Hospital's deep pockets will invite claims
When a mental health patient commits a violent act and harms another person, the provider will most likely be named as a defendant in subsequent lawsuits, says Roger L. Hillman, JD, an owner with the law firm of Garvey Schubert Barer in Seattle.
Hillman offers this hypothetical situation: A patient commits a violent act, and treatment records reflect that the frequency and length of sessions are either the same throughout treatment, regardless of situation, or have been adversely impacted by increased patient load. Victims might claim that either or both frequency and length of sessions violated the standard of care and lack of adequate treatment caused or contributed to the violent incident. How will the hospital defend itself?
In Washington state, there was recent litigation involving a school district and a number of mental health providers, who were named as parties to a lawsuit after a violent stabbing was committed by a mentally ill high school student who was undergoing treatment around the time she committed the crime. Plaintiffs' counsel attempted, unsuccessfully, to point to the frequency of treatment and duration of each session as establishing liability on the part of the mental health providers, Hillman explains.
"Every time there is a mass shooting in a school or a mall, the first question people ask is whether the shooter was undergoing mental health treatment and whether the provider knew he could be a danger to others," Hillman says.
In any assault by a mental health patient, the healthcare provider is likely to be named as a defendant, says David H. Smith, JD, an owner with the Garvey Schubert Barer firm. Victims will go after the provider with deep pockets because the patient is unlikely to have resources to compensate them. "They're going to argue that the mental health provider should have seen this coming and had a duty to warn or protect the injured parties," Smith says. "The argument can be effective, particularly if you have to go before a jury."
Many healthcare providers do not recognize this risk because it is not the usual type of lawsuit they face, so they don't spend time and resources preparing for such a one-off problem, Hillman says. That situation must change now that the risk is growing, he says.
One step is to make mental health physicians aware of the increased risk and particularly the connection to length and frequency of visits. Risk managers or department heads can monitor case loads and, if necessary, improving the staffing levels to accommodate the increased volume of patients.
"Physicians probably won't like to hear your advice on managing their caseload, but you can sit them down and show them the risks," Hillman says. "Show how they are seeing twice as many patients as before, spacing them out more, and spending less time with them. Walk them through how a plaintiff would use this against them, saying that if he had spent half an hour more with this person on the last visit, he would have known about the danger to others."