Mental Health Professionals Now Subject to Expanding Tort Liability

In Volk v. DeMeerleer, 187 Wn.2d 241, 386 P.3d 254 (2016), the Supreme Court of Washington recently extended the potential duty a psychiatrist owes to third parties harmed by the psychiatrist’s outpatient client. The Volk Court extended this potential duty to protect despite the absence of any threat regarding the third parties made by the patient to the psychiatrist. This decision may have detrimental, long-lasting consequences for mental health professionals in Washington.

In Volk, the outpatient client of a psychiatrist killed his former girlfriend, one of her sons, and then committed suicide. Over the nine years of treatment, the outpatient client had expressed suicidal and homicidal ideations to the psychiatrist, but never named his former girlfriend or her children as potential victims. In the final meeting before the patient committed the heinous acts, the patient told the psychiatrist that “he was stable” and that “he was having suicidal ideation but would not act on it.” Nevertheless, the Volk Court held that the psychiatrist’s duty extends to any foreseeable harm by the patient, despite the psychiatrist’s lack of control over the patient and the absence of any threat of violence towards the victims. The Supreme Court of Washington reversed summary judgment to let the jury decide whether the patient’s unthreatened acts of violence were foreseeable.

The Volk decision raises multiple questions. First, how may a mental health professional meet the standard of care regarding non-patients? The Volk Court suggested that the standard of care may require closer monitoring of compliance with medications and of the patient’s mental state, potentially warning others of the risk posed by the patient, and possibly involuntarily hospitalizing the patient. If a patient expresses any type of suicidal or violent ideations, no matter how minor, the prudent mental health professional will now make referrals to a specialist at the drop of a hat and begin obsessing over the patient’s medication regimen and follow-up appointments.

Second, may a mental health professional breach patient confidentiality absent a threat of harm? Although suggested as meeting the standard of care by the Volk Court, disclosure of confidential patient information without some type of direct threat violates both Washington law and HIPAA. The Volk Court reasoned that patient confidentiality may yield to “greater societal interests,” yet it is hard to imagine a medical professional disciplinary authority sharing this view.

And finally, may the reasoning of Volk be extended beyond psychiatrists? The possibility of tort liability under Volk potentially applies to other mental health professionals. This may include a family medicine nurse with an unstable patient, or even a school counselor with a troubled student.  While causation issues may prevent an unfavorale outcome in such a situation, the mental health community should keep an eye out for how future Washington case law applies Volk.

Andrew M. Wagley is an associate at Etter, McMahon, Lamberson, Van Wert & Oreskovich, P.C. Mr. Wagley’s practice focuses on commercial litigation, medical malpractice defense, criminal defense, employment law, and other complex litigation.

Etter, McMahon, Lamberson, Van Wert & Oreskovich, P.C. attorneys advise clients in a variety of complex areas, including medical malpractice defense and professional disciplinary matters. Please contact one of our attorneys regarding further implications of the Supreme Court of Washington’s recent decision.

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