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 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

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

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

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

ADA Integration Mandate

Steimel v. Wernert, 15-2377, 823 F.3d 902 (7th Cir. 2016)

For the purposes of the ADA integration mandate, protection is not limited to just those who are institutionalized. A state may violate the integration mandate if it refuses to provide already-existing treatment to disabled people where such services would improve community integration.

Background: Section 1915(c) of the Social Security Act established the Home and Community-Based Care Waiver Program, which allowed states to diverge from the traditional Medicaid program to provide community-based care for Medicaid receivers who would have otherwise been institutionalized. Nonetheless, the states must comply with the ADA’s integration mandate, which requires that the states administer services in “the most integrated setting appropriate” for qualified individuals.

The Indiana Family and Social Services Administration (The Agency) runs three of many home- and community-based services in the Medicaid program: the Aged and Disabled Medicaid Waiver Program (A & D waiver), the Community Integration and Habilitation Medicaid Waiver Program (CIH waiver), and the Family Supports Medicaid Waiver Program (FS waiver). The relevant differences between the three are the monetary cap on services and what must be demonstrated to qualify for said services. The FS waiver had a service cap of $16,545, whereas the CIH and A & D waivers did not have caps. In 2011, The Agency felt that it needed to change its policies to better adhere to A & D rules. The plaintiffs were moved to the FS waiver and were ineligible for the CIH waiver; they subsequently filed their claim, alleging that, because of this change, they enjoyed 30 fewer hours in the community than they did before the change. Furthermore, plaintiffs’ guardians alleged that the restriction of services led to lapses in supervision of plaintiffs that had and would result in injuries. The plaintiffs argued that this waiver structure violated the integration mandate because it effectively institutionalized the plaintiffs within their own homes and put them at risk for being institutionalized. The district court granted summary judgment to the defendants; plaintiffs appealed.

Holding: The Seventh Circuit extended the meaning of “institutionalized” to include in one’s own home, thus qualifying plaintiff’s argument. The court further noted that a state may be in violation of the integration mandate if it refuses to provide already-available services to individuals who could be more integrated into the community with such services. And because the plaintiffs sought services that already existed within the structure, the state was obligated to provide them if they enabled the plaintiffs to live in a more community-integrated setting.

Found in DMHL Volume 35, Issue 2

Employment Discrimination in Mental Health Facilities

Blackburn v. Dep't of Soc. & Health Servs., 375 P.3d 1076 (Wash. 2016)

Washington Supreme Court rules that psychiatric hospital cannot modify staff assignments to accommodate racial prejudices of patient, even when patient threatens violence if staff members of a particular race are assigned to him.

Background: Plaintiffs were employees of a psychiatric hospital and challenged alleged discriminatory staffing practices. Employees were generally assigned a particular home ward, but could be reassigned based on a “pull list.” The pull list was meant to ensure that employees were reassigned to other wards on an equal basis. M.P., a particularly violent patient, threatened an African-American staff member, which resulted in a decision not to assign any African-American staff to that patient’s ward to ensure staff safety. The following day, a nurse directed that a white staff person be assigned to M.P.’s ward, which would have been a deviation from the pull list assignment system. The plaintiff employees sued claiming employment discrimination and disparate treatment. The trial court dismissed the claims, concluding the adverse employment action was not severe enough to be actionable and the overriding factor was safety. The plaintiffs appealed.

Holding: The Washington Supreme Court ruled that there were no valid legal justifications for the race-based determinations in the staffing directive. The court reversed the decision of the trial court on this claim and remanded for a determination of damages.

Notable Point:

Bona fide occupational qualification (BFOQ): The court found it doubtful that a BFOQ defense could apply in this case, but ruled that it had been waived by the defense at trial.

Found in DMHL Volume 35, Issue 3

Judicial Order Authorizing Involuntary Administration of Medication in Hospital Setting

In re I.G., 2016 VT 95

Vermont Supreme Court reverses lower court order authorizing medication over objection of involuntarily committed patient because the lower court failed to make specific findings on whether patient’s written statement of objection to medication, made prior to hospitalization, was a competent refusal that had to be honored under Vermont law.

Background: I.G. was hospitalized at the Vermont Psychiatric Care Hospital (VPCH) pursuant to a court order stemming from an arrest for assaulting his girlfriend. I.G. was previously hospitalized at VPCH and was diagnosed with schizophrenia. When he was discharged from VPCH after the previous hospitalization, he started living at a residence for people with mental illness. While there, I.G. signed a document purported to be an advance directive stating that he did not want any psychiatric medication. Following I.G.’s current hospitalization, VCPH filed an application to involuntarily medicate I.G. After a hearing, the trial court ordered I.G.’s involuntary medication for 90 days. I.G. appealed. 

Holding: The Vermont Supreme Court ruled that the trial court did not adequately address the issue of whether the purported advance directive was a competent written expression or preference regarding medication according to Vermont statute. The court reversed and remanded for a determination of I.G.’s competency at the time of signing the advance directive.

