Malpractice and Professional Liability

Peter Ash

Barry Nurcombe

Malpractice litigation and other forms of formal legal investigation of medical care, such as state medical licensing board investigations, are society’s means of holding physicians to appropriate standards and compensating patients who have been negligently harmed. There are problems with utilizing litigation to achieve these goals: It is an inefficient way of compensating patients, since many who have been harmed do not sue (1), many who have suffered damage and do sue were not harmed by negligence, and the costs of litigation, both financially and emotionally, are very high. Physicians who have been sued describe the process as extremely painful emotionally, even when they prevail (2). Practicing defensive medicine is common (3), though probably less of an issue in child psychiatry than in more technological medical specialties, and some psychiatrists may avoid taking on the most difficult patients. Physicians understandably hate being sued. Malpractice premiums have increased markedly over the past 30 years, triggering calls for legislative tort reform. Over half the states now have limits on noneconomic damages (pain and suffering) (4). More systematic reforms of the system have been called for, such as moving to a no-fault system adjudicated administratively, along the lines of the worker’s compensation system, but such proposals currently have very limited political support.

Compared to many medical specialties, child and adolescent psychiatry is not high risk. Even when sued, child and adolescent psychiatrists prevail most of the time. While accurate national data are difficult to come by because insurance companies keep much of their loss experience as proprietary information, analysis of the psychiatry dataset of the Physician Insurers Association of America from 1985 to 2000 for child and adolescent patients indicated that only about 14% of claims resulted in a payment, and the average payment was less than the average payment in adult psychiatric malpractice cases (5). These positive outcomes are reflected in the practice of some insurers of giving discounted premiums to child and adolescent psychiatrists.

Malpractice litigation is not the only arena in which physicians have professional liability: Medical licensing boards investigate complaints, as do ethics committees of professional associations. While such investigations do not directly result in monetary damage payments, in medical licensing investigations the ability of the clinician to practice may be at stake, and findings of fault may later be admitted as evidence in a malpractice case.

The Law of Malpractice

The term malpractice refers to an act or omission by a professional in the course of his or her professional duty that causes or aggravates an injury to a patient or client and is the consequence of a failure to exercise a reasonable degree of prudence, diligence, knowledge, or skill. To substantiate malpractice, the plaintiff must establish the following four points, known as the 4 Ds, by a preponderance of the evidence:

The clinician had a Duty of reasonable care to the patient.
There was a Dereliction of that duty, when judged by the standard of the average, prudent practitioner.
The patient sustained Damage, a compensable injury or harm.
The damage was a Direct result of the clinician’s failure to exercise a reasonable standard of care.

Duty of Care: The Doctor–Patient Relationship

The clinician owes a duty of reasonable care toward a patient when a professional relationship exists between them. This relationship is formed when a clinician explicitly or implicitly agrees to provide care to a patient. The clinician thus enters into a contract that binds him or her to provide a reasonable level of care in return for a valuable consideration (the fee). Unless the clinician has unwisely promised a cure, he or she is not bound to provide more than a reasonable level of care.

The doctor–patient relationship cannot be imposed on a competent patient, nor can a doctor be forced to care for a patient, except in special situations, such as an emergency room. Controversial situations arise when it is argued that a relationship has been implied by the physician’s actions or words. For example, the discussion of a patient’s condition by telephone before transfer to a different hospital has been held to imply a contractual relationship (6). Payment is not necessary; even free advice can create a professional relationship. The clinician should be careful about giving casual advice at cocktail parties and the like, lest it be construed that a contractual relationship has been formed.

Conversely, a physician cannot be forced to treat patients who are unable to pay for services or to use a treatment that he or she is not competent to implement. The physician also has a legal (though perhaps not an ethical) right to refuse to give aid in an emergency. Good Samaritan laws have been enacted to protect from liability those physicians who do render emergency aid, unless they have been grossly negligent (e.g., abandoning a live patient who is still hemorrhaging).

When working with minor patients, it is important to be clear with the family who the patient is. In some types of family work, the “family” is defined as the patient, and the clinician may thereby establish a doctor–patient relationship with each member of the family. When the minor is the identified patient, the physician is not taking on responsibility for treating the parents, and communications from the parent about the child are placed in the child patient’s record. However, when advice is given to a parent in a separate parent session (e.g., “Your child would be better off if the two of you divorced”), the physician is likely to be held responsible for the foreseeable consequences of that advice.

