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Psychiatrist Has Duty to Those Endangered by Patient's Depression; Clinic Vicarious Liability for Deaths


A man saw a psychiatrist on an outpatient basis for treatment of his depression and bipolar disorder. He was put on medication. He expressed homicidal and suicidal thoughts to his psychiatrist and his family. His mother wrote a letter to his psychiatrist describing his homicidal thoughts. He stopped seeing the psychiatrist and having his medication managed. He struck his girlfriend’s son. They broke up.

 

After the break up, he called the clinic where his psychiatrist worked and asked to return to counseling and medication management. The clinic referred him to local community based mental health clinics and told him to call back if the referrals did not succeed.

 

About four months after he called the clinic, he met with the same psychiatrist at the clinic. The psychiatrist noted he had an unstable mood and intrusive suicidal ideas. The psychiatrist continued the man on Risperdal, an atypical antipsychotic; Depakote, a mood stabilizer; and Bupropion, an antidepressant. The psychiatrist did not schedule a follow-up appointment with the man. This was the last time the man met with the psychiatrist.

 

About three months after his last appointment with the psychiatrist, he killed his former girlfriend and one of her three sons.  He attempted to kill a second son. He then committed suicide. Toxicology reports showed the man was not taking his medication at the time of the killings.

 

The two surviving sons and the representatives of the estates of their mother and brother sued the psychiatrist and clinic at which he worked for professional malpractice, loss of chance of survival, and negligence. The complaint alleged that the psychiatrist did not adequately assess the man's suicidal or homicidal risk and provide treatment and an adequate assessment and better care might have exposed his homicidal thoughts about the people he attacked. The complaint also alleged that the psychiatrist might have prevented the attacks by either mitigating the man’s dangerousness or warning his victims with enough time for them to protect themselves. With regard to the clinic, the complaint alleged that it failed to establish or implement practices, policies, procedures, training, supervision, and directives reasonably necessary to provide appropriate medical care to patients when presenting with suicidal and/or homicidal ideation.

 

The psychiatrist and the clinic filed motions for summary judgment. In opposition to the summary judgment motion, the survivors filed a declaration of a board certified psychiatrist. The survivors’ expert found that the psychiatrist, despite the man's frequent mental instability, failed to conduct a systematic and focused assessment of his condition or prepare a treatment plan with periodic follow-up care. The survivors’ expert opined that, because of the man’s previous homicidal and suicidal ideas, the man required extended inpatient psychiatric therapy and treatment. The Spokane Superior Court granted the psychiatrist's and clinic's motions for summary judgment because the man never threatened his former girlfriend or her sons in his sessions with the psychiatrist.

 

The Court of Appeals of Washington, Division 3, affirmed the grant of summary judgment with regard to the claim that the psychiatrist should have involuntarily committed the man, the lost chance claim, and the claim of independent negligence against the clinic. The court reversed the grant of summary judgment with regard to the claim against the psychiatrist for negligence in treating the man and the claim against the clinic for vicarious liability and remanded for further proceedings. The court held that the applicable duty of care that the psychiatrist owed the general public, including the plaintiffs, was the duty to protect others from criminal acts of a third party, a genuine issue of material fact existed as to whether the clinic violated a duty to protect the girlfriend and her children, the psychiatrist was not liable for lost chance, and the expert's declaration was based on a reasonable probability rather than mere conjecture or speculation.

 

The applicable duty of care that the psychiatrist owed the general public, including the plaintiffs, was the duty to protect others from criminal acts of a third party as described in Petersen v. State, 100 Wash.2d 421, 671 P.2d 230 (1983). Under Petersen v. State, the duty of care extends only to those persons foreseeably endangered by the patients' mental problems, the determination of which is a jury's function. The man had a prior connection to his former girlfriend and her three sons. He had already struck one son. According to the evidence before the court on summary judgment, the psychiatrist knew that the man had threatened to use violence against his former wife and her boyfriend after the breakup of his marriage. The psychiatrist knew that the man suffered from distress and depression resulting from the breakup with the girlfriend.

 

A genuine issue of material fact existed as to whether the clinic violated a duty to protect the girlfriend and her children. The court reasoned that, in the context of a medical-malpractice claim based on a failure to warn or take reasonable precautions to protect against violent behavior by a mental-health patient, when a plaintiff claims that a mental-health professional should have detained the patient, the plaintiff is claiming that the professional should have involuntarily committed the patient. Under these circumstances, the professional is entitled to statutory immunity from liability. The court concluded that there remained a question of fact as to whether the clinic violated a duty owed to the victims and survivors, except to the extent they argued that the psychiatrist should have involuntarily institutionalized the man.

 

The psychiatrist was not liable for lost chance. The psychiatrist was statutorily immune from liability for any reduction in the chances of survival of the former girlfriend and her son based on the allegation that the psychiatrist should have involuntary committed the man before the time that he killed the girlfriend and son. The psychiatrist was not liable for any reduction in the chances of survival of the former girlfriend and her son based on any violation of the standard of care, because their estates failed to present expert testimony on the percentage of lost chance.

 

The trial court did not err in considering the survivors’ expert’s declaration in response to the defendants’ motion for summary judgment because the expert expressed an opinion based on a reasonable probability rather than mere conjecture or speculation. The expert relied on facts found in the psychiatrist’s chart notes, gave a reasoned explanation for his conclusions, and based his opinions on reasonable probability. The expert declared that the risk and occurrence of the incident at issue would have been mitigated and probably would not have occurred had the conduct of the clinic at which psychiatrist worked conformed to the standard of care. The expert also declared that but for the breaches in the standard of care, it was unlikely that the incident would have occurred. The court concluded that the expert’s declaration language met the requirement that the subject of an expert's affidavit or declaration must be of such a nature that an expert expresses an opinion based on a reasonable probability rather than mere conjecture of speculation.

 

The Court of Appeals of Washington, Division 3, affirmed the trial court’s grant of summary judgment in favor of the psychiatrist, reversed the trial court’s grant of summary judgment in favor of the clinic, and remanded.

 

See: Volk v. Demeerleer, 2014 WL 6064032 (Wash.App. Div. 3, November 13, 2014) (not designated for publication).

 

See also Medical Law Perspectives, December 2014 Report: Patient Depression and Malpractice Risks (to be published December 3, 2014)

 

 

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