Carole Kuligoski, Individually and On Behalf of Michael J. Kuligoski, and Mark Kuligoski and James Kuligoski v. Brattleboro Retreat and Northeast Kingdom Human Services
Lead
¶ 1. This case arises out of the assault of Michael Kuligoski by a former Brattleboro Retreat patient, E.R., after the patient was discharged from the Retreat, a mental health treatment facility, and while he was undergoing outpatient treatment with Northeast Kingdom Human Services (NKHS). Plaintiff Carole Kuligoski, individually and on behalf of Michael, Mark Kuligoski, and James Kuligoski (collectively plaintiffs), filed suit in Windham Superior Court against defendants Brattleboro Retreat and NKHS, raising claims of 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 defendants’ motions to dismiss for failure to state a claim, and plaintiffs appealed. We reverse on the failure to warn claim, and affirm on the failure to treat, improper release, failure to train, and negligent undertaking claims.
¶ 2. Plaintiffs’ complaint alleges the following facts,
¶ 3. On October 15, 2010, the medical professionals at CVMC completed the necessary documents to have E.R. involuntarily committed. The documents stated that he was mentally ill, posed a danger to himself and others, and was in need of involuntary hospitalization. The following day, E.R. was placed in restraints and transferred from CVMC to the Vermont State Hospital where a physician examined him and determined that he was a danger
¶ 4. While at the Vermont State Hospital, E.R. was administered anti-psychotic and anxiety medication. He repeatedly asked to leave the hospital, once tried to escape, threatened to punch out a window, and, although he denied having auditory hallucinations, was observed reacting to unseen stimuli. After E.R. reported feeling unsafe at the hospital, a sоcial worker made a referral for his transfer to the Retreat, a nonprofit psychiatric hospital in Windham County, Vermont. Upon his discharge from the state hospital, he was diagnosed with schizophreniform disorder.
¶ 5. On October 22, 2010, E.R. was examined by a physician at the Retreat who confirmed the state hospital’s diagnosis. The physician reported that E.R. “had verbalized homicidal ideation toward staff.” E.R. was thereafter placed on a staff-intensive treatment plan but continued to exhibit “grossly psychotic” behavior, lack of insight, and severely impaired judgment. His physician noted that he “required an in-patient level of care to prevent further decompensation.”
¶ 6. On November 1, 2010, E.R.’s physician noted that “E.R. continued to be floridly psychotic, probably paranoid, guarded and gradually improving but that he remained sufficiently ill that he totally lacked insight into his illness and that E.R. would be non-compliant with treatment outside of the hospital.” He further noted that E.R. would remain on the treatment plan and be allowed out only for brief intervals.
¶ 7. During his time at the Retreat, E.R.’s behavior did not improve. In his November 10, 2010 assessment, E.R.’s physician stated that, if discharged, E.R. would be a high risk for decompensation, might stop his medication, and might not participate in aftercare treatment. Nevertheless, he stated that E.R. would be discharged on November 12.
¶ 8. On November 12, 2010, E.R.’s physician noted that he stopped taking his medication and had been hearing voices commanding him to kill himself. E.R. said of
¶ 9. Throughout the period of his treatment at both the Vermont State Hospital and the Retreat, E.R. was closely monitored by his parents, with whom he had been living. Exactly what the parents were told at the time of discharge is disputed, although it appears they were told that E.R. “might have schizophrenia.” They understood that E.R. was “going through a phase and would recover.”
¶ 10. In the discharge summary, E.R.’s physician again stated that E.R. was a high risk for poor compliance with post-discharge treatment; E.R. had been diagnosed as having a “psychotic disorder, not otherwise specified”; and that E.R.’s parents believed his mental health was relatеd to his breakup with a girlfriend in 2009 or possibly a sequela resulting from mononucleosis. He stated that E.R. met the criteria for schizophrenia or, at the very least, schizophreniform disorder.
¶ 11. Prior to E.R.’s discharge, the Retreat developed an aftercare treatment plan with E.R.’s parents that involved regular visits to NKHS. E.R. was also prescribed daily medication, which his mother was told to administer to him. E.R.’s mother believed that E.R.’s condition had considerably improved at the time of his release.
¶ 12. On December 1, 2010, E.R. met with a treatment team at NKHS and signed a cognitive remediation therapy plan. A week later, a member of the treatment team completed a Substance Abuse Addendum, in which he stated “that E.R. was a high risk for Dimension 3 of the Client Placement Criteria (emotional, behavioral or cognitive conditions/complications) because E.R. had recently been diagnosed with a psychotic disorder and had minimal insight surrounding the diagnosis.”
¶ 13. In mid-December, E.R. told his mother that he had stopped taking his medication. She called NKHS and spoke with one of the physicians on E.R.’s treatment team. The physician told E.R.’s mother that this was a cause for concern but that E.R. had to decide to take care of himself. E.R. did not meet with anyone at NKHS between mid-December 2010 and March 2011, and no one at NKHS reached out to E.R. during that time or took any action with respect to E.R.’s medication regime.
