Legal issues of professional negligence in suicide cases

Suicide is the eleventh leading cause of death, accounting for almost 30,000 deaths each year in the United States. The loss of a patient to suicide is the most feared outcome among mental health professionals, while the fear of litigation and liability after such suicide may be a close second. This article will familiarize mental health professionals with the legal issues of professional negligence in suicide cases. We begin with an introduction to malpractice liability for suicidal patients, followed by an explanation of the essential elements of professional negligence and relevant legal terminology. We then discuss general theories of liability involving suicide, and provide illustrative legal case examples. We conclude with a discussion of risk management procedures that can substantially reduce one's exposure to malpractice liability.     

Malpractice arising from negligent psychotherapy: ethical, legal, and clinical implications of Osheroff v. Chestnut Lodge

Traditionally, there have been few legal actions brought against psychotherapists that allege negligent psychotherapy and negligent treatment of psychiatric disorders. However, in the case of Osheroff v. Chestnut Lodge, a patient-physician (Dr. Osheroff) sued Chestnut Lodge, a private psychiatric facility, for negligence based on the staff's decision to apply a psychodynamic model of treatment (through psychotherapy) and not a biological model. The case sparked a heated debate between adherents of the psychodynamic model and those of the biological model. This article explores the implications of the Osheroff litigation for mental health professionals. It is proposed that an interactive informed consent process be used to protect psychotherapists against Osheroff-type litigation.     

Medical malpractice and the legal standard of care

In this essay, I examine the relationship between lawsuits for medical malpractice and the legal standard of care. I suggest that there is an insidious, dynamic relationship between physicians' reactions to the recent increase in malpractice litigation and an artificial elevation of the legal standard of care. Since, that is, the legal standard for proper medical care is based upon the community standard of care rather than the reasonable person standard, to the extent that overtreatment or “defensive” medicine becomes widespread as a reaction to malpractice litigation, the legal standard becomes elevated as well. Thus, it will increasingly be the case that unless a physician practices defensive medicine, and hence practices unreasonably, she risks being found liable for medical malpractice.     

Justice in epistemic gaps: The ‘proof paradox’ revisited

This paper defends the heretical view that sometimes we ought to assign legal liability based on statistical evidence alone. Recent literature focuses on potential unfairness to the defending party if we rely on bare statistics. Here, I show that capitulating in response to ‘epistemic gaps’—cases where there is a group of potential harmers but an absence of individuating evidence—can amount to a serious injustice against the party who has been harmed. Drawing on prominent civil law litigation involving pharmaceutical and industrial negligence, the overall aim is to illustrate moral pitfalls stemming from the popular idea that it is never appropriate to rely on bare statistics when settling a legal dispute.     

Tardive dyskinesia and malpractice

Tardive dyskinesia is a potentially irreversible disorder of involuntary movement which may result from the prolonged use of neuroleptic medication in some patients. Its increase in prevalence in recent years has been accompanied by increased apprehension in the medical community regarding malpractice litigation. Following an update of current knowledge about tardive dyskinesia, several legal aspects of tardive dyskinesia are reviewed, including negligence, breach of contract, fraud, strict liability and informed consent. Despite considerable criticism of the doctrine of informed consent, it is suggested that it constitutes an inherent and indispensable component of long-term psychiatric treatment, where tardive dyskinesia is at issue.     

Risques de la régulation médicale en médecine d’urgence. Analyse des dossiers de plaintes de la permanence des soins ambulatoire au SAMU du Var

Introduction

The non-urgent care requests depending on the continuity of care system have to be regulated by a regulating doctor of a medical emergency service call center. We aim to determine the risk factor of litigations about the regulation of the continuity of care system. So, the cases with friendly complaint and those with litigation have been compared.

Informed consent and the disclosure of risks of treatment: The Supreme Court of Canada Decides

The requirement for disclosure of risks of treatment as part of informed consent came before the Supreme Court of Canada in two 1980 cases. The Court found the duty of disclosure of risks to be based in negligence and not battery. The scope of the duty is not to be determined by medical evidence alone and requires the physician to disclose the nature of the proposed treatment, its gravity, any material risks and any special or unusual risks as well as answering in a reasonable way all specific questions asked by the patient. Whether the patient would have decided differently if all the information were known is an objective test, based on what the reasonable person in the patient's particular circumstance would do.     

