Trial Tactics in Psychiatrist Liability Cases

When handling a case against mental-health professionals such as psychiatrists, psychologists or social workers, there are special considerations that should be kept in mind. The average juror may not be aware of the extent of mental-health professionals' duty to protect innocent third parties from their dangerous patients, and they may be reluctant to hold these professionals responsible. Following are some strategies that will help to get the plaintiff's point of view across to the fact finder.

Voir Dire

You need to make sure that the jury accepts the concept that a professional can be liable where the harm occurs as a result of a deliberate, intentional act of a patient. The jury needs to know during voir dire that the case is only about the civil liability of the professional ' the question is whether he or she did his or her job, and not whether the psychiatric patient is criminally liable. Make it clear that the criminal part of the case is over. Ask the jurors to state affirmatively that they could hold a therapist liable for not doing his job even where a murder is carried out by one of his patients. If they cannot, they obviously are not good jurors for the plaintiff.

If the perpetrator is in jail, it will make some sense to the jury that he won't be testifying. Make sure to point out this circumstance to the jury in advance so they don't see the perpetrator's absence from the witness chair as a weakness in your case.

The type of juror you are looking for in a Tarasoff case is different than you might look for in any other plaintiff's cases. (As explained in Part One of this article, in Tarasoff v. Regents of University of California, 17 Cal.3d 425 (1976). a graduate student named Prosenjit Poddar, who was attending the University of California at Berkley, confessed to his counselor a desire to kill another student he was obsessed with: Tatiana Tarasoff. Although his counselor recognized that Poddar was dangerous and even briefly had him committed, neither Tatiana nor her family were warned of the threat. Two months later, Poddar murdered Tatiana Tarasoff.)

Conservatives, gun owners, and tough-on-crime types are not going to be sympathetic to a criminal's right to confidentiality over the “right to know” of a law-abiding citizen. Such jurors are fine for the plaintiff's side, as long as they are not tort-reformers. The “right to protect oneself” is so fundamental to gun owners that obligating a therapist to warn a potential victim in order that she might exercise that right will make absolute sense to them. Protective fathers, in general, are also good jurors for these cases.

If there is any suggestion in the case that the victim should not have been “mixed up” with the patient/criminal in the first place, stay away from jurors who are too much like the victim demographically. They are likely to have defense mechanisms in place in order to convince themselves that what happened to the victim in this case “would never happen to me because I never would have been involved with him in the first place.” This is the so-called “identification bias.”

When you present a case like this for the victim of a psychiatric patient, you are alleging that a mental health professional should have taken some kind of decisive action ' to commit, to warn, to contain. Therefore you should probably avoid the mealy-mouthed, passive, or overly intellectual juror. You also don't want jurors who have had therapy themselves. Of course, this question has to be delicately raised outside of other jurors' hearing, perhaps in a form with a question like, “Have you had any experiences with mental health professionals?” There is too much risk in accepting a juror who has had periods of therapy. Such a juror is less likely to respond to the idea that a therapist has an obligation, in some cases, to someone other than the patient. Their own fears that their personal, private thoughts could be subject to disclosure to third parties may color their ability to see the value in compelling mental health professionals to speak.

The Opening

The focus of the trial is, of course, critical. In making an opening statement, the focus needs to be squarely on the professionals; how they are trained to identify risk factors and how they are required to act to prevent harm to their patients and others.

Beyond this, you will need a reason or guiding principle. In our opening, in the case in which a young woman (Elaine) was killed by an ex-boyfriend whose therapist did not warn her of the possible danger (see Part One), I talked first about the “right to know” as stated above. I explained the risk factors known to increase the likelihood of violence. I then told the story, focusing on the therapist's initial evaluation of the boyfriend (Jim) and all that he knew prospectively as set forth in the medical records. Having already listed the risk factors for violence, I was able to line up the medical records and check the risks as we went along “Homicidal ideation?” Check. “Inability to control anger?” Check. “History of violence?” Check.

We described the “deal” between the therapist and Jim, where it was reported that Jim said he would not act on his thoughts but would “call if this changes.” I suggested to the jury, rhetorically: “You might ask yourself whether it made any sense for the therapist to rely on a patient he just met, with serious anger control problems, to pick up the phone and call him if he decided to harm Elaine?”

