Personal Application
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Chapter 10 Medical Staff Organization and Malpractice Psychiatry
▸ PSYCHIATRY The major risk areas of behavioral health professionals include commitment,
electroshock, duty to warn, and suicide. Matters relating to admission, consent, and
discharge are governed by statute in most states. Several areas where behavioral
healthcare lawsuits occur more frequently are described next.
Commitment The recent emphasis on patient rights has had a major impact on the necessity to
perform an appropriate assessment prior to commitment. State statutes often
provide requirements granting an individual’s rights to legal counsel and other
procedural safeguards (e.g., patient hotline) governing the admission, retention, and
discharge of patients.
Most states have enacted administrative procedures that must be followed. The
various statutes often require that two physicians certify the need for commitment.
Physicians who participate in the commitment of a patient should do so only after
first examining the patient and reaching their own conclusions. Reliance on
another’s examination and recommendation for commitment could give rise to a
claim of malpractice. Commitment is generally necessary in those situations in
which a person may be in substantial danger of injuring himself or herself or third
persons.
Involuntary Commitment
In In re Detention of Meistrell, proof of dangerousness was found adequate to
support an order for involuntary commitment. There was testimony that on two
occasions, the patient jumped off a teeter-totter, causing his two small children to
fall to the ground. A substantial risk of physical harm to others also was
demonstrated by testimony that the patient threatened his wife’s ex-husband.
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Involuntary Commitment Ordered
There was clear and convincing evidence in Luis A. v. Pilgrim Psychiatric Center
that the patient remained extremely psychotic and delusional. This was manifested
by his own testimony denying that the victim of the crime in which he participated in
1990 was dead. Furthermore, he denied his attempted suicide on two prior
occasions, his substance abuse problems, and his mental illness. The evidence
showed that the patient believed that the reason he was reincarcerated upon
violating his probation in 2000 was a conspiracy by certain individuals against him
rather than the fact that he tested positive for marijuana and violated his curfew.
The evidence demonstrated that the patient would likely relapse to his substance
abuse. He posed a substantial threat of physical harm to himself and others if
release from the care and control of the facility was permitted. Proof was
demonstrated that if released, he intended to reside with his elderly mother, who
had a significant history of mental illness herself and was incapable of properly
caring for him out of an institutional setting or of preventing deterioration in his
mental health status. Expert medical opinion indicated that such would inevitably
occur. The application to retain the respondent on an involuntary basis was granted.
Continuation of Commitment
In In re Todd, a psychiatrist filed a petition for additional detention of a patient
previously ordered admitted to a state hospital for pretrial psychiatric examination.
The circuit court, after hearing testimony from the appellant’s son, a social worker at
the hospital, and the psychiatrist, ordered detention, and the detainee appealed.
The episode that gave rise to the involuntary commitment occurred when the
appellant threw eggs at a house and various businesses and also broke some
windows at a house with a tire iron. She lightly bumped a police car and was
charged with second-degree property damage. During her involuntary detention,
she refused to take her medications, which were necessary because of her illness.
The psychiatrist indicated his concern that, on release, she might harm her invalid
husband. Detention was considered necessary until such time as drugs could
control the detainee’s illness. The court of appeals held that the testimony of the
psychiatrist established clear and convincing evidence to meet a required standard
that the detainee’s actions presented risk of serious harm to herself or others.
Involuntary Commitment of Invalid
In In re Carl, a New York Supreme Court found a patient to be mentally ill and
authorized his involuntary retention. On appeal, however, the New York Supreme
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Court, Appellate Division, held that the state had not shown by clear and convincing
evidence that the patient’s instability caused him to pose a substantial threat of
physical injury to himself or others. The examining physician’s testimony indicated
that the patient did not pose a direct threat of physical harm to himself or others
but that it was questionable whether he would be able to provide for the essentials
of life. The patient testified that he was aware of food needs, of where to get food,
and how he would pay for it. He indicated that he would not sleep outside and that
he had a bed in a rooming house where he had been paying rent for 2 years.
Commitment by a Spouse The plaintiff’s husband in Bencomo v. Morgan filed a petition to have his wife
declared incompetent. In a letter supporting the petition, the defendant physician,
who had treated the wife 10 years previously, stated that she was badly in need of a
psychiatric examination. The plaintiff wife attempted to sue the physician for libel
and slander. The court held that the plaintiff had no cause for action because it was
her husband who initiated the commitment procedures.
Commitment by a Parent The U.S. Supreme Court in Parham v. J.R. held that the risk of error inherent in a
parental decision to have a child institutionalized for mental health care is
sufficiently great that an inquiry should be made by a neutral fact finder to
determine whether statutory requirements for admission are satisfied. Although a
formal or quasiformal hearing is not required and an inquiry does not need to be
conducted by a legally trained judicial or administrative officer, such inquiry must
probe a child’s background using all available sources. It is necessary that a decision
maker have the authority to refuse to admit a child who does not satisfy medical
standards for admission. A child’s continuing need for commitment also must be
reviewed periodically by a similarly independent procedure.
Patient Due-Process Rights
The principles of due process were violated in Birl v. Wallis when an involuntarily
committed patient was conditionally released and once again confined without
notice and opportunity for a hearing. Remand was required to permit the drafting of
reconfinement procedures that would protect the patient’s due-process rights.
