Psychiatrist’s Consent Agreement with State Disciplinary Agency Inadmissible; Suicide

A man began to be treated by a prescribing physician who diagnosed the man with major depression, obsessive-compulsive disorder, and generalized anxiety disorder. The prescribing physician prescribed 20 mg of Paxil and eventually discontinued the man’s anti-anxiety Klonopin medication, previously prescribed by his family physician. Six months later, the prescribing physician tapered off the man’s Paxil dosage and instructed him to discontinue it the following month, and to call him if there were any problems.


The man next contacted the prescribing physician four years later, following an episode of depression. The prescribing physician concurred with the recommendation of his family physician that he should be placed on the anti-anxiety drug Ativan and 40 mg of Paxil. Within a few weeks the man showed improvement and the prescribing physician reduced the Ativan dosage, eventually discontinuing it within the month. The prescribing physician also reduced his Paxil dosage to 20 mg.


For more than ten years, the prescribing physician refilled the prescriptions for Paxil by telephone or fascimile, without seeing or examining the man. Then the man called the prescribing physician complaining about anxiety, an increase in obsessive thoughts, and difficulty sleeping. The prescribing physician, who was away on vacation at the time, was unable to see the man but instructed him to double the Paxil dosage to 40 mg. He also prescribed the anti-psychotic medication Zyprexa, for his anxiety and sleep problems. The following day, the man and his wife called the prescribing physician. They told the prescribing physician that the man was pale, nauseous, lightheaded, and did not feel well. The prescribing physician instructed the man to double the Zyprexa and that he would call him the next day in the late afternoon.


The following day, the man’s wife observed his condition worsen and she took him to the emergency room. After he was cleared medically he was transferred to the hospital’s Community Psychiatric Emergency Program (CPEP) for overnight observation. According to the hospital records admitted into evidence, the man complained of suicidal ideations, difficulty sleeping and controlling his thoughts, and feeling as if his body was on fire inside. That night he was taken off Zyprexa and given Ativan. Upon his discharge the following day, the man was told to discontinue Zyprexa, take Klonopin, and reduce his Paxil dosage to 30 mg.


For the next five days the man appeared stable. Six days after he was admitted to the hospital, the man and his wife visited the prescribing physician, now returned from vacation. Both parties presented differing accounts of this visit to the prescribing physician’s office.


According to the man’s wife, the prescribing physician’s conduct had a devastating adverse impact on the man’s condition. She testified that the prescribing physician yelled at them, and that he appeared angry that she had taken her husband to CPEP because the prescribing physician viewed this as the man trying to get help from someone else. She also claimed that the prescribing physician degraded the man, accusing him of not taking more Paxil in the past “because [he] couldn’t get an erection.” In response to the prescribing physician’s comments, the man pulled his shirt over his head, even while his wife tried to comfort him. According to the man’s wife, the prescribing physician abruptly ended the session by standing up, waving them off, and telling him “Just go to CPEP. That’s where you belong.” The wife further claimed that the prescribing physician “threw [them] out of his office. He turned his back,” and never said goodbye. When the man left he was a “crumbling mess,” and went to CPEP because he believed the prescribing physician was refusing to take care of him.


In contrast, the prescribing physician testified that during the visit, the man was unresponsive and cried, and that when the man spoke he was very upset because he felt that his wife thought he was acting like a baby. It was also the first time the man could not assure the prescribing physician that he would not act upon his suicidal thoughts. The prescribing physician advised the man that the only option left was inpatient treatment at CPEP. The man rejected this advice because he did not want to be seen in a local psychiatric facility, and because he felt he could not go a period of time without working. Despite the differences in their respective accounts of the visit, the prescribing physician corroborated the wife’s testimony that decedent pulled his shirt over his head, adding that the man had been sobbing, and that he had never seen the man act this way. He also admitted that he raised his voice, but claimed that he did so to emphasize that he could not be sure outpatient treatment would be adequate to address the man’s suicidal thoughts. The prescribing physician testified that the man eventually agreed to go to CPEP, and, as far as the prescribing physician knew, the man remained his patient.


There is no dispute as to what happened after the man last saw the prescribing physician. The man went to CPEP later that day and, while he initially declined inpatient care, after he complained of being suicidal he was placed on 15–minute safety checks for the next 27 hours and his access to “lethal means of suicide” was restricted. The following day, he complained of feeling hopeless and worthless, and repeated that he would kill himself. His medications were adjusted and he was discharged.


After a difficult and restless night, the man returned to CPEP the following day. He was administered Ativan, and placed on 15–minute safety checks for about 12 hours. That evening he was involuntarily transferred to the psychiatric unit at a hospital.


