Psychiatrists’ Liability for Patient’s Violence Against Other People: Washington Supreme Court Abolishes the Inpatient-Outpatient Distinction

By Alex Stein

In a recent decision, Volk v. DeMeerleer, 386 P.3d 254 (Wash. 2016), the Washington Supreme Court relaxed the “control” prerequisite for psychiatrists’ duty to protect third parties against violent patients.

The Court made this decision in a case involving a psychiatric patient who murdered his girlfriend and her nine-year old son and then committed suicide (after attempting to kill the girlfriend’s older son as well). For nine years leading up to that tragedy, the patient received outpatient care from the defendant psychiatrist, during which he expressed suicidal and homicidal ideations (without naming the potential victims).

The Court held that the psychiatrist had a “special relationship” with the victims because he was able to control the patient. Correspondingly, the psychiatrist had a duty to exercise “reasonable care to act consistent with the standards of the mental health profession, in order to protect the foreseeable victims of his or her patient.” The Court reasoned in this connection that some ability to control the patient’s conduct is sufficient for the “special relationship” and the consequent duty of care to exist. For that reason, psychiatrists should assume responsibility not only for an inpatient’s actions, but also in connection with an outpatient’s violence against third parties.

The Court explained that “Even bearing in mind the lesser amount of control available to mental health professionals in the outpatient setting, sufficient control nevertheless exists to recognize the duty. There are a number of preventative measures mental health professionals can undertake in the outpatient setting, even without actual custodial control …. in order to mitigate or prevent their patients’ foreseeable violent-actions. Given this reasoning, we find that absolute control is unnecessary, and the actions available to mental health professionals, even in the outpatient setting, weigh in favor of imposing a duty.”

The Court also mentioned that a psychiatrist’s obligation to protect third parties against patients’ violence will normally set aside her confidentiality obligation to the patient.

This ruling expands the conventional scope of psychiatrists’ liability to third-party victims. Cf. Rivera v. New York City Health & Hosp. Corp., 191 F.Supp.2d 412 (S.D.N.Y. 2002) (imposing duty to protect third parties on a psychiatrist authorized to confine outpatient to mental institution). The Court justified this expansion by a strong public interest in safety from violent assaults (a factor that played an important role in the landmark California Supreme Court decision, Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334 (Cal. 1976)) while underscoring that “requiring that mental health professionals use the standards of the mental health profession to arrive at the informed assessment of their patients’ dangerousness is not an unworkable requirement.”

Furthermore, the Court noted in its decision that a third-party victim’s suit against a psychiatrist sounds in “negligence” and not in “medical malpractice.” If followed by other courts, this categorization may remove from psychiatrists the special protections granted to defendants in suits for medical malpractice.

Justice Charles K. Wiggins dissented from this decision. His dissent favored the retention of the traditional “actual control” requirement. As he observed (properly, as far as positive law is concerned), “[the Court’s] expansion of liability is unsupported either by our case law or by the Second Restatement §§ 315-319; the majority functionally adopts the Third Restatement § 41, declining to find any capacity for control before imposing a duty to control. Such a substantial transition should be made plainly, explicitly, and only after full discussion and careful consideration—none of which has happened here.”

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Doing away with the inpatient-outpatient distinction in the context of psychiatric malpractice is a developing trend among courts. Last year, Florida’s Supreme Court abolished this distinction in determining psychiatrists’ liability for a patient’s suicide. See Chirillo v. Granicz, 199 So.3d 246 (Fla. 2016), and my discussion of this decision here. This trend may have some undesirable chilling effects on psychiatric care: see Shahar Dillbary, Griffin Sims Edwards & Fredrick E. Vars, The Costs of Suicide, 92 Ind. L.J. (forthcoming in 2017).

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