We have all watched movies where we know what is about to happen to an unknowing victim and wish there was some way to prevent it. Jurors are conditioned through movies and television to know when a person is in danger before the person does. In telling the story of the crime, re-create the scene dispassionately but specifically and slowly. Be sure that the jury knows exactly what is about to happen and how the victim has no clue. You will be tapping into this common thread. Instinctively, the jury will wish that they were in the position to do something ' and that is the essence of your case. The therapist could have done something!

Obviously, you need to avoid anything that could be perceived as appealing to sympathy. I personally don't believe in saying much about damages during opening statement, especially in death cases.

The Order of Witnesses

If the records aren't bad for your side of the case, and if you have helpful group protocols, call the office manager first. You can go through the records and introduce the policies. This puts the defendant(s) squarely under the gun and the focus is exactly where you want it to be. You want to go methodically through the treatment, and it is best to do this first with an adversarial but disinterested witness (so that you can lead).

When it comes to the practice's policies, first make sure they were in effect at the time the patient was being treated. Then, the jury needs to know where the policies came from, and why they were put in place. You are looking to highlight for the jury references to risk assessment, homicidality, suicidality, Tarasoff and exceptions to confidentiality. Your goal is to show that these issues are fundamental to a therapist's doing his job. The policies will help you show that a therapist is expected to take action in certain circumstances to protect others.

If you don't have strength in the records or policies, you may have to lead with a “teaching expert,” followed by the defendant. In any case the defendant should go early in the case.

In a homicide case, put the family on at the end of the case. You need to be brief with the family, and don't call every family member. If you have the jury, they will have built up enough concern for the family with their imagination. It is not difficult to identify with the pain a family suffers when their loved one is murdered. Obviously you need to show some pictures of the victim, but you need to be extremely careful about going overboard. You are going to get a big verdict if you win, and you want to avoid the appearance of “looking for money.” You will need to ask some simple questions about what the family would have done to protect themselves if they had been warned about the dangerous patient. You want to establish that being deprived of that opportunity made a difference in the outcome.

Expert Testimony

The problem with expert testimony in a psychiatric malpractice case is this: You will have to deal with psychiatrists, who tend to be overly analytical, long-winded, and fungible ' terrible qualities for court cases.

When preparing your psychiatry expert for trial and depositions, you need to discuss the case extensively so that you can help the psychiatrist wade through the psycho-babble to arrive at his or her concrete opinions. I advise having the psychiatrist write all conclusions down on a piece of paper. The list should start with a declarative statement like “Dr. Smith should have ' ” or “ Dr. Smith did not”: 1) Commit the patient; 2) Warn the police; 3) Do a risk assessment; 4) Bring in the patient's family; etc.

If you have one expert, you will have to put the defendant on before the expert. In my experience, the defendants in these cases make lousy witnesses and your goal will be to alienate them from the jury. If you have two experts, you should call one to teach (before the defendant) and one to offer the criticisms (after the defendant).

You want the jury to understand that evaluating patients at risk for suicide and homicide is central to what a psychiatrist is trained to do. When reviewing the background of the expert, make sure to elicit the fact that they are educated on how they are supposed to approach patients at risk for homicide and suicide in the first year of their training! They are also taught that, sometimes, they are required to protect the public from their patients. This it is one of the most important parts of their job.

The records in these cases are usually deficient and incomplete. To the extent that you can, you want your expert to rely on the records as much as possible because your goal is to build a case around the records. While this is true in any malpractice case, it is especially true in a wrongful death psychiatry case where the additional information is going to come primarily from the mouth of the defendant.

At trial, first ask a hypothetical question based solely on the medical records. Preface this so the jury knows what you are doing: “Dr Expert, I am going to ask you a question that is based solely on the official records in this case ' the records made when John Doe was still alive ' and not on what has been said after the death of John Doe.”

Then go methodically through the records, asking along the way whether the standard of care was met at various instances. Once you have elicited all the opinions, its time to ask your second hypothetical question: “Now, I would like you to assume that Dr Defendant has testified after the fact ' ” Fill in the testimony of the defendant and point out contrasts with the records where possible. I like to ask questions like, “ If you assume what the defendant says is true, isn't that an excuse for not committing the patient?” (knowing full well it isn't). Or, “If we assume what the defendant says today is true, does that change your opinion?” Often, the excuses make the original conduct look worse.

