Liability for harm by patient to third parties; “special relationship” doctrine

Rodriguez v. Catholic Health Initiatives, d/b/a Chi Health, et al., 899 N.W.2d 227 (Neb. 2017)

Nebraska Supreme Court rules that psychiatric hospital and involved medical staff asserting custodial authority over a patient due to the patient’s mental illness and danger to self or others have a duty to take action to prevent harm to “reasonably identifiable” third parties.

Found in DMHL Volume 36, Issue 3

Liability to injured third parties; special relationships; duty of care

Gottschalk v. Pomeroy Development, Inc., 893 N.W.2d 579 (Iowa 2017)

The Iowa Supreme Court holds that the state owed no duty of care to a private facility resident who was sexually abused by another resident who had been discharged by a court from a state violent sex offender program and then ordered by another court into the private facility due to dementia; further, no duty of care was owed to the private facility.

Found in DMHL Volume 36, Issue 2

Qualified Immunity, Duty of Care, Jails and Prisons

Bays v. Montmorency Cty., 874 F.3d 264 (6th Cir. 2017)

Sixth Circuit ruled that there is a clearly established Fourteenth Amendment right to sufficient treatment for a serious medical problem and upheld a district court’s denial of qualified immunity to a jail nurse where there was evidence that the nurse acted with deliberate indifference to an inmate’s serious mental illness.

Found in DMHL Volume 37, Issue 1

Conviction of Legal Guardian for Felonious Neglect of the Medical Treatment of an Incapacitated Person Upheld

Correll v. Commonwealth, 607 S.E.2d 119 (Va. 2005)

The Virginia Supreme Court upheld the conviction of a woman for violating a statutory provision that makes it a felony for any "responsible person" to abuse or neglect an incapacitated person when that abuse or neglect results in serious bodily injury or disease to the incapacitated adult. VA. CODE § 18.2-369.  This provision defines "neglect" as the "knowing and willful failure" to provide treatment, care, goods, or services that results in injury to the health or endangers the safety of the incapacitated adult.  The court relied on the definition of "willful" as applied to a parallel criminal statute governing child abuse and neglect and determined that it "contemplates an intentional, purposeful act or omission in the care of an incapacitated adult by one responsible for that adult's care."...

Found in DMHL Volume 24 Issue 2

Out-of-State Physician Can Provide Expert Testimony About Virginia Standard of Care

Christian v. Surgical Specialists, 596 S.E.2d 522 (Va. 2004)

The Virginia Supreme Court reversed a trial court decision to exclude an out-of-state physician from providing expert testimony regarding the Virginia standard of care in a medical malpractice case.  The trial court had ruled that the New York physician, although familiar with the national standard of care, was not sufficiently familiar with the Virginia standard of care and thus was not qualified to testify as an expert witness under § 8.01-581.20 of the Virginia Code...

Found in DMHL Volume 24 Issue 1

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

Harris v. Kreutzer, 624 S.E.2d 24 (Va. 2006)

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...

Found in DMHL Volume 25 Issue 2

Medical Center Has a Duty to Protect Emergency Room Patients from Attacks but Not When the Attack Was a Surprise

Lane v. St. Joseph's Reg'I Med. Ctr., 817 N.E.2d 266 (Ind. Ct. App. 2004)

The Indiana Court of Appeals ruled that although a medical center has a duty to protect emergency room patients from criminal attacks, a hospital is not liable for the injuries that resulted when a teenage boy attacked a woman seated in the waiting area of its emergency room...

Found in DMHL Volume 25 Issue 1

Therapists’ duty to disclose client’s threats to harm third parties

State v. Expose, No. A13-1285, 2015 WL 8343119 (Minn. Dec. 9, 2015)

Minnesota statutory law provides no “threats exception” to privileged mental health client information

Background: Jerry Expose, Jr. was required as a probation condition for a prior conviction to attend anger-management therapy sessions with N.M., a mental-health practitioner. During one session, Expose became increasingly angry and made several threatening statements against D.P., a child caseworker, whom Expose felt was “a barrier to him getting his kids back.” N.M. felt that these “specific threats of physical violence against an identifiable person” had triggered her statutory duty to warn, and she reported Expose’s statements to the police. N.M. testified to the statements at Expose’s trial, and Expose was convicted in the Ramsey County District Court of making terroristic threats. Expose appealed arguing that N.M.’s testimony was inadmissible because it broke the therapist-client privilege. The Court of Appeals reversed and remanded, and the Supreme Court of Minnesota granted review.

