On December 22, the Washington Supreme Court issued its long awaited decision in Volk v. DeMeerleer, a case involving the liability of mental health professionals. The court ruled that a psychiatrist could be liable for homicides committed by a patient, even though the patient never identified the victims as targets of violence. The decision expands the scope of liability, not just for mental health professionals, but potentially for many other healthcare providers.
The case involved a double murder-suicide in July 2010.The patient, who had received outpatient treatment for mental health issues with the same psychiatrist for years, killed his former girlfriend and one of her children, and attacked another of her children with a knife. The patient last saw his psychiatrist three months before the killings. Although he reported that he had suicidal thoughts when depressed, the patient had not expressed any intention to harm anyone.
The trial court granted summary judgment for the psychiatrist and his clinic. The Washington Court of Appeals reversed, holding that a jury should decide whether the psychiatrist met the standard of care and should have done something to prevent the patient's violent acts. In a 6-3 decision, the Washington Supreme Court largely agreed with the Court of Appeals, and remanded the case for trial. The Supreme Court stated that whether the patient's "actions were foreseeable...is a question of fact that should have been resolved by a jury."
The Supreme Court's analysis was based on Washington and national case law, scholarly articles, and the Restatement (Second) of Torts § 315. The Restatement creates a duty to "control the conduct" of another person when a "special relation" exists. The court decided that the relationship between a mental health professional and a patient creates a duty to "take reasonable precautions to protect anyone who might foreseeably be endangered" by the patient's condition. The emphasis on "anyone" is by the court.
The decision discusses the difficult policy interests presented by the case, including provider-patient confidentiality, the importance of avoiding unnecessary confinement, the limited ability to control conduct of patients, and the "incredibly difficult task in ascertaining whether a patient will act violently." Nevertheless, the court decided that these factors were outweighed by "society's strong interest in preventing attacks by mentally ill patients." According to the court, the "mental health professional is under a duty of reasonable care...to protect foreseeable victims of his or her patient."
It was important to the court's decision that plaintiffs' claims were supported by an expert's opinion. The expert, a forensic psychiatrist, had submitted an affidavit stating that the psychiatrist was negligent in various respects and that his negligence was a substantial factor in bringing about the harm that occurred. The Supreme Court decided that this expert evidence created an issue of fact for a jury on foreseeability and causation. A review of the trial court record shows weak support for the plaintiffs' case from an expert with little knowledge of Washington practice, but it was enough for the Supreme Court.
The 2015 Court of Appeals decision in Volk was the subject of much discussion in medical and legal circles. There was an immediate reaction by mental health professionals who were concerned, understandably, that they might be held legally responsible for unforeseeable events and would be required to breach patient confidentiality and damage therapeutic relationships to avoid liability. The concerns were not limited to Washington state. In November 2015, an op-ed in the New York Times discussed the case and suggested that the Volk case went farther than past cases in imposing duties on psychiatrists. Those concerns are legitimate. The Washington Supreme Court decision represents an expansion of the scope of liability.
The liability rule announced by the Volk decision concerns mental health professionals, but can easily be expanded to other healthcare providers. Emergency medicine professionals, primary care providers, therapists, and counselors are among many professionals often seeing people who, in the course of disclosing highly personal thoughts, might offer troubling information suggesting danger to self or others. In the overwhelming number of cases, those suggestions do not mean that violent acts will follow. In a very small number of cases, bad things happen.
This decision raises many questions, including whether changes in clinical practice are needed, patients will be deterred from effective treatment, lawsuits will increase, and catastrophic events will lead to mass litigation. Cases based on a Volk theory will involve tragic outcomes and horrific facts. Defending them will be challenging, but there are strong arguments to make in defense of healthcare professionals who do their best in making acutely difficult decisions every day.
Click here to view the full Washington Supreme Court decision: Volk v. DeMeerleer
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