Physician-Patient Relationship

Question 1

Cruzan v Director, Missouri DMH

Answer 1

USSC 1990
Nancy Cruzan in MVA -> persistent vegetative state. Parents wanted to withdraw life-sustaining tx. She did not have advance directives, and a conversation w/a friend did not meet MO’s Clear and Convincing standard. USSC found Clear and Convincing standard appropriate given competing interests of pt’s liberty & and State’s interest in preserving life.

Question 2

Washington v Glucksberg

Answer 2

USSC 1997
Glucksberg, 2 other MDs, and 3 terminally ill pts sued the State of Washington claiming its ban on physician-assisted suicide was a violation of 14A liberty interests in making end-of-life decisions.
USSC ruled there is no tradition of “right to die” in the U.S.; it is not a fundamental liberty interest; and that the State has a legitimate interest in preserving life, protecting vulnerable pts, and preserving the integrity of the medical profession.
The Court issued the opinions for Washington v Glucksberg and Vacco v Quill on the same day, striking down both elements of the 14A claims (substantive in Washington and equal protection in Wacco).

Question 3

Vacco v Quill

Answer 3

USSC 1997
3 MDs and 3 terminally ill pts sued NY’s atty general, Dennis Vaco, claiming the NY State ban on physician-assisted suicide violated 14A Equal Protection in that competent pts were allowed to refuse life-sustaining tx yet were not allowed to seek assistance in ending their life. USSC did not find the 2 situations to represent similar classed of individuals entitled to equal protection: Mentally competent ppl were entitled to refuse life-sustaining tx, but “no one is permitted to assist a suicide.”

Question 4

Kaimowitz v Michigan DMH

Answer 4

Michigan Circuit Court 1973
Mr. Smith was committed to a state hospital as a “sexual psychopath” based on allegations that he murdered then raped a student nurse while admitted to a state mental hospital. More than 15 yrs later, he was transferred to a clinic for a research study on uncontrollable aggression in which surgery to the limbic system would be compared with antiandrogen hormone to see which is better at controlling aggression in males in an institutional setting. Smith and his parents gave informed consent.
Gabe Kaimowitz, an attorney with no standing in the case, leaked the anticipated experiment to the Detroit Free Press, then filed a petition alleging that pts were being illegally detained for the purpose of experimental psychosurgery.
Holding:
1. Smith’s detention was unconstitutional bc he had not had a “sexual psychopath” hearing or a determination of guilt.
2. “A person involuntarily detained in a state facility cannot give legally adequate consent to an innovative or experimental surgical procedure on the brain where the danger is high and the risks incapable of assessment.” If the surgery is widely accepted in the field, then consent could be valid.

Question 5

Canterbury v Spence

Answer 5

DC Circuit Court of Appeals 1972
19yo Jerry Canterbury had laminectomy for back pain after he and his mother were informed it was no more dangerous than any operation. He suffered paraplegia and bowel/bladder incontinence and alleged he was not informed of the 1% risk for the same.
Appellate Court reversed and remanded for a new trial, challenging the prior “reasonable medical practitioner” rule (Natanson v Kline, 1960) in favor of the “materiality of the information” standard.
Informed consent must include the inherent and potential risks of tx, the alternatives to that tx, and the likely result of foregoing tx.
A majority of states have now adopted the Canterbury v Spence “materiality of the information” standard rather than the “reasonable medical practitioner” standard initially required in Natanson v Kline, 1960.

Question 6

In re Lifschutz

Answer 6

California Supreme Court 1970
Plaintiff filed a civil suit claiming mental distress. Dr. Lifschutz asserted privilege for the pt and would not turn over the treatment records. Court detained the Dr. after finding him in contempt.
The pt holds the privilege, not the doctor.
The therapist holds no constitutional right to privacy.

Question 7

Jaffee v Redmond

Answer 7

USSC 1996
Established federal psychotherapist-patient privilege for psychiatrists, psychologists, and LSWs in the course of psychotherapy.
The conversations between a pt and therapist are protected from compelled disclosure under Federal Rule of Evidence 501.

Question 8

Doe v Roe

Answer 8

New York County Supreme Court 1977 (the only landmark ruling from a trial court - the highest court in NY is the Court of Appeals)
A former pt, Ms. Doe, brought action against her psychiatrist, Dr. Roe, and her psychiatrist’s husband, alleging they unlawfully invaded her privacy by publishing a book “which reported verbatim and extensively the pt’s thoughts, feelings, emotions, fantasies and biographies.” The trial court held that Doe was entitled to injunction and $20,000 in compensatory damages. The court rejected punitive damages because “the defendant’s actions were not willful, malicious, or wanton… merely stupid.”

Question 9

confidentiality vs privilege

Answer 9

COnfidentiality = the Clinician’s Obligation to keep information private.
Privilege = the pt’s right to bar testimony.

Question 10

federal statutes related to confidentiality

Answer 10

HIPAA: general provisions
42 CFR Part 2:
- particular to substance use dx and tx
- more stringent than HIPAA

Question 11

examples of MANDATED confidentiality breaches

Answer 11

• child, elder, and disabled abuse
• reporting certain contagious diseases
• reporting gunshot wounds

Question 12

examples of PERMISSIVE confidentiality breaches (info sharing under HIPAA)

Answer 12

• from one tx provider to another
• when info is necessary to lessen a serious and imminent threat to the health and safety of a person or the public

Question 13

privilege

Answer 13

“testimonial privilege”
Applies only in court settings.
Belongs to the pt, not the psychiatrist.
Privileged info is obtained by the doctor by interview or physical exam, directly from the pt in the course of the dr-pt relationship.

Question 14

examples of exceptions to privilege

Answer 14

(rt of private professional communications vs rt to have needed evidence in court)
- patient litigant
- court-ordered evals of competence or criminal responsibility
- if the therapist aids in a crime
- after a pt’s death if the decedent’s mental state is at issue
- pursuit of payment/bills
- in custody cases where the child would benefit

Question 15

Tarasoff v Regents of the University of California

Answer 15

Tarasoff I (1974): duty to WARN potential victim
Tarasoff II (1976):
- Duty to PROTECT potential victim. “The protective privilege ends where the public peril begins.”
- Determined that a “special relationship” exists that requires the therapist to control his pt or protect the potential victim.

Question 16

Tarasoff-related rulings

Answer 16

Jablonski v U.S. (1983): duty to warn a known potential victim. There was no direct threat, but there was hx of violence, and clinician suspected victim may be at risk.
Lipari v Sears Roebuck (1980): extended to unidentifiable victims (the public at large, Mr. & Mrs. Lipari shot randomly in nightclub).
Peterson v Washington (1983): negligent discharge resulted in unintentional violence through erratic driving. Extended from intentional to negligently-inflicted harm.
Naidu v Laird (1988): negligence found for failing to foresee potential violence 5.5 months post-discharge. (“Nadir” of these cases…)
Peck v Addison County (1985): danger to property.

Question 17

Lipari v Sears Roebuck

Answer 17

US District Court, Nebraska, 1980
Dude bought a shotgun from Sears after the salesman suggested he deny his h/o invol MH hosp on the form. 1m later, he left a VA IOP AMA, and 1m after that he randomly fired into an Omaha nightclub, killing Mr. Lipari and wounding his wife.
Mrs. Lipari sued Sears, Sears sued the U.S. govt for the VA’s negligent tx, and then so did Mrs. Lipari. Defendants filed motion to dismiss based on no cause of action against either defendant. The motion to dismiss was denied.
Although they said there was no duty to warn “at large,” a therapist has a duty to detain persons who would be dangerous if released. The Court concluded that the victims did belong to a class of individuals that were foreseeable victims: the public at large. The case was settled out of court.

Question 18

Osherhoff v Chestnut Lodge

Answer 18

1985. Dr with severe depression underwent 7m psychoanalysis w/o improvement. Left and got better with rx. Sued for not being presented ALTERNATIVE TXS during informed consent.
      “An important historical moment of transition in modern psychiatry.” (Stone 1990)

Question 19

Clites v Iowa

Answer 19

Iowa Court of Appeals, 1982
Timothy Clites, resident of state hospital since age 11 with ID, given antipsychotics for aggression from age 18-23, developed TD. Informed consent was not obtained, there was not sufficient evidence of risk of harm to self/others, he wasn’t monitored for devel of TD, staff failed to stop the meds when early signs were evident and failed to consult w/a specialist. Trial court found the defendants failed to meet the reasonable standard of care regarding the use of tranquilizers and informed consent.

Question 20

Roy v Hartogs

Answer 20

NY (Appellate) Supreme Court 1976
Dr. Hartogs told Julie Roy that sex was “therapy.” Negligence was upheld on appeal (Sex w/pts is malpractice.), but damages were reduced and punitive damages denied. Hartogs had no “evil or malicious intent.”

