Tennessee Dismisses EMTALA Complaint in Suicide Case

Burd ex rel. Burd v. Lebannon HMA, Inc., 2010 U.S.Dist. LEXIS 124696 (M.D. Tenn. Nov. 23, 2010)

A United States District Court in Tennessee dismissed this lawsuit brought by the executor of Joshua Ashley Burd against Lebanon HMA, Inc. under the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C § 1395dd. Burd was initially brought to the emergency room after attempting suicide by hanging himself. Finding him to have high “suicide lethality” and testing positive for cocaine and opiates, Burd was committed to Middle Tennessee Mental Health Institute, a state mental health facility. A psychiatrist at the facility found him not to be a suicide risk and did not admit him. A police officer checking on his condition at home later that evening found an outstanding arrest warrant and learned that Burd had consumed two bottles of vodka. Believing he was a suicide risk, the officer returned Burd to the emergency room. Emergency room staff assessed him and determined he was suffering from acute situational anxiety, not an emergency medical condition, and discharged him. Burd was found dead the next morning from hanging. The trial court dismissed the EMTALA claim finding that the plaintiff had presented no proof of improper motive on behalf of emergency room staff. It found that there was no evidence that the decedent would have been assessed differently had he had health insurance. The court also found that if hospital staff does not have actual knowledge that an emergency medical condition exists, EMTALA does not apply. Any allegations related to medical malpractice must be decided in state court under state malpractice law.

Found in DMHL Volume 30 Issue 2

Civil Rights Complaint Alleging 4th Amendment Violation in Death of Man with Bipolar Disorder Dismissed

Johnson v. City of Memphis, 617 F.3d 864 (6th Cir. 2010)

The 6th Circuit Court of Appeals upheld the trial court’s dismissal of a § 1983 complaint brought by the widow of a man with bipolar disorder against two city police officers alleging violation of the Fourth Amendment’s prohibition against unlawful search and seizure that resulted in his death. The plaintiff called 911 seeking assistance for her husband, but hung up and left the house before the operator answered. Receiving no response to a follow-up call, the operator dispatched two patrol officers to the house. Upon arrival, the officers found the door open and after announcing their presence and receiving no response, entered the house with their weapons drawn. The man jumped on one officer grabbing his gun; a scuffle ensued; and the plaintiff’s husband was killed. The Court held that the entry met the exigent circumstances emergency aid exception to the 4th Amendment’s prohibition against unlawful searches and seizures based upon the factual circumstances in this case.

Found in DMHL Volume 30 Issue 2

Class Action Filed Alleging Texas Violates ADA in Failing to Provide Communitybased Services

Steward v. Perry, No. 5:10-cv-01025 (W.D. Tex.)

Six named individuals residing in nursing facilities in Texas, the Arc of Texas, and the Coalition of Texans with Disabilities filed suit in December 2010 against the Governor, the Executive Commissioner of Health and Human Services and the Commissioner of the Department of Aging and Disability Services alleging that Texas is violating the Americans with Disabilities Act, § 504 of the Rehabilitation Act, Title XIX of the Social Security Act and the Nursing Home Reform Amendments.

The plaintiffs are alleging that each of the named individuals with a combination of intellectual disabilities and other conditions, such as cerebral palsy, epilepsy, or head injury, all qualify for community-based services and supports and are seeking class action certification for the 4500 others in Texas nursing facilities and the thousands more at risk of institutionalization. They are alleging that 45,756 individuals are on Texas’ waiting list for Home and Community-Based Services Waiver with Texas ranking 49th out of the 50 states in providing community-based care. They further allege that Texas has failed to provide PASARR Level II screenings to the plaintiffs or to provide “specialized services” required by Medicaid. Ironically, the plaintiffs argue that individuals residing in Texas’ 13 state-operated supported living centers under DOJ consent decree receive active treatment and better services than they do, noting that their scope of specialized services is limited to physical, occupational and speech therapy. The plaintiffs Arc and Coalition of Texans with Disabilities are suing on their own behalf and on behalf of their members.

The defendants filed a Motion to Dismiss on March 8, 2011 arguing, among other things, that the plaintiffs lack standing to bring this action, that a portion of their complaint is time barred and that the Acts they allege the defendants are violating convey no private right of action upon the plaintiffs.

