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Malpractice Rx

Involuntary commitment, ‘false’ memories

Cases were selected by CURRENT PSYCHIATRY’s editors from Medical Malpractice Verdicts, Settlements & Experts, with permission of its editor, Lewis Laska of Nashville, TN ( Information may be incomplete in some instances, but these cases represent clinical situations that typically result in litigation.

Vol. 4, No. 1 / January 2005

Self-proclaimed ‘exorcist’ claims he was improperly committed

Court of claims (NY)

In response to a 911 call, police arrested a man who, the caller said, was trying to choke and stab an individual. Upon his arrest, the man claimed that he was an exorcist. He justified his attack by alleging that his victim was a medium for demons and spirits.

The suspect was taken to a psychiatric hospital; staff decided that he endangered himself and others and should be committed. During his commitment, he was restrained and forcibly given medication.

The man later sued the hospital for intentional infliction of emotional distress and malpractice. He charged that the hospital denied him the right to a court hearing after he was admitted.

The court dismissed the case. The court noted that the plaintiff did not present expert testimony to support his emotional distress claim.

Dr. Grant’s observations

Involuntary commitment. Although the standards for involuntary commitment vary from state to state, some general principles apply.

A patient who endangers himself or others may be held for varying periods until a court hearing can be arranged. State law determines how long someone can be held before a court-ordered commitment. Although the patient has a right to a court hearing, the state is not obligated to conduct that hearing sooner than is determined by state law. Clinicians need to learn the laws governing involuntary commitment in the states in which they practice.

Patients who are involuntarily committed are not required to accept treatment, however. Competent adults generally must give informed consent to treatment, but this rule is usually suspended in an emergency. When a patient is a danger to self or others, that person can be restrained and medicated against his or her will for as long as the emergency lasts. In such cases, the clinician should clearly document:

  • indications for using restraint and forced medication (include a detailed assessment of the patient’s dangerous behaviors)
  • the patient’s response to previous behavioral approaches or treatments
  • grounds for believing that the patient’s refusal of other interventions is clearly a product of the illness.

Emotional distress. A patient who alleges that an action has caused emotional harm faces limitations on the ability to recover damages. These limitations are based on the belief that people may fabricate emotional damages. Courts therefore require that an expert witness—usually a psychiatrist or psychologist—testify about the emotional damages. Without an expert witness, such cases may be dismissed for inability to establish a claim.

Patient: psychiatrists planted false memories, gave wrong diagnosis

Green County (WI) circuit court

A 55-year-old woman was seen in a hospital clinic’s weight-loss program and developed anxiety symptoms as she reached normal weight. Her psychologist assigned her to read a book about surviving incest, which focused on repressed memories that surface during recovery. The woman then received hypnosis from a psychiatrist who was not trained as a hypnotist.

During the hypnosis sessions, the patient reported “remembering” past instances of abuse that she had not previously recalled. The psychiatrist guided her to relive or reenact one event, in which she reported remembering being anally raped. The patient became more depressed and required hospitalization. Another psychiatrist, who took over the case when the first psychiatrist left the clinic, diagnosed the patient as having multiple personality disorder.

The patient later questioned the diagnosis and came to believe that her treatment had been inappropriate and that the memories had been planted. The patient, once a registered nurse, is now disabled.

In court, the jury heard:

  • charges of negligence against the treating physicians on behalf of the woman and her son, who was briefly treated by the original psychiatrist
  • charges that neither the psychiatrists nor the clinic obtained informed consent before treating the woman or her son.
  • The jury decided for the physician, clinic, and hospital on all charges.

Dr. Grant’s observations

This case involves several complex and controversial areas in psychiatry: recovered memory, multiple personality disorder, and use of hypnosis. Although the jury found for the physician, clinic, and hospital, these areas provide fertile ground for lawsuits, many of which are successful.

The case involved two distinct legal causes of action:

  • negligent care
  • lack of informed consent.

Negligence is defined as not following the “standard of care.” Recovered memory, hypnosis, and multiple personality disorder lack a clear standard of care and are potential legal minefields for any clinician. Sound clinical practice, however, may reduce some cause for concern.

Recovered memory. The veracity of recovered memory has been vigorously debated. 1 Because the credibility of recovered memory cannot be established, the clinician should clearly state in the chart that the past incident the patient reports during therapy may not have happened. The clinician also must avoid imposing his or her beliefs on the patient (such as assuming that patients with eating disorders have been sexually abused) or advocating for action on the patient’s part.

Hypnosis used to recover memories of abuse may be particularly complex legally. 2 A clinician using hypnosis may jeopardize therapeutic disinterest by interjecting suggestions—often without realizing that he or she is doing so.

To avoid negligence claims, clinicians should stay within their areas of competence when treating patients. If hypnosis is deemed clinically necessary, a clinician not trained in hypnosis should refer the patient to a certified clinical hypnotist.

Multiple personality disorder is included in DSM-IV-TR as dissociative identity disorder, but approximately one-third of psychiatrists question whether this is a legitimate diagnosis. 3 Clearly documenting the basis for this—or any—diagnosis may help the clinician avoid a lawsuit or defend against a negligence charge.

Informed consent. Failure to inform patients about the risks associated with recovered memories is one of the most common allegations against clinicians in recovered memory cases.

Canterbury v. Spence, the landmark case of informed consent, offers some guidance. The court found that the clinician must provide reasonable disclosure of:

  • therapy alternatives open to the patient
  • goals expected to be achieved
  • the risks involved with recovering memories. 4

“Reasonable disclosure” refers to all information that a reasonable person might want—such as a proposed treatment’s risks and benefits, alternate treatments and their risks/benefits, and the risks/benefits of no treatment—before accepting or declining a procedure or medication.

Some have proposed that clinicians should disclose the risk of recovering false memories of sexual and physical abuse before starting treatment. 5 The clinician should then clearly document this disclosure.


1. Pope HG, Jr. Psychology astray: Fallacies in studies of repressed memory and childhood trauma. Boca Raton, FL: Upton Books, 1997.

2. Borawick v. Shay. 68 F3d 597 (2d Cir. 1995).

3. Pope HG, Jr, Oliva PS, Hudson JI, et al. Attitudes toward DSM-IV dissociative disorders diagnoses among board-certified American psychiatrists. Am J Psychiatry 1999;156:321-3.

4. Canterbury v. Spence. 464 F2d 775 (DC Cir 1972).

5. Cannell J, Hudson JI, Pope HG, Jr. Standards for informed consent in recovered memory therapy. J Am Acad Psychiatry Law 2001;29:138-47.

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