Archive for the ‘Shrink Rap’ Category
Too Much Duckiness to Ignore.
Let the facts of the case present themselves:
In the early pre-dawn morning (approximately 4:00 a. m.) of June 18, 1972, the windshield of the automobile which appellant was driving along North Columbia Boulevard in Town X, suddenly shattered causing a splinter of glass to enter Smith’s right eye, which resulted in permanent impairment of sight in that eye. Investigation proved that the cause of this unfortunate mishap was that Smith’s car had struck an airborne mallard duck or conversely that the mallard had struck Smith’s car. The rationale for this conclusion was the finding of the body of a deceased mallard at the scene of the accident and duck feathers and other parts inside car. The question of negligence, or the degree thereof, attributable to the only participants involved in the accident, namely, the mallard and Smith, is not before us.
The scene of the accident was that portion of North Columbia somewhat adjacent to the plant of defendant-appellee, Malarkey Company (Malarkey). Since Smith is a citizen of Washington, Malarkey is an Oregon corporation and the amount in controversy exceeds $10,000, the federal courts have been chosen as the forum in which Smith seeks recoupment for his injury.
His complaint, a model of brevity, contains two counts: (1) negligent maintenance of a duck pond on the Malarkey property, near North Columbia, a public thoroughfare; and (2) creating thereby an unreasonably dangerous condition to the public using that thoroughfare.
After several unsuccessful attempts by Malarkey to dispose of the matter by motions to dismiss for failure to state a claim, for partial summary judgment and for summary judgment, the case came on for trial before the Court without a jury. Subsequent to the trial, the Court delivered its opinion1 finding for the defendant.
The Court refused to conclude that the maintenance of the pond by Malarkey was an “ultra-hazardous activity” and referred to parks and places, public and private, in the vicinity where waterfowl might congregate. As to negligence, the Court held that there was “no showing that the defendant knew, or reasonably ought to have known”, that such a pond “was likely to lead to harm of the general character involved in this case” or that the fact that dead ducks had been found on the highway was notice to Malarkey that ducks were a hazard to motorists. In short, the Court could not find “the vital element of foreseeability” in relating the Malarkey pond to the accident. Accordingly, judgment was issued dismissing the complaint.
Plaintiff called as witnesses persons who, while driving along North Columbia, near the Malarkey property, had seen dead ducks at the side of the road, ducks walking across the road, ducks sitting in the middle of the road and ducks flying at low levels across the road. In one instance, the front of a motorist’s car had struck a duck, with unfortunate consequences for the duck. If ducks chose to walk across a well-traveled public highway used by motorists instead of using less dangerous aerial routes better suited to flying ducks, they might well have subjected themselves to such an eventuality. The roadside dead ducks certainly indicated that motorists were a hazard to road crossing ducks, but by no means that such ducks would be likely to be the cause of the type of injury incurred here. Furthermore, even if it had been, one would have expected the record to have been replete with incidents of ducks crashing into motorists with notice thereof to Malarkey.
Appellant also adverts to the Malarkey habit of putting food and grit around the pond about 4 o’clock in the afternoon and argues that even if the pond itself was not the well-spring of the dead duck’s conduct, Malarkey was still culpable because of these other lures with which it seduced the birds to come to the pond. However, once again, even assuming appellant’s premise that mallards find food and grit irresistible, there is no way of knowing whether the Malarkey provender was the aim of this duck’s low trajectory. And there is no evidence which would indicate that the duck was in the area for a midnight snack twelve hours ahead of schedule or that the pond was the duck’s intended destination. Further speculation along these lines would be pointless. But even if this feeding practice caused an undue assemblage to partake of Malarkey largesse, it would not account for the unexpected flight of a single duck in pre-dawn darkness. Furthermore, the pond was 100 yards from the highway, surrounded by a seven foot fence with railroad tracks between highway and pond.
The area is a game reserve and should be naturally attractive and conducive to migratory birds. In addition to the parks and open areas previously mentioned, there is somewhat nearby the Columbia River, the Columbia River Slough and green fields where ducks have been observed to congregate and feed.
