I wish to respond to the article by John West (TAP 46/2) that portrays me in a negative light. His article contains many factual errors and misinterpretations that give a false impression of the status of a legal case regarding a (former) client of mine in psychiatric treatment who murdered his mother.
It is misleading for West to pretend he has a comprehensive understanding of this case, including the benefit of hindsight. The article historicizes the case, as if it has already reached a conclusion against me and West is explaining why it was indefensible. But the case is far from over—there has been no settlement and a trial has yet to begin. In addition, the name of the column conveys that this is one of the “Cases from the Frenkel Files,” implying that he is familiar with it. But I have never been insured by Frenkel & Company, so it is unclear why they would have a file on this case.
If West did not have access to the files and there has been no trial to report on, what is his source of information? What he seems to know can be found in the Georgia Supreme Court opinion he cites (O'Brien v. Bruscato, 715 S.E. 2d 120—Ga. 2011). Anyone who takes the time to understand this seven-page document (which is available online) will be able to see for themselves the main errors in West's article that I point out here.
The article states:
“A key factor in this case was that Bruscato was never found guilty of a crime and probably never will be. This leads to the conclusion that Bruscato's action was not intentional for the purposes of forming the requisite legal intent to commit a crime.”
This conclusion, the main point of West's article, is fallacious. The fact that Bruscato has not been found guilty does not mean that he has been found not guilty. There has been no criminal trial, so Bruscato remains indicted for murder. There has been no conviction or acquittal. Being found incompetent to stand trial is commonly confused with being found not guilty by reason of insanity, though it is surprising for an attorney to make this mistake.
“The court reviewed all the evidence of Bruscato's mental illness and ruled that his psychiatric condition prevented him from exercising a reasonable degree of care to prevent him from taking improper and illegal actions.”
In reality the Supreme Court had no authority to rule on Bruscato's psychiatric condition. The court was charged only with deciding whether he could proceed with a malpractice claim for his having committed a wrongful act. The court raised the question of whether or not Bruscato knowingly committed the act, but did not—and could not—answer this question.
Much of the clinical narrative in the article is taken verbatim from the facts of the case described in the Supreme Court opinion, but West errs in presenting this narrative as though it were a thorough, balanced, and conclusive assessment. The first footnote in the opinion makes clear that this narrative was not intended to be impartial: “Because this case requires the review of the trial court's grant of O'Brien's motion for summary judgment, the facts are set forth in the light most favorable to Bruscato, the nonmovant.” Beyond being biased, on some points the narrative is simply wrong (for example, in a description of Bruscato as “unmedicated”).
TAP is not the place to present my side of the case, and, in any event, considerations of confidentiality would limit my ability to do so. I ask my colleagues to consider, though, if it were as open and shut as West makes out, perhaps I would have preferred to settle the matter quietly long ago. The dissenting opinions of the Georgia Court of Appeals (Bruscato v. O'Brien, 705 S.E. 2d 275—Ga. 2010), also available online, provide some idea of how much more complicated the case really is.
Derek J. O'Brien, M.D.
Atlanta, Ga.
Editor's Note: Attorney John West works with Frenkel & Company, which offers liability insurance to APsaA members. The goal of the column is to have readers benefit from understanding real-life cases involving malpractice allegations, which might affect any of us. Although the material reviewed is part of the public record, TAP policy encourages that prior to publication, cases involving members should be discussed with the member in question, and de-identified as well. That protocol failed in this instance and I offer my sincere apologies to Dr. O'Brien.
Please bear in mind that West has access to the published legal decision, but not the case files. His goal is to make the legal proceedings understandable to readers who may face similar clinical scenarios in their own practices. West tries to point out ways in which the practicing psychoanalyst can avoid legal pitfalls.
There are plans under way to allow readers to answer a short series of questions after completing the article in order to satisfy Risk Management Credits, which some states require for licensure.