Shrink Rap: An Introduction to Mental Health Malpractice

We are witnessing a surge in the number of malpractice suits filed against mental health professionals. Although a 1983 study found that psychiatrists were seventeen times less likely to be sued than other physicians, this number still represents an increase in the number of such lawsuits, an increase which began in the 1960s and continues to grow ever more rapidly.

This surge in the number of lawsuits against mental health professionals is largely the product of three separate, but powerful changes in the mental health care delivery system. First, the development of relatively safe and powerful medications for the treatment of some of the most debilitating illnesses schizophrenia, depression, and bipolar disorder among them - helped to solidify what had beforehand been a very mushy standard of care. With power comes responsibility. Thus, ironically, the development of this new pharmacological arsenal boosted psychiatry's status in the medical community, while subjecting psychiatrists to increased malpractice exposure.

Second, historically patients have found it difficult to sue their mental health provider. After all, this is the very person with whom, in times past, the patient spent hours of each week, sharing their deepest thoughts. With the growth of managed care, a single, monthly fifteen-minute appointment with a psychiatrist has become the norm. The average length of hospital stays has tumbled. Although many patients concurrently receive psychotherapy from a nonmedical provider (an arrangement known as "split treatment"), few patients now develop any close relationship with their psychiatrists. As a result, patients are more willing to sue when treatment goes wrong.

By Skip Simpson and Jerry Meek

Finally, since 1965 there has been a dramatic decline in the number of patients receiving mental health treatment in public facilities. The enactment of Medicaid and Medicare, combined with an ideological shift towards the "least restrictive alternative," encouraged States to close State psychiatric hospitals and look to private, outpatient providers for treatment. Since government providers generally enjoy limited immunity from lawsuits, this shift towards private mental health care created new opportunities for plaintiffs to be properly compensated for injuries and deaths caused by the mental health professionals.

Common Forms of Mental Health Negligence

Mental health professionals are increasingly being held accountable for their negligence. Here are some of the most common forms of negligence:

- Failure to conduct a proper suicide risk assessment. The standard of care requires the clinician to conduct a proper suicide risk assessment of each potentially suicidal patient. To do a proper assessment, you must (1) consider all of the relevant factors and (2) reach a reasonable assessment, based upon these factors, of the patient's risk for suicide. What are some of the factors which must be considered? Some are demographic: the patient's age, gender, marital status, sexual orientation, employment and living circumstances all impact upon the patient's risk for suicide. The patient's history must also be considered. Is there a family history of suicide? Has the patient made prior suicide attempts? Has he recently been discharged from a psychiatric hospital? Finally, the clinician must consider the patient's presentation at the time of the assessment. What is the patient's diagnosis? Major depressive disorder, bipolar disorder, and schizophrenia have the highest suicide completion rates. Does the patient have a co-morbid anxiety disorder or a substance dependency or abuse disorder? (Both of which would markedly increase the risk for suicide.) Does the patient suffer from a chronic physical illness? Most importantly, the clinician has a duty to specifically ask the patient whether he has been having suicidal thoughts, whether he has formulated a plan to commit suicide, and whether he intends to commit suicide. The standard of care requires that all suicide risk assessments be documented in the record. If a clinician fails to perform, or improperly performs, an assessment, or if the clinician unreasonably underestimates the patient's risk, she may well be liable if the patient commits, or attempts to commit, suicide.

- Failure to prevent a patient's suicide. Once a proper suicide risk assessment has been performed, the clinician has a duty to take reasonable steps to prevent the patient's suicide. The reasonableness of the clinician's response obviously depends upon the degree of risk present. Where the patient is at high risk for suicide, the clinician must hospitalize the patient, involuntarily when necessary. When the risk is lower, the clinician may choose to increase the number and frequency of sessions with the patient, contact the patient's family to encourage them to monitor the patient more closely, or alter the treatment plan in some other way. At a minimum, the clinician must inquire about, and take steps to eliminate, the patient's access to lethal means. Sixty percent of suicides occur with firearms. The clinician who fails to take steps to remove the suicidal patient's access to a firearm commits rank malpractice. When the

patient is in an inpatient setting, the nursing staff has a duty to monitor the patient with sufficient regularity and to remove from the patient articles (such as shoelaces, shirts, and other clothing) which could be used to commit suicide. The point is illustrated by Sloan v. Edgewood Sanatorium, 225 S.C. 1, 80 S.E.2d 348, one of the first appellate cases in the United States to hold a mental health facility liable for failing to monitor and prevent an inpatient suicide. In the inpatient setting, the physician has a duty to order suicide precaution checks at levels commensurate with the patient's risk.

