There is an interesting case in Detroit on the liability of hospitals for the actions of third parties — a case with striking similarities to the famous 1976 ruling in Tarasoff v. Regents of the University of California.
The Detroit case involves a woman murdered by her husband, Christopher Howard, 10 days after he was released by a Michigan hospital. The Sixth Circuit has ruled that the family of Marie Moses Irons can sue Providence Hospital under the Emergency Medical Treatment and Active Labor law requiring emergency treatment of patients by hospitals. The ruling by Judge Eric Clay (left) could have sweeping implications for hospitals across the country.
Writing for the majority, Judge Clay recognized that the ruling is likely to have seismic effects in the medical field: “We recognize that our interpretation … may have consequences for hospitals that Congress may or may not have considered or intended. However, our duty is only to read the statute as it is written.” The panel reversed U.S. District Judge Anna Diggs Taylor in her ruling in favor of the hospital
The facts are laid out by the Court suggest that a jury could find that this was an untreated emergency and link the failure to comply with the federal law factually and legally to the death. Indeed, the failure to perform a statutory duty is evidence of negligence per se. Here are the basic facts discussed by the Court:
On December 13, 2002, Moses-Irons took Howard to the emergency room of Providence Hospital in Southfield, Michigan because Howard was exhibiting signs of illness. Howard’s physical symptoms included severe headaches, muscle soreness, high blood pressure and vomiting. Howard was also experiencing slurred speech, disorientation, hallucinations and delusions. Moses-Irons reported these symptoms to the emergency room staff, and also informed them that Howard had “demonstrated threatening behavior, which made her fearful for her safety.” (Joint Appendix (“J.A.”) at 31-32.) The emergency room physicians decided to admit Howard to conduct more tests. Among the physicians who evaluated Howard during his stay at the hospital were
Mark Silverman (“Dr. Silverman”), a neurologist; Dr. Lessem, a psychiatrist; and Djeneba Mitchell (“Dr. Mitchell”), an internist. Dr. Silverman examined Howard on December 14, 2002. Dr. Silverman determined that Howard “was acting inappropriately” and “appeared to be somewhat obtunded,” but had “no overt outward signs of trauma.” (J.A. at 153.) In addition to informing Dr. Silverman of Howard’s symptoms, Moses-Irons also told him that Howard had told her that he “had bought caskets.” (J.A. at 150.) Dr. Silverman learned from Moses-Irons that Howard had recently tried to board a plane with a hunting knife. Dr. Silverman ordered a magnetic resonance imaging exam, though it is unclear from the record whether the exam ever took place. Dr. Silverman also “felt that a psychiatric evaluation would be warranted,” as well as a “lumbar puncture.” (J.A. at 154, 158.) His notes from the evaluation indicate his belief that “an acute psychotic episode [must] be ruled out.” (J.A. at 153, 158.) Dr. Lessem examined Howard several times during Howard’s stay at the hospital.
On December 17, 2002, Dr. Lessem determined that Howard was not “medically stable from a psychiatric standpoint,” and decided that Howard should be transferred to the hospital’s psychiatric unit called “4 [E]ast” to “reassess him.” (J.A. at 165.) According to Dr. Lessem, 4 East is intended for patients “who are expected to be hospitalized and stabilized and who are acutely mentally ill.” (J.A. at 165.) Dr. Lessem felt Howard could be more closely observed at 4 East, and planned to conduct “reality testing” of Howard there to determine the extent of Howard’s delusions. (J.A. at 168.) Dr. Lessem’s order notes from December 17, 2002 state, “will accept [patient] to 4 [E]ast if [patient]’s insurance will accept criteria” and “please observe carefully for any indications of suicidal ideation or behavior.” (J.A. at 172.) Under the heading “orders for 4 [E]ast,” Dr. Lessem wrote, “suicide precautions.” (J.A. at 173.) The notes also indicate that Dr. Lessem believed Howard had an “atypical psychosis” and “depression.” (J.A. at 172.)
Howard was never transferred to the psychiatric unit, and instead was informed on December 18, 2002 that he would be released. A hospital clinical progress report signed by Dr. Mitchell that daystated that “[patient] declines 4 [E]ast, wants to go home. His affect is brighter. No physical symptoms now. [Patient] wishes to go home, wife fears him. Denies any suicidality.” (J.A. at 219.) Howard stated in a deposition that he never declined going to 4 East. In Howard’s discharge summary form filled out onDecember 18, 2002, the hospital’s “final diagnosis” of Howard, written by a resident, was that he had a “migraine headache” and an “atypical psychosis [with] delusional disorder.” (J.A. at 178.) A report dated December 19, 2002, signed by Dr. Mitchell, indicated that Howard would be “[discharged] home today . . . cannot stay as he is
medically stable and now does not need 4E.” (J.A. at 89.) Howard was released on December 19, 2002, and on December 29, 2002, Howard murdered Moses-Irons.
Howard killed his wife while she and their two-year-old son slept.
The case obviously draws instant comparison with the Tarasoff opinion. In that seminal 1974 case, Prosinjit Podder, an Indian Graduate student at Berkeley, fell in love with Tatiana Tarasoff. When she stated that she wanted to date other men, Podder went to counseling at the University Health Service and is treated by psychologist, Dr. Lawrence Moore. When he told Moore that he wanted to get a gun and kill Tarasoff, Moore sent a letter to campus police who interviewed Podder and decided that he was not a risk. Podder then went ahead and murdered Tarasoff.
In a controversial decision, Justice Mathew O. Tobriner held that “… the confidential character of patient-psychotherapist communications must yield to the extent that disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.” As a result, the hospital was held liable for the criminal actions of a third party — something that usually (but not always) cuts off proximate causation. It also rejects strong arguments made by doctors that such liability would create a chilling affect on counseling. A large number of patients often express their anger by focusing it on individuals and stating an intent to “kill that guy.” In the vast majority of such cases, the open disclosure is addressed and defused. However, if the patient knows that the doctor will have to tell authorities, such feelings are less likely to be expressed and addressed.
Picture of Tarasoff:
For the Sixth Circuit decision, click here.