¶ 14. On February 26, 2011, E.R. accompanied his father to an apartment building in St. Johnsbury owned by E.R.’s grandparents. Plaintiff Michael Kuligoski was also at the apartment building, working on the furnace. E.R. went down to the basement where Mr. Kuligoski was working and assaulted him, causing serious injuries. The forensic psychiatrist who evaluated E.R. at the request of the criminal court stated that the night before the offense E.R. had not slept well, awoke early that morning, was just “sitting and staring,” and was paranoid that people were staring at him en route to the apartment. The psychiatrist believed that E.R. likely was in a “psychotic haze” at the time of the offense, having been “overcome by the symptoms of his condition to the degree where he acted while in a psychotic storm.”
¶ 15. Plaintiffs filed a complaint in superior court, alleging seven counts: (1) the Retreat was negligent in discharging E.R.
¶ 16. Defendants moved to dismiss the respective claims against them, pursuant to Vermont Rule of Civil Procedure 12(b)(6). They both argued that they owed no duty to protect plaintiffs from attack by E.R. and that their alleged negligence was not the proximate cause of plaintiffs’ injuries. The superior court granted both motions. Relying largely on our decision in Peck v. Counseling Service of Addison County, Inc.,
¶ 17. On appeal, plaintiffs generally argue that the superior court erred in holding that Peck barred its claims. They contend that, while Peck involved an identifiable victim, its holding should not be read as limiting its reach only to identifiable victims. They argue that this reading is supported by public policy protecting the public from dangerous individuals and is consistent with modern tort scholarship, such as the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41 (2012). Plaintiffs argue that the trial court erred in concluding at this stage of the case that there was no proximate cause. As we explain in our discussion below, we hold that Peck and other precedents bar plaintiffs’ duty-to-treat and negligent-undertaking claims. However, we also hold that Peck extends to identifiable and foreseeable victims, and that plaintiffs’ duty-to-warn claims should not be dismissed at this stage in the litigation.
¶ 18. We review the superior court’s decision “on a motion to dismiss de novo under the same standard as the trial court and will uphold a motion to dismiss for failure to state a claim only if it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.” Birchwood Land Co. v. Krizan,
I. The Duty of Care
¶ 19. “The existence of a duty is a question of law to be decided by the court.” Sorge v. State,
¶ 20. Before addressing the specific issues, we start with a discussion of the duty to third parties generally, as well as the specific duty of mental health professionals to their patients and nonpatient third parties. In doing so, we note that the main issues in this case do not arise from a dispute as to whether defendants had a general duty of care, or even whether that duty extends to nonpatients in appropriate circumstances, but rather to the specific elements of that duty. Thus, we are starting at the most general level where there is only limited disagreement between the parties, and moving to more specific levels where the sharp disagreement emerges. As we have repeatedly stated, background principles of negligence provide that “duty is not sacrosanct in itself, but only ‘an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.’ ” Sorge,
¶ 21. The modern law on duty comes from the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41, which provides:
(a) An actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship.
(b) Special relationships giving rise to the duty provided in Subsection (a) include:
(4) a mental-health professional with patients.
This Restatement section replaces three sections of the Restatement (Second) of Torts (1965), which have been used extensively in defining the duty owed by a mental health professional or institution to third parties injured by a patient. See id. §§ 315(a), 819, 324A.
¶ 22. Comment g to § 41 of the Third Restatement addresses the duty of mental health professionals to third parties. The duty begins with the physician using “customary care” to determine whether a patient poses a risk of harm to others. “Once
¶ 23. We have not had the occasion to address § 41(b)(4), and no other court has explicitly adopted it. Nonetheless, we note that the principles enunciated in § 41 build upon those of § 315 et seq. of the Second Restatement, and are an evolution of the dutiеs articulated in decades of case law.
¶ 24. The history of this duty of care of mental health professionals or institutions with respect to nonpatient third parties begins with the California Supreme Court’s decision in Tarasoff v. Regents of University of California,
¶ 25. Tarasoffs parents filed a negligence suit against the university, the psychotherapists employed by the university hospital, and the campus police claiming that the defendants owed a duty to protect their daughter from the patient and breached that duty by failing to warn the plaintiffs of the patient’s threats and failing to confine the patient under a California statute that governs the involuntary commitment of individuals with mental health disorders. The California Supreme Court concluded that the defendants were shielded by governmental immunity from liability under the statute for failing to confine the patient, and addressed only the merits of the duty-to-warn claim. Id. at 341-42.
¶ 26. In conducting its analysis into the defendants’ duty to warn, the California court balanced a number of considerations, including
the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness ofthe connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.
Id. at 342 (quotation omitted). Although foreseeability is a significant factor, the court noted that, in avoiding foreseeable harm, a defendant will not be required to control the conduct of another person or warn of such conduct unless “the defendant bears some special relationship to the dangerous person or to the potential victim.” Id. at 343. The court then concluded that a special relationship existed between a therapist and patient, and that “[s]uch a relationship may support affirmative duties for the benefit of third persons.” Id. The court found that the interest in protecting a potential victim who has been threatened by a patient outweighs the countervailing policy considerations, such as doctor-patient confidentiality, the difficulty of predicting a patient’s future violent acts, and the risk of unnecessary warnings. Id. at 345-46.