- Improper diagnosis or treatment.

There is a myth that psychiatric diagnoses are ill defined - that mental health professionals, after properly assessing a patient, are likely to reach different diagnoses of the same patient. The truth is that psychiatric diagnoses are very well defined. The Diagnostic and Statistical Manual (DSMIV-TR) is widely considered the bible of psychiatric diagnoses. Clear criteria define each diagnosis. Unfortunately, these psychiatric diagnoses have two fundamental flaws. First, unlike other areas of medicine, disorders are classified according to their symptom clusters, not according to their etiology. This means that two patients with the same symptoms will be diagnosed with the same disorder, even if there are different causes of the disorder. Second, usually a diagnosis is made based upon the presence or absence of certain symptoms, not upon their intensity. Thus, a patient with only moderate fatigue, weight loss, impaired concentration, dysphoria, and anhedonia (loss of interest in things which used to interest the patient) may be diagnosed with major depressive disorder, when a patient who has only four of these symptoms - but has them severely - may not meet the diagnosis. Nevertheless, diagnosis is very important in psychiatry because these diagnostic classifications guide all of the research and treatment protocols. We have effective treatments for many - if not most - of the DSM-IV diagnoses. Without making the proper diagnosis, the chances are that the proper treatment won't be offered. For example, the failure to inquire about prior manic episodes in a severely depressed patient may cause the clinician to mistakenly diagnose a patient with major depressive disorder, rather than bipolar disorder. The latter requires treatment with a mood stabilizer, such as Lithium, Depakote, or Tegretol. There is a right way and a wrong way to perform diagnostic assessments. If an assessment is incomplete, treatment errors are likely to result.

- Tardive dyskinesia. Most effective treatments have side effects. In the 1940s and 1950s, the lobotomy (officially known as the "prefrontal leucotomy") became a popular treatment for psychotic agitation. What is now forgotten is that the lobotomy was generally a very effective treatment. Unfortunately, the procedure reduced the patient to a hollow shell, devoid of any personality or awareness of the world around him. With the invention of antipsychotic medications (sometimes known as neuroleptics), psychiatry found a way to eliminate psychotic hallucinations and delusions with far fewer side effects. Unfortunately, one very serious side effect of antipsychotics (especially of the older, conventional antipsychotics, like Haldol, Thorazine, and Mellaril) remains: tardive dyskinesia (TD). Patients with TD suffer through involuntary movements of the head, neck, trunk, and extremities. Often, they will make wormlike movements with their tongue, smack their lips, chew, and grimace, as their arms or legs make writhing, uncontrollable motions. If caught early, the disorder can often be extinguished by discontinuing the antipsychotic and prescribing counteracting medications such as reserpine.and levodopa. If it's not caught early, the disorder can become permanent, subjecting patients to a lifetime of discomfort and insensitive ridicule. TD cases usually involve one or more of three areas of negligence. First, if the patient was placed on an antipsychotic for any reason other than the treatment of psychosis (that is, of hallucinations or delusions), the provider was likely negligent. Unfortunately, some psychiatrists still prescribe antipsychotics for anxiety. This is clearly inappropriate. Second, if a psychiatrist places the patient on an antipsychotic for a period of time longer than clinically necessary, this is negligent. For example, a bipolar patient is sometimes (appropriately) placed on an antipsychotic during the manic phase of the illness, but then the antipsychotic is never discontinued after the manic phase ends. Finally, if the clinician unreasonably fails to detect the onset of TD, or fails to take steps to reverse it, he or she will be negligent.