The Internet allows doctors to communicate with patients in new ways. E-mail communications between a patient who is or will be seen in the office clearly fall within an established doctor–patient relationship. Responding to a nonpatient’s email with therapeutic advice may establish a doctor–patient relationship, much as if a similar communication was conducted over the telephone (7). Simply responding to a prospective patient’s email with a referral to someone in their geographic area does not establish a doctor–patient relationship. While the law is still evolving in this area, the trend is that the medicine is practiced in the state where the patient resides, not where the physician practices (8), so physicians who conduct email treatment with a patient who resides in a state where the clinician does not have a license may be practicing without a license. Prudent risk management dictates that professional email communications with nonpatients that might be construed as therapeutic contain a clear disclaimer that the email does not constitute professional advice and refer the patient to their physician for such advice. Similarly, general information about mental health conditions which a physician may post on his or her website should likewise contain a disclaimer. Professional risk management organizations have developed guidelines for practitioner websites (9,10).

As psychiatric practice has become more focused on psychopharmacology, collaborative treatment relationships in which the psychiatrist handles medications while another mental health professional conducts psychotherapy have become more common. These relationships often leave ambiguous which clinician is responsible for what. Simon (11) recommends that these understandings be made explicit through written agreement or that the physician write the collaborating mental health provider a letter detailing such issues as what the physician’s role will be, who is providing emergency coverage, and the expectations of communication between the collaborating providers.

After the termination of the contract, the physician owes no further obligation to the patient other than that of confidentiality. Physicians who terminate contracts unilaterally and without reasonable cause are at risk of actions for abandonment. The physician must give the patient due notice of termination and must ensure that necessary arrangements are made for alternative care. If the patient resists termination, failure to refer to another physician may be construed as negligence. Some risk managers advise that patients be notified at the outset that noncompliance with treatment is deemed a termination of treatment.

Vicarious Liability

In accordance with the doctrine of respondeat superior (let the master answer), a physician is legally responsible for the negligent actions of employees or supervisees. Thus, a psychiatrist may be held liable for the negligent or outrageous actions of his secretary and office staff or house officers whom he or she supervises. In malpractice cases involving inpatients, the hospital is often a defendant because of its vicarious liability for the actions of nurses, ward staff, and house officers.

Supervising and Consulting Relationships

Supervisors who provide care, supervise the care of residents, or are the attending physician of record face malpractice exposure for the care they direct, and may be held liable for care they supervise, either as vicariously liable for the actions of a house officer, or as directly liable for inadequate supervision. Consider a suit filed subsequent to an adolescent’s suicide after the adolescent was brought to an emergency room and examined by a resident who discharged the patient after discussion with the chief resident but without telephoning the attending child psychiatrist. Assuming the overall care was found negligent, courts may apportion blame differently, depending on local interpretations of whether residents are held to the standard of specialists and the nature of the contract of the on-call attending (who has been found vicariously liable in some cases even when not contacted). If the attending had been called, then the apportioning problem is still complex. At this time there exists no clear standard as to what constitutes reasonable supervision (12).

When the physician is asked by another clinician to see a patient, the consulting physician’s liability for malpractice is governed by whether a doctor–patient relationship was created. If the consulting physician provides consultation to the treating doctor, but does not write orders or otherwise direct the treatment, then ordinarily no doctor–patient relationship is formed, and the consultant’s duty is only to the consultee doctor. However, if the consulting physician writes orders or otherwise directs care, then the court will usually find that a doctor–patient relationship was created.

Clinicians may examine people on behalf of a third party, such as a school or insurer, to whom they owe a contractual duty. However, if the examination causes the examinee harm, for example, by failure to detect suicidality or the possibility of child abuse, the liability risk is ambiguous. Some courts have held that the clinician’s duty is to the employer; others have held that, if the person being examined reasonably relied on the examination for diagnosis, a duty may be owed. The physician is advised to inform the examinee that the purpose of the examination is not therapeutic. In court-ordered evaluations, courts typically find that the evaluator is immune as an agent of the court (13).

Fiduciary Relationship

The clinician’s obligations toward the patient go beyond the duty to provide reasonable care. The relationship between psychiatrist and patient is analogous to that between guardian and ward. The patient has a right to expect the physician to show good faith, that is, to act in the patient’s best interest.
This, the physician’s fiduciary duty, is especially onerous in psychiatry, because emotionally disturbed people share their most private experiences with their mental health clinicians and are thus very vulnerable. Improper sexual contact, invasion of privacy, breach of confidentiality, outrageous manipulation of the patient’s emotions, and the exploitation of patients for financial gain are all examples of double agentry and breaches of fiduciary trust. These intentional torts are discussed later in this chapter.