¶ 27. Importantly, while the court observed that its prior decisions recognizing such a duty involved situations where the defendant maintained a special relationship with both the victim and the person whose conduct created the danger, see, e.g., Johnson v. State,
¶ 28. As the California Supreme Court summarized:
[The] defendant therapists cannot escape liability merely because [the victim] herself was not their patient. When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.
Id. at 340. In summary, Tarasoff held that a therapist has a duty to warn either “the endangered party or those who can reasonably be expected to notify him.” Id. at 347.
¶ 29. On the heels of Tarasoff came the California Supreme Court’s decision in Thompson v. County of Alameda,
¶ 30. The plaintiffs, the parents of the victim, claimed that the county was negligent in releasing the juvenile into the community and failing to warn the juvenile’s mother, the local police, or “parents of young children within the immediate vicinity” of his mother’s residence. Id. In deciding the extent of the duty, the court turned to Tarasoff, emphasizing that the holding extended to “specifically foreseeable and identifiable victim[s] of the patient’s threats.” Id. at 734. The court also reiterated Tarasoff s words of caution — that “ ‘the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed’ ” and that “‘a therapist should not be encouraged routinely to reveal such threats’ ” because “ ‘such disclosures could seriously disrupt the patient’s relationship with his therapist and with the persons threatened.’ ” Id. (quoting Tarasoff,
In our view, the generalized warnings sought to be required here would do little to increase the precautions of any particular members of the public who already may have become conditioned to locking their doors, avoiding dark and deserted streets, instructing their children to beware of strangers and taking other precautions. By their very numbers the force of the multiple warnings required to accompany the release of all probationers with a potential for violence would be diluted as to each member of the public who by such release thereby becomes a potential victim. Such a warning may also negate the rehabilitative purposes of the parole and probation system by stigmatizing the released offender in the public’s eye.
Id. at 736.
¶ 31. Thus, the court found that warnings to both the police and the parents of neighborhood children would be of little beneficial effect. Id. As specifically relevant to this case, the California high court considered the effect of warnings to the juvenile offender’s mother, into whose custody he was released. Id. at 737. The court concluded that such a warning would not have the desired effect of warning the potential victims because
¶ 32. In Vermont, our most significant decision on the duty of mental health professionals to third parties is Peck,
¶ 34. In imposing a duty on the therapist, the Court rejected the defendant’s arguments that a mental health professional cannot predict future violent behavior and that physician-patient privilege protects against disclosure of confidential information. Id. at 66,
II. The Duty to Warn
¶ 35. Having set out the nature of duties for tort actions and the important sources of law for defining the duties of mental health professionals to third parties injured by their patients, we look at the specific duties alleged in plaintiffs’ complaint in this case. As we stated above, the positions of the parties begin to differ when we look at the specific duties alleged. The decisions from around the country reflect these differences. Although the central holding of Tarasoff has been widely accepted around the country, the same is not true for extensions of the duty beyond providing warnings. Further, courts in other jurisdictions are divided on how far to extend the Tarasoff duty to warn, and the subsequent limitation on that duty expressed in Thompson,.
¶ 36. We first consider plaintiffs’ allegations that defendant, Brattleboro Retreat, breached its duties to warn E.R.’s parents of the risk of his dangerous behavior and to train them in how to handle him. In examining the duty of defendant, we put these claims together under the general description of duty to warn and consider later whether separate duties are involved.
¶ 37. However, 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. See, e.g., Lipari v. Sears, Roebuck & Co.,
¶ 38. Plaintiffs ask that we construe Peck broadly to find that E.R.’s parents should have been warned of his propensities in order to protect third parties. Defendants, on the other hand, focus on the language in our holding that specifies an “identifiable victim,” a factor absent here. They argue that Peck is specifically limited to the circumstance where there is an identifiable victim and should be interpreted to hold that there is no duty to warn in the absence of such a victim. We note that none of our more recent cases have expanded the duty articulated in Peck to unforeseeable victims. Nevertheless, we agree with plaintiffs that the specific liability holding of Peck is based on the facts and circumstances that were before the Court. Thus, while Peck finds a duty to
¶ 39. The dissent cites a number of cases that it argues show that the majority rule is that there is no duty to warn anyone other than an identified victim. Post, ¶¶ 87-90. In fact, most of these cases, including Tarasoff, do not contain such a limitation. As we set out above, Tarasoff contains this explanation of the duty: “Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.” Tarasoff,
¶ 40. Other cases, including Fraser,
¶ 41. We agree that the Peck holding does not apply to a duty to warn the general public. The complaint here expresses a much narrower duty: to warn
¶ 42. The first reason involves the unique circumstances of this case. The complaint alleges that the parents had assumed the role of E.R.’s caretakers even though he was an adult. The extended record shows that the parents were directly involved in E.R.’s care and treatment from the first time that he showed symptoms of mental illness and were involved in controlling his conduct. This meant that they had assumed responsibilities, the discharge of which could be affected by the information they received. For example, the limited facts indicate that in a discharge conference, Retreat staff told E.R.’s mother that she should give E.R. his medication, but also indicate that E.R. stopped taking medication on his own after discharge. A complete warning of the effect of E.R. discontinuing the medication may have affected the parents’ degree of involvement in ensuring E.R. took his medication.
