This episode addresses suing the mental health provider or nursing home when a mental patient injures someone. This opinion is from my perspective as a nursing home negligence lawyer. https://neuwirthlaw.com/askandysc/
Transcript
Good morning and welcome to Ask Andy, this is a daily podcast about personal injury practice in Philadelphia, Pennsylvania. My name is Andrew
Neuwirth. I wanted to talk to you today about situations where you’re considering suing a mental health professional. And you know, the typical example that personal injury
lawyers deal with is someone escapes from a hospital and they have a diagnosed mental disorder and they go in, you know, murder someone or crash a car or something. So that’s your typical situation. You know, the horrible ones are someone was under treatment, they got out of their treatment facility, and they went and killed someone. You know, other ones are if you’re a mental health facility and you admit sexual diagnosed sexual predator into your facility and then they go in assault someone, you know what happens there? What are your rights? And you know, there
have been a couple cases like that recently, but you know, when a case trickles into the system, it means that there’s probably been a whole bunch more of them that we don’t find out about for various reasons. But you know, the important thing to know is that the Mental Health Procedures Act in Pennsylvania, you know, protects physicians or mental health providers or the facility when they render treatment to people who are mentally disabled or incapacitated, depending on the definition. But basically, you have immunity as a physician or as a treater or as a facility, as long as there’s not gross negligence and gross negligence or willful misconduct. So, you know, gross negligence is a very high bar to meet.
It is very difficult to pursue and there are very few cases that really warrant, you know, pursuing. It’s just, you know, it’s one of the reasons why a lot of cases I’ve seen over my career, you know, the suicide cases where someone’s admitted to a jail or a county prison or, you know, anywhere and they end up, you know, maybe they’re on suicide watch, maybe they’re not, you know, and they end up killing themselves. And the family wants to pursue a case for not properly, you know, supervising or essentially preventing that. It’s different against the police officers because they’re not mental health providers. But you know, a lot of the prisons have a mental health health care system, and they’ve evaluated the person, and that evaluationis the judgment that you would be focusing on. And but that person doing the evaluation has the protection of this, you know, immunity unless there’s gross negligence and you’re just not going to find most of the time gross negligence, you know, gross negligence is something like, you know, there was a case in Lancaster in the past year or two where a nursing home admitted someone who was a designated sexual predator into the nursing home and didn’t appear to provide enough protection for everyone around them. And the sexual predator went and did what sexual predators do, and they sexually assaulted someone, OK? And you know, there are different situations where a patient is a predator or, you know, an employee, you know, sometimes temporary employees haven’t had fully, haven’t been fully checked out, and they’re a sexual predator and they go and assault a patient.
You know, there are all sorts of different parameters or different things you can think about. But the point of the matter is this it is very hard to sue a mental health professional because we want to make it hard to sue them. As a society, we want doctors to do their job. We want facilities to take mentally ill people and because society is a large, can handle them. And yet they are, by nature, unpredictable. You know, there’s no cat scan or CT. They can say, Oh, the leg’s broken, put a cast on it. So the unpredictability and the, you know, work it takes to properly evaluate someone is harder in the mental health capacity than it is in cardiology or orthopedics or wherever else you’re going to be. So therefore, we make it harder to sue them because we want to encourage. Doctors to treat patients now, with that being said, you know, there are certainly situations where you can file lawsuits and win, but you’re always going to be up against this challenge, which is, you know what? What level of ridiculousness do you need to show to win your case, you know, or what’s? How’s a jury going to look at it if you let a diagnosed sexual predator into your facility and let them kind of run rampant? Or did you even check to see if they were a sexual predator? You know, there are things like that where there are situations which, you know, may not immediately be apparent to the family or to the facility.
And that’s kind of the one where the lawyer needs to look into it. You know, families aren’t going to come to me with cases saying, Oh, this guy is a diagnosed sexual predator. Families are going to come to me with a person says, you know, this guy eloped is the defense term. You know, he left the nursing home up the street, or he left the halfway house because he wasn’t locked down or properly supervised. And he went and, you know, assaulted this, you know, neighbor the facility. The neighbor’s family is going to come to me and say, Hey, can you look into this? So then the examination becomes, Look, was this person, you know, being treated by a mental health provider or not? And you know, if not, then you’re in the negligent situation. If yes, then you’re in the gross negligence situation. So, you know, there are difficult cases to evaluate up front there. Most of the time, as a lawyer, you’re going to focus on the policies and procedures and what protections were put in for surrounding patients or the surrounding community. And on the defense side, they’re going to focus on, you know, the Mental Health Protections and Immunities Act. So, you know, those are some of the issues that arise. But, you know, look, any time you have someone eloping or escaping or wandering out of a, you know, a nursing home, whether there are the victim or they are causing other people, they’re victimizing other people like nursing homes have a lot of protections or they’re supposed to have a lot of protections in place to keep residents and patients from taking off.
And people with mental health disorders are oftentimes unwilling or unable to understand that they’re supposed to stay there and they are constantly trying to leave. So there are all sorts of protections and locks and, you know, systems to prevent patients from leaving without, you know, one to one or something close to one to one supervision. So, you know, elopement wandering off whatever you want to call it, sometimes it results in patients dying of exposure. Sometimes it results in patients assaulting passers by. Those are kind of the situations I look for is, you know, what the heck was this person doing out in the wild outside of their facility and why were they there? And, you know, did the fact that they left the facility tell you something, you know, was that a deviation from the standard of care? That’s kind of how we look at it, but youalways got to be aware that there’s this mental health immunity back there. And, you know, as a client or as a patient’s family member, it doesn’t really affect your evaluation. Your job is really to say to decide within the family that, look, this is something we want to look into. We want this change. We don’t want this to happen again to another family member.
And you know, then you go see the lawyer and it’s the lawyer’s job to figure out like, Well, you know, what are the chances of winning? Is this a mental health procedures act? And if so, is the negligence gross? Or is it, you know, so astoundingly misguided that you know, look, typical gross negligence? A sexual predator is admitted into your nursing home and you don’t realize he or she is a sexual predator. Ok? I think that’s gross. End of story. Stop that person goes and does something bad. Yeah, we’re going to hold you accountable. Nursing home may say, Well, you know, he wasn’t on this list or he wasn’t on that list, or he was a temporary person. You know, who knows there are a thousand defenses, but at the end of the end of the road is the end of the story is you shouldn’t have admitted him. And that’s not really mental health treatment in my mind, but that’s what you’re going to hear from the defense. So anyway, that’s enough on, you know, mental health defenses or immunities. For today, I hope you have a great week. It’s this has been Andrew where this is, ask Andy. It is sponsored by my law firm, Neuwirth Law Office in King of Prussia, Pennsylvania. We are in the Philadelphia suburbs and you can find me on like me on Facebook. Find me on LinkedIn. Give me a buzz or email at Andrew@neuwirthlaw.com.
Take care. Have a great day.