Commentary: The Verdict Against Myron Liptzin-Who Sets the Standard of Care?

Myron Liptzin, M.D., is a respected psychiatrist who specialized in the treatment of university students. Liptzin retired last year as chief of psychiatry of student health at the University of North Carolina at Chapel Hill, where he had earned a reputation as a skillful clinician who was particularly adept at crisis intervention. If Liptzin had hoped to go on to a less hectic and stressful life, his expectations were shattered when he found himself accused of negligence in one of the most unusual cases of psychiatric malpractice of this century. A former patient went on a rampage-killing two people-and then blamed Liptzin. The verdict against the psychiatrist was front-page news, and CBS's "60 Minutes" went to North Carolina to do a story that aired mid-November 1998. Like a bolt out of the blue, Liptzin had gotten his 15 minutes of unwanted fame.

Wendell Williamson, the patient who sued Liptzin, had in fact been the beneficiary of his psychiatrist's remarkable ability to establish a therapeutic alliance with paranoid patients. Ironically, an expert psychiatric witness who later testified against Liptzin argued that this clinical skill contributed to what in his opinion was negligence.

It was the spring of 1994 when Liptzin first encountered Wendell Williamson. The 26-year-old man was a student at the North Carolina Law School and was in the throes of a psychotic episode. He had disrupted a law school class proclaiming that he had telepathic powers. This brought him to the attention of the dean of students, who escorted Williamson to Liptzin's office for an emergency appointment. It was not the first psychotic break for the young man; a similar episode two years earlier had led to an attempt at civil commitment. He fought it tooth-and-nail, and involuntary treatment failed when a judge, on the information then available, ruled that Williamson was not dangerous. Despite this ominous past history, and the patient's almost total lack of insight into his mental disorder, Liptzin not only avoided a confrontation, but was able to establish a therapeutic alliance and achieve compliance in a regimen of appropriate antipsychotic medication.

Over six visits in the next several weeks, Williamson made a rapid social recovery. He went from his acute psychotic and disruptive condition to being stable enough to complete the spring semester. Judged by that result, most psychiatrists would conclude that Liptzin was a superb clinician. Paul Appelbaum, M.D., who reportedly looked into this case for the American Psychiatric Association, later would say on "60 Minutes" that Liptzin "did an exceptional job."

However, things started to go tragically wrong after Williamson completed that semester and his treatment with Liptzin ended. The patient stopped taking his medication and, over the next several months, grandiose, paranoid and somatic delusions proliferated and became entrenched. He believed, for example, that outside forces were painfully levitating the bone in the socket of his left shoulder. He began for the first time to think about violent retaliation against his persecutors. Eight months after he had last seen Liptzin, he acted on the plan he had rehearsed by shooting at trees on his grandparents' abandoned farm. Armed with a rifle and dressed in military camouflage, he went out into the streets of Chapel Hill, shot and killed two people, and seriously wounded a police officer before he could be stopped and arrested.

Although Williamson was psychotic at the time, his acts of violence appeared quite cold-blooded to the traumatized onlookers. He first wounded his victims-one was a college student on his bicycle-and then pursued and shot them at close range. He later acknowledged that he had never told Liptzin of this violent plan because it never occurred to him until after he had left treatment. This confirms Liptzin's own impression that there was no way he could have foreseen his patient's violence.

The state of North Carolina charged Williamson with 15 counts, including murder. But the prosecutor presented not a single expert witness at the trial to testify that he was sane. Williamson was found not guilty by reason of insanity by the jury, several of whose members were so upset by their decision that they were weeping as their verdict was read.

Shifting the Blame

The criminal justice system is the institution to which civilized societies delegate their natural impulse for revenge. The Not Guilty by Reason of Insanity (NGRI) verdict frustrates that retributive impulse. The law as society's moral arbiter has declared that the perpetrator is not to blame for an act he obviously committed. The families of Williamson's victims were understandably shocked and outraged by the NGRI verdict; they continued to blame Williamson and to fault the criminal justice system, as did many in the Chapel Hill community.

Williamson was confined to a state facility for the criminally insane, where he also was apparently pondering the question of who was to blame. The law student resolved to bring a malpractice suit against Liptzin on the premise that his psychiatrist, and not he, was responsible for the tragedy of these murders that had ruined his life. He retained a lawyer who apparently had little trouble finding two psychiatrists who were prepared to testify that Liptzin had, in fact, been negligent.

Much to the astonishment of most experienced observers, the case went to trial and a North Carolina jury awarded Williamson $500,000 in damages. The law, with the helpful testimony of the two psychiatric witnesses, had finally found someone to blame for the terrible tragedy-Liptzin. The decision seemed to stretch the envelope of legal liability and common sense. Many psychiatrists shared Appelbaum's assessment of the case on "60 Minutes," where he stated that it was unprecedented to reward the "perpetrator of two murders" and to hold a psychiatrist responsible for behavior "that couldn't possibly have been foreseen."