Dereliction of Duty: Breach of the Standard of Care

In accordance with the contract inherent in the doctor–patient relationship, the physician is bound to provide a reasonable level of care. In other words, the physician contracts to provide reasonable, prudent, diligent, knowledgeable, and skillful medical care. Unless the clinician has unwisely promised a cure, the contract does not call for exceptional care, only a level of expertise equivalent to that exercised under similar circumstances by the average practitioner in the same field of medicine. The clinician is not liable for an error of judgment unless the error represented a substandard level of care. If the clinician exercised reasonable judgment, the clinician is not responsible simply because the patient suffers a bad outcome. If clinicians differ as to how a particular issue should be addressed, it is enough to show that there is a respectable minority who endorse the approach that was taken. The considerable variation among clinicians in methods of treatment has made standards difficult to establish, particularly in regard to psychotherapy, where there are many different approaches. The standard is tighter with regard to precautions against suicide or violence or the monitoring of medication.

The standard of care traditionally required that the clinician be judged by the professional standard in the locality. However, the emergence of national standards has caused the courts to move in this direction, with allowance for the paucity of resources in some areas. Since the statute of limitations typically does not begin to toll until a child reaches the age of majority, cases involving children may be filed many years after the alleged malpractice took place. The standard of care is linked to the standard of professional practice at the time of the alleged breach of duty. If a clinician practices medicine in a specialty area for which he or she is not trained, the clinician is likely to be held to the standard applying to that specialty.

Breach of the Duty of Care

Malpractice suits are founded in the legal theories of intentional and negligent torts. An intentional tort involves deliberate intent on the part of the wrongdoer or wrongful conduct that the wrongdoer ought to have known was unacceptable (in which case it is known as a quasi-intentional tort). Examples of intentional torts are assault, battery, false imprisonment, fraudulent commitment, defamation, invasion of privacy, sexual exploitation, and the intentional infliction of emotional distress. Expert testimony is not required to substantiate an intentional tort, and malpractice insurance may not cover it. A negligent tort involves an unintentional error that reflects a failure by the clinician to exercise a reasonable standard of medical care. Expert testimony is required for proof of negligence.

In determining whether treatment fell below the standard of care, the courts may look to a variety of sources (14), and inquire whether the treatment:

Violates a statute (such as the child abuse reporting law or HIPAA regulations)
Violates a licensing board regulation or other regulatory agency holdings (such as FDA guidelines)
Violates an ethical principle of the profession (such as confidentiality)
Violates case law (such as the Tarasoff duty to protect)
Violates the professional consensus of the community

Professional consensus is the least clear of these elements, and the one about which expert opinion at trial most often differs. When there is no disagreement about what treatment the defendant doctor actually provided, the difficult question is whether that course was reasonable in the specific case at issue. When professional organizations began developing published practice parameters or practice guidelines, clinicians were concerned that such guidelines would create liability by setting the standard of practice. In response to this concern, published guidelines typically contain disclaimers stating the guidelines do not define a standard of practice. Guidelines have often proved useful to defendant doctors by indicating that a range of approaches are acceptable. In day-to-day work, in considering a course of action, a clinician should ask himself, “What would my peers think of this?” and “What would I think if a colleague told me he was going to do this?” If the answer is to be one of concern, then the physician should consider the approach carefully and document the rationale fully.

Damage, Harm, or Injury

Harm may be physical or psychological. Physical harm or damage resulting from negligence includes, for example, side effects of medication such as tardive dyskinesia, physical injury incurred when a patient is improperly restrained, or homicide or suicide. Psychological damages may be of two types: general pain and suffering, and damages to the patient’s mental health. Expert testimony is not needed to establish pain and suffering: The jury can draw its own conclusion as to how much suffering it thinks a normal person would suffer given a particular harm. Psychiatric evidence may be utilized to inform the jury about the impact of an injury on the plaintiff’s capacity to enjoy life. Mental health damages typically require expert testimony, as, for example, when a plaintiff alleges that her major depressive disorder has been aggravated by traumatic treatment. Injury to a parent or child may give rise to an action for loss of consortium, that is, loss of the care, comfort, and society of a spouse, parent, or child.

