Tuesday, February 26, 2013

Emergency Room Doctors Speak Out On Gun Violence

This morning, Colorado Public Radio aired a fascinating story about emergency doctors who treat victims of gunshot wounds. The piece goes into information about how often doctors treat individuals who are victims of gun-related violence, and it covers some of the gun control measures that doctors do and do not support.

It is definitely worth a listen: Doctors On Front Line Of Gun Violence In Colorado

Thanks for reading-- Max Wachtel, Ph.D.

Monday, February 25, 2013

A 9 News Story Where I Am Interviewed

This is another 9 News story by Jeremy Jojola talking about mental illness. In this "Inside Story," he describes the process he went through in researching his story from last week about mental illness, dangerousness, and access to healthcare.

Here is link to the video:

As always, this is a great story by Jeremy Jojola. One minor correction--I am listed as a forensic psychiatrist in the video, but I am actually a psychologist.

Thanks for reading/watching-- Max Wachtel, Ph.D.

Wednesday, February 20, 2013

The Colorado Law That Will Make It Difficult For Aurora Theater Shooting Victims To Win In Court

Picture of the theater shooter's car behind the movie theater. Will
his psychiatrist be protected from lawsuits by Colorado Law?
At this point, the criminal case against the Aurora Theater Shooter is solid. There appears to be ample evidence that the man accused of the shooting is the one who did it. Most legal experts seem to think he will plead Not Guilty By Reason of Insanity and take his case to trial. In Colorado, and nationally, very few defendants win those 'NGRI' cases.

That is the criminal case, though. There are a number of civil lawsuits also working their way through the courts now. In addition to lawsuits against the theater, family members of shooting victims are suing Dr. Lynne Fenton and the University of Colorado Hospital where she works, claiming she was negligent because she failed in her duty to warn and protect the public against her patient.

But does this claim have any legal merit in Colorado? Did Dr. Fenton actually have a duty to do anything, even if she thought her patient was at high risk of committing an act of violence?

The answer is, maybe. But, maybe not.

Any person in Colorado can be civilly committed to a mental hospital against his or her will if the person appears to have a mental illness and appears to be a danger to self or others (C.R.S. 27-65-105(1)(a)(I). Initially, this commitment can last up to 72 hours, at which point the treating hospital has the authority to ask a court to force the person to remain in treatment for a longer period of time.

The catch in this law, referred to as a "27-65 hold" or a "72-hour hold" is the existence of two importantly placed "mays." It reads, "Emergency procedure may be invoked," and a doctor "may take the person into custody." In legal terminology, the word "may" is often used to describe a situation where a particular action is allowable but not always necessary. By contrast, the word "shall" typically describes situations that are mandatory.

The 27-65 law allows for some wiggle room. There might be occasions where a person has a mental illness and is imminently dangerous, but taking the person into custody isn't necessary. The standard of practice is to do so, which is probably what plaintiff's attorneys will try to argue. But, Dr. Fenton's lawyers will most likely point to the wiggle room in the statute in defense of Dr. Fenton's decision to keep her client out of the hospital.

But, that 27-65 law isn't the statute that is going to be problematic for the victims who are suing Dr. Fenton. It might be a legal bump in the road, but it is another Colorado law that will make a lawsuit difficult to win.

Buried in Title 13 of the Colorado Revised Statutes (Title 13 deals with Courts and Court Procedure) is a law that specifically deals with civil liability for mental health workers in the state. C.R.S. 13-21-117 states that a mental health professional shall not (there is that mandatory "shall") be held liable "for failure to warn or protect any person against a mental health patient's violent behavior, and any such person shall not be held civilly liable for failure to predict such violent behavior."

The law is very clear: a psychiatrist cannot be held civilly liable for failure to protect the public against a patient's violent behavior. And, a psychiatrist cannot be held civilly liable for failure to predict a patient's future violence.