Found in DMHL Volume 30 Issue 3

US Supreme Court Declines to Hear Appeal of Fifth Circuit’s Dismissal of Lawsuit for State Endangerment in Death of Mother of Man Whom Police Attempt to Detain for Mental Illness

Saenz et al. v. City of McAllen, Texas, et al., 396 Fed. Appx. 173, (5th Cir. 2010), pet. for cert. denied April 4, 2011

The United States Supreme Court has declined to review an unpublished Fifth Circuit opinion that granted qualified immunity to police officers who put the mother of a man with mental illness in the line of fire when attempting to subdue him for civil commitment. The estate and surviving relatives of an elderly woman sued the City of McAllen, Texas and individual police officers in a § 1983 action for allegedly violating her substantive rights under the due process clause. Police had summoned the elderly mother to the scene after they had tried and failed to extricate her adult son for mental health commitment from the house in which he had barricaded himself. The police knew he had a gun, was agitated, had made death threats to family members that day and was not taking his medications. He had previously killed his wife with an ax. Police allegedly took the mother who could not walk unassisted out of the car and placed here in front of the door, instructing her to urge her son to come out while police, wearing bullet proof vests, hid behind her with guns ready. When the son emerged, police opened fire. The mother was caught in the middle and was shot multiple times.

The Supreme Court has held that as a general rule state officials have no constitutional duty to protect an individual from private violence. Where, however, the state through affirmative exercise of power acts to restrain individual liberty, the state creates a “special relationship” which imposes a constitutional duty to protect the individual from danger, including private violence. The Fifth Circuit held that the “statecreated-danger” theory of liability was not clearly established in that circuit at the time of this incident and therefore the individual defendants were entitled to qualified immunity. The United States Supreme Court declined to review this decision.

Found in DMHL Volume 30 Issue 4

Second Circuit Rules P&A Contractor Lacks Standing to Sue New York on behalf of Its Constituents

Disability Advocates, Inc. et al. v. New York Coalition for Quality Assisted Living, Inc. et al., 675 F.3d 149 (2012)

The Second Circuit Court of Appeals has held that Disability Associates, Inc., a contractor for New York’s designated protection and advocacy agency, the Commission on Quality of Care and Advocacy for Persons with Disabilities, lacks standing to sue the State of New York and its officials in this long-running challenge to require New York to provide individuals with mental illness residing in adult homes with more integrated services in the community. In addition, the Court held that intervention by the United States at the remedial phase of the litigation was insufficient to convey jurisdiction upon the federal court when it lacked jurisdiction in the first instance.

Disability Associates, Inc. originally filed suit against the Governor of New York and the New York Commissioners of Health and Mental Health on July 1, 2003 on behalf of its constituents, individuals with mental illness residing in, or who might one day reside in, adult homes in New York City. The suit alleged that the mental health system violated the “integration mandate” under Title II of the Americans with Disabilities Act by failing to provide mental health services in the most integrated setting appropriate to the needs of the individuals. After discovery, the State filed a Motion for Summary Judgment arguing, among other things, that Disability Associates, Inc. lacked standing to sue on behalf of its constituents. The district court found that the plaintiff did have standing and, after a five-week bench trial, that New York had violated the ADA. Disability Associates, Inc. v. Paterson, 653 F.Supp. 2d 184 (E.D.N.Y. 2009).

More than six years after suit was filed, the United States moved to intervene in the remedy phase of the proceeding. The Court rejected New York’s proposed remedial plan, but entered one with a few modifications submitted by Disability Advocates, Inc. The Court required, among other things, that New York afford all current and future residents desiring placement in supportive housing with such services within four years of entry of the order.

New York appealed the order on the grounds, among others, that Disability Associates, Inc. lacked standing. The appeal was argued on December 8, 2010, but it was not until April 6, 2012 that the Second Circuit dismissed the entire case for lack of jurisdiction because no Article III Case or Controversy existed. Before a party may bring a case in federal court, it must first demonstrate that it has standing, that is, it has suffered an injury-in-fact, which is a concrete and particularized harm to a legally protected interest. If the party lacks standing, no case or controversy over which a court may have jurisdiction exists. When an association seeks to bring suit solely as the representative of its members, it must allege that its members are suffering immediate or threatened injury had the members themselves sued. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977). In Hunt, the Supreme Court ruled that although the Washington State Apple Advertising Commission was a state agency without actual members, its constituency possessed an “indicia of membership” and functioned as a membership organization. The record reflected that the apple growers and dealers alone elected the members of the Commission, served on the Commission, and financed its activities.