The waters of the Malarkey pond might well be said to be alluring to ducks but by no stretch of the imagination is the maintenance of an artificial pond an ultrahazardous activity or a foreseeable cause of an injury of the unusual nature suffered here. The activity is neither abnormal, unusual, or especially dangerous see, Reter v. Talent Irrigation District, 258 Or. 140, 482 P.2d 170 (1971) at least not in an area which is already rife with waterfowl and water.
Appellant says “Nothing short of removal of the pond could eliminate the risk” (Appellant’s Brief, p. 6). But query, would elimination of Malarkey’s rather minute pond remove the risk? Complete protection of motorists might well require the elimination of the game refuge, the surrounding green fields, the Columbia River Slough and possibly the diversion of the Columbia and Willamette Rivers as well, if flying ducks were to be recognized as a constant peril to motorists.
The parties here both have proceeded in a well-accepted format of argumentation, namely, an almost biological analysis of cases and the Torts Restatement. They have dissected and then put under the microscope each and every element stated therein. Tort cases, however, so much dependent on their own particular facts, are not suited to such treatment. The Trial Court here heard and reviewed the evidence presented and then, in finding for the defendant, held that the maintenance of the Malarkey duck pond was not an “ultra-hazardous” activity and that the type of accident here suffered was not foreseeable. The law and the facts support this conclusion.2
Judgment affirmed.
Honorable Leonard P. Moore, Senior United States Circuit Judge, Second Circuit Court of Appeals, sitting by designation
The oral opinion dated March 14, 1974 has been transcribed as an opinion, filed as findings of fact, and conclusions of law and order pursuant to Rule 52, and is to be found at pages 149-155 of the record on appeal
There is an indication in the record that the Judge and counsel planned to visit the Malarkey property on the afternoon the trial ended, thus giving the Court and counsel the advantage of visual inspection
Listen to our latest podcast at mythreeshrinks.com or subscribe to our rss feed. Email us at mythreeshrinks at gmail.
Posted in The Psychology of Survival
This story resonated with me because lately I’ve been hearing a lot about a new book, No Way Down, which was featured on NPR along with some other mountain disaster books. No Way Down covered the story of several teams of mountain climbers who were stranded on K2 when an icefall cut their ropes. Most of the climbers died although a few managed to pick their way back to base camp.
Survival stories have always been popular. Entire television series now feature teams of people pitted against one another to overcome some test or challenge. Disaster movies were popular back in the ’70s, when the Towering Inferno, Airport and the Poseidon Adventure let us watch people get picked off one by one.
Why do we love this stuff?
I think it’s because these stories reflect humanity’s greatest strength, the power of adaptation. Whether we’re talking about natural disasters, accidents, the exploration of Colonial American wilderness or longterm science expeditions to Antarctica, the psychology of survival is fascinating because we like the idea that one’s mental attitude can make the difference between life or death.
A search of Amazon reveals a surprising number of books about survivor psychology. Most focus on outdoor adventurers, but others were based on interviews with survivors of accidents like plane crashes or fires.
The survivors in these books lived because they were trained and experienced in outdoor living. They weren’t “survivalists” per se, people who stockpiled food and weapons for the future fall of civilization. These survivors were people who were able to stay calm and reason in the face of fear, people who retained their optimism and determination in spite of great odds. Survivors focussed on others rather than themselves, either thinking about their families or their fellow survivors.
Sitting in a prison cell for several years seems like nothing compared to surviving a high altitude mountain disaster, but I think there are some principles that apply in both cases. The prisoners who do well are the ones who are future-oriented and determined to “work the time” for self-improvement. They have external family they care about and plan to return to. And yes, previous prison experience helps too.
Listen to our latest podcast at mythreeshrinks.com or subscribe to our rss feed. Email us at mythreeshrinks at gmail.