¶ 43. Because the parents were monitoring E.R.’s needs and treatment, and were involved in his discharge, they were available to receive information on his continuing need for treatment and the actions that should have been taken based on his behavior. In fact, the complaint alleges that the Retreat’s mental health professional, who was aware of the risk that E.R. would suffer decompensation and stop his medications if discharged, had “discussed discharge with E.R.’s mother” before determining such a course was possible. Moreover, before the discharge, the Retreat made an aftercare treatment plan “with E.R. and his parents.” The complaint thus supports an inference that if E.R. had not had parents into whose care he could be released, parents who could monitor his symptoms and medication intake, Brattleboro Retreat would not have authorized his release.
¶ 44. Again, we emphasize that we are dealing with a case that was dismissed on the pleadings with no factual development.
¶ 45. By contrast, the complaint here is replete with allegations that staff members at the Retreat were well aware of E.R.’s capacity for violence. Upon his admission at the Retreat, E.R.’s records from the Vermont State Hospital were reviewed, including the findings by his intake physician that E.R. was “clearly a danger to others” and would be a “danger to his own family” if released. He verbalized “homicidal ideation” toward staff only nine days after his admission to the Retreat, and throughout his stay, continued to have auditory hallucinations which commanded him to kill himself or others. E.R.’s behavior was so aggressive that his psychiatrist adopted an Alternative Low Stimulation Area (ALSA) treatment plan, which involves “placing patients who are verbalizing or demonstrating they are unsafe in a special area” that is staff-intensive and free from any objects that can be used to harm the self or others. Indeed, it appears from the complaint that E.R. was kept in ALSA for all but the first nine days of his stay at the Retreat.
¶ 46. Because the case never went beyond the complaint stage, there is no allegation that the parents were aware of E.R.’s risk of danger such that they could be charged with “knowledge of the danger as a matter of law” sufficient to nullify any duty to warn. Id. at 762. The expanded record shows that the state of the parents’ knowledge is strongly disputed.
¶ 47. A second reason for finding a duty to warn in this case is that E.R.’s parents fell within the “zone of danger” from E.R.’s conduct. While there is no allegation that E.R. ever threatened his parents, plaintiffs’ complaint alleged that by failing to warn the parents, the “Brattleboro Retreat needlessly endangered the safety of third parties, including, not limited to the Plaintiffs.” Moreover, it is alleged that E.R. specifically threatened his caretakers, and the parents were to become his caretakers after his discharge from the Retreat.
¶ 48. The duty to warn those in the zone of danger was addressed by the Arizona Supreme Court in a case very similar to this one. Sеe Hammam v. Cty. of Maricopa,
¶ 49. The parents filed a claim against the hospital for negligence, claiming that the doctor owed them a duty to reasonably diagnose and treat their son’s condition and that they reasonably relied upon the doctor’s advice that their son was harmless. In assessing the scope of the duty, the court rejected the narrow approach of requiring an identifiable victim but also cautioned against adopting a rule that is “too inclusive, subjecting psychiatrists to an unreasonably wide range of potential liability.” Id. at 1127. The court concluded:
If indeed [the doctor] negligently diagnosed [the patient] as harmless, the most likely affected victims would be [his parents]. Their constant physical proximity to [the patient] placed them, in an obvious zone of danger. [His parents] were readily identifiable persons who might suffer harm if the psychiatrist was negligent in the diagnosis or treatment of the patient. The fact that [the patient] never verbalized any specific threats against [his parents] does not change the circumstances that, even without such threats, the most likely victims of the patient’s violent reaction would be [his parents].
Id. at 1128 (emphasis added); see also Div. of Corr. v. Neakok,
¶ 50. In recognizing a duty to warn, we distinguish this case from Thompson, where the mother of the juvenile offender was not foreseeably endangered, as the offender’s threats were to children. By contrast, E.R.’s parents were in the zone of danger, as E.R.’s dangerous propensities were not targeted towards any one class of individuals. If E.R. had harmed his parents, we may have easily concluded that the Retreat owed them a duty to warn of his violent tendencies; if he directed violence towards a member of the general public, the question becomes harder. If defendant owed a duty to the parents and breached that duty, resulting in harm to an unidentifiable third party, is defendant liable?