Proximate Cause

The plaintiff must substantiate that the defendant’s wrongful act or omission directly caused or aggravated the patient’s injury. In other words, it must be proven that, but for the wrongful conduct, the damage would not have occurred or would not have been aggravated or that a direct, uninterrupted link or foreseeable chain of events exists between the wrongful conduct and the injury or its aggravation. The legal concept of cause is analogous to the psychiatric concept of precipitation or aggravation. Some states have comparative or contributory negligence rules that instruct juries to consider whether the plaintiff’s negligence, such as failing to inform the clinician of a worsening condition, or failing to cooperate with treatment, contributed to the bad outcome, and reduce damages accordingly. Because a child or adolescent patient’s responsibility is generally held to be lower than that of an adult, comparative negligence issues are uncommon in child or adolescent malpractice cases.

Restitutive Payment

If the defendant is found liable, the judge or jury may award damages. Damages are designed to be compensatory, that is,
to recompense the victim for medical expenses, pain, suffering, loss of enjoyment of life, impairment of capacity, and future loss of earnings and to restore the plaintiff to his or her original position, so far as money is able to do so. If the defendant’s behavior has been egregiously outrageous, malicious, or wanton, punitive damages may be imposed over and above compensatory damages, but are rare in malpractice cases. By federal law, all payments whether as a result of settlement talks or by trial verdict, are reported to the National Practitioner Data Bank (15).

Managed Care

Although managed care has had considerable impact on clinical practice, it has had rather little impact on malpractice litigation. From the law’s perspective, the clinician is responsible for prescribing needed treatment, and managed care deals only with payment of fees. In Wickline v. State of California (1986) (16), the court affirmed the physician’s duty to prescribe care, and suggested that the physician had a duty to appeal adverse decisions made by managed care reviewers. In clinical practice, clinicians routinely take into account the ability of the patient to pay in making treatment recommendations.

A number of states have attempted to pass laws holding managed care entities liable for denying authorization or payment for needed care. However, most managed care contracts are employee benefits, and are covered under the federal Employee Retirement Income Responsibility Act (ERISA). Congress originally passed ERISA to regulate pensions, but it has been interpreted to cover employee health care benefits as well. ERISA has two major prongs that limit the liability of managed care companies: First, it preempts any state law with which it conflicts, and second, it limits the damage for error to the amount of the benefit denied (the cost of treatment). Thus, state laws which assign liability to managed care are voided, and the most the patient can recover for improperly denied care is the cost of the care. The courts have recognized that this leaves patients with little redress (17), but reform, so called “patient rights” legislation, requires congressional action.

In malpractice litigation, managed care issues rarely surface: Physicians are reluctant to argue that their care, which resulted in a bad outcome, was limited by financial considerations, and plaintiffs are reluctant to assert that they happily would have paid for expensive care out of pocket if only the doctor had recommended it.

Course of a Typical Case

If a clinician’s patient suffers a serious adverse treatment-related event, the clinician should report the matter to his or her insurer and follow their risk management advice. With minor patients, the parents control access to information, so no formal release is necessary to discuss with them what occurred, unlike in cases involving adults. A number of states have passed legislation which prohibits apologies or expressions of sympathy or regret from later being admitted as evidence of physician negligence. Peer-review activities, such as morbidity and mortality conferences, are not discoverable to prove liability. The clinician then enters an uneasy waiting period to see if suit is filed. For minor patients, the statute of limitations (the period during which suit can be filed) does not begin to run until the child becomes an adult, so the wait can be quite long. Attorneys for plaintiffs in malpractice actions typically work on a contingency fee basis in which they initially bear the costs of litigation. Attorneys therefore screen cases carefully before making a judgment that spending the time and money to pursue the case is likely to be profitable. If the physician is served with notice of being sued, the malpractice insurance carrier should immediately be notified.

After suit is filed, the discovery phase begins, which will involve both sides retaining experts and taking depositions, including the deposition of the defendant doctor. Settlement talks also occur in this period. Whether the malpractice insurer can settle without the agreement of the defendant doctor depends on the terms of the insurance contract. If the case does not settle, it progresses to trial. Halleck (18), an experienced forensic psychiatrist who had himself testified in numerous malpractice actions, has described how emotionally wrenching even he found being a defendant. If money is paid to the plaintiff, either as a product of settlement negotiations or a court verdict, the amount and doctor’s name are reported to the National Practitioner Data Bank, and the information is available to credentialing bodies, licensing boards, insurers, and managed care entities. This publicity has reduced doctors’ willingness to settle a case for “nuisance value.”