I Thought We Were Friends
Social networking adds a whole new dimension to human interactions. I used to ask people about their relationships during my initial psychiatric evaluations, and would include questions like “Are you close?” “When did you last talk?” I’ve had to change this…because now “talking” means oh, talking…in person, on the phone with a voice-to-voice conversation, via text message, a note on a Facebook page, an IM chat, an email message. They all count. We’ve become a weird world. And oh, yes, I’ve “spoken” to Roy and Clink this morning– a couple of emails, so I’m not sure if they’ve “heard” yet. Clink wrote on my wall in the last day or two, I tagged her in a photo of an orange mushroom, and we’ve had numerous text messages (and Roy and I actually Spoke-on-the-Phone) yesterday….all inspired by the request of our publisher for a photo of us for the book. The big issues have been addressed: I got a unanimous vote for Curly-not-Straight, and Clink has refused to pose until she gets a haircut. Okay, I’m rambling off topic.
So people talk in therapy about their FB relationships. They get upset about things that are written on walls, they feel spied upon by family member friends, friends and enemies alike. (Oh, but the family would be torn apart if we unfriended each other!)….
So the other day, I realized I’d been unfriended. I used to get regular newsfeed tidbits from someone I work with. I realized they were no more, and I wondered about what was happening in his life. First off, let me say that they were a little unsettling at times anyway— lots of “I don’t like my job” groans, and his boss had said to me once, “I think he forgets who his friends are.” Well I decided to check in on “George” and I searched him on my FB search bar. Ah, he only lets his friends see his info, it tells me. “But I am George’s friend!” I shout. (-Not really, but it makes the plot more interesting). And then I realize that I was George’s friend. Not anymore. I’m left to wonder why. Did I offend him? I thought he liked me. I like him. Did he decide he wants to rant in ways I shouldn’t see….well that’s okay. How do I now act with George in ‘real life?’ Do I ask about this? I won’t: What could there possibly be to say other than to make George uncomfortable. Did he think I’d notice? Does he want me to ask?
Roy is groaning about now, he says I over-think these things.
Listen to our latest podcast at mythreeshrinks.com or subscribe to our rss feed. Email us at mythreeshrinks at gmail.
The List
Dinah has Monday off but this is the weekend, and the weekend is the time to Get Things Done. It’s time to tackle The List.
I have lists for everything: grocery shopping, personal errands, work-from-home assignments, travel (all types—climbing vacations, hiking, biking, beach and conference), even hobby activities. I know I’m not alone—Dinah has a mental “to do” list, and even keeps them for her friends (ask me how I know!).
The advantage of listkeeping is that you are less likely to forget something, which means that you avoid embarrassment and people getting annoyed with you. A good list keeps anxiety at bay when you’re swamped with responsibilities and keeps you focussed on the next task at hand instead of running around like a scattered person. You can work more efficiently when you can organize errands according to location or time of day.
There are a few bad things too: a certain amount of anxiety is necessary to actually get started on a task. With a list, you’re temped to think, “I’ve got that covered—it’s on the list,” but then you never actually do it. When the list gets too short (that actually does happen sometimes! I get caught up.) then the list disappears and duties get lost.
The other problem is that task begets task. You cross off one task, but that leads to another: you make the phone call, but the conversation leads to a new task. The List becomes an unending series of responsibility, which is rather demoralizing.
Task management is a psychological issue. Some people never make a list and live ‘on the fly’, some people make lists occasionally, a few rare people start the day by running the list.
What’s your style?
And no Dinah, you can’t have access to my list. I put enough stuff on there myself.
Listen to our latest podcast at mythreeshrinks.com or subscribe to our rss feed. Email us at mythreeshrinks at gmail.
Yes! I Have Monday OFF!!!!
I got it, again, like clockwork. The joys of city life: yet another jury duty summons.
My number is 897 and that’s high, really high, but sometimes on Mondays they call up to 900. The problem with being a shrink is that there’s the question of what to do? Pray my number won’t get called, or take the day off? In my private practice, I could just give people a heads up that I might need to cancel if I get called, but Monday mornings, I work in a clinic where people are scheduled months in advance, and short notice is a hassle on everyone involved. Family members often take off work to bring in patients, or other agencies send people to appointments with case workers. Last minute doc-outs create problems for everyone.