Holdings: The Supreme Court of Minnesota affirmed the judgment of the Court of Appeals and remanded the case to the district court. The Supreme Court held that the therapist-client privilege statute, as an evidentiary rule, lacked a “threats exception” either “by implication from the duty-to-warn statute or under our authority to promulgate rules of evidence.” Thus, the Court found that the district court had abused its discretion in allowing N.M. to testify about Expose’s statements without his consent.

Found in Found in DMHL Volume 34, Issue 4

Psychiatric Hospital Liability in Patient’s Suicide

P.W. v. Children's Hosp. Colorado, 364 P.3d 891 (Co. 2016)

Hospital’s affirmative defenses of comparative negligence and assumption of risk in the case of a minor admitted to the psychiatric hospital as a “known suicidal patient” rejected based on finding that the hospital’s “professional duty of care encompasses, and is shaped by, the plaintiff-patient’s medical condition” as it is known to the hospital.

Background: P.W. sued Children’s Hospital Colorado (“the Hospital”) for negligence when his son, K.W., attempted to kill himself by hanging while at the Hospital. When K.W. was first transferred to the psychiatric unit, notes stated that he was admitted for treatment of depression and suicidal ideation—specifically mentioning cutting and hanging—and was placed on “high suicide precautions.” These precautions included the requirement that patients remain in staff sight at all times except for when using the bathroom. When in the bathroom, however, staff should communicate with the patient every 30 seconds. K.W. was allowed use of the bathroom at 9:55 p.m., and at 10:15 p.m., he was discovered to have hanged himself with his scrub pants. K.W. was diagnosed with severe, permanent anoxic brain injury and not expected to recover. P.W., K.W.’s father, sued the Hospital individually and on behalf of his son for negligence, and the Hospital asserted affirmative defenses of comparative negligence and assumption of risk. P.W. moved to dismiss the defenses, and, treating the motion as one for summary judgment, the district court granted the motion. Holding: The Supreme Court of Colorado affirmed, holding that the Hospital could not assert either a comparative negligence or assumption of risk defense as a matter of law. Although the Hospital had also petitioned for an order to gain access to K.W.’s preincident mental health records, the Supreme Court did not address the trial court’s discovery order. 

Notable Points:

The Hospital assumed an affirmative duty to protect K.W. from self-harm: When admitting a suicidal patient to a psychiatric in-patient unit, a hospital assumes an affirmative duty of care, which subsumes a patient’s own duty of self-care. Thus, a patient cannot be found comparatively negligent for a suicide attempt. In this case specifically, the Hospital agreed to use reasonable care to prevent a known suicidal patient from attempting to commit suicide. That duty cannot be overcome by a comparative negligence or assumption of the risk defense.

A capacity-based theory of comparative negligence does not apply: A hospital’s duty of care encompasses a patient’s individual characteristics—including known medical conditions—and the duty of care can be continually shaped by those characteristics. As such, the capacity for negligence of a sixteen-year-old patient, known to be suicidal, was not relevant to determining whether he could be held comparatively at fault for injuries sustained in a suicide attempt. While in the Hospital’s care, the hospital had a duty to protect him from foreseeable harm, and when he was known to be suicidal at intake, that foreseeable harm included harm from a possible suicide attempt.

Found in Found in DMHL Volume 35, Issue 1

Liability of Correctional and Mental Health Officials

Glasgow v. Nebraska, 819 F.3d 436 (8th Cir. 2016)

Correctional and mental health officials do not owe a duty to third parties for injuries inflicted by inmates who are returned to the community following assessment by those officials. 

Background: Nikko Jenkins was a mentally ill inmate who was released from prison after 10.5 years of his sentence because the state changed Jenkins’ recommendation from inpatient to outpatient treatment, which accelerated his release. Upon his release, Jenkins killed 4 people in Omaha, one of them Curtis Bradford. Bradford’s mother, Velita Glasgow, filed suit against the state of Nebraska, among other defendants, for violation of Bradford’s substantive due process rights under the Fourteenth Amendment (§1983) and a state law negligence claim, arguing that the state acted with deliberate indifference in accelerating a dangerous prisoner’s release and violated Bradford’s right to life. Additionally, she argued that the state had a duty to protect Bradford from their prisoners and the state abandoned that duty when they knowingly released a mentally-ill prisoner who allegedly threatened to kill someone if he was released. The district court dismissed Glasgow’s claim, stating that the complaint was “devoid of any plausible allegation against [the] defendants.” Glasgow appealed.