Last November, members of the Group for the Advancement of Psychiatry (GAP) crowded into a special plenary session at which Liptzin was to present his case and I was to discuss it. Liptzin has long been a member of GAP, serving ably on its Committee on College Students and earning the respect of his colleagues for his contributions. As he gave his account at the GAP session, there was a sense of collective disbelief and empathy for Liptzin in this room full of distinguished psychiatrists, particularly among his colleagues who work in university health services where patients come and go, and where short-term intervention is the norm. Many spoke to me afterward and they all had the same concern: This could happen to them.

Liptzin had provided me with a brief summary for the GAP presentation. However, most of the above facts, which I will elaborate on, are from various additional public and nonconfidential sources. There are doubtless many different versions of the facts and I make no claim that my description is definitive. Others who have more primary sources may come to quite another understanding. Obviously, the experts who testified on behalf of Williamson (and who swore to tell the truth) were convinced that the facts, as they understood them, supported their testimony that Liptzin was negligent, while most of his clinical peers were outraged at that judgment.

A Different Set of Ethics

The problem, as I formulated it for the GAP members, was how can a superb clinician (even the experts who testified against Liptzin acknowledged his skill) be found negligent in a court of law? Appelbaum's answer to a narrower version of this question aired on "60 Minutes" a few days later: "I think the jurors made a mistake in this case." He may be right, but jurors in a malpractice case of this kind are provided with expert psychiatric opinion on the standards of care. And there is some sentiment among forensic psychiatrists that the jurors were guided to the correct decision.

Over the past 50 years, forensic psychiatry has developed as a subspecialty whose practitioners are increasingly sophisticated in matters of law. They see themselves as obligated to a different set of ethics than are other physicians, and they have adopted the lawyers' view that the adversarial system of law requires experts for both sides. A clinician might look at this case and think, "There but for the grace of God go I." A forensic psychiatrist takes a quite different approach, beginning with the premise, "What, within the bounds of honesty, can I say against Liptzin?"

Williamson's psychiatric experts (one, a forensic psychiatrist who had testified earlier that Williamson was NGRI) must have been very convincing. Indeed, from a legal perspective, those witnesses and the plaintiff's lawyer faced a formidable obstacle. Some states actually have a law that forbids convicted criminals from bringing civil suits on the basis of their crime, however Williamson is not a convicted criminal, having been found NGRI on all 15 counts.

North Carolina is one of only five states that still adheres to the doctrine of contributory negligence. If the jury had concluded that Williamson bore any fragment of personal responsibility for stopping his medication or for exacting psychotic vengeance on innocent victims, he would have lost the case. A North Carolina plaintiff who is only 1% responsible for a negligent event cannot be legally compensated. Most states have adopted the modern doctrine of comparative negligence, which allows the 1% responsible plaintiff to collect the other 99%. North Carolina's old-fashioned doctrine of contributory negligence, among other things, led Liptzin's lawyer to assure him he couldn't possibly lose. And it means that Williamson's experts must have been extraordinarily persuasive in describing what they took to be negligent care on the part of Liptzin. If the jurors made a mistake, they had a lot of psychiatric guidance.

Procedure Versus Substance

According to published reports, during the trial the patient's experts focused on what I would describe as Liptzin's procedures rather than the substance of what he did. Two examples of this are: a) he reviewed the discharge summary of the prior attempt to have the patient committed and not the whole record; and b) not wanting to confront and stigmatize this young law student, he diagnosed him as having a delusional disorder and did not inform his patient that he had schizophrenia, paranoid type. I emphasize that these are procedural issues because the substance of what Liptzin did in this treatment would, in my opinion and his, have been no different. Obviously the patient's experts had other ideas. They said he missed the diagnosis and intimated that he should have recognized the potential for violence.

Forensic psychiatrists are increasingly sophisticated in legal matters and, in my opinion, when they contemplate their forensic role in court they tend to think more like lawyers than doctors. Lawyers typically put great weight on the importance of procedures, and that emphasis has made its way into forensic psychiatry. For example, there is much scientific uncertainty about whether clinicians have the substantive ability to evaluate a patient so as to accurately predict future violence. Nonetheless, procedures for such evaluations have been recognized by forensic psychiatrists, urged on all psychiatrists and endorsed by groups like the APA. A failure to adhere to those procedures can become the basis for a claim that the clinician was negligent in his preventive care, even though such procedures may not reliably predict whether a patient will or will not be violent. The procedures for evaluating dangerousness may have no more substantive value than the good clinician's intuitions, but to forensic psychiatrists they have become the standard of care. Failing to follow these procedures for evaluation has become evidence of negligence (breaching the standard of care) in the minds of forensic experts who testify in court.

Many clinicians both at GAP and elsewhere are puzzled by the fact that expert psychiatric witnesses seem to apply uniform standards of care that do not take into account local practices. Over the past few decades

the law has moved toward national standards for medical specialties. This means that forensic experts can travel almost anywhere in the country to offer their guidance to juries. They may know very little about local community standards; indeed such practices may be irrelevant if there is one national standard. Therefore, even though what a psychiatrist does may be standard practice in his clinic, an expert witness may apply the national standard and declare that this accepted practice is a breach of the professional standard of care. The state of North Carolina has a statute which is specifically meant to avoid the national or regional standard of care, but its effect is no where to be found in the Lipzin case.