Here, the Second Circuit noted that whether P & A systems afford similar protections to their constituents, as in Hunt, including requirements that advisory councils be composed of at least 60% of individuals with disabilities and grievance procedures be established, has been decided differently in circuits throughout the country. The Ninth and Eleventh Circuits have found the indicia of membership to be sufficient to convey associational standing on P& A agencies. Dr. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1110 (9th Cir. 2010); Doe v. Stincer, 175 F.3d 879, 886 (11th Cir. 1999). By contrast, the Fifth and Eighth Circuits have dismissed cases finding no associational standing. Citizens of Dall. v. Dall. Cnty. Mental Health & Mental Retardation Ctr. Bd. of Trs., 19 F.3d 241, 244 (5th Cir. 1994); Mo. Prot. & Advocacy Servs. Inc. v. Carnahan, 499 F.3d 803, 810 (8th Cir. 2007).

In this case, the Second Circuit determined that it need not decide whether the P & A Agency could assert associational standing because it found Disability Advocates, Inc. was a mere contractor for the designated P & A system. Although as a contractor, Disability Advocates, Inc. was required to comply with all the requirements of the Protection and Advocacy for Individuals with Mental Illness Act, the record was devoid of any indication as to whether its constituents had any ability to elect its directors, make budget decisions, influence its activities or direct its litigation strategies. The Court found no evidence that Disability Advocates had even notified its constituents of this litigation. Without these protections, the Court held, Disability Advocates’ constituents have nothing approaching the indicia of membership required to support associational standing, as found in Hunt.

In addition, the Second Circuit found that the United States did not intervene in the case until six years after suit was filed and after the trial phase had concluded. The Court held that a court must first have jurisdiction over a case before it can grant a motion to intervene. Because the district court lacked the requisite Article III Case or Controversy jurisdiction in the first instance, the mere fact that the United States itself might have standing could not convey jurisdiction originally upon the court. The Court therefore dismissed the entire case, relieving New York of the burden to implement the district court’s order.

Found in DMHL Volume 31 Issue 6

Treatment of Mentally Ill Individuals in Custodial Settings: Eighth Amendment

Failure to follow national suicide screening prevention standards with prisoner who later commits suicide presents colorable eighth amendment claim that survives summary judgment motion

Barkes v. First Corr. Med., Inc., 766 F.3d 307 (3d Cir. 2014)

After Christopher Barkes committed suicide while being held at a correctional facility in Delaware, his wife and children brought a § 1983 suit against the commissioner of the state department of corrections (“DOC”), the warden, and the private company with whom the DOC contracted to provided medical services to the prison (“FCM”) alleging violations of the Eighth Amendment of the federal Constitution.

When Barkes was arrested in November, 2004, he underwent a medical intake screening procedure conducted by a licensed nurse employed by LCM, the private contractor hired to provide medical services to the prison. The procedure involved (1) a self-report intake form that included questions about suicidal ideation, (2) screening for seventeen suicide risk factors, and (3) a standard medical intake form with questions about “altered mental status ... or abnormal conduct.” Barkes indicated that he had attempted suicide in 2003, but made no mention of three other attempts (one in 1997 and two in 2004) and checked only two of the seventeen suicide screening factors (eight were required to initiate suicide prevention measures). Finally, the licensed practical nurse who conducted the evaluation reported that Barkes showed no signs of either altered mental status or abnormal conduct. Barkes did, however, place a call to his wife that evening and express his intention to kill himself, but his wife did not inform the DOC. The next morning, Barkes was observed lying on his bed in his cell at 10:45, 10:50, and 11:00 a.m. When an officer came to deliver his lunch at 11:35 a.m., Barkes had hanged himself with a bed sheet.

The Third Circuit held (1) for purposes of determining whether the warden and DOC commissioner were entitled to qualified immunity, Barkes’ constitutional right to “proper implementation of adequate suicide prevention tools” was clearly established at the time of his suicide; (2) that summary judgment was inappropriate given evidence that “FCM's policies and procedures in place at the time of Barkes's suicide created an unreasonable risk of a constitutional deprivation;” and (3) that a reasonable jury could have found that Barkes’ suicide was caused by the DOC’s failure to supervise FCM. The second holding was based on evidence of the DOC’s awareness that “FCM's suicide prevention screening practices were not in compliance with [National Commission on Correctional Health Care] standards, as required by their contract with the DOC.” The Third Circuit reached its third holding despite the fact that Barkes did not self-report any suicidal ideation or exhibit any suicidal behavior because, in the court’s view, “had Appellants properly supervised FCM and ensured compliance with the contract, Barkes's answers during his screening would have resulted in additional preventive measures being taken.”