The following day, the man met with another doctor. She adjusted his medication and placed him on a multi-drug regimen of increased Paxil, Klonopin, Zyprexa, Ativan, and another anti-psychotic drug. That night, after the other doctor discontinued the one-on-one suicide watch, the man attempted suicide by tying the belt of his hospital gown around his neck. The other doctor re-instated the suicide watch, and again changed the man’s medications, replacing Paxil with another anti-depressant, and added Risperdal. Over the course of a week, doctors at the hospital adjusted his medications as he continued to complain about anxiety and depression and increased repulsive thoughts of a sexual nature. At times he reported a decrease in depression, but still complained of difficulty sleeping and relaxing.


The man was discharged eight days after he was admitted and referred to another facility for out-patient psychiatric care. The out-patient facility had a three-part screening and intake process, which the man commenced six days after he was discharged, when he met with a social worker. At this time he complained of suicidal and obsessive sexual thoughts. During his second intake visit, six days later, he met with a psychotherapist and told her that everything was overwhelming, that he felt “as if someone had taken his brain out,” and that his “suicidal thoughts come and go.” The out-patient facility’s psychotherapist scheduled an accelerated third intake appointment for two days later. However, the out-patient facility was unable to obtain the man’s previous medical records in time for this appointment. As a consequence, two days after the second intake appointment the man met instead with an independent licensed social worker and psychotherapist recommended by a family member. The man told the psychotherapist that he had suicidal thoughts, but could not act on them because of his daughters. The psychotherapist concluded the man was not at risk of committing suicide and made plans to check up on him the next day.


The man did not have any further contact with any medical professionals. Early the following day, the man went to his garage and committed suicide by stabbing himself with a knife. Shortly after, his wife found him there, face down in a pool of blood.


The man’s wife, as administrator of the man’s estate, sued the prescribing physician and the hospital doctor for medical malpractice and wrongful death. The complaint alleged that the prescribing physician’s treatment of the man was negligent as demonstrated by his failure to properly prescribe and monitor decedent’s medication, and adequately diagnose decedent’s worsening condition during their final office visit. The complaint alleged that the hospital doctor’s treatment of the man was negligent. The complaint alleged the doctors’ substandard medical treatment of her husband proximately caused his suicide.


Prior to trial, the prescribing physician filed a motion in limine to preclude, among other things, the admittance of a consent agreement between himself and the Office of Professional Medical Conduct (OPMC), part of the New York State Board for Professional Medical Conduct responsible for investigating complaints against physicians, coordinating disciplinary hearings and enacting sanctions as required. A year and a half after the initial complaint was filed in the instant case, OPMC brought misconduct charges against the prescribing physician, alleging that he “deviated from accepted standards of medical care” by prescribing medications to 13 patients over several years without adequately monitoring and evaluating them, and often without any face-to-face visits. The man was one of the listed patients. The prescribing physician entered a consent agreement with the OPMC. Under the consent agreement, the prescribing physician agreed not to contest charges of negligence based on allegations involving his treatment for 12 of the 13 patients, specifically excluding the man in the instant case, in exchange for agreeing to a term of probation, which included review by the OPMC of the prescribing physician’s performance and a requirement that he only practice medicine when monitored by another physician. The prescribing physician argued that the consent agreement was not probative evidence of his negligence with respect to the man, and was unduly prejudicial because none of the uncontested charges involved the man or addressed the proper treatment for a patient with a long history of depression, anxiety, and OCD.


The Onondaga County Supreme Court denied the prescribing physician’s motion to exclude the consent agreement. The trial court determined that the consent agreement “would be admissible in full with regard to the issues surrounding not only the [decedent’s] case, but also [the other patients], based on testimony of habit and credibility.”


Prior to trial, the prescribing physician conceded that prescribing Paxil to the man over the course of more than ten years without any face-to-face contact was a deviation from acceptable medical practice.


At trial, the consent agreement was admitted into evidence and the wife was allowed to question the prescribing physician about its contents. During that questioning the prescribing physician was repeatedly confronted with the fact that OPMC had charged him with “gross negligence” with regard to 13 patients, including the man, and that the prescribing physician signed the consent agreement in satisfaction of the charges, receiving a reprimand and censure as punishment for his misconduct.


The prescribing physician maintained that he was not liable for malpractice because superseding acts severed the causal connection between his conduct and the suicide, including medical care provided by the other doctor. The prescribing physician presented the testimony of a family physician, who explained that defendant’s 10 years of prescribing Paxil without seeing the man did not contribute to the suicide because decedent was doing well during that period. According to the expert family physician, the man only appeared to decompensate when he was hospitalized and his medication was substantially readjusted. In his opinion, the man’s major depressive disorder caused his death, rather than any action taken by the prescribing physician. Additionally, the prescribing physician presented the testimony of a psychiatrist who explained that individuals who are suffering from a major depressive disorder and obsessive-compulsive disorder at the same time pose a high risk of suicide. He also opined that the benefits of the different medications that the prescribing physician prescribed to the man outweighed any risks.


