Liability to Third Parties

Volk v. DeMeerleer, No. 91387-1, 2016 Wash. LEXIS 1374 (Dec. 22, 2016)

Supreme Court of Washington rules that victims of violence committed by a person in outpatient mental health treatment are allowed to pursue a claim against a therapist for “medical negligence,” even in the absence of any evidence that the patient made statements of any kind to the therapist that identified any intention to harm the plaintiffs, with the Court ruling that the “foreseeability” of the patient’s attack on the plaintiffs was a question of fact for the jury.

Background: In September 2001, Dr. Howard Ashby began treating Jan DeMeerleer, who had previously been diagnosed with bipolar and associated disorders. Ashby was aware of DeMeerleer’s treatment history including that he had been hospitalized in 1992 for suicidal ideation and sought outpatient treatment in 1997 for suicidal ideation, and that he was prescribed Depakote both times, but stopped taking the medication because of side effects. Ashby prescribed DeMeerleer Depakote and noted that it would be necessary to monitor compliance with the medication regimen. In 2003, DeMeerleer learned his wife was having an affair, and they divorced shortly thereafter. He suffered severe depression and again expressed suicidal and homicidal thoughts, but assured Ashby that he would not act on them. In 2005, DeMeerleer began a relationship with Schiering. The relationship progressed rapidly but fell apart when DeMeerleer struck one of Schiering’s sons in 2009. DeMeerleer also lost his job around this time. Ashby last met with DeMeerleer in April 2010, at which time he reported suicidal ideation but stated that he would not act on it.

DeMeerleer and Shiering attempted to mend their relationship, but Schiering ended it in July 2010. The next day DeMeerleer shot and killed Schiering and her son and attempted to kill her other son, who was able to escape. DeMeerleer then went home and took his own life. Schiering’s mother and surviving son filed medical malpractice and medical negligence claims against Ashby alleging a failure to follow the accepted standard of care in treating DeMeerleer. Ashby moved for summary judgment on the basis that the attack was not foreseeable and that Ashby did not owe the victims a duty of care. The trial court granted summary judgment in favor of Ashby, but the court of appeals reinstated the medical negligence claim.

Holding: The Washington Supreme Court reaffirmed the common law of Washington that the state does not recognize a cause of action for medical malpractice for third parties. Regarding the medical negligence claim, the court relied on its decision in Petersen v. State, 100 Wash. 2d 421, 671 P.2d 230 (1983) to find that a “special relationship” existed between Ashby and DeMeerleer such that Ashby owed a duty ofreasonable care to DeMeerleer’s foreseeable victims. The court explained that this duty extended to anyone who may foreseeably be endangered by a patient. The court recognized the difficulty of predicting behavior, but reasoned that requiring due care of mental health professionals counterbalanced that difficulty: as long as a mental health professional exercised due care (i.e., acted in line with standards of professional care) to reach an informed assessment of dangerousness, the professional would not be liable. The court found, however, that Ashby had not met such standards based on an affidavit from the plaintiff’s forensic psychiatrist, which, the Court noted, asserted that “Ashby's failure to schedule additional meetings, follow up with DeMeerleer, and monitor DeMeerleer's condition was a breach of professional standards and was a causal and substantial factor of the harms that befell Schiering and her sons.” The court held that whether Schiering and her sons were foreseeable victims was a material fact to be determined by a jury and, thus, summary judgment was inappropriate. The court remanded the case to consider the medical negligence claim.

Notable Point:

Dissent: A strongly worded dissent challenged the majority holding that mental health professionals can be held liable to third parties absent the ability to control the patient. The dissent argued that the holding significantly expands liability for mental health professionals and could chill the provision of mental health services.

Editor’s note: Virginia practitioners should be familiar with Virginia Code Section 54.1- 2400.1, entitled “Mental health service providers; duty to protect third parties; immunity,” which sets out in clear language the circumstances that trigger a mental health provider’s duty to take action to protect a third party from harm, and also describes the actions by the provider that “discharge” that duty. Compliance with this section gives immunity protection for providers from claims of various kinds.

Found in DMHL Volume 35, Issue 4