Tag Archive for: health care law

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Therapists need liability protection

By Mary Holloway Richard

This column was originally published in The Journal Record on January 18, 2017.

Behavioral health is a unique subset of health care law. I long have been privileged to see firsthand the challenges in working as a therapist while successfully avoiding liability and regulatory land mines, and I am empathetic with patients and families.

I believe it is important to provide protection from liability for therapists and to eschew expansion to predicting dangerousness of patients as the standard of care to which they are held. Therapists must adhere to standards of care that, when breached, result in liability to a patient for harm caused by that breach. Forty years ago the therapist’s burden was expanded to encompass a duty to warn third parties under certain circumstances in Tarasoff v. Regents of Univ. of California.

Recently the Washington Supreme Court decided Volk v. DeMeerleer, expanding liability of mental health professionals to unidentified individuals. As in Tarasoff, reactions among states can range from adopting to rejecting the rule in response. Such decisions are framed in reliance on laws in other states, scholarly articles and treatises, such as the creation of post-Tarasoff California statutory immunity for the therapist’s duty to warn third parties.

The Washington Supreme Court ruled in Volk that a psychiatrist could be liable for homicides even though the victims were not identified as targets of violence. The decision expands the scope of liability beyond the professional’s traditional duty to create a duty to identified third parties and may also result in expanding the rule from mental health professionals to other providers.

It is true that the Volk case concerned the murders of a young mother and her son as well as the suicide of the patient who killed them, and we are all too familiar with the facts of Columbine and Newtown. And society must protect these individuals. We must balance the need to protect our communities from violence with the need to protect our providers from the reprehensible burden of liability for predicting violent propensities.

The Washington Supreme Court stated that whether the patient’s violent actions were foreseeable should have been resolved by a jury and created instability concerning professional liability. It remains to be seen if this holding reflects a national trend of expanding the scope of liability for mental health and other health care professionals.

Mary Richard is a health care attorney and a member of the Behavioral Health Task Force of the American Health Lawyers Association.

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Health care industry leaders need to understand history of regulations

By Mary Holloway Richard, JD, MPH

On March 10th, the industry magazine, Modern Healthcare, posted news hot off the presses that a physician, Dr. Benjamin Chu of Kaiser, has been selected to be the CEO of Memorial Hermann Hospital in Houston.

As I read this, I couldn’t help but remember my first job out of graduate school—the lowest level administrator at Hermann Hospital in Houston at the Texas Medical Center.  I was responsible for ambulatory care at a time when layoffs in the emergency department and the outpatient clinics were required.  It was quite literally a baptism by fire.

I had come to that position from graduate school where I studied about the needs of the health care system—continuity, quality, cost effectiveness.  This likely sounds familiar to you if you are involved in health care in any capacity.  During my final semesters in graduate school, I interned at the Old University Hospital in what developed into the session in which the legislature refused to, once again, bail the hospital out in meeting its payroll. That unfortunately also sounds familiar.

In the classes I teach at OCU law school, I remind my students, who are largely enthralled with the idea of a health care law practice, of the importance of understanding the language and limitations of the pervasive regulations, but also their history.  It is important to have the context within which to place the regulations, statutes and case law that impact our providers.

Similarly, I advise clients to look forward, to be proactive in their compliance efforts.  It will be interesting to observe physician leadership in the Memorial system.

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