the defendant-
psychiatrist despite expert testimony for the plaintiff
that the patient was suicidal and should have been
involuntarily hospitalized.