I used to hate the uncertainty of it all, but I’m trying to grow more flexible as I age, oh so gracefully. I used to call and request a specific day, one that would work better with my schedule, and the courts are happy to oblige this: they’d let me pick any day I want, as long as I agreed to take the number 1. No uncertainty here: I was going to be called.
But how do you give up a number like 897 (and a high likelihood of getting a pass) on an inconvenient day for a number like 1 on another day. Face it, there’s never a good day to sit with 900 people in a jury room.
So I gave 6 weeks notice at work and took the day off. And the verdict is in: number 1-650 are to report. I have a day off! See you Monday. Please feel free to write in with suggestions about how I should spend my day.
Listen to our latest podcast at mythreeshrinks.com or subscribe to our rss feed. Email us at mythreeshrinks at gmail.
Drugs, Soap, and Rock and Roll
There’s always something new, even in the world of substance abuse. Lately I’ve been reading a lot in the media about K2, a synthetic cannabinoid that’s being sold (and outlawed) in many states. It’s commonly mixed with herbal incense and smoked. Nicknamed “spice”, it was originally created by scientists and called JWH-018. Apparently some states’ poison control centers have been getting calls about it due to the physical symptoms it can cause, specifically palpitations and GI problems. The part of the story that I thought was interesting was the fact that originally only 250 milligrams of the stuff was created, in an “official” research lab, but that home chemists quickly took up the experiment and it’s now a part of our national drug culture. There’s a part of our drug problem we need to think about—should research labs be allowed to disseminate information about how to manufacture controlled or intoxicating substances? Drug control efforts almost completely focus on those who possess, prescribe or sell pharmaceuticals but you don’t hear much about the regulation of research labs that invent the new stuff. Federal and state drug enforcement agencies mainly target “home chemists” by pressuring retailers to make certain chemicals less easily available—-fertilizer and pseudoephedrine for example.
I’m a bit of a home chemist myself, since I occasionally whip together batches of homemade soap. In order to make soap you have to mix oils with lye. What I didn’t know was that lye is also used to make methamphetamine. My hobby took a hit when when the makers of Red Devil lye decided to pull their product off the shelves, due to government pressure. Talk about a stir in the soap makers world! It eventually came back to the market, but in a form that’s no longer good for soap. Or for drugs either, presumably.
Listen to our latest podcast at mythreeshrinks.com or subscribe to our rss feed. Email us at mythreeshrinks at gmail.
Too Chipper?
For those in need of a laugh:
FDA Approves Depressant Drug For The Annoyingly Cheerful
Listen to our latest podcast at mythreeshrinks.com or subscribe to our rss feed. Email us at mythreeshrinks at gmail.
Not Enough To Go Around
Why is this happening?
Business forces, of course. Once pharmacists did a lot more than they do now. They used to manually make medications—compounding pills and tinctures and unguents—in a time-intensive process. Now, they dispense packets of pills that are mass produced in factories. That’s a lot of education just to stand behind a counter and fill a prescription. The profession becomes more attractive when it is framed in terms of patient counseling and fundamental health care interactions.
Also, health care plans will pay for it. Medicare pays $1 to $2 a minute for a medication management session with a pharmacist, according to the Time story. Not bad. One person in the story claims that “pharmacists could do as well and better than a physician” for less money.
This is a claim doctors hear periodically. There aren’t enough doctors to go around, so other professions try to fill the void. Rather than train more doctors, it’s quicker and cheaper to grant lesser-trained professionals similar privileges. There’s a standard rationale that’s given:
1. We’re not competing
2. We work under supervision
3. We know when to refer
All of this may be true as a whole, but not necessarily for a given allied health professional. Supervision usually isn’t on site, and it doesn’t necessarily mean that each case is being discussed with a physician. The “we know when to refer” part should mean that there is a written policy or procedure documenting the limits of the scope of practice or the criteria that should trigger a referral to a physician. And a means to ensure that those procedures are being followed. All of this means that an additional layer of bureaucracy—with its attendant costs—will accompany the broadened scope of practice.
