Psychiatrists Found Liable in Two Verdicts Malpractice Awards Renew Concerns Over Confidentiality, Liability

Verdicts in separate malpractice cases have heightened apprehension over the erosion of patient-physician confidentiality and the increase in malpractice liability exposure. Psychiatrists now face the more serious prospect that they could end up, in essence, having to guarantee society that their patients won't act dangerously.

In back-to-back verdicts in North Carolina and Connecticut, juries found psychiatrists liable after their treatment strategies allegedly went awry. As a result, both plaintiffs are now in custody for acts of violence they say may not have occurred but for the alleged negligence of the physicians.

Douglas H. Ingram, M.D., a private practice psychiatrist in Manhattan, settled a lawsuit brought by Denny Almonte, 22, now serving a five-year prison sentence for assault. A federal district court jury in Bridgeport, Conn., found that Ingram was negligent for failing to report the pedophilic tendencies of a patient who later sexually abused Almonte. Ingram agreed to resolve the case for an undisclosed sum prior to the start of the damages phase of the trial.

Over a decade ago, Almonte was molested by Joseph DeMasi, M.D., who was then a third-year resident at New York College of Medicine and on rotation at Danbury Hospital in Connecticut. While undergoing psycho-analysis with Ingram, DeMasi-who was working toward becoming a child psychiatrist-disclosed sexual fantasies about children, though he never admitted to actual incidents of sexual abuse nor identified a specific target for molestation.

According to the plaintiff, Ingram should have reported DeMasi, thus assuring he would not have the opportunity to interact with children. Almonte blamed his subsequent behavioral problems on the abuse, and sued Ingram along with New York Medical College and Danbury Hospital. The medical school was absolved of any responsibility at trial, while the hospital had settled with Almonte earlier.

Meanwhile, in Hillsborough, N.C., a state superior court jury decided that Wendell Williamson, a former University of North Carolina law student, should receive $500,000 from Myron B. Liptzin, M.D., a now-retired psychiatrist, after allegedly negligent treatment resulted in his committing an act of violence. Williamson is currently institutionalized in a state psychiatric hospital in the aftermath of a 1995 incident in which he killed two men in a random shooting near the campus. In the criminal trial that followed, a jury found that Williamson was not guilty by reason of insanity, and that his actions were the result of paranoid schizophrenia.

In the civil suit, Williamson, who is now 30, charged that Liptzin, who was the director of psychiatric services at the student health service, failed to correctly diagnose his illness or explain its seriousness. Although treated with antipsychotic medication, and despite improvement while under Liptzin's care, Williamson alleged the psychiatrist mismanaged his treatment by not arranging for a referral to a new practitioner during Liptzin's transition to retirement. As a result, the charges continue, Williamson's condition deteriorated, leading to the commission of the killings.

Liptzin currently intends to proceed with an appeal of the verdict, while families of Williamson's victims pursue their own claims for damages against the doctor and the university. The state will seek to recover any payment made to Williamson, asserting it is entitled to reimbursement for the costs of his hospitalization.

These are not the first cases in which mental health practitioners were found liable as the result of what are considered unpredictable and often unpreventable violent acts by their patients. However, these latest are troubling because they inject another dose of uncertainty into the practice of psychiatry.

In each instance, neither patient posed what appeared to be imminent threats to specific individuals. Rather, the verdicts in both cases resulted from a jury's willingness to impose liability when patients acted out against society in general. And while the psychiatrists involved in these suits urge their colleagues to stick to the fundamentals of good medicine and ethical conduct, after years of litigation they acknowledge that professional judgments may end up getting second-guessed years down the road when unidentifiable third parties are injured or killed.

"Guaranteeing our patients' behavior to society is the horror that cases like these point toward," Ingram said, in an interview with Psychiatric Times shortly after the case against him was settled. "It must in every dimension of the matter be resisted by the profession."

In lieu of the patchwork of often-conflicting statutory and case law in the various states, he urged federal legislators to adopt a national standard that defines when mental health practitioners are required to disclose their patients' potential dangerousness.

"Psychiatry has not faced up to its responsibility to protect patient privacy. These types of cases are extraordinarily inflammatory, but the profession has tended to hide behind the skirts of the legal authorities," Ingram said. "The courts and the legislatures tend to respond where there is greatest pressure, and the pressure is largely from those who identify with the victims of these crimes. They would turn psychiatrists into a kind of mind police and it's up to psychiatry to affirm its position as the legitimate containers of people's private lives."

Liptzin agrees that there is a potential that society will expect psychiatrists to warrant that their patients are safe to walk the streets. Furthermore, when a case goes to court with powerful experts lined up on either side of the issues, how lay juries will respond to technical testimony is anyone's guess. "I don't think the jury listened to our experts. They made up their minds based on the testimony of [the] plaintiff's experts and seeing this poor guy [Williamson]-this former Eagle Scout, former honor student whose life is now ruined-and somebody had to be blamed for this and, obviously, it was me."

If the slide down the slippery slope continues, Liptzin said, the implication for psychiatry is an increasing hesitancy to treat potentially dangerous patients, a further erosion of confidentiality and more litigation. "I don't know why they're going after me," Liptzin said, "because I consider myself to be part of the solution and not part of the problem."

Brandt Caudill, a lawyer in Tustin, Calif., has limited his practice to defending mental health care practitioners for over 15 years. He is concerned by what appears to be a trend in the law toward expanding professionals' duties to third parties. With increased liability risks, Caudill said that psychiatrists may end up making confidential disclosures of potential dangerousness sooner than they would have in order to take advantage of immunities from lawsuits that some statutes offer.

If the trend continues, Caudill warned, the duty to disclose patient confidences could expand to situations where the issue of dangerousness is less obvious. For instance, a debate has already begun over whether therapists must inform an unwitting spouse or partner that a patient has disclosed an HIV infection during therapy.

Saying that the verdicts like the ones against Ingram and Liptzin "represent extensions of duty without thinking," Caudill added that the decisions are a "response to a tragedy by creating bad law. It also takes away the idea that the patients have any degree of responsibility for what they do."

John Petrila, a Tampa, Fla.-based attorney and chair of the department of mental health law and policy of the Florida Mental Health Institute located at the University of South Florida, also recognizes a potential danger behind cases that appear to extend professional responsibility for the actions of the mentally ill too far. "There is danger in cases that suggest psychiatrists or mental health professionals should ensure the public safety, because it flies in the face of reason and what we know about how to assess risk," he said. "The cases could cause a tremendous backlash among physicians, who may adopt the most conservative stand possible and confine people to avoid liability. That's a major policy concern."

Howard Zonana, M.D., medical director of the American Academy of Psychiatry and the Law, and professor of psychiatry at the Yale University School of Medicine, said that there have always been aberrant cases that have imposed liability even where there was no imminent danger displayed or a specific individual identified, so he views these recent cases as similar anomalies. Ultimately, he focuses on the "duty to protect" that has emerged from the line of cases and statutes, and what that obligation entails, although there are times when "nobody knows exactly how much you have to do to protect."

Under APA guidelines, Zonana said, so long as you warn the potential victim and the police, the duty has been satisfied, but there are cases where these responses won't work. Psychiatrists may not be able to insulate themselves from negligence claims in some circumstances. "It's very hard to write a statute where you can craft out in specific language each situation that shouldn't create liability."