Found in DMHL Volume 34 Issue 1

ADA workplace accommodation

Claim by fired deputy clerk of court that her social anxiety disorder constituted a disability and that her employer failed to make reasonable accommodation survives summary judgment motion, as the Court emphasizes the remedial goals of the ADA

Jacobs v. NC Admin. Office of the Courts, 780 F.3d 562 (4th Cir. 2015)

Christina Jacobs was hired as a deputy clerk in the New Hanover County Superior Court. The job description for deputy clerk included many activities, and only a few of the deputies regularly provided customer service at the courthouse front counter. Jacobs, who was diagnosed with social anxiety disorder, was assigned to provide customer service on a daily basis. She experienced extreme anxiety and distress from interacting with the public at the counter. She requested to be assigned to a role with less direct interpersonal interaction. Her employer did not respond to her accommodation request, and three weeks later fired her. She made a timely complaint to the EEOC, which conducted an investigation and made a finding in her favor. The Department of Justice later issued a “Right to Sue” letter. Jacobs filed suit, claiming, among other things, disability discrimination, failure to accommodate, and retaliation, all in violation of the Americans with Disabilities Act (ADA). After discovery, defendant employer moved for summary judgment, which the district court granted on all counts.

The Fourth Circuit reversed and remanded on all counts except the claim of retaliation. It noted that the district court’s most fundamental error was deciding disputed factual issues in favor of the moving party, rather than determining whether, if the facts were as Jacobs alleged, no reasonable juror could find that the defendant had committed violations of the ADA. 

The Fourth Circuit then examined the claims and facts. Some notable observations include:

1. The Court first reviewed the ADA definition of “disability” and nonexhaustive list of “major life activities” including the EEOC’s acceptance of “interacting with others” as a major life activity. Moreover, the 2008 ADA amendments broadened the definition of disability in order to expand the scope of protection available under the Act “as broadly as the text permits.” The Fourth Circuit “therefore defer[red] to the EEOC's determination…that interacting with others is a major life activity.”

2. The Court rejected the employer’s claim that Jacobs had failed to show that her alleged social anxiety disorder substantially limited her ability to interact with others. The Court noted that the 2008 amendments define a disability as one that “substantially limits…as compared to most people in the general population…An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”

3. The Court noted that a person “need not live as a hermit in order to be” substantially limited. The fact that Jacobs endured the social interactions for a time did “not per se preclude a finding that she had social anxiety disorder,” and “a reasonable jury could conclude that Jacobs was substantially limited in her ability to interact with others and thus disabled within the meaning of the ADA.”

4. The Court ruled that at this stage of the litigation the absence of any documentation of poor performance, and the shifting reasons of the employer regarding unsatisfactory performance, were sufficient to establish that the employer’s claims were a pretext and not the actual reason for the decision to fire her.

5. The Court also analyzed whether the employer made a reasonable effort at accommodation. The Court wrote that employers have a good-faith duty “to engage [with their employees] in an interactive process to identify a reasonable accommodation” under the ADA (Wilson v. Dollar Gen. Corp., 717 F.3d at 346, 4 th Cir. 2013). 9 The Fourth Circuit found that, given the undisputed facts regarding the meeting at which Jacobs was fired, “a reasonable jury could easily conclude” that Jacobs’s employer acted in bad faith by failing to engage in the interactive process with Jacobs at that meeting.

Found in DMHL Volume 34 Issue 2

Liability of Public Officials for Care of Mentally Ill Inmates in Correctional Setting

Saylor v. Nebraska, 812 F.3d 637 (8th Cir. 2016), as amended (Mar. 4, 2016)

Claim by jail inmate with mental illness against jail doctors and staff under 42 USC § 1983 did not establish deliberate indifference required under the Eighth Amendment to establish liability. Summary judgment granted to all defendants based upon qualified immunity.

Background: James Saylor sued the State of Nebraska, the Nebraska Department of Correctional Services (“NDCS”), Correct Care, LLC, and several individuals alleging violations of his First, Eighth, and Fourteenth Amendment rights under 42 U.S.C. § 1983. Saylor alleged that defendants acted with deliberate indifference to his serious medical needs by failing properly to treat him for PTSD. He claimed that his level of care at Nebraska State Prison was so low as to constitute cruel and unusual punishment. The district court dismissed Saylor’s claims against the State of Nebraska and the NDCS and the claims for monetary relief against the individual defendants in their official capacities. The district court then denied the remaining defendants’ motions for summary judgment on the basis of qualified immunity.