- Failure to Warn. In Tarasoff v. Regents of the University of California, 551 P.2d 334 (1976), the California Supreme Court rocked the mental health world by holding that a psychotherapist who knows, or should know, that his patient presents a serious danger of violence to another has a duty to take steps to protect the intended victim from harm. Usually this duty can be discharged by simply warning the intended victim. Since Tarasoff, numerous States have adopted this so-called "duty to warn." In Bishop v. South Carolina Dept. of Mental Health, 331 S.C. 79,502 S.E.2d 78 (1998), the South Carolina Supreme Court definitively established a limited version of the Tarasoff rule. Under Bishop, if the mental health provider (1) has the ability to monitor, supervise, and control a patient and (2) knows, or should know, that the patient has made a specific threat to harm a specific person, then the provider has a duty to warn the threatened person of the danger.z Although the Bishop holding is murky, the South Carolina rule appears to differ significantly from the more liberal holdings of other States. First, the patient must have made an actual threat. It is apparently not sufficient, for example, that the patient suffers from paranoid delusions that a specific person is trying to kill him, nor that the patient is experiencing command hallucinations ordering him to harm a specific person. Under Bishop, without an expressed threat by the patient, the duty does- not appear to arise. Second, the patient must threaten a specific person. The duty apparently does not arise if the patient threatens a class of persons (for example, her coworkers) or if the clinician, through his training or experience, could have reasonably determined the likely target. Finally, the Bishop holding raises several questions about how much ability to monitor, supervise, or control a patient is necessary for a duty to arise. Although the clinician can effectively monitor, supervise, and control a patient in the inpatient setting, most cases of harm to thirdparties occur in the outpatient setting and it is not clear that a duty would arise where the patient is merely an outpatient. Thus, Bishop establishes a very limited version of the Tarasoff rule, under which clinicians can be held liable for failing to warn specific victims of specific threats directed to them. The Bulletin, Winter 2001

- Boundary Violations. It is established that there should be, indeed must be, a treatment boundary separating the mental health professional and his or her patient. The term "boundary violation" refers to any violation of this treatment boundary. Most commonly, the boundary violation involves sexual contact between a mental health professional and his or her patient. All such contact is negligent, despite attempts by some experts to justify or excuse such conduct. Plaintiffs routinely win boundary violation lawsuits when brought. Sometimes, in the midst of victory, the plaintiff doesn't actually end up receiving any compensation for the wrong they have suffered. That's because many - if not most - mental health malpractice policies impose a cap (often $25,000) on the amount of coverage available for sexual misconduct in the treatment relationship. When filing these lawsuits, it is important for the trial lawyer to broadly plead, alleging merely that the professional has negligently violated the proper treatment boundary, without specifically alleging sexual misconduct. Such broad pleading may help to protect the availability of coverage. Although sexual misconduct has received the most attention, boundary violations may come in other forms. Sometimes a mental health professional improperly establishes a close friendship with his or her patient, by, for example, going to dinner frequently, traveling out of town, or interacting socially in other ways. Such non-professional conduct may become a negligent boundary violation if it interferes with the treatment relationship.

- False "Repressed" Memories.

Some mental health professionals believe that serious mental disorders are the result of very bizarre forms of early childhood trauma. Employing hypnosis or guided imagery, they lead their patients to believe that they were the victims of graphic sexual abuse, that family members were leaders of satanic cults who forced them to engage in horrendous acts of violence, or that they were abducted by aliens (yes, of the extraterrestrial type). Unfortunately, many patients come to fully believe that these are accurate memories from their childhood, without having received warnings that delayed memories are unreliable and uncertain. Our firm recently settled a case where a patient was encouraged to confront her parents about her newfound "memory" of her dad the supposed leader of her neighborhood satanic cult - forcing her to cut out her neighbor's heart when the patient was the tender age-of three. Shortly after the confrontation with her parents, the patient committed suicide. All too often, contrary to the mental health professional's intent, the patient's newly discovered memories become the patient's new reality, leading to greater depression, an increased sense of hopelessness, and often a suicide attempt or suicide. Fortunately, largely as a result of litigation, this form of quackery is a dying breed. Yet, amazingly, other thoroughly controversial therapies persist.