Holding: The Eighth Circuit affirmed the lower court’s dismissal of all claims. An official may be sued if they violated a statutory or constitutional right that was “clearly established” at the time of the conduct. The Eighth Circuit held that “there is no general substantive due process right to be protected against the release of criminals from confinement.” Furthermore, because there was no evidence that the state’s conduct created a significant risk to a precisely defined group of people and that, if that group existed, Bradford was a part of that group, the state was not required by the Due Process clause to protect Bradford’s life from private actors. The court quickly did away with the negligence claim by holding that the plaintiff did not provide any legal authority to explain that the state had a legal duty to Bradford.

Found in DMHL Volume 35, Issue 2

Provider Liability and Duty to Warn Third Parties in the “Zone of Danger” of Potential Harm by Patient

Kuligoski v. Brattleboro Retreat, No. 14-396, 2016 Vt. LEXIS 106 (Sep. 16, 2016)

Vermont Supreme Court replaces its May 6, 2016 opinion with an amended opinion, which still finds the existence of a duty of mental health care providers to warn a patient’s caregivers of dangers posed by a patient if those caregivers are actively involved in the patient’s treatment plan and are within the “zone of danger” posed by the patient’s violent propensities.

Background: E.R. was involuntarily committed to state mental health facilities and was diagnosed with a schizophreniform disorder before being transferred to Battleboro Retreat. After being discharged from the retreat to the home of his parents, who were his ongoing caregivers, and while undergoing outpatient treatment with Northeast Kingdom Human Services (NKHS), E.R. assaulted his father, Michael Kuligoski. Plaintiffs filed suit against Battleboro Retreat and NKHS for failure to warn of E.R.'s danger to others, failure to train E.R.'s parents in handling E.R., failure to treat, improper release, and negligent undertaking. The superior court granted the defendants’ motions to dismiss for failure to state a claim and plaintiffs appealed.

Holding: The Vermont Supreme Court reversed the rulings of the superior court relating to the failure to warn and failure to train claims. However, the court explained that the duty to warn included elements of the failure to train claim and held that there was no independent cause of action for a failure to train. The court also held that a provider has no duty to convey information in violation of HIPAA.

Notable Points:

Duty to warn: The court explained that the duty to warn is narrow and “applies only when a caregiver is actively engaging with the patient's provider in connection with the patient's care or the patient's treatment plan (or in this case discharge plan), the provider substantially relies on that caregiver's ongoing participation, and the caregiver is himself or herself within the zone of danger of the patient's violent propensities.”

§ 43 of the Restatement Third of Tort Law: The court rejected the view that there is a duty to third parties based on the undertaking of another.

Found in DMHL Volume 35, Issue 3

Provider Liability and Duty of Care in Outpatient Mental Health Setting

Chirillo v. Granicz, 41 Fla. L. Weekly 345 (2016)

In medical malpractice suit against psychiatrist for suicide of patient, Supreme Court of Florida rules that while there is no provider duty to prevent suicide in the outpatient setting, there is still a duty of care owed to the patient and the case presented a genuine issue of material fact as to whether that duty was breached.

Background: Robert Granicz filed a medical malpractice case against his deceased wife’s primary care physician, Dr. Joseph Chirillo, alleging he breached his duty of care in treating her, which resulted in her suicide. The decedent had a history of depression and began seeing Dr. Chirillo, who changed her medication from Prozac to Effexor. Following that change the decendant called Dr. Chirillo’s office and told his medical assistant that she had stopped taking the Effexor because of side effects and that she had not felt right for the past few months. This information was given to Dr. Chirillo, who changed the decedent’s prescription to Lexapro. Dr. Chirillo’s office called the decedent and told her to pick up her new prescription, but did not request that she schedule an appointment with Dr. Chirillo. The decedent picked up her prescription later that same day, but Granicz found her body hanging in their garage the next day. Dr. Chirillo filed a motion for summary judgment claiming that he owed no duty to prevent a patient’s unforeseeable suicide while the patient was not in his control. The trial court granted the motion, but the Second District reversed on appeal.

Holding: The Supreme Court of Florida affirmed the decision of the Second District and held that the plaintiff showed a genuine issue of material fact regarding the proximate cause of his wife’s suicide. The court remanded the case for trial.

Notable Point:

First District Case: The Florida Supreme Court explicitly disapproved the analysis regarding duty used by the First District in Lawlor v. Orlando, 795 So. 2d 147 (Fla. Dist. Ct. App. 2001).

Found in DMHL Volume 35, Issue 3