Holdings: On appeal, the Eighth Circuit reversed, holding that there were not genuine disputes concerning “the predicate facts material to the qualified immunity issue.” Because the Court found that the record showed that all defendants “met Saylor’s medical needs beyond the minimum standard required,” there was no deprivation of Saylor’s Eighth Amendment rights. Thus, defendants were entitled to qualified immunity.

Notable Points:

Qualified immunity for non-medical defendants: In order to overcome a defense of qualified immunity for the non-medical defendants, a plaintiff must show that supervisors had direct responsibility for the alleged violations, had actual knowledge of the violation, or gave tacit authorization for the violation. The Court held that the non-medical prison supervisors who approved Saylor’s transfer were not indifferent to his PTSD in violation of the Eight Amendment because Saylor provided “no specific evidence that they were involved in, or directly responsible for, his allegedly insufficient medical care.”

Qualified immunity for medical defendants: In order to overcome a defense of qualified immunity for the medical defendants, a plaintiff must show that defendants were personally responsible for violations, or were responsible for a systematic condition that violated Constitution. Here, the Court held that the State prison’s medical staff was not deliberately indifferent to Saylor’s PTSD even though Saylor argued that he received treatment that rose to the level of cruel and unusual punishment after his original treating physician left. Records showed that medical staff provided beyond the minimum standard required after his previous treater left, first providing Saylor with another physician at the same facility and then ultimately a physiatrist at a different facility. They also continued his medication consistent with their independent medical judgment. The staff also granted Saylor’s request for a private cell and sought his agreement for certain deviations from his original treatment plan.

Found in Found in DMHL Volume 35, Issue 1

Liability of Public Entities in Caring for Persons during Involuntary Commitment Process

Anderson v. Marshall Cty., Miss., No. 15-60051, 2016 WL 143303 (5th Cir. Jan. 12, 2016) (per curiam)

Estate of mentally ill person, who was taken into involuntary custody due to mental health crisis and later died in County Sheriff Department’s custody, failed to meet requirements for claims against hospital and County under 42 USC § 1983, as evidence did not demonstrate that defendants had a policy or practice amounting to deliberate indifference, as required under Monell. 

Background: After Princess Anderson arrived at a hospital in Marshall County Mississippi, she became increasingly agitated and physical with emergency room staff. Anderson tested positive for marijuana and opiates, and was diagnosed with acute psychosis. After a mental health evaluation, it was determined that Anderson required psychological care, but she refused voluntary admission. The chancery court granted the doctors’ request to have Anderson involuntarily committed and ordered the DeSoto County sheriff to take custody of her. Because Anderson was a resident of Marshall County, she was transported from DeSoto to Marshall County jail on Tuesday, February 8th. On arrival, DeSoto deputies told the Marshall County jail officer that Anderson had become agitated during the transport requiring that she be restrained. The Marshall jail officer did not review Anderson’s medical records (believing she was not entitled to view Anderson’s health information), and Anderson was placed in a cell. Although other inmates reported that Anderson needed emergency medical attention, she was not taken to a hospital until Friday, February 11th when Anderson’s mother arrived at the jail to take her to a hospital for follow-up tests. Shortly after arriving there, Anderson died of multisystem organ failure. Her mother, Angela Anderson, sued Marshall County and the Sheriff for violations of Princess Anderson’s rights under 42 U.S.C. § 1983. The district court determined that there was no § 1983 violation.

Holding: The Fifth Circuit held per curiam that Angela Anderson did not meet “the high bar required for Monell liability” under § 1983 and upheld the district court’s grant of summary judgment against her. On the failure to train claim, the Court held that the plaintiff failed to establish that Marshall County acted with deliberate indifference to the constitutional rights of inmates when adopting its training procedures. The Court also found the single incident exception to Monell’s general requirement of a pattern of unconstitutional conduct was not applicable given the evidence presented by the plaintiff.

Notable Points:

Plaintiff did not show evidence of a pattern of deliberate indifference: Anderson came forward with no evidence to show or allege a pattern of deliberate indifference to the constitutional rights of prisoners in Marshall County’s training, policies, or procedures. Without evidence of a pattern, Marshall County could not be found to have been on notice that its current training was producing unconstitutional results. Absent a pattern, the plaintiff must show deliberate indifference through the single incident exception.