Evaluation of the Delayed Discovery Case

Summary

In this chapter, practicing lawyer Michael S. Morey guides the reader through the complex legal and non-legal issues involved in evaluating whether legal action should be pursued on behalf of an adult survivor of childhood sexual abuse. After analyzing how evaluation of sexual abuse cases differs from that in most other personal injury cases, he presents a model for non-suggestive yet thorough client interviewing and case evaluation to help both survivor and lawyer decide whether to pursue litigation. Viability of a case, determined by three critical legal issues, does not necessarily mean litigation ought to be pursued, and he explores how to make the initial interview a valuable resource to survivors, whether or not legal action is ultimately sought, with practical tips and a reproducible intake form.     

Multicollinearity and the use of regression analyses in discrimination litigation

Multicollinearity is a problem that can adversely affect the estimation of coefficients in regression equations. The types of regression models used as evidence in employment discrimination cases may be particularly susceptible to estimation problems resulting from multicollinearity, yet courts have in most instances failed to address this difficulty. This paper discusses the problems associated with multi- collinearity and suggests possible sources of the multicolli- nearity, particularly in the context of employment discrimination litigation. An academic example demonstrates how multicollinearity can be identified and corrected. Other possible techniques for curing the multicollinearity or reducing its effects are also presented. The related problem of “tainted” variables, often discussed by courts in employment discrimination litigation, is differentiated from the multicollinearity problem. For regression equations to be reliable and for inferences regarding discrimination to be accurately made, courts should concern themselves with multicollinearity, and not so-called “tainting.”     

The so-called duty to warn: The psychotherapeutic duty to protect third parties from patients' violent acts

This article discusses the much-misunderstood Tarasoff decision that requires psychotherapists to protect third parties from patients' violent acts. Through a normative approach, the paper analyzes four important issues: what to do when potential victims are unknown; what to do about the fact that the patients' potential for violence may be incorrectly perceived; the value of warning potential victims; and, the problem of discharging potentially violent patients from the hospital. The author proposes that the courts adopt a more flexible substantial departure test in most cases that involve psychiatric negligence.     

Special education litigation and school psychology

When constitutional or statutory rights of exceptional children were violated, litigation was implemented as one means to obtain those rights. Legislative and administrative actions were exhausted before the issue was brought to the courts. The procedure of litigation was first initiated in 1967, and several landmark cases since then have provided prototypes for subsequent cases which concerned the rights of handicapped children. As a result of the gross injustice that existed in the education and treatment of handicapped children, there were over thirty lawsuits filed on their behalf. Education and treatment of the handicapped child, long viewed as a charitable endeavor, must now be considered as an inalienable right not to be denied to the “special” citizen. Although the courts have been forced to decide upon some of the critical issues regarding exceptional children, the implementation will be more effective and efficient if the education profession itself assumes the responsibility. This overview of significant litigation points up the evidence presented in the lawsuits which should be of concern to the practice of school psychology.     

Inpatient Standards of Care and the Suicidal Patient. Part I: General Clinical Formulations and Legal Considerations

The most common legal action involving psychiatric care is the failure to reasonably protect patients from harming themselves. In this regard it is critical to understand that courts have tended to impose much stricter standards on inpatient than on outpatient care; that at the present time, most malpractice actions involve clinical activities related to inpatient care (negligent admission, treatment, supervision, discharge, etc.). This article reviews the current climate in the legal and clinical formulation of standards of care for hospitalized adult suicidal patients. It suggests general guidelines for effective assessment, management, and treatment procedures that balance the need for high-quality care by a reasonable and prudent practitioner with the requirements of court-determined and statutory standards. The authors specifically discuss court cases that show common failure situations in inpatient care, discharge planning, and follow-up (e.g., problems in pharmacotherapy, the decision to hospitalize, the assessment of imminence and lethality, etc.). The paper also emphasizes the crucial element of clinical judgment in developing any inpatient standard of care.     