Why don’t we just train more physicians?
Listen to our latest podcast at mythreeshrinks.com or subscribe to our rss feed. Email us at mythreeshrinks at gmail.
Hut, hut…Hike!
ClinkShrink climbs things all the time. She crawls up these huge vertical ledgy rocks and then rappels down them like Spiderman. It’s very athletic, but not very dignified looking. I think it’s how she directs her adrenaline risk-taking protoplasm, because in real life, she lives this life of law-abiding citizen, nun look-a-like, low profile, tuna-for-lunch with white milk, kind of soul who just happens to like working with mentally ill violent felons. It’s a disconnect and the Spiderman thing connects-the-dots.
So yesterday, I went hiking. I hiked to the top (well, almost, I got to the bald part of the mountain, minus the skin on the front of my leg, and decided the view from almost-the-top was just fine). It was described as a “very popular 4.7 mile hike with well-marked paths, the easiest of the Adirondacks high peaks.” What it didn’t say was that it was 2.4 miles straight up, a giant stair-case of boulders, with none of those wimpy switchback things to make for some level hiking. And 2.4 ish miles of scrambling straight back down.
Perhaps 30 people passed me. I was climbing with my youngster–a high school athlete in the midst of training for pre-season, and my husband who has recently lost 30 pounds with a regimen that includes 4-5 miles/day of running. I gained 12 pounds last year, and this summer I let my gym membership lapse for the first time since 1996. Let’s just say I was holding up the rear.
ClinkShrink does these things all the time. She’s older than I am and she looks like a nun. A skinny, athletic nun, but still.
I was offered water, by a stranger. I was offered a first aid kit, by a stranger. And I was offered Motrin, by a stranger. I came back and crawled into the hot tub with a glass of wine. It was some comfort that husband and kid were also sore and complaining.
Oh, this is a psychiatry blog, you say. Where’s the psychiatry? It’s August, the shrinks go on vacation, and so for the moment this is a vacation blog.
But I have now climbed the 36th highest peak of the Adirondacks.
Listen to our latest podcast at mythreeshrinks.com or subscribe to our rss feed. Email us at mythreeshrinks at gmail.
What Good Are You?
It sounds harsh, but sometimes that’s what I hear from my patients. When a prisoner first comes into my office, he may announce a list of things he wants me to do for him: get in touch with the public defender or case manager, look up a court date, make a phone call, give him the lower bunk, order extra portions of food, etc. When I explain who I am and add that I am seeing him only for psychiatric treatment, I hear “the phrase”: “Then what good are you?” Apparently, I’m not good as a concierge service.
Defining the physician-patient relationship is the first step in correctional treatment. Life is simpler when it’s clear what you will or will not do for a prison patient. Inexperienced correctional physicians feel uncomfortable doing this because they want to be “nice” to the patient or because they’re afraid that denying a request might harm the physician-patient relationship.
The problem with complying with all these requests is that the patient will continue to take it for granted that the doctor will always do these things, which draws the focus of the appointment away from treatment. Other prisoners will learn that the physician will do errands or give privileges, and the clinician will find his clinic swamped with requests for appointments that involve issues other than mental health care.
The clinician may be tempted to pretend to help, going through the motions of a request that he knows will not be granted. Worse yet, he might promise to help but then be too swamped or overwhelmed to actually carry through on that promise. Either way, the promise is not kept and prison patient learns that the clinician can’t be trusted.
All of this can be prevented by clearly establishing the boundaries of the treatment relationship and the limits of the appointment. This does not harm the physician-patient relationship. In fact, prison patients appreciate a straight answer, even if that answer is ‘no’. I find it helpful to give a straightforward response: “If I can help you with something I will. If I can’t help you, I’ll tell you upfront I can’t. This is what I CAN help you with…” and so actual treatment begins.
Listen to our latest podcast at mythreeshrinks.com or subscribe to our rss feed. Email us at mythreeshrinks at gmail.
