The Least Bad Choice

Health care attorney Eric Neiman fears the legal implications of Volk v. DeMeerleer

Published in 2018 Oregon Super Lawyers Magazine

About half of my practice is behavioral health law, where I represent providers of treatment for mental illness and substance abuse. It sounds kind of dry, but in the middle of an opioid epidemic it’s a really big thing. 

Lately, I’ve also been working on a lot of duty-to-warn issues.

The Washington Supreme Court, in December 2016, decided a case [Volk v. DeMeerleer] in which it said a psychiatrist could be liable for a patient’s violent acts toward other people. It sounds like it could maybe make sense, but the fact pattern was that the psychiatrist hadn’t seen the patient for three months and at the last visit, the patient expressed nothing negative about his former girlfriend. It represented a big expansion in liability to mental health providers. But, really, it has implications for any kind of health care provider. 

Say you have a lot of people who come into hospital emergency systems with troubling thoughts that they’re never going to act on. The question is, what does a provider do about that? Volk v. DeMeerleer was a game-changer. In fact, when it was before the court, there was an editorial in The New York Times urging it not to reach the decision it ultimately did.

The Volk decision doesn’t give any guidance on what to warn about, when, to whom and what would cause it. We’re talking about the inherent unpredictability of somebody doing something violent to themselves or others. Much of the discussion has been, ‘Are health care professionals now going to over-report out of fear of liability, and will that drive people away from treatment?’ They seek help for troubled thoughts, and what they get back is not help, but their secret is publicized. Some people have been studying that, but the data sample is small. It’s hard to assess the impact until there’s more litigation and trial outcomes.

The big-ticket item associated with this is mass shootings. You’ve got a lot of perpetrators—like Adam Lanza—who had been seeking mental health treatment. The question is: Does every mass shooting, or every individual act of violence, turn into a lawsuit against a health provider who saw the patient, and, in hindsight, could have done something?

It’s very difficult to do any kind of training in that scenario. I’ve written and spoken about this, and people have said, “What’s your advice [on how not to get sued]?” I don’t have any great advice, except make sure your documentation is good and don’t practice defensively. I’d like to say there’s an algorithm you can provide to a health professional and say, “If you follow this, you can’t get sued.” There isn’t. It’s hard to give people advice other than, “Keep doing what you’re doing; we’re just going to have to try some cases before juries.” I don’t think they like that answer, but I really think that’s what’s going to have to happen. We have to see what the community thinks about the profession’s ability to predict violence.

Usually I listen to the facts of the case and consider things like what it’s going to do to the patient’s treatment plan to break confidentiality. Is that worse, and driving them out of treatment to cause another or a bigger kind of risk? The reality is that it’s very difficult to predict violence.

The way I always frame it is: What’s the least bad choice?

I’m also seeing more litigation against doctors for patients getting addicted to pain killers, and against mental health providers for not preventing suicides. Those cases were traditionally thought to not be [winners]. With drugs, the thinking was you’re making a choice. But now the tobacco model is more prevalent—that you’re a victim of an addiction disorder.

There’s going to be more litigation in these areas. Expect it, because we’re starting to see it.

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