There is one exception to this protection for mental health workers. The same statute (C.R.S. 13-21-117) offers one specific scenario where a psychiatrist is not guaranteed protection from liability. A mental health worker can be held liable for damages when "the patient has communicated to the mental health care provider a serious threat of imminent physical violence against a specific person or persons."

Under a strict reading of Colorado law, if the theater shooter did not tell Dr. Fenton about his plan, she cannot be held liable for failing to warn or protect anyone because there was no communication regarding that plan. Even if she was terrified that he might act in a violent manner, she could not be held liable for failing to predict future violence if he didn't tell her about his plan, which needed to be imminent and contain the potential for physical violence against a specific person or group of people. Even if he told Dr. Fenton he was amassing an arsenal and wanted to go on a shooting rampage at an unspecified time and place, a literal reading of this Colorado law would protect her from lawsuits based on her failure to act.

This law, even though it seems clearly stated and open for little interpretation, does not guarantee Dr. Fenton's protection from liability. Attorneys are excellent at finding case law that contradicts or expands upon current statutory law, and judges are sometimes willing to hear arguments and interpret legal statutes in new ways. But, C.R.S. 13-21-117 will be a major sticking point for both the plaintiffs and the defense, and it is likely that, whatever the judge decides, the case will be appealed. It could be that one of these civil cases will make its way to the Supreme Court, which could then provide all states a federal standard for how mental health workers are to proceed when they have dangerous patients.

Thanks for reading-- Max Wachtel, Ph.D.

Tuesday, February 19, 2013

Excellent 9 News Story on The Difficulties in Accessing Mental Healthcare In Colorado

Last night, 9 News investigative reporter Jeremy Jojola reported on the story a 26 year-old man that could have ended very, very badly. This person has Schizophrenia and was extremely paranoid and angry. He was stockpiling guns and ammunition in his mother's basement, and he threatened to kill his mother and brother on several occasions. The fear was that he had the potential to kill his family and/or head to a public venue and start shooting.

His mother did everything she could to try to get her son the treatment he needed. Since he was an adult, she was limited in terms of what she could do, though. Repeatedly, he either refused treatment or would be turned away because of lack of funding.

Frustrated and scared (for herself and the public), his mother had no choice but to turn her son in to the local police, who found his guns and charged him with several felony weapons possession charges. Fortunately, this man did not kill himself or anyone else, but he is now embroiled in the criminal justice system. Rather than getting the treatment he desperately needed through a functioning mental health system, he will start receiving mental healthcare in jail.

I was interviewed for the story, and I am proud to have been involved with it in a small way. The journalist, Jeremy Jojola, is using his contacts from the story to gather information about the problems of accessing mental health services in Colorado, which he will present to the Colorado State Legislature.

Also, when you are watching the story, it is extremely important to remember that this is a very rare case. The research shows very clearly that individuals with mental illness are no more dangerous than anyone else. This is just one of those cases where the individual's mental illness increased his risk level for violence, and treatment likely could have been tremendously helpful in keeping him from becoming a danger to himself or others.

Here is the story:

If you are in Colorado and have experience with the mental health system, I encourage you to share your experience with Jeremy Jojola and 9 News here. They are compiling everyone's thoughts to share with the state legislature. Please remember, they are only looking for experiences in the State of Colorado.

Thanks for reading-- Max Wachtel, Ph.D.

Wednesday, February 13, 2013

My 9 News Interview About Chris Dorner

Here is the video from this morning about the ex-police officer from Los Angeles who is suspected of murdering several people due to being fired from the police force in 2009. I come in around 1:55:

Thanks for watching-- Max Wachtel, Ph.D.

Monday, February 11, 2013

Emotional Distress From An Incorrectly Diagnosed STD: Molien v. Kaiser Foundation Hospital (1980)

What would you do if your spouse or partner came home from a doctor's appointment and told you he or she had syphilis?

If you are like most people, you would freak out.*

Your partner would get massive amounts of penicillin, and you would get a blood test to see if you had the sexually transmitted disease, too.

