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Torts 


Mental healthcare facilities frequently violate state tort laws pertaining to negligence, gross negligence, battery, false arrest, unlawful imprisonment, intentional infliction of emotional distress, negligent retention, prima facie tort, negligent hiring, retention, and supervision of employees and agents, etc.  They get away with this misbehavior due to the deliberate indifference of state regulators.

The criteria for false imprisonment are:  (1) willful detention; (2) without consent; and (3) without authority of law.  

The tort of IIED (intentional infliction of emotional distress) has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.

The tort of Battery requires both injury and intent to cause injury.  

In order to recover damages from a defendant on prima facie tort, a plaintiff must show: (1) that defendant intentionally acted or failed to act, (2) that defendant intended that the act or failure to act would cause harm to the plaintiff or that defendant knew with certainty that the act or failure to act would cause harm to the plaintiff; (2) That the defendant's act or failure to act was a cause of plaintiff's harm; and (4) that defendant's conduct was not justifiable under all the circumstances.

Negligent hiring and/or retention may be found where the employee (the tortfeasor) had a reputation or record that showed his/her propensity to misuse the kind of authority given by the employer, and this record would have been easily discoverable by the employer, had the employer exercised 'due diligence'.  Negligent retention occurs where a party failed to remove an employee from a position of authority or responsibility after it became apparent that the employee was in fact misusing that authority or responsibility in a way that posed a danger to others.  Negligent supervision is closely related, as it occurs where a party fails to reasonably monitor or control the actions of an employee.  A variation of negligent retention or supervision is negligent training, which arises where the employer's training of the employee fails to prevent the employee from engaging in the acts that injure the claimant, or fails to remediate a pattern of behavior which leads to an injury.

To establish a prima facie case of defamation, four elements are generally required:  (1) a false statement purporting to be fact concerning another person or entity; (2) publication or communication of that statement to a third person; (3) fault on the part of the person making the statement amounting to intent or at least negligence; and (4) some harm caused to the person or entity who is the subject of the statement.

The discussion of defamation arises when you consider the creation and dissemination of your clinical records in a mental healthcare context, and what happens when that is done contrary to law and medical ethics.  

Electronic Medical Records (EMR) systems are mandatory for all hospitals in America beginning in 2014.  EMRs enable hospitals to share patients’ clinical records with innumerable other parties at the touch of a button.  This includes parties not only within the hospital system, but also external parties.  Previously, clinical records were created in handwriting by psychiatrists.  EMRs promise advantages to both patient and provider, not the least of which is legibility, since physicians have notoriously illegible handwriting.  However, the implications of EMRs for patient confidentiality have not been sufficiently addressed in state regulations or in case law, nor has the choice of appropriate wording to describe a patient’s (or loved one’s) sensitive information in the clinical records.  Such sensitive information might include details about an individual’s sexual orientation or practices, identity of partner(s), financial dealings, family squabbles, or a myriad of other types of information that a patient might consider highly confidential, and which might cause trauma to the patient (or others) if it were released.  When a hospital releases such sensitive information in an improper way, it can destroy relationships, ruin careers, and create various other kinds of havoc.  This puts the hospital and physicians at liability risk, by violating privacy and defamation laws.

 

[this information is current to the best of our knowledge as of 2/14]