Notable Point:

Advance directive: The Vermont Supreme Court reversed the decision of the trial court even though the advance directive at issue in this case did not meet the statutory requirements of an advance directive because it was not signed by two witnesses.

Found in DMHL Volume 35, Issue 3

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

Mental Health Treatment Regulation and First Amendment Claims of Patients

Welch v. Brown, No. 15-16598, 2016 U.S. App. LEXIS 17867 (9th Cir. Oct. 3, 2016)

Ninth Circuit upholds California statute prohibiting state-licensed mental health providers from engaging in sexual orientation change efforts (SOCE) with minor patients, rejecting claims under the Free Exercise and Establishment clauses of the First Amendment.

Background: California SB 1172 went into effect prohibiting mental health providers from engaging in SOCE with patients under 18 years of age. Plaintiffs provided counseling and other services involving SOCE and appealed the denial of a motion for a preliminary injunction to prevent the enforcement of California SB 1172. Plaintiffs claimed that SB 1172 violated the Free Exercise and Establishment Clauses by excessively entangling the state with religion and advancing or inhibiting a religion. Plaintiffs also claimed that SB1172 violated a substantive due process right to privacy in seeking a particular type of treatment.

Holding: On appeal, the Ninth Circuit affirmed the district court's judgment upholding the California statute. The court held that plaintiffs' claims failed because the scope of the law regulated conduct only within the confines of the counselor-client relationship and the prohibition against sexual orientation change efforts applied without regard to the nature of the minor's motivation for seeking treatment. The court also ruled that substantive due process rights did not extend to the choice of type of treatment or provider.

Notable Point:

Confines of the counselor-client relationship: The court specifically held that SB 1172 does not apply to clergy or pastoral counselors “as long as they do not hold themselves out as operating pursuant to their license.”

Found in DMHL Volume 35, Issue 3

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

Supreme Court Hears Arguments Whether Protection and Advocacy Agency May Sue State Officials to Access Peer Review Records

Virginia Office for Protection and Advocacy v. Stewart, 568 F.3d 110 (4th Cir. 2009) pet. for cert. granted (U.S. No. 09-529, June 21, 2010)
 

The United States Supreme Court heard oral argument on December 1, 2010 in Virginia Office for Protection and Advocacy v. Stewart, 568 F.3d 110 (4th Cir. 2009) pet. for cert. granted (U.S. No. 09-529, June 21, 2010), as to whether one independent state agency, the Virginia Office for Protection and Advocacy, may sue other state officials, namely the Commissioner of the Department of Behavioral Health and Developmental Services and the directors of two state facilities, to enforce the requirements of the Protection and Advocacy for Individuals with Mental Illness Act or 1986 (“PAIMI”), 42 U.S.C §§ 10801-10851 and the Developmental Disabilities Assistance and Bill of Rights Act (“DD Act”), 42 U.S.C. §§ 15001-15115. The 4th Circuit had reversed the decision of the federal district court, refusing to allow VOPA to sue the Commissioner and directors of Central State Hospital and Central Virginia Training Center to obtain peer review records related to the deaths of two individuals and the severe injury of a third. The 4th Circuit refused to apply the Ex parte Young doctrine which permits law suits by private parties to enforce federal law and obtain injunctive relief, but not monetary damages, from individual state officials in federal court. The court found that the lawsuit could otherwise be brought in state court.

Indiana is also seeking Supreme Court review in a similar case in which the 7th Circuit en banc held that the Indiana Protection and Advocacy agency could sue. Indiana Family and Social Services Administration v. Indiana Protection and Advocacy Services, 603 F.3d 365 (7th Cir. 2010) en banc, pet. for cert. filed, (No. 10-131, July 21, 2010). In addition to the Ex parte Young arguments heard in the Virginia case, Indiana is also arguing that PAIMI does not create a private right of action and peer review documents are protected against disclosure under state law.

Should the Supreme Court rule in the DBHDS Commissioner’s favor in VOPA v. Stewart, VOPA would need to file a new lawsuit in state court to seek access to peer review records. If the Supreme Court rules in VOPA’s favor, the case will be remanded back to the United States District Court in Richmond for a determination of the case on the merits. Four other federal circuits have already ruled that the state’s protection and advocacy agency has access to peer review records. Pennsylvania Protection and Advocacy, Inc. v. Houstoun, 228 F.3d 423 (3rd Cir. 2000); Center for Legal Advocacy v. Hammons, 323 F.3d 1262 (10th Cir. 2003); Missouri Protection & Advocacy Services v. Missouri Department of Mental Health, 447 F.3d 1021 (8th Cir. 2006). Protection and Advocacy for Persons with Disabilities v. Mental Health and Addiction Services, 448 F.3d 119 (2nd Cir. 2006).

Found in DMHL Volume 30 Issue 1