By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
News: A woman with a history of psychosis was diagnosed with bipolar disorder, borderline personality disorder, and generalized anxiety order. The patient was admitted to a hospital after attempting suicide. She was placed on a low dose of Ativan based on the attending physician’s order and was evaluated by a consulting psychiatrist.
However, the consulting psychiatrist discharged the patient without additional medical or inpatient psychiatric treatment. The patient attempted suicide again and suffered third-degree burns over almost half her body. The patient filed a malpractice suit and was awarded more than $800,000 by a jury. A trial court and appellate court denied the defendant physician’s post-trial challenges.
Background: A woman was diagnosed with bipolar disorder, borderline personality disorder, and generalized anxiety disorder. She visited a medical center twice and a hospital once after expressing suicidal ideation. The following month, the patient attempted to commit suicide by overdosing on prescription antidepressants and pain medication. She was admitted to a hospital and received a low dose of Ativan pursuant to the attending physician’s order.
A consulting psychiatrist at the hospital evaluated the patient. Her medical records indicated she did not see a primary treating psychiatrist. The consulting psychiatrist knew the patient would see a social worker in eight days. The patient’s mother promised to monitor the patient and control her medications until a psychiatrist could conduct an evaluation.
The consulting psychiatrist discharged the patient to her mother’s care without any further medication or any inpatient psychiatric treatment. According to the consulting psychiatrist, stronger mood-stabilizing medications beyond Ativan are available, but these medications posed potential complications and side effects. The patient was discharged the same day she was evaluated by the consulting psychiatrist.
Two weeks later, the patient attempted suicide by dousing herself in hairspray and setting herself on fire, resulting in third-degree burns on 42% of her body. The severity of the burns required four skin grafts and nearly two dozen laser surgeries.
The patient filed a malpractice suit against the consulting psychiatrist, the attending physician who prescribed the Ativan, and the hospital. During trial, the patient dismissed her claims against the attending physician and hospital. Both the patient and the consulting psychiatrist provided expert testimony from several witnesses, including psychiatry experts and burn specialists.
One psychiatric expert noted the patient should have been sent to inpatient care upon discharge, which would have been the safest level of care for her at the time. The expert further testified the consulting psychiatrist did not prescribe the patient a mood stabilizer or an antipsychotic medication, despite the patient’s diagnosis of bipolar illness and psychotic symptoms.
The jury found in favor of the plaintiff and awarded $806,288.68: $246,288.68 for past economic damages, $260,000 for past noneconomic damages, and $300,000 for future noneconomic damages. The defendant filed post-trial motions to reduce the damages, and to request a new trial based on alleged juror misconduct. According to jurors, one juror stated they conducted their own research on the internet about Ativan and relayed such information to the other jurors. The trial court denied the defendant’s post-trial motions. An appellate court upheld the verdict.
What this means to you: Important substantive and procedural lessons can be learned from this case. First and foremost, the jury’s significant award was based on the defendant’s failure to provide treatment. In this case, there was no dispute the consulting psychiatrist evaluated the patient and reviewed her medical records. Instead, the consulting psychiatrist failed to act on this information, and failed to provide treatment based on the patient’s known conditions. While the patient did receive some treatment, the patient alleged — and the jury agreed — this was insufficient given the patient’s condition and history.
It is critical to not only review the patient’s condition and history, but to act on the information if a reasonable physician under the same or similar circumstances would take such action. Failing to do so constitutes malpractice. Here, the patient successfully argued and demonstrated with expert testimony that she should have been prescribed other medications in addition to Ativan or should have been sent to inpatient care. The defendant consulting psychiatrist claimed Ativan provides “some mood-stabilizing properties and helps with agitation,” but this was insufficient treatment given the patient’s background and condition.
The patient’s expert testified the applicable standard of care required a physician to determine which medications work or do not work and why — a determination that is customized to each patient by considering safety, tolerability, efficacy, price, and simplicity of dosing and administration. These factors and considerations are part of a complex treatment plan the consulting psychiatrist made no effort to implement. But care providers must be cautious not to shirk such responsibilities merely because such implementation takes time and attention. In this case, the consulting psychiatrist failed to take an appropriate course of treatment that would have included additional medication testing and administration — and bore liability as a result.
Providers also must consider the fact that antidepressants and antipsychotic medications — unlike Ativan, an anxiolytic — do not take effect immediately, or even within a few days. Many can take weeks to become effective enough to prevent a patient from harming herself or others. A consulting psychiatrist may be reluctant to prescribe these medications without consulting the patient’s primary psychiatrist because abrupt cessation might be dangerous if the primary psychiatrist objects to the drug based on the patient’s history. While these facts justify the consulting psychiatrist’s reluctance to prescribe, they simultaneously require the patient be continually monitored by skilled personnel trained in suicide precautions and interventions in an inpatient setting until such time as a treatment plan, either pharmacological or behavioral, has been initiated and shown to be effective. At that point, the provider can consider releasing the patient to the custody of a parent, guardian, or other untrained individual. This is the standard of care, and anything less may be considered negligent. On a side note, cases such as this are not rare. The availability of these inpatient psychiatric settings is scarce, and patients may spend days on psychiatric holds in EDs until placement is found. Political pressure by hospital administration on the consulting psychiatrist to discharge these patients quickly can be significant and must be monitored and addressed.
The defendant raised multiple post-trial challenges, arguing the patient’s injuries did not fall within the “catastrophic personal injury” category based on that state’s law, and claiming juror misconduct occurred. While the courts rejected these arguments, these still provide a mechanism for providers to challenge issues and potentially reduce or eliminate adverse findings and jury determinations.
Many states enacted different rules about limitations on malpractice damages awards. It is important for providers and their counsel to understand the specifics of these limitations. Here, the defendant argued the patient was not entitled to higher noneconomic damages since she did not suffer “irreversible failure of one or more major organ systems.”
The court disagreed, noting the patient’s expert testified the patient’s skin could not heal itself, and even though the patient received medical intervention, her injuries were so significant that if she did not receive surgical intervention, she likely would have died. The patient was left with hypertrophic scarring and suffered from permanent mobility issues, functional loss, discomfort, nerve damage, and increased sensitivity to sun exposure. If the defendant had been successful, it would have limited the jury’s damages, reducing the maximum to $400,000 for noneconomic damages.
Similarly, the defendants claimed a juror engaged in misconduct, which justified a new trial. Typically, jurors are advised by the court not to engage in their own investigations, research, or evidence-gathering. A juror’s misconduct may rise to such a degree that it affects the core of the case and requires a new trial in the interests of justice.
While these circumstances are rare, they do occur, and can present an opportunity for a party to challenge an adverse verdict. In this case, the court determined no prejudicial misconduct occurred, and even if it had, such extraneous evidence was immaterial to the consequential facts. Nevertheless, providers faced with an adverse verdict should explore post-trial challenges to evaluate which, if any, are applicable and potentially fruitful.
REFERENCE
- Decided Aug. 23, 2022, in the Missouri Court of Appeals, Western District, Case Number WD84990.
Important substantive and procedural lessons can be learned from this case. First and foremost, the jury’s significant award was based on the defendant’s failure to provide treatment.
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