There is scream therapy, Eye Movement Desensitization and Reprocessing (EMDR), reparenting therapy, and rebirthing therapy, to name only a few. Recently, in Colorado, a ten year-old girl was smothered to death after her therapist wrapped her up in a blanket (intended to represent the womb) and asked her to wiggle out of the blanket in a symbolic rebirth.

Representing Mental Health Patients and Their Families

Several months ago, a woman in her early 30s entered our office, seeking our representation of her in a potential psychiatric malpractice suit. She explained, in the most intricate of detail, how half a dozen psychiatrists, treating her over the span of a decade, had conspired among themselves to keep her drugged and dependent. Suspicious, we asked her what their diagnosis for her was. "Paranoid delusional disorder," she replied. Either she had a great case, or she truly was delusional.

Although unusual, the story does serve to highlight the fact that there are unique challenges in store for the attorney who handles mental health malpractice cases. People are at the heart and soul of the trial lawyer's job. Our clients are our inspiration. But when a client suffers from a mental disorder, the disorder typically has a dramatic impact upon the attorney-client relationship. Let's look at some examples.

It is estimated that two to three percent of the population suffer from Borderline Personality Disorder, a disorder which is also frequently co-morbid with the disorders afflicting many mental health malpractice clients. Patients with Borderline Personality Disorder frequently exhibit very unstable interpersonal relationships, loss of impulse control, and very intense, inappropriate emotional responses. As clients, these patients may love their attorney in the morning and threaten to fire them in the afternoon. They overreact when faced with a perceived rejection - a phone call not timely returned or a candid and critical assessment of the case by their attorney, among them. Representing a borderline client requires both patience and understanding. The borderline client's affective (or mood) instability usually lasts only hours, during which time they are often sarcastic and bitter. They are quick to conclude that their attorney has been uncaring; that their attorney has withheld information from them; or that their attorney has abandoned them. Attorneys need to be extrasensitive of the need to respond quickly to their concerns and of the need to provide the borderline client with full and prompt information on the course of the litigation. Attorneys need to avoid responding angrily when the borderline client expresses their own outrage at an imaginary insult by the attorney. Attorneys also need to avoid taking their client's outrage too seriously - a cooling down time often results in a change of heart by the client, along with intense feelings of shame and guilt.

The Bulletin, Winter 2001

Some clients, like the client mentioned in the opening paragraph, may suffer from a delusional disorder. Delusions are a form of psychosis, readily treated and eliminated with modern antipsychotic medications. They are also often symptomatic of schizophrenia. When clients fail to respond to - or become noncompliant with - the medication, their delusions often rapidly return. Most relevant to the attorney-client relationship, these delusions may be grandiose or persecutory in nature. The grandiosely delusional client believes that he or she has some great talent or insight, has a prominence unsupported by reality, or has some special relationship with a powerful or important person (including a deity). These clients may irrationally believe that their case cannot be lost, that some powerful force (political or divine) will intervene on their behalf in the legal proceedings, or that they have an imaginary insight into the proper legal strategy which - they may insist - the attorney must employ.

Persecutory delusions usually involve the client's irrational belief that he or she is being conspired against, cheated, spied on, followed, poisoned, or drugged. Clients suffering from persecutory delusions may irrationally believe that agents for defense counsel are employing unorthodox methods to control or manipulate them. They may believe that their own attorney has joined the conspiracy or is attempting to exploit them for personal gain. It is important to remember that truly delusional patients cannot be reasoned out of their delusional mind set. As long as they are unmedicated, attempts to convince them of the falsity of their delusions are likely to backfire. When the delusions interfere with the client's ability to make responsible decisions regarding the successful prosecution of the suit, the attorney may need to consider whether a guardian should be appointed for the client, pursuant to S.C.CODE § 62-5-303.

