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

Hospital Not Liable for Disappearance of Mentally Ill Daughter Even Though Mother Only Left Her Alone for 45-Minute Meeting with Counselor Because Nurse Promised to Look After Daughter

Nash v. Sisters of Providence, No. 28295-0-11, 2003 WL 21791593 (Wash. Ct. App. Aug. 5, 2003); 12(33) BNA's Health Law Reporter 1278 (Aug. 14, 2003)

A Washington Court of Appeals ruled that a hospital could not be held liable for the promise made to a mother by a nurse to look after her mentally ill 15-year-old daughter while the mother conferred with a counselor. The family's physician had arranged for the daughter to be evaluated at the hospital after he concluded the daughter showed symptoms similar to the manic phase of a manic­ depressive disorder.  The mother took her daughter to the hospital's emergency room where the hospital's notes indicated the daughter was acting "manic and paranoid," had a six-month history of depression and mania, and her status was "urgent."  The hospital's crisis services counselor asked to meet privately with the mother.  When the mother said she did not want to leave her daughter alone in an examination room, the counselor asked a nurse from the nurses' station across the hallway to watch the daughter.  The nurse explained she could watch the room from a video monitor. Finding this acceptable, the mother left to meet with the counselor in another room. When they returned 45 minutes later, the daughter was gone. The nurse said she had left her station to administer an l.V. to another patient. The parents have not seen their daughter since then...

Found in DMHL Volume 23 Issue 1

HMOs Cannot Recover from Tobacco Industry Costs of Treating Members' Smoking-Related Illnesses

Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753 (8th Cir. 2003); 12(38) BNA's Health Law Reporter  1472-73 (Sept. 25, 2003)

The Eighth Circuit ruled health maintenance organizations (HMOs) cannot recover from tobacco companies the costs of treating its subscribers' tobacco-related illnesses. Four Minnesota HMOs had sued several tobacco manufacturers and associated groups, alleging the tobacco industry conspired to mislead the public and the health care industry regarding the addictive effects of tobacco use and that the HMOs suffered indirect injury because they were required to assume the medical costs their members sustained as a result of their tobacco use. The court determined the HMOs failed to provide adequate evidence of the damage they suffered in paying for smoking-related illnesses because their expert witness presented only a "speculative" calculation of the costs they incurred....

Found in DMHL Volume 23 Issue 1

Refusal to Grant "Parental Immunity" to Residential Child Care Facility Not Disturbed

Wallace v. Smyth, 786 N.E.2d 980 (111. 2002), cert. denied, Maryville Academy v. Wallace, 124 S. Ct. 43 (2003)

The Supreme Court declined to review a ruling by the Illinois Supreme Court that refused to grant immunity from liability to a residential child care facility and its employees.  The facility and seven of its employees were sued when a 12-year-old boy who had been placed in their care for a 90- day diagnostic assessment died.  After being placed in restraint for more than four hours, the boy died from positional asphyxia....

Found in DMHL Volume 23 Issue 1

Lawsuits Against Law School for Student Shootings Settled

Lawsuits  over Appalachian School of Law Shootings Settled, 19(32) VA. LAW. WKLY. 1 (Jan. 10, 2005)

Four lawsuits brought against the Appalachian School of Law in the wake of the 2002 shooting spree by Peter Odighizuwa, a student who went on a rampage shortly after being asked to withdraw from school due to his poor academic performance, have been settled for $1 million...

Found in DMHL Volume 24 Issue 2

Mental Health Care Provider Not Liable for Negligent Hiring of Employee Who Later Raped Patient at Residential Treatment Facility

Munroe v. Universal Health Servs., Inc., 596 S.E.2d 604 (Ga. 2004)

In part because relatively low wages are typically offered, it can be a challenge to find qualified staff to provide care to individuals with a mental disorder. When a staff member abuses these individuals, the question may arise whether the employer can be liable for having hired the person in the first place....

Found in DMHL Volume 24 Issue 1

Psychiatrist and Psychologist Not Liable for Traffic Accident That Occurred When Patient Fell Asleep While Driving After Taking Prescription Medication

Weigold v. Patel, 840 A.2d 19 (Conn. App. Ct. 2004), cert den. 847 A.2d 314 (Conn. 2004)

In 1997, a registered nurse fell asleep at the wheel and struck another vehicle head on, killing the driver of that vehicle.  Initially, a wrongful death action was brought against the nurse...

