ISSUE # 4:8, AUGUST 2016

Outpatient Psychiatric Treatment: The Duty to Prevent the Patient’s Suicide

Chirillo v. Granicz, — So.3d — (Fla. 2016), 2016 WL 4493536

In Chirillo v. Granicz, — So.3d —- (Fla. 2016), 2016 WL 4493536, the Florida Supreme Court formulated an important rule for psychiatric malpractice cases. Back in 2001, the First District Court of Appeal decided that psychiatrists assume no liability for an outpatient’s suicide because it is generally unforeseeable. Tort liability, it held, can properly be imposed on a psychiatrist only for a custodial psychiatric malpractice. According to the First District, an inpatient’s suicide is foreseeable and psychiatrists can effectively prevent it by restraining the patient. Lawlor v. Orlando, 795 So.2d 147 (Fla. 1st DCA 2001).

The Florida Supreme Court has now overruled Lawlor.

The Court decided that preventing an outpatient from harming himself is well within the scope of the psychiatrist’s duty of care. Whether a psychiatrist owes such a duty to a specific outpatient depends on that patient’s mental condition and the nature of the treatment s/he receives. Foreseeability, the Court held, should only play a role in the jurors’ determination of the proximate cause.

Based on these criteria, the Court ruled that the plaintiff in the case at bar has created a jury question by adducing expert testimony and other evidence indicating that:

  1. His deceased wife was treated for depression as the defendant’s outpatient.
  2. She switched from one antidepressant (Prozac) to another (Effexor) because of side effects, and then decided not to take Effexor either because “she felt well.”
  3. She notified the defendant about her decision to discontinue using Effexor.
  4. Patients who stop taking Effexor abruptly have an increased risk of suicide.
  5. Stopping the Effexor treatment was “a contributing factor” in the decedent’s suicide.

If widely followed as a precedent, this decision will likely produce two effects identifiable as defensive and offensive medicine. The increased prospect of liability for malpractice might make many psychiatrists reluctant to admit suicidal outpatients. This form of defensive medicine will lead to more suicides, as demonstrated theoretically and empirically by Shahar Dillbary, Griffin Sims Edwards & Fredrick E. Vars, The Costs of Suicide. When treating a potentially suicidal patient, psychiatrists might also increase their resort to involuntary hospitalization. This form of offensive medicine will create a mixed social effect: there will be less suicides, but there will also be more involuntary hospitalizations that unnecessarily deny individuals their freedoms.

Improving the Merit-Affidavit System

Meehan v. Antonellis, 141 A.3d 1162 (N.J. 2016)

The Supreme Court of New Jersey has recently delivered an important decision on the state’s merit-affidavit procedures. Whether an affidavit of merit submitted by a plaintiff in an action alleging medical malpractice is, in the Court’s words, a vexing and recurring issue. In the case at bar, the Court held that a dentist with more than 20 years of experience in diagnosing and treating sleep apnea (repeated breathing interruption during sleep) was qualified to submit an affidavit of merit in support of a suit alleging that an orthodontist failed to inform the plaintiff that a dental appliance he was given to treat sleep apnea may dislocate his teeth.

In a number of jurisdictions outside New Jersey, courts insist upon strict compliance with the “same specialty” requirements and disqualify such affidavits: see here, here and here. In New Jersey, plaintiffs have more flexibility, and properly so.

As the Court explains, “The stated purpose of [the merit-affidavit system] is laudatory—to weed out frivolous claims against licensed professionals early in the litigation process.” (citing Ferreira v. Rancocas Orthopedic Assocs., 836 A.2d 779 (N.J. 2003)). For that reason, “the submission of an appropriate affidavit of merit is considered an element of the claim.” (citing Alan J. Cornblatt, P.A. v. Barow, 708 A.2d 401 (N.J. 1998)) (failure to submit affidavit of merit “goes to the heart of the cause of action as defined by the Legislature [and] ordinarily requires dismissal of the complaint with prejudice.”)). At its launching, the merit-affidavit system “did not seem to impose “overly burdensome obligations,” but then it has unleashed a veritable avalanche of litigation” (by my lights, this effect is not surprising at all, given that the system effectively replaces the summary judgment mechanism routinely resorted to by defendants in medical malpractice and other tort actions).