At trial, the man’s wife argued that the prescribing physician’s treatment and conduct towards her husband was a contributing factor leading to his death. The wife’s expert psychiatrist concluded that the prescribing physician deviated from accepted medical standards by failing to monitor the man for years while prescribing Paxil, and by later abandoning him as a patient, and that the prescribing physician’s conduct was a significant contributing factor to the man’s suicide. He explained that following more than 10 years of unmonitored Paxil dosing, the prescribing physician worsened the man’s condition by doubling his Paxil prescription and adding Zyprexa after the man telephoned him. The wife’s expert psychiatrist described this as “a turning point” with catastrophic results. According to the wife’s expert psychiatrist, doubling the man’s Paxil was hazardous because it greatly increased the impact of a very potent drug, and notably was not recommended by the FDA.


The wife’s expert psychiatrist also testified to the impact on the man’s already vulnerable condition when he finally had a face-to-face visit with the prescribing physician. He explained that when a patient visits a psychiatrist they are feeling hurt and self-conscious. According to the wife’s expert psychiatrist a person who is very distressed, having a great deal of emotional difficulty, is particularly sensitive to humiliation—to being rejected, abandoned, and invalidated. A doctor cannot turn a patient away, but instead has to ensure there is adequate follow-up. The wife’s expert psychiatrist concluded that after the man’s last meeting with the prescribing physician, the man never again established a secure relationship with a physician and had “really been cast at sea by” the prescribing physician. He also testified, as established by the photograph and the autopsy report, that the man’s suicide was “very violent and bloody,” and that such suicides are often associated with the use of antidepressants. Therefore, in the wife’s expert psychiatrist’s opinion, the prescribing physician’s actions at the final face-to-face meeting, after years of failing to monitor the man’s prescription medication and doubling the Paxil dosage over the telephone without an in-person assessment, were a significant contributing factor to the man’s suicide.


At the end of the trial, the jury returned a verdict for the wife, finding both the prescribing physician and the hospital doctor negligent, but that only the prescribing physician’s negligence proximately caused the man’s suicide. The jury awarded $1,200,000 in damages and apportioned $800,000 to the wife and $400,000 to be divided among the man’s three surviving daughters.


The Appellate Division of the New York Supreme Court, Fourth Department, affirmed.


The Court of Appeals of New York reversed. The court held that the trial court abused its discretion in admitting the consent agreement and the admission of the consent agreement tainted the deliberative process, and sufficiently prejudiced the prescribing physician, such that a new trial was required.


The trial court abused its discretion in admitting the consent agreement. The court found that the record established that the consent agreement was neither probative of the prescribing physician’s negligence or the question of proximate cause. As part of the consent agreement the prescribing physician agreed not to contest negligent treatment of certain anonymous patients, none of whom was the decedent. As such, the prescribing physician preserved his objections to factual allegations related to the decedent and any charges of misconduct based on those allegations. Since the consent agreement did not establish facts concerning the prescribing physician’s treatment of the man, it was not probative as to that issue. In any event, given the prescribing physician’s pre-trial concession that he deviated from accepted medical practice, the issue of negligent treatment did not require resolution by the jury. Any possible relevance of the consent agreement’s contents was outweighed by the obvious undue prejudice of his repeated violations of accepted medical standards. Given the prescribing physician’s concession at trial that he deviated from accepted medical practices, the court held that the consent agreement was unquestionably collateral, without probative value, and, regardless, improperly prejudicial.


Admission of the consent agreement tainted the deliberative process, and sufficiently prejudiced the prescribing physician, such that a new trial was required. In light of the prejudicial nature of the consent agreement and its repeated use at trial, the court could not say that its admission did not have a substantial impact on the verdict. The court reasoned that the evidence could have induced the jury to punish the prescribing physician for his unrelated misdeeds, so admission into evidence of the consent agreement was sufficiently prejudicial so as to require a new trial.


The Court of Appeals of New York reversed the trial court’s denial of the prescribing physician’s motion in limine to exclude evidence concerning the prescribing physician’s negligent treatment of twelve other patients.


See: Mazella v. Beals, 2016 WL 3543705 (N.Y., June 30, 2016) (not designated for publication).


See also Medical Law Perspectives, March 2015 Report: Post-Traumatic Stress Disorder: Diagnosis and Treatment Failures

See also Medical Law Perspectives, December 2014 Report: Beyond the Holiday Blues: When Depression Leads to Liability


See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication