Mental Health Malpractice in the 1990S

California Western School of Law CWSL Scholarly Commons Faculty Scholarship 1991 Mental Health Malpractice in the 1990s Steven R. Smith California Western School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/fs Part of the Law and Psychology Commons Recommended Citation Smith, Steven R., "Mental Health Malpractice in the 1990s" (1991). Faculty Scholarship. 118. https://scholarlycommons.law.cwsl.edu/fs/118 This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of CWSL Scholarly Commons. For more information, please contact [email protected]. LIABILITY MENTAL HEALTH MALPRACTICE IN THE 1990s Steven R. Smith* Table of Contents I INTRODUCTION .................................. 210 I1 CURRENT LEVEL OF MALPRACTICE CLAIMS .......... 212 II TYPES AND AREAS OF MALPRACTICE CLAIMS ........ 217 A. Legal Basis of Liability .................... 218 B. Areas of Malpractice Liability .............. 221 IV. PROTECTING THIRD PARTIES FROM DANGEROUS PATIENTS ...................................... 242 A. The Duty to Protect (or Warn) ............. 243 B. Tarasoff Statutes .......................... 246 C. Reporting Obligations ...................... 250 V. INSTITUTIONAL LIABIIY ......................... 252 VI. LLABIUTY IN PERSPECTIVE......................... 257 VII MALPRACTICE IN THE 1990S ...................... 259 A. IncreasingLiability ........................ 259 B. Reducing Liability ......................... 265 C. Malpractice Directions ..................... 267 VIH. AN AGENDA FOR MALPRACTICE REFORMS IN THE 1990s 269 A. Problems with the Current System .......... 269 B. Reform Proposals.......................... 273 Dean and Professor of Law, Cleveland State University. J.D., M.A. University of Iowa; B.A., Buena Vista College. The author would like to thank the librarians and staffs of the law libraries of Cleveland State University and the University of Louisville, and their colleagues throughout the country who also pamper legal scholars. 209 210 HOUSTON LAW REVIEW [Vol. 28:209 C. Reforms for the 1990s ...................... 276 IX. CONCLUSION .................................... 281 I. INTRODUCTION Mental health professionals1 have been telling a lot of lawyer jokes involving laboratory rats,2 pitbulls,5 skunks in the middle of the road,4 and sharks.5 Often, lawyer stories increase as a profession's malpractice claims rise, as has been the case with the mental health profession.0 The last two decades have produced significant 1. "Mental health professionals" is a somewhat uncertain term because a wide variety of people provide mental health services of some sort. Everyone would include psychiatrists and psychologists in the definition of mental health professionals. Even these professionals, however, may be difficult to identify. All physicians can practice psychiatry, and many of those physicians calling themselves psychiatrists are not board certified. Psychologists are licensed by all states, buit in some states psychologists (without doctoral training) may not be eligible for full independent practice, so the term "psychologist" is applied to a range of professionals. Other professions that may fall in the category of mental health professions include social workers, counselors, and psychiatric nurses. A variety of other psychothera- pists, including expressive therapists, sex therapists, and pastoral counselors, also may be considered mental health professionals. Even some bartenders claim to be mental health professionals. (They contend that they are more readily available than psychiatrists, less expensive, and much less likely to suggest that the "patients" give up drinking.) In this article, the term generally refers to psychiatrists and psychologists, and occasionally to social workers, psychiatric nurses, and counselors. "Patients" refers to the consumers of all mental health services. There is a debate concerning the proper name for these consumers. I will use the traditional term "patients" in this paper even though some mental health professionals do not use the term. 2. Some mental health professionals have suggested that psychological experiments be performed on attorneys rather than rats. Proponents claim that lawyers are more plentiful than lab animals, that torture or abuse of attorneys would cause no public outcry, and that lab assistants are less likely to become attached to attorneys than to rats. In addition, they claim, there are some things rats just won't do. 3. "What is brown and white and looks good on a lawyer?" "A pitbull." 4. Someone asked, "What is the difference between a dead skunk and a dead lawyer in the middle of the road?" The mental health professional replied, "There are skid marks in front of the skunk." 5. A minister, a mental health professional and a lawyer were adrift in a lifeboat in shark infested waters when they spotted land. The currents changed and they were being drawn back out to sea, and it was clear someone would have to jump in the water with a rope and swim to shore to pull the boat in. As the minister prayed, the lawyer volunteered for the dangerous mission and jumped in. The sharks did not attack. Indeed, they gave the lawyer a lift on their backs. "Our prayers have been answered," cried the minister. "Prayer had nothing to do with it," responded the mental health professional. "It was professional courtesy." 6. See, e.g., Bonnie, ProfessionalLiability and the Quality of Mental Health Care, 16 L. MED. & HEnATH CAR 229, 229 (1988) (noting that a lawyer in a gathering of health professionals "can expect to be bombarded by complaints about the law of professional liability and the high cost of malpractice insurance"). 1991] MENTAL HEALTH MALPRACTICE changes in the malpractice liability of mental health professionals and the institutions in which they work. One commentator has de- scribed the increased frequency of lawsuits and settlements, the expansion of duties to nonpatient third parties, and the size of some awards as "an avalanche of claims" that "is a crisis in the 7 making." Whether there will be a "crisis" may be debatable, but during the 1990s the liability of mental health professionals and institutions probably will expand.8 Any malpractice reforms to limit liability most likely will be more than offset by an increase in claims. This increase will result from better definitions of mental health standards of care, greater willingness of patients to seek compensa- tion for injuries, and expanded liability to third parties harmed by mental health patients.9 Physical injuries (e.g., suicides, homicides, and harm from medications) will continue to be important due to the size of damages in such cases. At the same time, patient expec- tations of successful treatment and concerns over confidentiality may increase liability for nonphysical injuries. Finally, the obliga- tion of mental health institutions to supervise professionals prac- ticing within the institutions, as well as expanded vicarious liability, will tend to increase malpractice claims against these institutions.I" In the past, mental health practitioners have been protected from liability by a variety of legal rules and the stigma associated with being a mental patient. Those protections are be- ginning to disappear. During the 1990s, the mental health and the legal professions ought to develop alternatives to the current civil trial system. The 7. J. ROBERTSON, PSYCHIATRIC MALx.Acricz- LIABILITY oF MENTrAL HALTH PRoFEs- SioNALS 5 (1988); see also 3 M. PERLm, MFNTAL DLsBU.rrv LAW: CIvIL Aim CRmu;hL (1989) (providing an overview of the various types of mental health malpractice and concluding that the situation is worsening). For additional excellent, recent reviews of mental health malpractice, see . COHEN, IwPRACTicE A GuID FOR MENTAL HEALTH PRoFEssIoNs (1979); B. FURROW, MALPRACTICE IN PSYCHOTHERAPY (1980); B. SCHULTZ, LEGAL LIABILrY IN PsYcHo- THERAPY (1982); J. S=ITH, MEDIcAL MALPRACTiCE PSYcHIATRIC CARE (1986). 8. Although many factors will tend to increase mental health malpractice claims, I predict that the increase will be more gradual and not actually amount to a crisis. Refer to notes 304-54 infra and accompanying text. 9. Refer to notes 210-33 infra and accompanying text. See generally Tancredi & Weisstub, Malpractice in America: Toward a Restructuringof the Psychiatrist-PatientRe- lationship, in 2 LAW AND MENTAL HEALTH: ITERNATIONAL PERSPE VsS 83 (D. Weisstub ed. 1984). 10. Malpractice claims against mental health institutions present especially difficult questions. Refer to notes 261-99 infra and accompanying text. HOUSTON LAW REVIEW [Vol. 28:209 goal should be to compensate those injured in psychotherapy without requiring that they reveal publicly a tremendous amount of very private information from therapy. Reforms also should ad- dress the difficulty of demonstrating to lay jurors the appropriate standard of mental health care and proving causation and injury. This article analyzes the current levels and kinds of mental health malpractice claims. It also discusses the direction of individ- ual and institutional malpractice in the 1990s and considers poten- tial reforms. Finally, the article argues that the current system is inadequate to deal with many mental health injuries and that patient plaintiffs should have the option of pursuing malpractice claims in a private, less threatening forum.11 II. CURRENT LEVEL

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