Found in DMHL Volume 24 Issue 1

Psychotherapist Alerted by a Patient's Immediate Family of a Threat by the Patient Can Be Held Liable for Failing to Warn the Patient's Victim; Expert Testimony Not Required to Establish Liability

Ewing v. Northridge Hosp. Med. Ctr., 16 Cal. Rptr. 3d 591 (Cal. Ct. App. 2004)

Tarasoff v. Regents of Univ. of California, 551 P.2d 334 (1976), the first judicial opinion to rule that a psychotherapist may have a legal duty to take reasonable steps to protect a third party who has been threatened by the psychotherapist's  patient, reverberated across the country.  A number of states, including California and Virginia, enacted legislation to specify more clearly when this duty arises...

Found in DMHL Volume 24 Issue 1

Psychiatric Hospital Not Liable for the Death of a Patient Following a Struggle with Hospital Staff

Lanman v. Kalamazoo Psychiatric Hosp., No. 263665, 2006 WL 73747 (Mich. Ct. App. Jan. 12, 2006)

The Michigan Court of Appeals refused to impose liability on a psychiatric hospital for the death of a patient who had been admitted to its care.  The man had been transported by the police to the psychiatric facility, where he was found to be in need of care but capable of giving informed consent.  After he signed a voluntary admission form, the hospital admitted him, gave him medicine for back pain, and placed him in a "quiet room."...

Found in DMHL Volume 25 Issue 2

Security Company Can Be Held Liable for Patient's Attack on Physician, but Public Entity that Designed or Maintained the Conditions Within the Facility Can Not

Facility Liability:
Ursua v. Alameda County Med. Ctr., No. C 04-3006 BZ, 2005 WL 3002175 (N.D. Cal. Oct. 27, 2005)

County Liability:
Ursua v. Alameda County Med. Ctr., No. C 04-3006 BZ, 2005 WL 3002175 (N.D. Cal. Nov. 8, 2005)

Security Agency Liability:
Ursua v. Alameda County Med. Ctr., No. C 04-3006 BZ (N.D. Cal. Nov. 9, 2005)

Although incidents of violence are relatively infrequent in facilities that provide housing to individuals with mental illness, protecting the safety of residents and staff is a continuing concern.  After a physician was killed by a patient who had been admitted and held pursuant to California law for a seventy-two­ hour evaluation as a person who is dangerous or gravely disabled as the result of a mental disorder, family members of the physician sued the facility where the attack occurred, the County responsible for the facility, and the privately owned entity that had contracted to provide security services at the facility...

Found in DMHL Volume 25 Issue 2

School Officials Can Be Held Liable for Failing to Protect Special Education Students from Bullying

Scruggs v. Meriden Bd. of Educ., No. 3:03CV2224(PCD), 2005 WL 2072312 (D. Conn. Aug. 26, 2005)

Bullying in schools is increasingly recognized as a significant problem, with students enrolled in special education programs particularly vulnerable to this bullying. The United States District Court of Connecticut ruled that when school officials fail to take adequate steps to protect such students from bullying they may be sued for the harm resulting from this bullying...

Found in DMHL Volume 25 Issue 2

Prison Sentence Imposed on Parents Who Hosted Teen Beer Party Is Upheld

Robinson v. Commonwealth, 625 S.E.2d 651 (Va. Ct. App. 2006)

Underage drinking has been recognized as a significant public health concern. For example, the annual social cost of underage drinking in the United States has been estimated at $53 billion, including $19 billion from traffic crashes and $29 billion from violent crime. In a 2005 nationwide survey of high school seniors, 47% reported consuming alcohol in the past month. A number of law­ related efforts have been employed in an effort to curb this consumption, including imposing greater legal liability on parents who permit or promote this activity...