Release Denied
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In State v. Wenk, Wenk was charged with one count of attempt to entice a child for
immoral purposes in October 1977. He entered a plea of not guilty. While awaiting
trial and out on bail, Wenk was charged with three additional felonies involving an
11-year-old boy—one count of abduction and two counts of first-degree sexual
assault. Ultimately, Wenk withdrew his pleas of not guilty but maintained a plea of
not guilty by reason of a mental disorder. The trial court agreed with Wenk and
found him not guilty as a result of his mental disorder. The trial court also found him
dangerous and that he needed to be committed. Wenk successfully petitioned for
conditional release in 1979. Five years later, Wenk waived his right to contest the
motion seeking revocation of his conditional release after his probation agent
instituted proceedings against him when it was discovered that Wenk failed to
remain drug free and to abstain from contacting his ex-wife.
Wenk, at the age of 76, again petitioned the trial court seeking conditional release.
As a result of his request, the trial court appointed two experts to examine Wenk:
Palermo, a psychiatrist, and Smail, a psychologist. At the hearing, the state called
Smail, who testified that Wenk could be released if certain conditions were placed
on him. Also admitted into evidence were Palermo’s report and the report of
Chapman, a clinical psychologist employed by the state institution. Both of these
reports recommended that Wenk be released, but only if certain conditions were
placed upon him. Following the close of testimony, the assistant district attorney
stated that he was unsure whether he had met his burden of proof, but he urged
the court to place conditions on Wenk if the trial court decided to release him.
The trial court, disagreeing with the doctors’ ultimate recommendations, found that
Wenk was still dangerous. He had a long-standing substance abuse problem, and
although Wenk had not abused drugs while he was confined, the trial court believed
his drug relapse that occurred during his earlier conditional release indicated he still
posed a danger to the community if released. As a result, the trial court, in denying
the petition, found that the state had met its burden of proof to a reasonable
certainty by evidence that is clear and convincing that Wenk still remained
dangerous.
Wenk argued that all of the expert witnesses who examined him opined that he
could be released under certain conditions. The court remained unpersuaded by his
arguments. None of the doctors believed Wenk should be unconditionally released.
Each recommended his release only under certain conditions. In Chapman’s report,
the doctor noted that Wenk had been previously diagnosed as suffering from
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bipolar disorder, as well as inhalant dependence. Chapman reasoned that Wenk
could be conditionally released because Wenk’s mental illness appeared to be in
remission. With regard to Wenk’s addiction to toluene, a paint thinner, Chapman
acknowledged that Wenk used this drug when he engaged in his sexual criminal
conduct, but Chapman’s report contained the mistaken entry that during the 4 years
Wenk was on conditional release, Wenk reported that he had no temptation to
inhale. Wenk’s records clearly show that Wenk was recommitted, in part, as a result
of his probation agent’s discovery of his drug addiction. Consequently, the doctor’s
opinion that Wenk could be conditionally released was premised on his mistaken
belief that Wenk had no difficulty with drugs during his previous release. Either
Wenk minimized his toluene abuse when discussing his history with Chapman or
Chapman failed to investigate the record.
Smail testified that Wenk’s inhalant dependence was in remission. He did, however,
admit that all of Wenk’s criminal acts took place while he was under the influence of
toluene. Smail’s recommendation in favor of conditional release was also based on
Wenk’s statement to him that he had no personal concerns about resuming his
abuse of inhalants. This self-serving opinion was not only overly optimistic but also,
given Wenk’s past conduct, not borne out by his history.
Palermo’s report acknowledged that Wenk was abusing drugs when recommitted,
but notwithstanding this history, Palermo recommended that Wenk be conditionally
released, although he failed to set forth in his report any conditions that needed to
be imposed on Wenk when he was released. This gaping hole in Palermo’s report
could easily have caused the trial court to lack confidence in the doctor’s opinion.
The Wisconsin Court of Appeals determined that the record supported the trial
court’s decision. The differences of opinion between the doctors and the trial court
lay with their prediction of Wenk’s likely behavior when released. While the trial
court acknowledged that predicting a person’s future behavior is a difficult task, it
pointed out that the past predictions of the psychiatric experts were wrong. Further,
the trial court stated that its prediction for Wenk’s future behavior was based on his
past conduct, conduct that strongly suggested it was quite likely that Wenk would
again abuse drugs, posing too great a danger to the community to release him.
Untimely Discharge
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A trial court decided that an insanity acquittee suffering from schizophrenia,
paranoid type, in remission, failed to meet his burden of proving that he should be
discharged, even though a psychiatric review board had recommended discharge.
Two psychiatrists testified that as long as the patient was taking his medication, he
was in no danger to himself or to others. The appeals court decision, based on the
entire record, found that the acquittee had not proven by a preponderance of the
evidence that there was a mechanism in place to provide for continuation of the
required medication if he was released from supervision. The court considered the
violent nature of the underlying crimes (e.g., attempt to commit sexual assault in the
first degree and kidnapping in the first degree), which was precipitated by the
acquittee’s mental illness. It was unclear whether the patient would continue to
show the same progress after being discharged from the board’s supervision.
Electroshock Therapy Most states have laws and regulations governing the use of electroshock therapy
and other treatments for psychiatric patients. Failure to abide by these statutory
and regulatory guidelines may result in liability to the organization and treating
physician.
Duty to Warn In Tarasoff v. Regents of the University of California, a former patient allegedly
killed a third party after revealing his homicidal plans to his therapist. His therapist
made no effort to inform the victim of the
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