Patient-psychiatrist confidentiality hampered in liability ruling
A decision of the Supreme Court of Washington requires a psychiatrist to do the impossible: predict imminent dangerousness in patients who have neither communicated recent threats, indicated intent to do harm, nor indicated a target for a potential threat. This extra duty placed on the shoulders of psychiatrists could have a major impact on patient-psychiatrist confidentiality.
Howard Ashby, MD, is a psychiatrist in Washington. In 2010, one of Dr. Ashby's out-patients, Jan Demeerleer, attacked his ex-girlfriend, Rebecca Schiering, killing her and her son Philip Schiering, and injuring another son, Brian Winkler. DeMeerleer then returned home and committed suicide.
The attack occurred in July. Yet DeMeerleer had last met with Dr. Ashby in April, almost four months earlier. Dr. Ashby's notes for this last meeting state that DeMeerleer had indicated only "suicidal ideation"—not a threat of harm against another person.
At stake in Volk v. DeMeerleer was whether or not Dr. Ashby, or any psychiatrist, should be held responsible for failing to notify third parties that a threat of violence was imminent—even though the patient had not expressed violent intentions toward that third party. A lower court decided the psychiatrist could not have identified the actual victims as targets because the patient had communicated no threats against them during his treatment.
An appeals court then examined the duty of a mental health professional to protect a third party, ultimately reversing the trial court and ruling that mental health professionals who treat voluntary outpatients may owe a duty to protect "all foreseeable victims, not only those reasonably identifiable victims who were actually threatened by the patient."
But the Supreme Court of Washington in December held that a psychiatrist may be liable for damages if his patient kills or injures a third party, even if the patient has not communicated to the psychiatrist homicidal or violent intentions and even if, as here, the psychiatrist only treated the patient in an office setting.
"Holding mental health professionals liable to third-party victims who were not reasonably identifiable as targets of actual threats places an impossible burden on mental health professionals and limits their ability to treat patients," the Litigation Center of the AMA and several other medical societies argued in an amicus brief.
Psychiatrists are dedicated to providing treatment for patients who pose a risk for violence, "but they cannot accurately predict whether and when any particular patient will have a violent outburst, much less the target of that violence, as here, no threat of harm was made and no victim was indicated," the brief said.
The brief further argued that the law should protect patient-physician confidentiality. Mental health professionals should owe a duty to third persons only when a patient has communicated an actual threat of physical violence against a reasonably identifiable victim.
Read more at AMA Wire.
Case threatens limit on interstate medical liability exposure
A Washington high-school football player collapsed on the field in the middle of a 2009 game and later died. The Idaho physician who treated him for a concussion the week before was named in a Washington lawsuit brought by the teenager's family. But the courts have therefore held this would be inconsistent with Washington jurisdictional law regarding medical liability cases and could affect physicians' ability to provide care to out-of-state patients.
When Drew Swank was 17, he suffered a concussion during a high-school football game in his home state of Washington. One week later, a physician in Idaho, as well as his coach, cleared him to play. In that next game, his performance was slow and uncoordinated, according to the lawsuit. And after taking a big hit, Swank collapsed and was taken to the hospital where he died a few days later.
At stake in Swank v. Valley Christian School is whether the state of Washington can assert "long-arm" jurisdiction over the Idaho physician who provided medical treatment to Swank, a Washington resident, who later died in Washington, allegedly as a result of the physician's negligence.
The Washington Court of Appeals affirmed dismissal of the Swanks' claim against the Idaho physician in May, and now the Swanks are seeking review of that decision in the Washington Supreme Court before the case returns to the trial court.
Jurisdiction issues
Though the boy's death is a tragedy, naming the Idaho physician in the lawsuit is inconsistent with Washington's "long-arm" statute. In Lewis v. Bours (1992), a unanimous decision held that "in the case of professional malpractice, a tort is not committed in Washington if the alleged act of malpractice was committed out of state even though the injuries may manifest themselves in Washington."
The Swanks are asking the court to create a result-oriented exception to Lewis that is analytically indefensible, runs counter to public policy and offends due process, the Litigation Center of the AMA and several other medical societies argue in an amicus brief. "The Swanks urge the court to allow Washington courts to exercise jurisdiction over a nonresident physician if the physician knew or should have known the patient would be traveling to Washington, and if Washington law gives the patient a claim based on the physician's provision of care and exercise of medical judgment."
This exception would run counter to the Lewis decision. The Swanks' argument "would offend due process by making personal jurisdiction depend not on the nonresident physician's acts, but rather on the unilateral acts of patients," the brief says.
Read more at AMA Wire.