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

Commonwealth Pays $85,000 After Resident at Geriatric-Psychiatric Facility Attacks Another Resident; Greater Number of Violent Attacks on Geriatric Residents in General Linked to Increase in Lawsuits

Fink, Ex'r Estate of Sarah Ann Lipscomb v. Commonwealth, Med-ma/ Death Settles for $85,000 Prior to Trial, 19 VA. LAW. WKLY. 1204 (Apr. 25, 2005)

A medical malpractice claim brought against the Commonwealth  of Virginia following the death of a resident at a state-operated geriatric/psychiatric  facility was settled prior to trial for $85,000.  Two days after being admitted, the resident was attacked by another resident, suffered a cerebral hematoma from being knocked down, and died a week later of complications from her injuries.  Family members in their lawsuit alleged the Commonwealth failed to provide a safe environment and inadequately supervised the aggressive resident, especially in light of evidence that staff knew or should have known about the aggressive resident's threatening behavior and violent tendencies. Depositions revealed facility staff were aware of previous acts of violence by the aggressive resident and the facility had the ability to separate and restrict aggressive residents from coming into unsupervised contact with other residents.  Fink, Ex'r Estate of Sarah Ann Lipscomb v. Commonwealth, Med-ma/ Death Settles for $85,000 Prior to Trial, 19 VA. LAW. WKLY. 1204 (Apr. 25, 2005)...

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

Confidentiality of Medical Records

Stuckey v. Renaissance at Midway, 2015 IL App (1st) 143111, 45 N.E.3d 1151 (Il. Dec. 18, 2015)

In litigation over nursing home liability for a resident’s assault on another resident, state confidentiality laws prohibit and prevent discovery by the plaintiff of the medical records of the resident who committed the assault.

Background: While a resident at a long-term care facility operated by defendants, Robert Holman was physically assaulted by another resident. Plaintiff Johnnie Stuckey— as attorney-in-fact for Holman—filed a personal injury action to recover damages incurred in the assault. Plaintiff moved to compel defendants to produce partially redacted records regarding the resident who assaulted Holman. Defense counsel refused and was held in “friendly contempt.” On appeal, defendants contended that the circuit court erred in ordering production of the records, arguing that both the Illinois’ Mental Health and Developmental Disabilities Confidentiality Act (the “Confidentiality Act”) and physician-patient privilege prohibited disclosure of the records.

Holdings: The appellate court agreed with the defendants, reversing the circuit court’s discovery orders and vacating the order imposing a fine on defendants for refusal to comply with those discovery orders. The appellate court concluded that the records were protected by the Confidentiality Act and that, because the plaintiff had not shown any exception to the provisions of the Act, the defendant could not be compelled to produce the records.

Notable Points:

Plaintiff failed to raise any possible exception to the Confidentiality Act that would authorize disclosure: Because plaintiff sought records including patient information forms, nurse’s notes, care plans, and social service progress notes—all documents that constitute “records” or “communications” under the Mental Health and Developmental Disabilities Confidentiality Act—plaintiff was required to demonstrate a specific exception to the Confidentiality Act that allowed disclosure. Statutory exceptions, however, are “narrowly crafted” and plaintiff never asserted the applicability of any exception.

Found in Found in DMHL Volume 35, Issue 1

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

Provider Liability; Claims by Third Parties

Holloway v. State, 875 N.W.2d 435 (Neb. 2016)

Nebraska Supreme Court rules that state mental health service providers not liable for injuries to victim of a shooting by a mentally ill person released from prison upon completion of his sentence. [Editor’s Note: An 8 th Circuit case related to the same incident, Glasgow v. State, is covered in this issue of DMHL.]

Background: On July 20, 2013, Nikko Jenkins was released from prison after serving 10.5 years of his 21-year sentence. While in prison, Jenkins engaged in numerous violent activities and repeatedly exhibited signs of a serious mental health problem. On August 24, Jenkins shot Shamecka Holloway as she walked in her front yard in Omaha, Nebraska. As a result of the shooting, Holloway suffered permanent damage and incurred medical bills; she sued the State, the state department of corrections, and the company that provided mental health services for the department and several of its providers. In her complaint, Holloway stated that the State’s responsibilities with respect to the inmates included assessing and evaluating inmates in order to determine the need for mental health commitment, and providing adequate advance notice to members of the public regarding the release of a prisoner who threatened serious bodily harm to others. The complaint further alleged that Jenkins had told Baker and staff evaluators that he would hurt others upon his release. Thus, Holloway claimed that the State knew or should have known of the foreseeability of harm to her once Jenkins was released, and mental health care providers owed a duty to the citizens of Nebraska to correctly evaluate and treat all inmates. The district court dismissed all claims brought by Holloway. Holloway appealed.