¶ 51. To answer this question, we look to cases involving a physician’s duty to warn a patient, the breach of which results in injury to a third party. Most courts have recognized that physicians owe a duty to their patients to warn them about the hazards of driving on certain medications and that, when the physician breaches that duty, causing harm to a third party, he or she is liable for that failure to warn. See, e.g., Taylor v. Smith,
¶ 52. This duty on which we base this decision is a narrow one, 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.
¶ 53. As we noted above, plaintiffs’ complaint alleges two separate duties — a duty to warn and a duty to train. The complaint described the duty to warn as a duty to inform E.R.’s parents that “he posed a risk to the public including themselves.” It described the duty to train as the duty to instruct the parents “to supervise him, how to monitor and manage his medications intake, to effеctively recognize when medications were being avoided and to effectively respond so that measures necessary and appropriate to protect potential victims could be implemented.” The duty to warn as we have described it above contemplates more than simply advising the parents that their son posed a risk; it may also entail a duty to provide reasonable information to enable the parents to fulfill the role envisioned for them in the treatment plan to help keep their son safe. The specific nature and content of that information is case-specific, and a question of fact. In that sense, the duty to “warn” may be better described as a duty to “inform” that incorporates some elements of what plaintiffs describe as a distinct duty to “train.”
¶ 54. However, we find the amorphous concept of a “duty to train” as a distinct cause of action unworkable, and note that such a duty, in contrast to the duty to warn as we have described it, lacks grounding in existing caselaw. For these reasons, we decline to recognize a distinct cause of action for failure to “train” E.R.’s parents.
¶ 55. We have initially analyzed the duty to inform with respect to the Retreat. Plaintiffs’ complaint alleges a similar duty to warn with respect to NKHS. Although the two entities had different responsibilities, we see no reason to differentiate between them in defining the duty that each owed. Thus, we hold that NKHS had the same duty to warn, recast above as including a duty to provide particular information, as the Retreat did.
¶ 56. As we discussed briefly above, defendants also allege that plaintiffs’ duty-to-inform counts should be dismissed because plaintiffs cannot show the element of causation. Duty is a legal question,
¶ 57. Finally, as to the duty to warn or inform, we must address the confidentiality arguments raised in the briefs of defendant NKHS and amici curiae Vermont Council of Developmental and Mental Health Services, Inc., Disability Rights of Vermont, Inc., and the Vermont Association of Hospitals and Health Systems. Defendant NKHS and amici curiae argue that expansion of the standards under which psychotherapists must disclose protected health information without consent beyond those imposed in Peck violates state and federal law and contrary to policy goals of encouraging individuals to seek mental health treatment. In particular, defendant and amici curiae note that Vermont has codified the physician-patient privilege in 12 V.S.A. § 1612(a), which precludes the disclosure of confidential information absent patient permission or authorization from an express provision of law. Amici curiae argue that while Peck modified § 1612 to require disclosure when a mental patient has threatened “serious harm to an identified victim,”
¶ 58. Amici curiae also note that other Vermont statutes, particularly 18 V.S.A. § 1852(a)(7) and § 7103, protect from disclosure clinical information identifying current or former hospital patients. See id. § 7103(a) (“All certificates, applications, records, and reports . . . directly or indirectly identifying ... an individual whose hospitalization or care has been sought or provided under this part, together with clinical information relating to such persons shall be kept confidential and shall not be disclosed by any person”); id. § 1852(a)(7) (“The patient has the right to expect that all communications and records pertaining to his or her care shall be treated as confidential. Only medical personnel, or individuals under the supervision of medical personnel, directly treating the patient, or those persons monitoring the quality of that treatment . . . shall have access to the patient’s medical records.”). Finally, amici curiae suggest that an expansion of the duty to warn would violate the confidentiality provisions established in the Privacy Rule adopted pursuant to the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d et seq., which applies to the information acquired by community mental health agencies across the United States and which is exempt from any public policy exception created by this Court.
¶ 60. Our conclusion is that the aforementioned statutes and regulations do not bar plaintiffs’ failure-to-inform cause of action in this case for three reasons. First, while it is true that 12 V.S.A. § 1612 and the more comprehensive Vermont Rule of Evidence 503 prevent physicians from disclosing health information or history, the statute codifies an evidentiary privilege, thus limiting its application to judicial proceedings. See Steinberg v. Jensen,
¶ 61. Second, the confidentiality statutes cited by amici curiae are not inconsistent with the disclosures required by the duty described here. One statute sets forth a “bill of rights” for patients who are admitted to a hospital on an inpatient basis. Among other things, it states that “[t]he patient has the right to expect that all communications and records pertaining to his or her care shall be treated as confidential” except when authorization is provided.
¶ 62. Finally, the federal regulations governing HIPAA’s Privacy Rule, relied upon by amici, also carve out two exceptions relevant to the disclosure obligation imposed in this decision. The first is a dangerous patient exception to the confidentiality requirement intended to “avert a serious threat to health or safety”:
(1) Permitted disclosures. A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose protected health information, if the covered entity, in good faith, believes the use or disclosure:
(i)(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and
(B) Is to a person or persons reasonably able to prevent or lessen the threat.