Circumstances in Which Malpractice Is Most Likely to Occur

While in many ways child and adolescent malpractice cases are similar to adult malpractice cases, only involving younger patients, they differ from adult cases in a number of respects. First, minors are less responsible for their acts, which tends to shift responsibility to the clinician and the parents. Second, minors typically cannot consent to treatment, which introduces a third party decisionmaker, usually the parents, into the case. Third, parents are often involved as quasipatients because they receive advice from the clinician. And finally, juries are sympathetic to injured children. While an allegation of malpractice can involve any aspect of practice, the vast majority of cases fall into one of the several areas shown in Table 7.3.4.1 and described here.

Issues Pertaining to Dangerousness

From a malpractice perspective, the central questions are first, whether the danger was reasonably foreseeable, and second, if it was, whether the clinician took adequate steps to protect the patient and potential victims. Foreseeability focuses on the adequacy of the assessment of risk, and protection focuses on the interventions employed once significant risk is found. While there is general acceptance that psychiatrists lack the ability to accurately predict violence, there is increasing agreement on the standards for assessing the risk of violence.

Suicide

Suicide of a young person is a tragedy. Assessment and treatment of suicidal children and adolescents are covered in detail in Chapter 5.4.3. Assessment of suicidal intent is more difficult in adolescents than it is in adults because the rate of suicidal ideation is so high in middle to late adolescents. In 2003, the Youth Risk Behavior Surveillance study found that 16.9% of high school students had seriously considered suicide in the previous 12 months, 16.5% had made plans, 8.5% had attempted suicide, and 2.9% had made an attempt that required medical attention (19). When these rates are compared to the completed suicide rate of approximately .007%, it is clear that the ratio of suicidal ideation to completed suicide is very high (over 2000:1). Assuming that an adequate assessment was conducted, documentation of the assessment is key. The oft-seen suicide assessment note of “SI-”
(suicidal ideation negative) does not offer much protection to a defendant psychiatrist because it fails to document the components of the suicide assessment, such as what history was obtained about prior attempts, family history, plan, etc. Where some suicide risk is present, assessment entails weighing risk factors and protective factors. Good documentation of risk and protective factors, and of the physician’s reasoning about intervention, is the best protection in the event of an adverse outcome. On an inpatient unit, the psychiatrist should also document his or her review of the assessments of others, such as nurses and house officers. Timely, clear, legible, pertinent, thorough, dated, timed, and signed records are the key to communication and the best proof that the hospital and staff have exercised reasonable care. In Abille v. United States (20), after a psychiatrist transferred a patient from a suicidal status to a less dangerous status, the patient committed suicide. The finding of negligence against the defendant hinged on the psychiatrist’s failure to keep detailed records that explained his decision to transfer the patient, even though it was conceded that, under the circumstances, the decision may have been reasonable. Finally, it is important to keep in mind that suicide assessment is a process, and for depressed or suicidal youth, repeated assessments need to be documented.

TABLE 7.3.4.1 COMMON ISSUES IN MALPRACTICE LITIGATION

Area of Practice	Example Plaintiff Allegation
Dangerousness
Suicide	Weak suicide assessment documentation: “SI -”
Homicide	No violence risk assessment in chart
Failure to protect from	Inpatient sexually assaulted by danger another inpatient
Failure to protect third parties	Dangerous patient escapes from hospital and family not notified
Protecting and releasing information	Confidential information released without authorization
Treatment
Failure to obtain informed consent	Possible side effects not discussed
Psychotherapy	Implanted memories of sexual abuse
Sex with patient	Therapist had sex with patient
Medication	Girl with bipolar disorder treated with sodium divalproex for 8 months gives birth to baby with birth defects and there is no documentation of pregnancy status when medication is started
Ending treatment
Negligent discharge	Patient discharged while still suicidal
Abandonment	Therapist terminated treatment without referral when patient failed to pay bill

If a physician determines that the patient is at significant risk for suicide, then he or she has a duty to institute reasonable precautions. If the clinician decides not to hospitalize the patient, it is important to document the protective factors and interventions that were employed. For youthful patients, this often involves utilizing the family to monitor the patient’s condition, provide some protection, and alert the clinician if the situation deteriorates. The child or adolescent’s risk for suicide should be discussed with the parents. If the patient is in the hospital, it is important to document the physician’s review of observations of other care providers and to document the reasons when levels of supervision are reduced.

