BRATTLEBORO — In a decision that split the Vermont Supreme Court 3 to 2, the court ruled that mental health care providers have a responsibility to inform patients and patient caretakers of known risks in caring for dangerously mentally ill patients.
According to a press release from Burlington attorneys Richard Cassidy and Matthew Shagam of the Hoff Curtis law firm, the court held that Vermont law requires that doctors provide information reasonably necessary to keep patients, their caretakers, and others who foreseeably encounter a dangerous patient, safe.
"The Court's earlier rulings had acknowledged only a duty to warn an identifiable victim of the risk of attack from a dangerously ill mental patient," stated the press release.
In August 2014, a Windham County Superior Court judge dismissed a lawsuit filed by the family of a St. Johnsbury man who was severely beaten in 2011 by a former Brattleboro Retreat patient. The family of Michael Kuligoski had filed the suit against the Retreat and Northeast Kingdom Human Services for injuries sustained after Evan Rapoza, attacked and beat Kuligoski with a wrench in March 2011. Kuligoski, a furnace technician, was working at a property owned by the Rapoza family. Because of his injuries, Kuligoski requires constant medical attention, according to the complaint filed by the family. Rapoza was found to be insane at the time of the attack and criminal charges were eventually dismissed.
Before the attack, Rapoza was diagnosed with schizophrenia and in 2010 he spent nearly two months at the Retreat. After he was discharged from the Retreat, his treatment plan was turned over to Northeast Kingdom Human Services, where he was prescribed antipsychotic and anti-anxiety medications, which he stopped taking later that year.
In dismissing the suit, Windham County Superior Court Judge John Wesley found that as a matter of law, neither the Retreat nor Northeast Kingdom Human Services had a legal duty to Kuligoski or his family. Wesley noted that according to state case law, therapists and mental health facilities have a duty to warn when a patient makes a threat against an identifiable victim. However, there is generally no duty to control the conduct of another person to prevent harm to a third party. While a therapist has a duty to exercise reasonable care to prevent harm to third parties, that duty to warn arises only when triggered by risk of danger to an identifiable victim, noted Wesley.
However, noted Cassidy in the press release, "It only makes sense for the law to require that mental health providers take reasonable steps to be sure that caretakers are told what they need to know for safety's sake. The decision requires that medical professionals will be clear about what caretakers need to know about the complex, difficult and, on rare occasions, risky job of caring for the mentally ill."
"We are very disappointed by the majority decision of the Vermont Supreme Court, which creates a legal duty of care that did not exist in Vermont — or anywhere else in the country — when the patient at issue was being cared for," stated the Retreat's attorney, Ritchie E. Berger, of Dinse, Knapp & McAndrew, P.C., in a press release. "We empathize deeply with the Kuligoski family; however, we do not believe that the Brattleboro Retreat is in any way responsible for the tragedy they experienced. Like hospitals and institutions across the nation the Retreat is committed to the wellbeing of its clients and their family members."
Because the Supreme Court remanded the suit back to the Windham Superior Court for further proceedings that may lead to trial, the Retreat's attorneys had no other comments.
In her dissenting opinion, Chief Justice J. Skoglund noted "This new duty to train or assist a patient's caretakers so as to protect the public finds no support in case law or public policy. It is illogical, potentially fatal to effective patient-therapist relationships, and places an impossibly onerous obligation on those who provide mental health care to the people of this state."
The family of Kuligoski sued the Retreat, contending it was negligent in releasing him and negligent in failing to warn Rapoza's family about his condition. They also claimed that the Retreat was negligent for failing to train his family on how to supervise and monitor him. The counts were based on a common "duty of reasonable care to act to avoid needless risk to the safety of third parties" based on the "special relationship" that existed between the Retreat and NKHS and their patient. The family also filed a lawsuit against Rapoza, his parents and his grandparents, but a Caledonia Superior Court judge dismissed the suit in May 2015.
In Vermont, precedent was set with Peck v. Counseling Services of Addison County, in which the court ruled "a mental health professional who knows or, based upon the standards of the mental health profession, should know that his or her patient poses a serious risk of danger to an identifiable victim has a duty to exercise reasonable care to protect him or her from that danger."
"However," wrote the majority, "several other courts have held that a duty to warn is owed not only to specifically identified or identifiable victims, but to foreseeable victims or to those whose membership in a particular class — for example, those living with the patient — places them within a zone of danger. ... Thus, while Peck finds a duty to warn an identifiable victim, it does not hold that liability is limited to those circumstances and in fact draws on public health cases where there is no identified victim."
Associate Justice C.J. Reiber, in his dissenting opinion, noted the majority abandoned an incremental approach and defined for mental-health care providers a new common-law duty. "(T)he predominant legal response has been to specifically define and limit a mental health provider's duty to protect third parties, generally requiring a serious threat to a readily identifiable victim."
Even though the Retreat created an aftercare plan, "they could not prevent him from perpetrating a spontaneous act of violence. ... It is all too easy to assign new duties to a profession we know little about, and have no responsibility to implement. Judicial restraint in creating duties for other professions is not an end in itself; it is the end-result of recognizing our own limitations. It is wisdom grounded in humility."
"Under this new duty," noted Skoglund, "mental health providers will have to consider generalized threats of violence directed against no one in particular, which I suggest are commonplace with severely ill patients, and will have to weigh whether to violate the patient-physician privilege, thus damaging whatever therapeutic relationship existed and perhaps the treatment of the patient as well. After the risk assessment, they will then, in trying to place the patient in the least restrictive environment available, need to do an educational assessment of potential caregivers."
Bob Audette can be contacted at 802-254-2311, ext. 160.