And then, the blame would begin. You would accuse your partner of cheating. Your partner would accuse you. Both of you would deny it. Neither of you would believe the other one. Anger, betrayal, disgust, rumors, fear of worse communicable diseases. Divorce or separation, maybe. It would be horrible, and it would likely ruin your relationship, at least for a substantial period of time.

Then, let's say, out of the blue, your partner gets a call from the doctor's office. They made a mistake--no one in your household had ever actually contracted syphilis.

Now what would you do?

If you were like the plaintiff in the landmark legal case Molien v. Kaiser Foundation Hospitals (1980), you would sue.

In this case, Mr. Molien's wife was mistakenly diagnosed and treated for syphilis. She accused Mr. Molien of having an extramarital affair, even though he tested negative for the disease. At the time of the lawsuit, the two had initiated divorce proceedings.

Mr. Molien sued the hospital for "negligently inflicted emotional distress" and "loss of consortium."

A quick aside into legal terminology: Negligently inflicted emotional distress is pretty much what it sounds like. The key here is that, prior to this case, courts had always found that emotional distress needed to be coupled with physical injury for there to be a "cause of action" (basically, something for which you could sue and potentially recover damages).

Can you sue the internet for
loss of consortium?
Loss of consortium refers to when a person misses out on whatever benefits of a family relationship are available to him/her because of the negligence of someone else. For example, a husband who can no longer spend quality time with his wife, depend on her for her share of running the household, have sex, etc. may sue for loss of consortium. Note: if the wife in this situation were to die because of the negligence of someone else, that is not loss of consortium. That is wrongful death.

Now back to the case: The trial court ruled that Mr. Molien did not have a cause of action (a valid reason to sue) on either of his allegations--there was no negligently inflicted emotional distress because he was not the patient and was not physically harmed, and there was no loss of consortium for similar reasons.

Mr. Molien appealed the case to the California Supreme Court, who agreed to hear it. In 1980, the Court issued its ruling in four main parts:

1. The alleged wrongdoing by the hospital was directed at both the wife and the husband in this case, even though the husband was not the patient.

2. The "risk of harm to the husband was reasonably foreseeable and, thus, [the hospital] owed the husband a duty to exercise due care in diagnosing the physical condition of his wife."

3. It did not matter that Mr. Molien did not suffer a physical injury. He still had a cause of action for "emotional distress."

4. There was also a cause of action for "loss of consortium."

This case is groundbreaking for two main reasons. First, it reinforced the notion that the spouse or partner of a patient could be considered a "direct victim" of medical negligence, even if that spouse/partner had not been the actual patient. Second, it set the precedent that a direct victim does not need to sustain a physical injury in order to be a victim of negligent infliction of emotional distress.

Thanks for reading-- Max Wachtel, Ph.D.

*This is anecdotal data, not supported by research. But, seriously, wouldn't you freak out?

Thursday, February 7, 2013

Murder-Suicide in Denver: When The Mother Is The Killer

On Wednesday morning, February 6, Mayra Nunez shot her three young children and then shot herself. Two of the children were found dead, as was the mother. A two year-old girl survived a gunshot to the head and was rushed to the hospital for surgery, where she remains in critical condition. The mother killed her children and herself with the handgun the family kept in the house for protection.

Here is a news clip about the shooting. Word of warning: this is a disturbing story with some graphic details.

Needless to say, murder-suicide is horrible. The devastation it leaves behind for family, friends, and community is unfathomable. This particular murder-suicide is no different in that regard. But, it is atypical in one key way: the act was committed by a woman.

As I have written in other blog posts (click on the label 'Murder-Suicide' at the end of this post to read more), the perpetrators are almost always male. Murder-suicides typically stem from domestic violence when they are initiated by men. When murder-suicides are initiated by women, there are two common scenarios that tend to emerge:

Either, women will kill an abusive opposite-sex partner and then kill themselves. Or, what is much more common, women will kill their children and then kill themselves.