Finally, attorneys handling mental health malpractice cases often encounter patients suffering from bipolar disorder, formerly known as manicdepressive illness. As the name suggests, bipolar patients suffer from extreme mood swings. Typically, the patient will enter either a manic or depressed phase, each of which can last for months. The patient will then return Lo baseline functioning, before entering a new episode. During their manic phase, patients engage in reckless behavior (gambling or spending excessively, or engaging in impetuous sexual behavior), speak rapidly and incoherently, go for prolonged periods without sleep, and exhibit excessive levels of activity. They may call their attorney repeatedly during the course of a single day, often late at night. They may write long, rambling letters to their attorney, suggesting courses of action which are either unrealistic or imprudent. When depressed, bipolar patients find little energy for anything. They experience periods of insomnia, rapid weight loss, loss of interest, memory loss, indecisiveness, and inability to concentrate. They may fail to return phone calls, forget to follow up on their attorney's requests, or express a sudden lack of interest in pursuing the litigation. It is essential that attorneys understand that their client's behavior is a result of a medical disorder, which can be controlled through proper treatment. It is also important that attorneys realize that these mood shifts are both episodic and temporary. Because they interact more frequently with clients than attorneys, it is particularly important for staff members to understand the nature of the illness and to avoid reaching unfair judgments about bipolar clients, as such judgments pose a long-term threat to the attorney-client relationship. The Bulletin, Winter 2001

In a wrongful death action arising out of the suicide of a patient, the attorney will usually be dealing directly with the family members of the decedent. Rarely do family members pursue a mental health malpractice case for money. The goal is usually justice and retribution. But behind the quest for justice is a deep seeded quest for exoneration - an attempt to rid themselves of a plaguing sense of shame and guilt. It is important that attorneys recognize that family members have these feelings. They feel guilty that they didn't see the warning signs, that they didn't prevent the death of their loved one. They often wrongly assume that the suicide was the result of their own conduct - an argument with the decedent or some other single act or failure as a parent or spouse. It is important for them to know that, in ninety five percent (95%) of cases, those who commit suicide suffer from a diagnosable psychiatric disorder. Suicide is almost always the result of the disorder, not the result of a single act or event. Mentally ill patients respond to stressful events in a maladaptive way. It is not the event itself which causes the suicide, but the patient's maladaptive coping strategy.

The family's sense of shame and guilt has two important impacts on the course of litigation. First, there is a tendency for family members, in deposition and at trial, to offer testimony which is inappropriately defensive. This reinforces the jury's erroneous perception that the family caused the suicide and that the litigation was brought solely in order to deflect guilt. Family members need to be told, in no uncertain terms, that they cannot and must not appear defensive when testifying. Second, because of the emotions stirred by suicide, many families are themselves in psychotherapy to cope with their own bereavement. Unfortunately, the experience of going through psychotherapy leads many family members to become excessively talkative during deposition and trial testimony. They tend, more than other witnesses, to answer non-responsively, volunteering information well beyond the scope of the question. It is essential that the attorney firmly counsel the client not to volunteer information.

The extraordinary bereavement typically suffered by family members of those who commit suicide should also affect the way that we practice law. First, attorneys need to be unusually responsive and open to the family. Many of our clients have our cellular phone numbers. They know that they can and at times do - call us at any time of the day or night to talk about the case, or just to talk about how their life is going. We have, for example, received calls from clients on the anniversary of some significant day in the decedent's life. Second, the attorney should play an active role in informing his or her clients of the availability of resources that can help family members. Organizations like Parents of Suicide (www.parentsofsuicide.com) and Survivors of Suicide (www.suicidology.org/survivorsofsuicide.htm) exist to support families during the grieving process. Other organizations, such as the American Foundation for Suicide Prevention (www.afsp.org) and the American Association of Suicidology (www.suicidology.org) provide very helpful resources for families.

Conclusion

Mental health malpractice cases, if not handled properly, are often very difficult to successfully pursue. In addition, mental health patients and their families often present unique challenges to the typical attorneyclient relationship. Nevertheless, it is an area of the law to which our firm has chosen to limit its practice. Mental health professionals, in our judgment, have for too long escaped accountability for negligent care.

Hopefully, the result of more plaintiffs' victories will be greater accountability in the mental health profession, improved quality of care, and reduced stigma for those ravaged by mental illness.

Reference

I. The Bishop Court ultimately held that there was no proximate cause.

Skip Simpson and Jerry Meek are members of Simpson and Meek, P.C, a Dallas based law firm which handles only Plaintiff's mental health malpractice litigation. Jerry Meek is a member of the SCTLA.

The Bulletin, Winter 2001