Holding: On appeal, the Supreme Court of Nebraska held that the district court did not err in dismissing Holloway’s complaint. The court found that the State and its employees were entitled to immunity from suit because whether to seek commitment falls under the “discretionary function” exception to the State Tort Claims Act. Further, the Supreme Court of Nebraska affirmed the district court’s ruling that Holloway failed to plead sufficient facts to show that the mental health care provider was liable.

Notable Points:

A state actor’s performance or nonperformance of a discretionary function cannot be the basis of liability: The State Tort Claims Act (“Act”) contains a discretionary function exception to the waiver of sovereign immunity for certain claims. A two-step analysis is used to determine whether the discretionary function exception applies. The court must first consider whether the action is a matter of choice for the acting employee. Under the applicable statute of the Nebraska Mental Health Commitment Act, whether to communicate a belief that another person is believed to be mentally ill and dangerous is a matter of choice. Thus, the first step of the analysis was satisfied. The second step requires that when a statute involves an element of judgment, the judgment must be of the particular kind that the discretionary function exception was designed to protect. The court concluded that the decision as to whether to report to the county that another person is thought to be mentally ill is a policy decision that the legislature intended to shield from liability.

Mental health treatment providers are only liable for failing to warn of a patient's threatened behavior under certain exceptional circumstances: A psychologist or mental health practitioner is not liable for failing to warn of a patient’s threatened violent behavior unless the patient has threatened violence toward a reasonably identifiable victim. Here, Jenkins did not specify a particular person but rather threatened the “citizens of Nebraska.” Another source of liability could be founded on a custodial relationship, but the court concluded a custodial relationship did not exist because CCS was only contracted to provide medical services for inmates, not to exercise any kind of custody over inmates.

Found in DMHL Volume 35, Issue 2

Firearms Possession by Persons with Mental Illness; Negligent Entrustment

Delana v. CED Sales, Inc., No. SC95013, 486 S.W.3d 316 (Mo. 2016) (en banc)

Missouri Supreme Court rules that a claim of negligent entrustment can be brought against a seller who sold a firearm to an individual after the seller had been specifically informed that the purchaser was mentally ill and had attempted suicide recently and was likely to do harm to self or others if given possession of a firearm, where the purchaser did subsequently use the firearm to kill another person.

Background: On June 25, 2012, Colby Weathers’ mother called the store manager of Odessa Gun & Pawn and asked him to refrain from selling a gun to her daughter who was severely mentally ill, informing him that Ms. Weathers had purchased a gun at the pawnshop the previous month and attempted to commit suicide. Two days later, the store manager sold a gun to Weathers and within two hours, Weathers had shot and killed her father. The State charged Weathers with murder but accepted her plea of not guilty by reason of mental disease or defect and ordered her committed to the Missouri Department of Mental Health. Weathers’ mother filed a wrongful death action alleging that the pawnshop was liable under theories of negligence.

The circuit court entered summary judgment in favor of Respondents, finding that Weathers’ mother’s negligence claims were preempted by the Protection of Lawful Commerce in Arms Act (PLCAA), which protects the sellers of firearms against negligence claims. The court also determined that although the PLCAA provides an exception to this protection in cases of negligent entrustment, Missouri law does not recognize a cause of action for negligent entrustment against sellers.

Holding: On appeal, the Supreme Court of Missouri held that the district court erred in determining that Weathers’ mother was precluded from proceeding with her negligent entrustment claim. The court found that, because Congress had expressly and unambiguously exercised its constitutionally delegated authority to preempt state law negligence actions against sellers of firearms, the PLCAA clearly preempted state law on point; thus, the PLCAA’s exception for negligent entrustment actions applied. What is more, the Court found that Missouri law does recognize a cause of action for negligent entrustment. The court concluded that negligent entrustment occurs when the defendant "supplies" a chattel (i.e., item of personal property) to another with actual or constructive knowledge that, "because of youth, inexperience or otherwise," the recipient will likely use the chattel in a manner that will result in an unreasonable risk of physical harm. Because Weathers’ mother presented sufficient evidence, the circuit court erred in entering summary judgment in favor of the pawnshop.

Found in DMHL Volume 35, Issue 2