There can be numerous reasons why anyone will decide to murder someone else or to commit suicide. With women and murder-suicide involving their children, there are two main reasons that stand out among others:

1. Depression (sometimes post-partum depression) -- Women who are severely depressed will want to die, and they will irrationally assume no one will be able to care for their kids when they are gone. Or, they will think they will be doing their children a favor by removing them from such a painful, evil world. Hence, they kill their children and then themselves.

2. Psychosis (again, sometimes post-partum) -- Women who are psychotic and paranoid will think some outside force is telling them to kill their children. Maybe, their kids are evil or some evil will be acted out on the children if they are allowed to live. Psychotic women can also think God is telling them to kill their children so they will go to a better place. Whether to rid the world of evil or to hasten a trip to heaven, these women will kill their children and then themselves.

Yesterday was a terribly sad day for the Denver community, one in a string of sad days that none of us deserves. It can be difficult to come to terms with news of a mother killing her children, and we will never know this mother's true motivations. But I hope my explanation can help shed some light on what would otherwise be a completely incomprehensible event.

Thanks for reading-- Max Wachtel, Ph.D.

Wednesday, February 6, 2013

Gun Safety: Young Children Will Play With Guns No Matter What

On Friday, February 1st, Tmorej Smith died. He was three years old, and he lived in South Carolina. While his grandparents watched television in another room, he and his seven year-old sister were playing with their mother's handgun. Tmorej was shot in the head and quickly died. Police reports are not clear at the current time as to whether he shot himself or whether his sister shot him. But, his sister told family and police they thought the gun was a toy.

Here is what the gun looked like:

Does this gun look real to you? It looks like a toy to the average seven year-old

Tmorej's story is tragic, but not uncommon. According to the National Center for Injury Prevention and Control, over 100 children die of accidental gunshot wounds every year, and another 3000 or so receive nonfatal gunshot wounds.

The psychological research is fairly clear as to why this is: If they have access to them, kids will play with guns.

Let me state that again: If there is a gun in your house that your kids can access, they will play with it.

One more time, in a slightly different way: If you have an unsecured gun in your home, your kids have most likely found it and have already played with it.

Kids, especially young ones, have difficulty distinguishing real guns from toy guns, and for some reason, children are drawn to playing with guns like magnets. When you add a pretty, small, unusually colored gun to the mix, it becomes irresistible. If they can get their hands on it, kids will play with it. Some of them will shoot themselves or their siblings accidentally as a result.

An interesting catch in this research is that gun safety classes appear to mitigate some of the risks associated with children and access to guns. Especially as they age, children learn from gun safety classes and understand that guns are not to be touched or played with when adults are not present. The best gun safety classes are the ones that teach children to handle actual firearms during the class.

But, there is another catch: These gun safety classes do not work on younger children. Up to the age of seven or eight, kids will still play with guns if they are available, even if they have been exposed to extensive gun safety classes.

These findings indicate the best way to keep your children safe if you have guns in the home is to keep them locked in a safe and unloaded. Ammunition should also be locked, ideally in a separated space from the firearms.

I have heard parents say locking up firearms and keeping them unloaded defeats the purpose of home safety. If a bad guy breaks into your house, you need that loaded gun immediately. It takes too long to unlock it, unlock the ammunition, load the gun, and then confront the intruder.

All of that is true. But it is important to keep in mind that one of your young children is much more likely to kill you or one of your loved ones with an easily accesible, loaded gun than an intruder is. If your goal is to maximize your family's chances of living, your best bet is to lock up that gun.

I feel terribly for Tmorej and his entire family. No three year-old deserves to die, and no seven year-old deserves to live the rest of her life with that horrible memory. No family deserves to endure the grief I am sure they are feeling. My heart goes out to them, and to the families of the other children who have died in accidental shootings already this year. I only hope parents who are responsible gun owners will take the simple steps needed to prevent such an awful tragedy from befalling their family.

Thanks for reading-- Max Wachtel, Ph.D.


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