What if the patient refuses to cooperate with the admitting psychiatrist, who consequently does not elicit and diagnose an imminent suicide risk? In Skar v. City of Lincoln, Nebraska (21), a recalcitrant patient injured himself in a suicide attempt. The court found for the defendant and held that the patient had a duty to cooperate with his physician as far as he was able. However, it is essential in such a case that the psychiatrist record the questions put to the patient and the patient’s responses or failure to respond. Also, with minor patients who can not legally consent to treatment, courts are likely to apportion less responsibility to the patient.

Failure to Protect or Control a Violent or Sexually Aggressive Patient

Clinicians and hospitals assume a duty of care toward patients with a potential for violence. The psychiatrist must carefully assess the potential for danger and must ensure that the hospital staff takes adequate precautions to protect a violent patient from harming others. Past medical records should be scrutinized concerning violence potential, and referring agents and parents should be questioned. In accordance with the imminence of the risk, housing in a secure unit, confinement to a room, close observation, a search of clothing and personal effects, and removal of all dangerous objects (belts, mirrors), may be required. If the patient is medicated, staff members should check that medication is actually swallowed. It is essential that the degree and nature of risk be communicated to all staff who care for the patient.

The prevalence of sexual abuse and its relationship to psychiatric disorder mean that many minors admitted to psychiatric hospitals are at risk of precocious sexual activity and unwanted pregnancy. Suicide and sexual activity involving latency-aged inpatients have been reported to be the most common types of malpractice action brought against child psychiatry training programs (22). These cases may involve two patients cared for by different doctors, and raise complicated confidentiality problems (can the plaintiff-victim get access to the medical file of the perpetrator?). The central issues are the foresight involving the risk of the activity occurring, and the adequacy of nursing monitoring of patient interaction. Known perpetrators should be closely observed and housed in single rooms, if necessary. However, the closeness of the possible observation decreases if the therapeutic environment is less restrictive, for example, in a residential treatment center.

Negligent Release or Discharge of a Suicidal or Violent Patient

A patient may harm himself or herself or others while on pass in the grounds of the hospital, on leave with relatives or friends, after discharge, or after absconding from a hospital. Was the tragedy foreseeable by a reasonably prudent psychiatrist? This is the question that the courts seek to answer. In doing so, they are aware that the safety of the public must be balanced against the need to rehabilitate patients, that reasonable, calculated risks must often be taken, and that bona fide errors of clinical judgment are unavoidable (23).

Increasing pressure by managed-care organizations, Medicaid agencies, and insurers has raised the specter of premature discharge against medical advice forced by withdrawal of
funding. The clinician should be aware that legal responsibility for any harm that consequently befalls the patient or community will be placed on his or her shoulders. The risk may be so great that the hospital should bear the cost of continued hospitalization.

Wrongful Injury, Assault, and Battery

A patient injured by staff members who use excessive force to subdue him or her may have a claim against the hospital for battery or wrongful injury. Wrongful injury may also be claimed when one patient is harmed by another whom the staff could not control; however, the plaintiff would have to establish that the hospital was derelict in its duty to control the violent patient.

Seclusion and restraint present serious liability risks. They may be legitimate management techniques when the risk of harm is imminent and there are no alternatives; but they should not be used to compensate for understaffing. Physical control should be time limited, and the patient should be examined by a physician if the maximum permissible time (e.g., 1 hour) requires extension. Seclusion and restraint should never be ordered “as needed.” Quality assurance tracking is required to ensure that the use of physical controls does not become excessive.

If the person causing the harm is a hospital employee, the hospital may be liable, particularly if it were known that the employee had a propensity for violence or sexual misbehavior (24). The hospital may also be liable for the misbehavior of physicians, agency nurses, or others who work in a hospital but who are not employed by it. State institutions may claim sovereign immunity, which precludes litigants from suing governmental institutions; however, most jurisdictions have greatly limited or abolished this doctrine.

Failure to Protect Endangered Third Parties

Prior to the first Tarasoff decision (25) in 1974, clinicians had duties to their patients, but not to third parties. So, if a patient harmed a third party, the patient might have grounds to sue the clinician for failing to treat or restrain him, but the victim could not successfully sue the clinician. This was in line with general negligence principles which hold that in most situations, one does not have a duty to protect third parties. Thus, if a man sees someone drowning in a river, he has no legal duty to help (although he may have a moral duty). In the clinical situation, it was also thought that the patient’s confidentiality prevented notifying a potential victim of threats, and that psychiatrists’ inability to accurately predict violence limited their ability to intervene.

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