Published standards of care are, in my opinion, increasingly important and relied on by forensic psychiatrists. Although many clinicians are unaware of this literature, it is relevant if a legal conflict arises. The late Gerald Klerman, M.D., in a published exchange with myself, set out as the standard of care very specific requirements for the initiation of treatment (Am J Psychiatry [1990] 147[4]:409-418; 419-427). The clinician must make a DSM-IIIR (IV) diagnosis, inform the patient of the diagnosis, describe the alternative treatments and their efficacy, and so on. Klerman made no allowance for any therapeutic exception to these procedures, such as telling the patient that the actual diagnosis might be detrimental. Forensic psychiatrists and lawyers look to this literature as establishing a national standard; clinicians in some communities are unaware of it.

In this case, Williamson's experts made much of the fact that Liptzin departed from the proper standard of care by never telling the patient that he was suffering from schizophrenia, paranoid type, and that this was a serious illness for which he would need treatment for the rest of his life.

Standards of Care

One of the other major disagreements in Liptzin's case also involved the question of what standards of care the experts should apply to this situation. What is the standard of care in terminating treatment with a patient who will continue to need antipsychotic medication? The actual standard in student mental health centers apparently differs from those in private practice. University mental health facilities often have a high demand for services and limited psychiatric resources. (Liptzin was one of only two psychiatrists serving the university community.) Many students come and go, with little continuity of care. At the end of the college year there is a huge turnover in patients being seen at university health services. When student-patients leave, they may not be given referrals to specific physicians. Indeed, it would require an enormous investment of time and energy for a university mental health service to keep up with this highly mobile population and to have the logistic ability to identify competent and available psychiatrists wherever the students go over the summer.

Liptzin's failure to refer his patients to a specific psychiatrist who would supervise his compliance with medication has been much discussed in the media, in the court and in learned commentary on the case. The "passing the baton" issue was further complicated by the fact that Liptzin was retiring from the university health service and had to inform all of his patients that they would need to seek further care at the clinic with whomever would subsequently be assigned that responsibility. He told Williamson that if he went home over the summer break he should seek continuing care at the local mental health center and gave him a prescription for a 30-day supply of antipsychotic medication. He urged the patient to have his family doctor refill the prescription if he did not see a psychiatrist. Finally, as with his other patients who would return to the university clinic in the fall semester, he explained the clinic procedure for applying for further treatment.

This is not the standard of care I follow in my own limited private practice and it is not one that I would recommend. I feel it is important (with the permission of the patient) to talk with a specific psychiatrist who will be taking on the responsibility for that patient's care. In my view, the failure to provide continuity of care is one of the major failings of contemporary psychiatry, made worse by managed care. Should Liptzin be held to my higher standard or to the standard of similar university clinics?

I have described this issue in general terms, hoping I can help the reader to understand how an expert witness could be confident in testifying that Liptzin was or was not negligent. One expert who testified for Williamson put forward as his opinion that the patient had so much trust in Liptzin that terminating without a specific referral was especially reprehensible-thus turning Liptzin's talent for using his interpersonal skills into a liability. Both of the patient's experts held Liptzin to the standard as they understood it. Should forensic psychiatrists and other experts in an adversarial position be setting the standards for our profession? Unfortunately, I think that is happening with increasing frequency.

Although the psychiatric establishment is churning out all sorts of treatment guidelines in competition with managed care, there are no official or established legal standards of care. Published accounts are increasingly important, but the law's approach is to allow each side of the dispute to offer expert testimony on what the expert considers to be: 1) the standard of care, 2) deviations from that standard, 3) the causes of deviation and 4) damages. Increasingly, that testimony about standards of care is supplied by the subspecialty of forensic psychiatrists and other psychiatrists who are caught up in the adversarial system, who think like lawyers and who have found a lucrative niche that pays much better than managed care.

The Liptzin result was, as Appelbaum stated, unprecedented. By putting aside contributory negligence as a strictly legal matter, it was much more straightforward than the much-discussed Tarasoff case. There the victim's family sued the university and its mental health professionals, claiming that there was negligence in that they were never warned of the danger. The higher court had to create a new legal duty that therapists owed to third parties. In this case, there was no new legal wrinkle: The patient simply sued his therapist, claiming, as in every malpractice suit, that he was treated negligently. And it is also quite routine for expert witnesses to take opposing positions and defend them with all of their forensic abilities. Doing your best as long as you're honest is the norm of forensic psychiatry, and this adversarial ethos is, again, very much like the mindset of trial lawyers.

One of the great challenges and satisfactions of being a psychiatrist is to use your human skills as a therapeutic parameter. This is what Liptzin did. That is how he established a therapeutic alliance and that is how good dynamic psychiatrists work. Had he followed the procedures and standards the lawyer-like experts deemed proper, he might have avoided liability. However, I doubt that he would have helped his patient or foreseen the terrible tragedy for which he has been blamed.