Magazine article Developments in Mental Health Law

Court-Appointed Mental Health Evaluator Owes a Limited Duty of Care to the Person Being Examined

Magazine article Developments in Mental Health Law

Court-Appointed Mental Health Evaluator Owes a Limited Duty of Care to the Person Being Examined

Article excerpt

A health care provider typically owes a duty of care to an individual with whom a professional relationship has been established, including a duty to exercise reasonable care in diagnosing and treating the individual. Mental health professionals, however, are also often asked to provide court-ordered evaluations of litigants in civil proceedings or criminal defendants. The Virginia Supreme Court has indicated that mental health professionals in this context also owe a duty of care to these individuals, albeit a limited duty, and that they may be liable for damages if that duty is breached.

In the case before the court, a woman involved in an automobile accident had filed a lawsuit to recover damages resulting from the accident. Because the woman alleged she sustained a traumatic brain injury from the accident, the defendant was entitled under Virginia law to require her to undergo a medical exam to determine the nature and extent of her purported brain injury.

A licensed clinical psychologist with a subspecialty in neuropsychology conducted the exam. The woman claimed that during the course of the exam the psychologist verbally abused her, raised his voice to her, caused her to break down into tears, stated she was "putting on a show," and accused her of being a "faker and malingerer." She further asserted that the psychologist knew she had preexisting mental and emotional conditions, which, in addition to her traumatic brain injury, included a medical history of nervous problems, post-traumatic stress disorder, and suicidality.

The woman subsequently filed a lawsuit against the psychologist for medical malpractice. She stated that her mental and physical health had drastically deteriorated as a result of the psychologist's abusive conduct.

The Virginia Supreme Court began by noting that the same rules apply regardless of whether it is a physician or some other health care provider that is involved in providing a statutorily mandated examination. Further, the court found that all states that have examined this question have imposed a duty of care on the health care provider conducting the exam (including California, Colorado, Kansas, Maryland, Michigan, Minnesota, Montana, New Jersey, New York, Ohio, Pennsylvania, Texas, Washington, and West Virginia). But the court also noted that because such examinations do not involve the traditional consensual relationship that serves as the focus of medical malpractice cases, the duty of care owed by the health care provider to the person being examined is more limited. …

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