Remember not to let the expert roam too much. Also, be honest when you don't understand something the expert has said, or you sense that the jury has become confused. I always interject with something like, “You lost me on that one doctor,” or, “Maybe I'm the only one, but I don't understand what you mean by (long medical term).” Chances are, if you aren't following the discussion, neither is the jury.

Also, please meet the expert the day or night before his testimony. Go to dinner. Put him or her up at a nice hotel. You also do not want your expert driving to court the day of his testimony. The expert needs to be brought into the zone of the case without the stresses caused by fighting traffic and finding the courthouse and a parking space.

Cross-Examination of the Defendant

As we've already noted, mental-health professionals make bad witnesses. This applies not only to your expert, but also to the psychiatrist your client is suing. Obviously we are trained to control cross-exam, and that is important. However in these types of cases, my experience has been that you need only provide the rope to the defendant, and he will tend to hang himself under a mass of psycho-babble. Remember your case is about the therapist not taking some kind of action ' not warning the family, not committing the patient, not getting the patients records, etc. If the defendant rambles on, it will likely support the impression that this is a conflicted person, and not a person of action. The defendant is bound to deliver some gems through an answer that you can use surgically on him or her.

Prior to crossing the defendant, I put together a list linking any admissions from the deposition or from other sources together with the specific question I will ask. This is my “go to” list from which I can pull the defendant's words for my questions. I'll say, “You would agree that ' (fill in statement from deposition).” If the defendant agrees, that's great. If not, that's even better, because you can nail the witness on the issue of credibility and introduce the prior statement.

Always try to pit the medical record against the courtroom testimony. “What you are telling us today, doctor, is that John Doe appeared to be better on the day before he killed his victim ' but that's different from what you recorded in your official medical record prospectively, before John Doe killed her, correct?”

If there were policies that the defendant didn't follow, let the defendant make excuses as to why those policies were not followed, and write them down. Later, with your expert on the stand, you will need to reiterate all the excuses given by the defendant for the decisions that were made concerning the patient's dangerous propensities. Next, ask your expert about each excuse with questions like: “Dr. Smith told us that the reason he didn't call the patient's family was because he didn't want to break confidentiality, doesn't that excuse what he did?” Remember when it comes to confidentiality, it is owned by the patient, and not the therapist. Therefore you will want to establish that the defendant never asked the patient if it was acceptable to disclose the information to family members.

Final Argument

If you get to final argument in a Tarasoff case (I have yet to), remind the jury that “People have a right to know when they are in danger. People have a right to protect themselves.” This is what will motivate your jury on an instinctive “reptilian” level. Your jury wants to be protected from lurking predators, and probably doesn't care all that much if getting that protection means confidentiality between a psychiatrist and his patient must be breached. You want to remind the jury that a patient who confides dangerous propensities or ideation to his therapist wants to be stopped, whether they are speaking of suicide or homicide. If they just wanted to kill themselves or someone else, they wouldn't try and get help, they would do it.

By their nature, these cases are dramatic and compelling. During closing, I would retell the whole story to the jury, with an emphasis on the opportunity the defendant had to step in. I would also speak from the point of view of the victim who is going about her daily life not knowing of the lurking danger.

I would also point out that therapists are not fortunetellers who can see into the future. Therefore, they have to act based on the well recognized risk factors discussed in Tarasoff and its progeny before it is too late. This turns a classic defense argument on its head.

At the conclusion of the first portion of the final argument, after damages, I would do what I almost always do in summation: I would ask the defense to answer some questions “on behalf of the estate of John Doe.” Questions like, “Why didn't the psychiatrist obtain the old records on his patient? Why didn't he even try? Why did he choose not to do a thorough risk assessment? Why didn't he bring in one of his colleagues to discuss the patient's care with? Why is he still denying that he has any responsibility?” You get the idea. The beauty of ending with questions in your first part is it prevents the defense from standing up and saying “see this is all about money.” Also the defense ' in my experience ' will not answer the questions, which you can point out on rebuttal. If you craft your questions carefully, you'll know there are no satisfactory answers to them.

Joshua D. Koskoff is an attorney with the Connecticut firm of Koskoff, Koskoff and Bieder PC. He concentrates his practice in medical malpractice and air accidents.