Plaintiff’s evidence was not sufficient to meet § 1983’s single incident exception: The single incident exception would require that Marshall County’s training be so inadequate that the county was on notice that an untrained officer would have neglected a prisoner in the way Marshall jail officer was alleged to have done. The Fifth Circuit reiterated that “it is not enough to say that more or different training or supervision would have prevented Princess’s injuries.” It is almost always the case that more or better training could have prevented a poor outcome, so that cannot be enough to subject a county to governmental liability. Specifically, the Court said that, given the training provided, Marshall County “could not have anticipated that Officer Anderson and other correctional officers would ignore Princess’s litany of obvious ailments.”

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

Mitchell v. State, 369 P.3d 299 (Idaho 2016)

Idaho Supreme Court rules that the victim of a shooting by a person with mental illness who had been discharged from treatment services by the state’s mental health services program may pursue a claim against the state that his injury was the result of a negligent termination of services.

Background: Gerald Simpson had been receiving mental health services from the Idaho Department of Health and Welfare’s (IDHW) Adult Mental Health program until he was released on June 23, 2010. On September 27, 2010, Simpson shot Ryan Mitchell in the back outside of a coffee shop. Approximately ten days after the shooting, psychologist Daniel Traughber, Ph.D., prepared a memorandum on behalf of the IDHW explaining the processes and procedures that were used to terminate mental health services, subsequent to budget cuts, in a way that “reduced the risk of harm to patients and/or the community.” In August 2012, the district court dismissed the criminal charges against Simpson due to Simpson’s lack of competency to stand trial. Shortly thereafter, Mitchell filed this suit alleging that the State violated Mitchell’s constitutional and victims’ rights and was negligent when it discontinued Simpson’s mental health services. The district court issued an order granting summary judgment to the State on all claims.

Holding: On appeal, the Supreme Court of Idaho held that Mitchell’s victims’ rights claim was properly dismissed, but that the claim for negligence had been dismissed in error. The court determined that there was insufficient admissible evidence for the district court to make a determination as to whether the decision to cut Simpson from IDHW's mental health services was operational or discretionary. Thus, the district court erred in holding that the State’s decision to close Simpson’s file was discretionary and therefore erred in granting summary judgment to the State on Mitchell’s negligence claim.

Notable Points:

Mitchell’s negligence claim turns on whether IDHW's decision to release Simpson from its Adult Mental Health program was a discretionary function or an operational function: If the State’s decision to discontinue Simpson’s mental health services was a discretionary function then it would entitle the State to immunity. Here, there were insufficient facts for the trial court to determine whether IDHW's decision to cut Simpson from its health services was operational or discretionary. The evidence did not indicate who made the decision to close Simpson's file or how that decision was made.

Found in DMHL Volume 35, Issue 2

Sexual Abuse and Psychological Injury; Statute of Limitations

Haynes v. Haggerty, 784 S.E.2d 293 (Va. 2016)

For cases where the childhood sexual abuse occurred before October 1977, the two-year statute of limitations for civil action seeking damages starts when the victim reaches majority. As of October 1977, the two-year statute of limitations starts to run either after the victim has attained majority or after the victim has been advised by a licensed physician or psychologist that the person has an injury caused by the prior abuse.

Background: Nancy Haynes alleged that Sean Haggerty had a sexual relationship with her between the years of 1971 and 1975, while she was a minor. Haynes reached majority in March of 1975. In October 1977, Virginia Code Section 8.01-249(6) was passed, which dictated that causes of action based on childhood sexual abuse accrue when the fact of the injury and its causal connection to the abuse is first communicated to the victim by a licensed physician, psychologist, or clinical psychologist. This statute specifically noted that victimizations that occurred before the passing of this statute would be dictated by the former statute, which stated that causes of action based on childhood sexual abuse accrue upon reaching majority. In May of 2012, Haynes was diagnosed by her therapist with Dysthymic Disorder, which the therapist said was a result of Haggerty sexually abusing her when she was a minor. Haynes brought suit against Haggerty seeking damages for sexual assault and battery.

The circuit court held that the statute of limitations applicable in 1975 had expired before the passage of 8.01-249(6) and thus its application to this case would deprive Haggerty of due process and property right to a statute of limitations defense. Also, the court concluded that Haynes’ extremely protracted failure to act though being fully aware of Haggerty’s sexual misconduct would egregiously undermine Haggerty’s constitutional rights to due process. Haynes appealed the decision.

Holding: The Supreme Court held that Haynes’ causes of actions were dictated by the preceding statute, which stated that the statute of limitations governing the claims would be tolled until the alleged victim reached majority. 8.01-249(6) therefore did not apply to Haynes’ claim and the circuit court did not err in granting Haggerty’s plea in bar.

Found in DMHL Volume 35, Issue 2