Question 21

types of clinical errors

Answer 21

Error of fact = failure to gather relevant data.
Error of judgment = informed, good faith decision turns out to be a mistake.

Question 22

Elements of negligence

Answer 22

Duty
Dereliction
Direct cause
Damages

Question 23

res ipsa loquitur

Answer 23

“The thing speaks for itself.”
Legal doctrine implying plaintiff need only show a particular result occurred and would not have occurred but for negligence.
Malpractice cases usually require expert witness testimony, but in res ipsa cases, the plaintiff’s evidence of injury creates probability so strong a layperson can form a reasonable belief w/o hearing from an expert, and plaintiff may be entitled to waiver or expert testimony.
Rarely invoked, but when it is, the burden of proof shifts from plaintiff to defense.
Can be applied only when 4 conditions are met:
1. Harm rarely occurs in absence of negligence.
2. Means of harm w/in defendant’s exclusive control.
3. Plaintiff did not contribute.
4. Defendant has exclusive access to facts about harm.

Question 24

causation

Answer 24

element to be proven in a tort. consists of 2 prongs:
1: cause-in-fact (also “actual cause”) - tortfeasor’s act/omission was a necessary antecedent to plaintiff’s injury. (the “but for” test)
2: proximate cause (also “legal cause”) - analyzed in terms of foreseeability. Liability imposed if defendant should have foreseen the tortious injury.

Question 25

comparative negligence

Answer 25

plaintiff’s damages are offset to degree that fact finder determines plaintiff to have contributed to harm

Question 26

contributory negligence

Answer 26

when plaintiff is found by fact finder to be negligent, in which case recovery may be totally barred. Doctrines of contributory and comparative negligence allow courts to consider plaintiff’s role in bringing about his own injury/harm.

Question 27

intervening/superseding cause

Answer 27

An event that takes effect after defendant’s negligence, breaking chain of causation.

Question 28

negligence

Answer 28

failure to behave w/level of care that someone of ordinary prudence would have exercised under the same circumstances

Question 29

standard of care

Answer 29

That degree of skill and learning that is ordinarily possessed and exercised by members of that profession in good standing.
Not singularly defined: In malpractice cases, it is multi-determined and relies on expert witness testimony, authoritative treatises, practice guidelines, and an institution’s polices and procedures.
Average practitioner standard vs Reasonably prudent practitioner.

Question 30

average practitioner standard vs reasonably prudent practitioner standard

Answer 30

AVG PRACTITIONER: (“customary practice”) The psychiatrist is required to exercise, in both dx and tx, the reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of the profession in similar circumstances.
REASONABLY PRUDENT: The psychiatrist could be held liable if a plaintiff proves that they failed to provide reasonable and prudent care in light of all the circumstances, even though the physician adhered to customary practice in the field. More than half the states have moved to a reasonably prudent practitioner standard.

Question 31

tort

Answer 31

Umbrella concept encompassing categories such as negligence, gross negligence, professional negligence, recklessness, and acts of intentional harm.

Question 32

Palsgraf v Long Island Railroad

Answer 32

1928, famous “unforeseeable plaintiff” case. Man running to board train, seemed about to fall, employee tried to push man onto train to prevent fall, man dropped package containing fireworks, which exploded, causing shock that made scales on the other end of the platform fall, injuring plaintiff.
Holding: Negligence must be founded on foreseeability of harm. “Proof of negligence in the air, so to speak, will not do.” (Sir Frederick Pollock, 1920) Ruled in favor of Long Island Railroad.

Question 33

vicarious liability doctrine

Answer 33

Form of secondary liability under the common law doctrine of agency (respondeat superior): responsibility of the superior for acts of a subordinate for which superior had the “right, ability, or duty to control.”
- employer is vicariously liable for negligent acts/omissions in the “scope of empoyment.” Employer may argue that employee engaged in “frolic and detour.”
- 3 general conditions for respondeat superior:
– act committed w/in time/space limits of the agency?
– act incidental to, or of same general nature as, responsibilities the servant is authorized to perform?
– servant motivated to benefit the master by committing the act?

Question 34

respectable minority doctrine

Answer 34

(“two schools of thought” rule)
Malpractice liability is precluded if defendant can show physicians are divided over appropriate tx course and defendant picked one of the acceptable options.

Question 35

suicide malpractice elements

Answer 35

FORESEEABILITY of suicide potential.
PRECAUTIONS TAKEN to prevent suicide once risk is acknowledged.