When handling a case against mental-health professionals such as psychiatrists, psychologists or social workers, there are special considerations that should be kept in mind. The average juror may not be aware of the extent of mental-health professionals' duty to protect innocent third parties from their dangerous patients, and they may be reluctant to hold these professionals responsible. Following are some strategies that will help to get the plaintiff's point of view across to the fact finder.

Voir Dire

You need to make sure that the jury accepts the concept that a professional can be liable where the harm occurs as a result of a deliberate, intentional act of a patient. The jury needs to know during voir dire that the case is only about the civil liability of the professional ' the question is whether he or she did his or her job, and not whether the psychiatric patient is criminally liable. Make it clear that the criminal part of the case is over. Ask the jurors to state affirmatively that they could hold a therapist liable for not doing his job even where a murder is carried out by one of his patients. If they cannot, they obviously are not good jurors for the plaintiff.

If the perpetrator is in jail, it will make some sense to the jury that he won't be testifying. Make sure to point out this circumstance to the jury in advance so they don't see the perpetrator's absence from the witness chair as a weakness in your case.

The type of juror you are looking for in a Tarasoff case is different than you might look for in any other plaintiff's cases. (As explained in Part One of this article, in Tarasoff v. Regents of University of California , 17 Cal.3d 425 (1976). a graduate student named Prosenjit Poddar, who was attending the University of California at Berkley, confessed to his counselor a desire to kill another student he was obsessed with: Tatiana Tarasoff. Although his counselor recognized that Poddar was dangerous and even briefly had him committed, neither Tatiana nor her family were warned of the threat. Two months later, Poddar murdered Tatiana Tarasoff.)

Conservatives, gun owners, and tough-on-crime types are not going to be sympathetic to a criminal's right to confidentiality over the “right to know” of a law-abiding citizen. Such jurors are fine for the plaintiff's side, as long as they are not tort-reformers. The “right to protect oneself” is so fundamental to gun owners that obligating a therapist to warn a potential victim in order that she might exercise that right will make absolute sense to them. Protective fathers, in general, are also good jurors for these cases.

If there is any suggestion in the case that the victim should not have been “mixed up” with the patient/criminal in the first place, stay away from jurors who are too much like the victim demographically. They are likely to have defense mechanisms in place in order to convince themselves that what happened to the victim in this case “would never happen to me because I never would have been involved with him in the first place.” This is the so-called “identification bias.”

When you present a case like this for the victim of a psychiatric patient, you are alleging that a mental health professional should have taken some kind of decisive action ' to commit, to warn, to contain. Therefore you should probably avoid the mealy-mouthed, passive, or overly intellectual juror. You also don't want jurors who have had therapy themselves. Of course, this question has to be delicately raised outside of other jurors' hearing, perhaps in a form with a question like, “Have you had any experiences with mental health professionals?” There is too much risk in accepting a juror who has had periods of therapy. Such a juror is less likely to respond to the idea that a therapist has an obligation, in some cases, to someone other than the patient. Their own fears that their personal, private thoughts could be subject to disclosure to third parties may color their ability to see the value in compelling mental health professionals to speak.

The Opening

The focus of the trial is, of course, critical. In making an opening statement, the focus needs to be squarely on the professionals; how they are trained to identify risk factors and how they are required to act to prevent harm to their patients and others.

Beyond this, you will need a reason or guiding principle. In our opening, in the case in which a young woman (Elaine) was killed by an ex-boyfriend whose therapist did not warn her of the possible danger (see Part One), I talked first about the “right to know” as stated above. I explained the risk factors known to increase the likelihood of violence. I then told the story, focusing on the therapist's initial evaluation of the boyfriend (Jim) and all that he knew prospectively as set forth in the medical records. Having already listed the risk factors for violence, I was able to line up the medical records and check the risks as we went along “Homicidal ideation?” Check. “Inability to control anger?” Check. “History of violence?” Check.

We described the “deal” between the therapist and Jim, where it was reported that Jim said he would not act on his thoughts but would “call if this changes.” I suggested to the jury, rhetorically: “You might ask yourself whether it made any sense for the therapist to rely on a patient he just met, with serious anger control problems, to pick up the phone and call him if he decided to harm Elaine?”