45 C.F.R. § 164.512(j) (emphasis added). In this case, the disclosure requirement is imposed to avert a serious threat to health or safety and under circumstances that meet the specific language of § (i)(A) and (B). The second exception is for emergency circumstances, allowing limited use and disclosures:
If the individual is not present, or the opportunity to agree or object to the use or disclosure cannot practicably be provided because of the individual’s incapacity oí-an emergency circumstance, the covered entity may, in the exercise of professional judgment, determine whether the disclosure is in the best interests of the individual and, if so, disclose only the protected health information that is directly relevant to the [family member, other relative, or close personal friend’s] involvement with the individual’s care or payment related to the individual’s health care.
Id. § 164.510(b)(3); see also Office for Civil Rights, A Health Care Provider’s Guide to the HIPAA Privacy Rule: Communicating with a Patient’s Family, Friends, or Others Involved in the Patient’s Care 2, https://perma.cc/9596-MXWK.
¶ 63. As discussed above, plaintiffs’ complaint alleges sufficient facts to indicate that the Retreat was well aware of E.R.’s propensity for violence, particularly when off his medication, and that E.R.’s parents likely underestimated the degree of danger E.R. posed to his caretakers and to the public. Similarly, it is evident from the facts that E.R. was sufficiently incapacitated such that disclosure could not be practicably authorized and that information about his condition and violent behavior would have been “directly relevant” to the care his parents provided him. We recognize that both of these subsections permit, rather than mandate, unauthorized disclosure in the aforementioned instances, as
¶ 64. In reaching our decision, we recognize the “interest in safeguarding the confidential character of psychotherapeutic communications” as argued by the dissent. Post, ¶ 90. We are bound by the direction of Peck: “In the same manner that due care must be exercised in the therapist’s determination of what steps may be necessary to protect the potential victim of a patient’s threat of harm, so too must due care be exercised in order to ensure that only that information which is necessary to protect the potential victim is revealed.”
III. Duty to Protect
¶ 65. We next consider plaintiffs’ other counts, starting with those against the Retreat. The complaint contains two additional counts with respect to this defendant: (1) that defendant negligently discharged E.R. and this discharge was the proximate cause of plaintiffs’ damages; and (2) defendant undertook to render a service to E.R. necessary to protect third parties, failed to exercise due care in the performance of its undertaking, and its negligence was a proximate cause of the damages to plaintiffs. Plaintiffs allege these counts relying upon the general duty expressed in Tarasoff and Peck and the duty described in § 41(b)(4) of the Restatement (Third) of Torts. With respect to the second of these duties — that is, to exercise due care in the performance of an undertaking — plaintiffs also rely on § 324A of the Restatement (Second) of Torts.
¶ 66. Relying principally on our decision in Sorge, the Retreat argues that these duties do not exist or do not apply here. We begin with the sources of law as argued by the parties.
¶ 67. We look first at Sorge, the most relevant of our precedents. In Sorge, one of the plaintiffs was injured after being assaulted by a juvenile offender who was in the custody of the Vermont Department of Social and Rehabilitation Services (SRS). The victim and his wife filed suit against the State, alleging that SRS was negligent in failing to adequately supervise and control the juvenile and that, as a result of the negligence, the victim sustained injuries. The plaintiffs claimed that SRS was aware of the juvenile’s “history of violent, assaultive and delinquent behavior,” but that SRS nonetheless placed him in the temporary custody of his mother for the weekend and she “was either unlikely or incapable of adequately supervising him.” Sorge,
(1) whether an ordinance or statute sets forth mandatory acts clearly for the protection of a particular class of persons, rather than the public as a whole; (2) whether the government has actual knowledge of a condition dangerous to those persons; (3) whether there has been reliance by those persons on the government’s representations and conduct; and (4) whether failure by the government to use due care would increase the risk of harm beyond its present potential.
Id. at 174,
¶ 69. We rejected both arguments. We found the first theory at odds with the principle espoused in both Peck and Restatement (Second) of Torts § 315 that “[generally, there is no duty to control the conduct of another in order to protect a third person from harm.” Sorge,
¶ 70. Importantly, we stated that for § 319 to apply, the State’s purpose in assuming custody of an individual “must explicitly be to control that person” and that “attempts to exercise that control must be consistent with the specific objective of insulating a person having dangerous propensities from uncontrolled contact with others whom the State knows or has reason to know are likely to be harmed by the person the State intends to isolate.” Id. at 180,
¶ 72. The first is Perreira v. State,
[W]hen, as here, a staff psychiatrist of a state mental health facility is considering whether to release an involuntarily committed mental patient, the psychiatrist has a legal duty to exercise due care, consistent with the knowledge and skill ordinarily possessed by psychiatric practitioners under similar circumstances, to determine whether the patient has a propensity for violence and would thereby present an unreasonable risk of serious bodily harm to others if released from the involuntary commitment, and, further, that in discharging this legal duty the psychiatrist may be required to take reasonable precautions to protect the public from the danger created by the release of the involuntarily committed patient, including the giving of due consideration to extending the term of the patient’s commitment or to placing appropriate conditions and restrictions on the patient’s release.