Psychology and capital litigation: Research contributions to courtroom consultation

After briefly reviewing the history of capital punishment in the United States, we describe the activities most often performed by behavioral science litigation consultants, and we review five areas of psycholegal research that courtroom consultants can call on to guide their interventions. The research literatures of most frequent use to psycholegal researchers and litigation consultants are (a) assessment of public opinion about crime and punishment, (b) the effects of death qualification during voir dire, (c) the process and effects of sentencing-phase evidence, (d) the possibility of discriminatory application of the death penalty, and (e) the effects of litigation consultation itself. Practical implications for consultants from each of these literatures are considered.     

Counterfactual thinking in mock juror assessments of negligence: A preliminary investigation

This Research Report presents an initial attempt to apply the theory of counterfactual thinking to study the cognitive processes that underlie judgments of negligence. Subjects reviewed a summary of an appellate case involving a work accident and listed all the ways in which the accident could have been undone (mutated). Participants' evaluations of the defendant's behavior were influenced by the ease of mutation of the negligent act and other mutations of the defendant's behavior, but not by the number of mutations of the plaintiffs conduct. Exploratory path analysis suggested that counterfactual thinking may have its greatest impact not as a direct influence on verdicts and damages, but rather as an indirect influence impacting verdicts through lower level judgments about the normality of the defendant's behavior and the standard of care. The results also suggest that contrary to the law, subjects base their negligence verdicts on assessments of normal care along with due care.     

Disregarded Conflicting Results with Prior Research: A Case Report in a Leading Biomedical Journal

Bibliographic negligence, i.e. omission of citation of the relevant work of other researchers, is possibly the most common type of research misconduct, leading to unfair loss of priority of authorship and undermining the reward system of science. We report a case of bibliographic negligence which we recently suffered from a leading biomedical journal. The case is discussed in the context of the editorial policy of the journal and of relevant ethical guidelines. Scientific journals should develop codes of conduct for citations. In addition, the implications and consequences of bibliographic negligence deserve thorough investigation.     

“Caring‐about” and the Problem of Overwhelming Obligations

Care theorists often think of care as involving (at least) “caring‐about”—concern or attentiveness—and “caring‐for”—acting to nurture, look after, or meet needs. One problem for any theory of care is the scope of our obligations to care in both of those senses; in particular, our capacities for “caring‐about” often outrun our capacities for “caring‐for.” Accounts of care as potentially global in scope may ascribe overwhelming obligations to moral agents; however, we are often tempted to avoid or ignore situations that may call for a caring response. I suggest that some Kantian ideas may help to strike a reasonable balance.     

Predictors of verdict and punitive damages in high-stakes civil litigation

This research investigated demographic and attitudinal- psychological predictors of verdict and amount of punitive damages awarded in high-stakes civil litigation. Four hundred and forty-six surrogate jurors, selected to be representative of actual jurors, were exposed to realistic case presentations in insurance, tobacco, and pharmaceutical cases that were about to go to trial. Hierarchical regression revealed that perceptions of the existence of a litigation crisis predicted verdict in the tobacco and pharmaceutical cases after controlling for all other variables. Demographic variables predicted verdict and punitive damage awards only modestly and in different ways in the three cases. Need for cognition, strength of will and rationality, and a perception that there is a litigation crisis predicted the amount of punitive damages awarded in the tobacco case. Litigation crisis also predicted the amount of punitive damages awarded in the pharmaceutical case. Implications for jury selection are discussed.     

Persistent Vegetative State: Clinical and Ethical Issues

Coma, vegetative state, lock-in syndrome and akinetic mutism are defined. Vegetative state is a state with no evidence of awareness of self or environment and showing cycles of sleep and wakefulness. PVS is an operational definition including time as a variable. PVS is a vegetative state that has endured or continued for at least one month. PVS can be diagnosed with a reasonable amount of medical certainty; however, the diagnosis of PVS must be kept separate from the outcome. The patient outcome can be predicted based on etiology and age. Using outcome probabilities and etiology as criteria, patients can be subdivided in 5 groups and reasonable management guidelines can be suggested. Three levels of care can be provided to PVS patients: high technology, supportive and compassionate care. Pragmatic options for the various subgroups of patients are suggested. Management decisions will remain difficult for both the family and the health-care team. The role of the physician in these difficult cases is to share the decision-making with the family.