We have all watched movies where we know what is about to happen to an unknowing victim and wish there was some way to prevent it. Jurors are conditioned through movies and television to know when a person is in danger before the person does. In telling the story of the crime, re-create the scene dispassionately but specifically and slowly. Be sure that the jury knows exactly what is about to happen and how the victim has no clue. You will be tapping into this common thread. Instinctively, the jury will wish that they were in the position to do something ' and that is the essence of your case. The therapist could have done something!

Obviously, you need to avoid anything that could be perceived as appealing to sympathy. I personally don't believe in saying much about damages during opening statement, especially in death cases.

The Order of Witnesses

If the records aren't bad for your side of the case, and if you have helpful group protocols, call the office manager first. You can go through the records and introduce the policies. This puts the defendant(s) squarely under the gun and the focus is exactly where you want it to be. You want to go methodically through the treatment, and it is best to do this first with an adversarial but disinterested witness (so that you can lead).

When it comes to the practice's policies, first make sure they were in effect at the time the patient was being treated. Then, the jury needs to know where the policies came from, and why they were put in place. You are looking to highlight for the jury references to risk assessment, homicidality, suicidality, Tarasoff and exceptions to confidentiality. Your goal is to show that these issues are fundamental to a therapist's doing his job. The policies will help you show that a therapist is expected to take action in certain circumstances to protect others.

If you don't have strength in the records or policies, you may have to lead with a “teaching expert,” followed by the defendant. In any case the defendant should go early in the case.

In a homicide case, put the family on at the end of the case. You need to be brief with the family, and don't call every family member. If you have the jury, they will have built up enough concern for the family with their imagination. It is not difficult to identify with the pain a family suffers when their loved one is murdered. Obviously you need to show some pictures of the victim, but you need to be extremely careful about going overboard. You are going to get a big verdict if you win, and you want to avoid the appearance of “looking for money.” You will need to ask some simple questions about what the family would have done to protect themselves if they had been warned about the dangerous patient. You want to establish that being deprived of that opportunity made a difference in the outcome.

Expert Testimony

The problem with expert testimony in a psychiatric malpractice case is this: You will have to deal with psychiatrists, who tend to be overly analytical, long-winded, and fungible ' terrible qualities for court cases.

When preparing your psychiatry expert for trial and depositions, you need to discuss the case extensively so that you can help the psychiatrist wade through the psycho-babble to arrive at his or her concrete opinions. I advise having the psychiatrist write all conclusions down on a piece of paper. The list should start with a declarative statement like “Dr. Smith should have ' ” or “ Dr. Smith did not”: 1) Commit the patient; 2) Warn the police; 3) Do a risk assessment; 4) Bring in the patient's family; etc.

If you have one expert, you will have to put the defendant on before the expert. In my experience, the defendants in these cases make lousy witnesses and your goal will be to alienate them from the jury. If you have two experts, you should call one to teach (before the defendant) and one to offer the criticisms (after the defendant).

You want the jury to understand that evaluating patients at risk for suicide and homicide is central to what a psychiatrist is trained to do. When reviewing the background of the expert, make sure to elicit the fact that they are educated on how they are supposed to approach patients at risk for homicide and suicide in the first year of their training! They are also taught that, sometimes, they are required to protect the public from their patients. This it is one of the most important parts of their job.

The records in these cases are usually deficient and incomplete. To the extent that you can, you want your expert to rely on the records as much as possible because your goal is to build a case around the records. While this is true in any malpractice case, it is especially true in a wrongful death psychiatry case where the additional information is going to come primarily from the mouth of the defendant.

At trial, first ask a hypothetical question based solely on the medical records. Preface this so the jury knows what you are doing: “Dr Expert, I am going to ask you a question that is based solely on the official records in this case ' the records made when John Doe was still alive ' and not on what has been said after the death of John Doe.”

Then go methodically through the records, asking along the way whether the standard of care was met at various instances. Once you have elicited all the opinions, its time to ask your second hypothetical question: “Now, I would like you to assume that Dr Defendant has testified after the fact ' ” Fill in the testimony of the defendant and point out contrasts with the records where possible. I like to ask questions like, “ If you assume what the defendant says is true, isn't that an excuse for not committing the patient?” (knowing full well it isn't). Or, “If we assume what the defendant says today is true, does that change your opinion?” Often, the excuses make the original conduct look worse.