To counter this socially costly dynamic and “temper the draconian results of an inflexible application of the statute,” the New Jersey Supreme Court had set up a special Ferreira hearing (Ferreira v. Rancocas Orthopedic Assocs., 836 A.2d 779 (N.J. 2003)). The goal of this hearing is to secure the plaintiff’s compliance with the merit-affidavit requirement while preventing this requirement from being turned into “a procedural minefield.” To accomplish that goal, the Court laid down two basic rules: “substantial compliance” and “second chance.” According to the first rule, “a complaint will not be dismissed if the plaintiff substantially complied with the affidavit of merit obligations.” Under the second rule, “a complaint will be dismissed [but] without prejudice if the plaintiff can demonstrate extraordinary circumstances that prevented compliance.” (citations omitted).

As far as the “like-qualified” expert-credential requirement is concerned, according to the Court, “[it] requires no more than that the person submitting an affidavit of merit be licensed in this state or another and have particular expertise in the general area or specialty involved in the action.” The Court explained in this connection that “Such particular expertise is evidenced by board certification or by devotion of the person’s practice substantially to the general area or specialty involved in the action for a period of at least five years. … In most instances, we anticipate that the affiant and the professional-defendant will be similarly licensed. However, there may be circumstances when the alleged departure from the professional standard of care is within the particular expertise of two licensed professions. In such cases, in assessing the sufficiency of the affidavit of merit, a court must focus … on the specific allegations of professional negligence.” (citations omitted).

Based on these well-balanced criteria, the Court determined that the plaintiff’s expert—a dentist specializing in sleep apnea—was qualified to testify about the informed-consent requirements for sleep apnea treatments that both dentists and orthodontists should comply with. In reaching that determination, the Court noticed that “the treatment of sleep apnea is not exclusive to a single dental specialty or subspecialty. A variety of professionals can treat sleep apnea, including various types of dentists and physicians.”

Expert Testimony on Causation

THN Physicians Association v. Tiscareno, — S.W.3d — ((Tex.App.–El Paso 2016), 2016 WL 4379432

This is a very useful decision summarizing the requirements for causation expert opinions in medical malpractice cases.

As an initial matter, the court noticed that “In medical malpractice cases, “plaintiffs are required to adduce evidence of a ‘reasonable medical probability’ or ‘reasonable probability’ that their injuries were caused by the negligence of one or more defendants, meaning simply that it is ‘more likely than not’ that the ultimate harm or condition resulted from such negligence.” (citing Jelinek v. Casas, 328 S.W.3d 526, 532–33 (Tex. 2010) and Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399–400 (Tex. 1993)).

The “reasonable medical probability” standard (also identified as “substantial factor”) still doesn’t validate “statements based on reasonable medical probability, without explanation and without tying the conclusions to the facts.” (citing Jelinek, id., at 539). Instead, “the expert must go further and explain, to a reasonable degree, how and why the breach caused the injury based on the facts presented.” (citing Jelinek, id., at 539–40. Thus, as the same court previously ruled, “While a claimant is not required to conclusively prove her case through a preliminary expert report, the report may not merely state conclusions about any of the elements.” Castillo v. August, 248 S.W.3d 874, 883 (Tex.App.–El Paso 2008).

Furthermore, “the report may not have an analytical gap or a missing link between the expert’s allegation that the physician defendant breached the standard of care and the plaintiff’s injuries.” (citing Clark v. HCA, Inc., 210 S.W.3d 1, 11 (Tex.App.–El Paso 2005). According to the court, “The adequacy standard … is simple: we determine whether the expert report constitutes a fair summary of the issues at play, a summary that includes an articulable, complete, and plausible explanation of how the alleged breach led to the damages sustained.” (citations omitted).

For example, “in cases where a patient presents with a preexisting condition, such as an infectious disease that has been brewing for some time, the expert report must provide an adequate explanation regarding how any delay in providing treatment was a substantial factor in causing harm the patient.”

Importantly, as the court noted as well, “The level of detail required in an expert report must be determined on a case-by-case basis, and will necessarily vary depending, in part, on the complexity of the case.”