Question 36

Probable Standards of Care for Suicide Risk Assessment (Obegi, 2017)

Answer 36

1) gathering info from pt
2) gather data from other sources
- Bell v NYC Health & Hospitals Corp: pt d/c-ed and suicided. Prior medical records had not been obtained, but showed 3 prior SAs.
- Jablonski v U.S.: VA psychiatrist did not obtain records and did not hospitalize pt who then killed spouse
3) estimating suicide risk
- greater risk = more foreseeability = more precautions
4) tx planning
5) documentation
6) monitoring

Question 37

Natanson v Kline

Answer 37

“reasonable medical practitioner” standard of information provided during informed consent. I.e. what a similarly situated doctor would reveal under similar circumstances.
Challenged by Canterbury v Spence’s “reasonable patient standard” in which “patient’s right of self-decision shapes the duty to reveal…the scope of the doctor’s communications must be measured by the patient’s need.”
1/2 of states use reasonable physician, and 1/2 use reasonable pt standard.

Question 38

Truman v Thomas

Answer 38

plaintiff declined pap smear several times, but dr didn’t explain risks of declining.
Holding: “A physician has a duty to disclose all material info to the pt.”
Material info = “what the dr knows would be regarded as significant by a reasonable person in the pt’s position.”
Extended Spence: must also explain RISKS/BENEFITS OF DECLINING TX

Question 39

Williamson v Liptzin

Answer 39

Dr. Liptzin, a student health psychiatrist at UNC, treated Williamson, a law student, for psychosis. Williamson completed 2nd year of law school, as Liptzin set to retire. Liptzin gave 1m supply of antipsychotic, with a refill, and instructed to return in the fall to see his replacement. Williamson did not comply, and 8m later killed 2 strangers and shot a PO on streets of Chapel Hill. Found NGRI, then sued Liptzin, won $500,000. NC Court of Appeals reversed, ordered trial judge to enter directed verdict in favor of Liptzin: “defendant’s alleged negligence was not the proximate cause of patient’s injuries.”

Question 40

Creating a 3rd Party Direct Victim / “transferred negligence” doctrine

Answer 40

Giving pt DIRECT instructions or bringing 3rd party into session for “confrontation” may immerse 3rd party in tx as “quasi-pt.”
Strong advice given to pts involving 3rd parties (e.g. instructions to seek divorce) may create legal duty toward 3rd party.

Question 41

“apology laws”

Answer 41

A form of “de facto tort reform,” some health care institutions have Communication and Resolution Programs (CRPs) which encourage open communication and transparency w/pts to facilitate restitution for injured parties, and support physicians disclosure conversations w/pts. CRPs work best if apology laws explicitly protect clinicians from penalty for discussing adverse events w/pts and families.

Question 42

biases in malpractice case analysis

Answer 42

• egocentric bias: leads expert to apply inappropriately high standard
• hindsight bias: if poor outcome is known beforehand, there is a tendency to overestimate the probability that it could have been anticipated
• confirmation bias: tendency to pay greater attn to evidence that supports your opinion
• omniscient perspective: failure to use defendant’s psychiatrist’s perspective - what they knew, or should have known, prior to the damages - excluding portions of the database the defendant could not reasonable have known
• ipse dixit: “It is so bc I said it.” Failure to support opinions with factual bases.

Question 43

Aetna v McCabe

Answer 43

Aetna policy DID NOT EXPLICITLY STATE exclusion of intentional torts (sexual malpractice).

Question 44

Mazza v Huffaker

Answer 44

PUBLIC POLICY does not preclude malpractice coverage for punitive damages.

Question 45

calculus of negligence (Hand Rule)

Answer 45

Term coined by Judge Hand, describing process for determining whether a legal duty of care has been breached, originally in U.S. v Carroll Towing Co, in which an improperly secured barge drifted away and damaged several other boats.
“The owner’s duty…is a fx of 3 variables:
1) The probability that she will break away
2) The gravity of the resulting injury, if she does
3) The burden of adequate precautions.”
P x L > B, where B = cost (burden) of taking precautions, P = probability of loss, and L = severity of loss. If P x L > B, there is a duty of care for defendant.

Question 46

How to discharge the duty to protect

Answer 46

Notify victims
Notify law enforcement
Hospitalize (vol/invol)
Other reasonable steps (target hardening, increase office visits, ongoing risk assessments)

Question 47

Volk v DeMeerleer

Answer 47

WA Supreme Court 2016
We thought Tarasoff progeny were over, but this case broadened o/p responsibilities to involve taking “reasonable precautions to protect ANYONE who might foreseeably be endangered by the pt’s condition.”