Provider Liability; Claims by Third Parties

Kuligoski v. Brattleboro Retreat, 2016 VT 54 (Vt. 2016) 

Vermont Supreme Court rules that individuals who are known to residential and outpatient mental health providers as the caretakers of a patient have a right to be informed by those providers of the patient’s mental health status, his danger to the caretakers or others, and how to perform their caretaker role in light of these warnings; thus, a claim that the failure of the providers to so inform resulted in injury to the caretakers or other third parties survives a motion to dismiss for failure to state a claim.

Background: In October 2010, E.R. was voluntarily admitted to the Psychiatric Department at Central Vermont Medical Center (CVMC) with a “psychotic disorder” after having threatened young children in his home. A few days later he was involuntarily committed with a diagnosis of schizophreniform disorder and was subsequently transferred to the Retreat, a nonprofit psychiatric hospital in Vermont. At the Retreat, there were reports indicating E.R. had auditory and visual hallucinations, menacing behavior, and homicidal and suicidal ideation. In November of 2010, E.R. was discharged from the Retreat with an aftercare treatment plan that was shared with his parents. In mid-December, E.R. told his mother that he had stopped taking his medication. His mother reported this to Northeast Kingdom Human Services (NKHS), part of his aftercare treatment plan, but was told that E.R. had to decide to take care of himself. Between mid-December 2010 and March 2011, E.R. did not meet with anyone from NKHS and no one from NKHS reached out to E.R. On February 26, 2011, E.R. assaulted Michael Kuligoski at an apartment building. Kuligoski sued both the Retreat and NKHS. The superior court granted defendants’ motion to dismiss concluding that the defendants owed no duty to plaintiffs under Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61 (1985).

Holding: On appeal, the Supreme Court of Vermont held that the failure-to-warn claims against defendants were improperly dismissed, but that the failure-to-treat and negligentundertaking claims were properly dismissed. The court found that the defendants had a duty to provide information to parents, as patient's caretakers, to warn them of patient's risk of violence to themselves and others and to advise them on how to manage patient's conduct. However, the court concluded that neither defendant had a duty, as a matter of public protection, to refrain from releasing E.R.

Notable Points:

Peck and other precedents bar duty-to-treat and negligent-undertaking claims: The general rule is that there is no duty to control the conduct of another in order to protect a third person from harm. Previous Vermont cases held in favor of rehabilitation in a non-institutional setting, which precluded the plaintiffs’ duty-totreat and therefore duty not to release argument. Further, a negligent-undertaking claim requires plaintiffs to show that defendants’ failure to exercise reasonable care increased the risk of the harm that occurred. In this case, plaintiffs did not allege and could not show that defendants’ care increased the risk to third persons.

Peck extends to identifiable and foreseeable victims, and plaintiffs' duty-to-warn claims should not be dismissed at this stage in the litigation: The Court noted that Peck and Tarasoff established the clear duty of the mental health professional or institution to warn identifiable third parties of threats of harm made by patients, but that many courts have been reluctant to extend that duty beyond identifiable third parties. This reluctance, the Court wrote, was based on those courts’ recognition of the interests of the mental health profession in honoring the confidentiality of the patient-therapist relationship and in respecting the humanitarian and due process concerns that limit the involuntary hospitalization of the mentally ill. However, the Court went on, several courts have extended the duty to foreseeable victims or to those whose membership in a particular class—such as living with the patient— places them within a zone of danger. Here, the Court found that Peck is not limited to circumstances in which there is an identifiable victim. Rather, the defendants did have a duty to warn E.R.’s caretakers based on their assumption of custody and caretaking responsibilities of E.R.

Chief Justice Reiber’s dissent: The Chief Justice filed a strong dissent to defining a “new common-law duty” for mental health care providers: to train or assist caretakers in order to protect the public. Justice Skoglund also filed a dissent on the same grounds.

Found in DMHL Volume 35, Issue 2