Id. at 1200. The court reached that result primarily by relying upon §§ 315 and 319 of the Restatement (Second) of Torts. Id. at 1208-09, 1211. The court also concluded that given the psychiatrist’s knowledge of the patient’s condition and conduct, predictions of future dangerousness were within the professional’s expertise to a reasonable standard of accuracy. Id. at 1216-17. The court recognized the patient’s loss of liberty from commitment but did not conclude that the liberty loss should be elevated above the safety of others. Id. at 1217-18. It found the duty of care to third parties consistent with that otherwise imposed on a mental health professional. Id. at 1218-19. Finally, it rejected the claim that the duty is inconsistent with the requirement that institutionalization be used only when all lesser-restrictive alternatives are inadequate, as well as the argument that it would lead to overcommitment by mental health professionals to avoid tort liability. Id. at 1219-20^
¶ 73. In Estates of Morgan, the Ohio Supreme Court, also by a 4-3 decision, reached the same result in the context of a voluntary outpatient who had received therapy and medication from a community mental health center and thereafter shot and killed his parents and injured his sister. The plaintiffs alleged the mental health professionals were negligent in the treatment they provided. The court relied upon Restatement (Second) of Torts §§ 315 and 319 and Tasaroff in finding a broad duty.
¶ 74. The decisions contrary to Perreira. and Morgan tend to rely upon the possible adverse consequences of recognizing a duty. The opposing arguments are captured in a quote from Sherrill v. Wilson,
The treating physicians, in their evaluation of the case, well might believe that [the patient] could be allowed to leave the institution for a prescribed period and that his release on pass might contribute to his treatment and recovery. We do not believe that they should have to function under the threat of civil liability to members of the general public when making decisions about passes and releases. The plaintiff could undoubtedly find qualified psychiatrists who would testily that the treating physicians exercised negligent judgment, especially when they are fortified by hindsight. The effect would be fairly predictable. The treating physicians would indulge every presumption in favor of further restraint, out of fear of being sued. Such a climate is not in the public interest.
See also Restatement (Third) of Torts § 41 cmt. g (quoting Sherrill). We look to two decisions that specifically reject the holdings of Perreira and Morgan to explain this rationale.
¶ 75. In Leonard v. State,
¶ 76. In Adams v. Board of Sedgwick County Commissioners,
¶ 77. Here, the parties’ arguments, joined by amicus curiae representing the mental health provider community, mirror the arguments in the cases described above. The briefs provide us with cites to,
¶ 78. Returning to the parties’ arguments, both plaintiffs and defendants contend that we have essentially decided this case with respect to the duty not to release, with plaintiffs relying upon the broad statement of duty in Peck and defendants relying upon the limitations on duty imposed by Sorge. We conclude that defendants have the stronger support of this aspect of the arguments. It would be difficult for us to reconcile the holding in Sorge with a holding that the Retreat had a duty not to release E.R. as a matter of public protection. In saying this, we specifically reject reliance on the Restatement (Third) of Torts § 41(b)(4)’s special rule for mental health professionals. We conclude that if mental health professionals have a broad duty of public protection to institutionalize patients who may be dangerous, child protection workers would have a similar duty to institutionalize a juvenile who may be dangerous to the public. Our decision in Sorge rejects such a duty.
¶ 79. We are also reluctant to impose on mental health professionals a duty to third persons generally to seek to prevent the release of a voluntary patient. We are concerned by the broad scope of such a duty and its consequences on the mental health system. See 18 V.S.A. § 7251(8); In re R.L.,
¶ 80. We also reject on narrower grounds plaintiffs’ claim that defendant Brattleboro Retreat can be liable for negligent performance of an undertaking under § 824A of the Restatement (Second) of Torts. That section requires plaintiffs to show one of three circumstances. The only one possibly applicable in this case is § 824A(a): that defendants’ “failure to exercise reasonable care increases the risk of such harm.” The standard of comparison for this subsection is not the risk of harm created if defendant exercised reasonable care, as under that standard the element would always be met. Instead, the standard is the risk of harm that would be present if defendant never undertook to render the services. Plaintiffs cannot show, and do not allege, that defendant’s care increased the risk to third persons. Murphy v. Sentry Ins.,
¶ 82. We emphasize the narrowness of our ruling today. The question before us in connection with this motion to dismiss is whether we can conclude beyond doubt that “there exist no facts or circumstances that would entitle the plaintiff to relief.” Bethel v. Mount Anthony Union High Sch. Dist.,
¶ 88. We also note the significant obstacles this and similar claims face. In addition to proving the necessary facts to establish the limited duty recognized above, plaintiffs here will have to establish the content of the reasonable disclosure, and a failure to provide that information. Not only must plaintiffs prove duty and breach, they will have to prove causation — that any failure to inform they can prove was more likely than not a but-for cause of their injuries.