Remember not to let the expert roam too much. Also, be honest when you don't understand something the expert has said, or you sense that the jury has become confused. I always interject with something like, “You lost me on that one doctor,” or, “Maybe I'm the only one, but I don't understand what you mean by (long medical term).” Chances are, if you aren't following the discussion, neither is the jury.

Also, please meet the expert the day or night before his testimony. Go to dinner. Put him or her up at a nice hotel. You also do not want your expert driving to court the day of his testimony. The expert needs to be brought into the zone of the case without the stresses caused by fighting traffic and finding the courthouse and a parking space.

Cross-Examination of the Defendant

As we've already noted, mental-health professionals make bad witnesses. This applies not only to your expert, but also to the psychiatrist your client is suing. Obviously we are trained to control cross-exam, and that is important. However in these types of cases, my experience has been that you need only provide the rope to the defendant, and he will tend to hang himself under a mass of psycho-babble. Remember your case is about the therapist not taking some kind of action ' not warning the family, not committing the patient, not getting the patients records, etc. If the defendant rambles on, it will likely support the impression that this is a conflicted person, and not a person of action. The defendant is bound to deliver some gems through an answer that you can use surgically on him or her.

Prior to crossing the defendant, I put together a list linking any admissions from the deposition or from other sources together with the specific question I will ask. This is my “go to” list from which I can pull the defendant's words for my questions. I'll say, “You would agree that ' (fill in statement from deposition).” If the defendant agrees, that's great. If not, that's even better, because you can nail the witness on the issue of credibility and introduce the prior statement.

Always try to pit the medical record against the courtroom testimony. “What you are telling us today, doctor, is that John Doe appeared to be better on the day before he killed his victim ' but that's different from what you recorded in your official medical record prospectively, before John Doe killed her, correct?”

If there were policies that the defendant didn't follow, let the defendant make excuses as to why those policies were not followed, and write them down. Later, with your expert on the stand, you will need to reiterate all the excuses given by the defendant for the decisions that were made concerning the patient's dangerous propensities. Next, ask your expert about each excuse with questions like: “Dr. Smith told us that the reason he didn't call the patient's family was because he didn't want to break confidentiality, doesn't that excuse what he did?” Remember when it comes to confidentiality, it is owned by the patient, and not the therapist. Therefore you will want to establish that the defendant never asked the patient if it was acceptable to disclose the information to family members.

Final Argument

If you get to final argument in a Tarasoff case (I have yet to), remind the jury that “People have a right to know when they are in danger. People have a right to protect themselves.” This is what will motivate your jury on an instinctive “reptilian” level. Your jury wants to be protected from lurking predators, and probably doesn't care all that much if getting that protection means confidentiality between a psychiatrist and his patient must be breached. You want to remind the jury that a patient who confides dangerous propensities or ideation to his therapist wants to be stopped, whether they are speaking of suicide or homicide. If they just wanted to kill themselves or someone else, they wouldn't try and get help, they would do it.

By their nature, these cases are dramatic and compelling. During closing, I would retell the whole story to the jury, with an emphasis on the opportunity the defendant had to step in. I would also speak from the point of view of the victim who is going about her daily life not knowing of the lurking danger.

I would also point out that therapists are not fortunetellers who can see into the future. Therefore, they have to act based on the well recognized risk factors discussed in Tarasoff and its progeny before it is too late. This turns a classic defense argument on its head.

At the conclusion of the first portion of the final argument, after damages, I would do what I almost always do in summation: I would ask the defense to answer some questions “on behalf of the estate of John Doe.” Questions like, “Why didn't the psychiatrist obtain the old records on his patient? Why didn't he even try? Why did he choose not to do a thorough risk assessment? Why didn't he bring in one of his colleagues to discuss the patient's care with? Why is he still denying that he has any responsibility?” You get the idea. The beauty of ending with questions in your first part is it prevents the defense from standing up and saying “see this is all about money.” Also the defense ' in my experience ' will not answer the questions, which you can point out on rebuttal. If you craft your questions carefully, you'll know there are no satisfactory answers to them.

Joshua D. Koskoff is an attorney with the Connecticut firm of Koskoff, Koskoff and Bieder PC. He concentrates his practice in medical malpractice and air accidents.