¶ 84. In summary, we hold that counts II and V of plaintiffs’ complaint (the “failure to warn” counts), as construed to include elements of count III (the “failure to train” count that was otherwise properly dismissed) state causes of action that survive a motion to dismiss. In all other respects,
Affirmed on, plaintiffs’ failure-to-treat, failure to train, and negligent-undertaking claims. Reversed and remanded, on, the failure-to-inform claims, 'which as set forth above, incorporate some elements of what plaintiffs described as a distinct “duty to train."
Notes
Plaintiffs also brought an action against E.R., E.R.’s parents and E.R.’s grandparents seeking the same damages they seek in this action. See Kuligoski v. Rapoza, No. 42-2-113 Cacv (Vt. Sup. Ct. May 13, 2015). The superior court in that case granted summary judgment for defendants and dismissed the action on May 13, 2015. The parties have stipulated that we can use the decision in that case in deciding this appeal. We take that stipulation to mean that we can consider the undisputed facts as considered in that decision in addition to the factual allegations made in the complaint in this case. The statement of facts in the body of this opinion is based on both sources.
Without filing an application in the superior court for involuntary treatment or accepting E.R. as a voluntary patient, the Vermont State Hospital could only hold E.R. for seventy-two hours after the physician’s certification. See 18 V.S.A. § 7508(d). Since no court order was sought, we conclude that E.R. must have been considered a voluntary patient. Although the record does not show conclusively whether E.R. was an adult, the facts indicate that his symptoms first arose in 2009 at the beginning of his sophomore year in college and his hospital treatment occurred over a year later. It is very likely he was an adult, but was still living with his parents. In the text, we have considered him to be an adult.
We recognize that his status as a voluntary patient seems inconsistent with some of the later facts, including his attempt to escape from the Vermont State Hospital. Inconsistencies of this type are not unusual in a complaint.
In psychiatry, decompensation constitutes the “failure to generate effective psychological coping mechanisms in response to stress, resulting in personality disturbance or disintegration, especially that which causes relapse in schizophrenia.” Oxford English Dictionary (Oxford Univ. Press 2015), https://perma.cc/B6FR-WF8.
Peck is a 3 to 2 decision with no majority opinion. Justice Underwood concurred in the result but did not join the opinion of Justice Hill, which explained the rationale for reaching that result. Justice Underwood did not author a concurring opinion explaining why he disagreed with the rationale of Justice Hill’s opinion. The dissent authored by Chief Justice Billings, and joined by Justice Peck, argued that the mental health professional had no duty to third parties and the recognition of any such duty should be undertaken by the Legislature and not by this Court.
The plurality opinion of Justice Hill has been cited and quoted in part in later opinions of this Court without an explanation that it is not a majority opinion. See, e.g., Lenoci v. Leonard,
Peck relied in part on the decision of a New Jersey court in McIntosh v. Milano,
To summarize, this court holds that a psychiatrist or therapist may have a duty to take whatever steps are reasonably necessary to protect an intended or potential victim of his patient when he determines, or should determine, in the appropriate factual setting and in accordanсe with the standards of his profession established at trial, that the patient is or may present a probability of danger to that person. The relationship giving rise to that duty may be found either in that existing between the therapist and the patient, as was alluded to in Tarasoff II, or in the more broadly based obligation a practitioner may have to protect the welfare of the community, which is analogous to the obligation a physician has to warn third persons of infectious or contagious disease.
Id, at 511-12 (footnote omitted).
The communicable disease cases continue to be strong indicators of an extended duty. For example, in C.W. v. Cooper Health System,
The dissent goes through some of the known facts apparently to assert that the Retreat took many steps to inform the parents of the risk and how to deal with it, but those steps were not successful in controlling the risk of E.R.’s violent actions, and demanding any more involves the imposition of unreasonable policy judgments. Post, ¶¶ 102-105. At this point, the dissent’s concerns are premature and speculative because no facts are established for purposes of the motion to dismiss. It may be that the facts will show that the Retreat completely explained the risks and how parents should respond to them. It may be otherwise as plaintiffs allege. Neither assessment is possible on the very limited record before us.
Again, we do not adopt Restatement (Third) of Torts § 41(b)(4) to support this holding.
At the same time as we stress the narrowness of the duty we recognize to decide this case, we emphasize our recognition that neither Peck nor Tarasoff decided whether a duty would be present based on facts and claims not in those cases. It is the nature of development of the common law that we do not address whether a duty can arise in circumstances not before us.
In its brief to this Court, amicus curiae The Vermont Association of Hospitals and Health Systems also notes that under section five of the American Medical Association’s (AMA) Code of Medical Ethics, disclosure of confidential information is permitted only when a patient ‘Threatens to inflict serious physical harm to another person or to him or herself and there is a reasonable probability that the patient may carry out the threat.” Code of Ethics of the American Medical Association, Opinion 5.05 (2014-2015), https://perma.cc/5QPE-HYU3. We are mindful, however, of the fact thаt ethical standards, whether promulgated by the AMA, the Vermont Medical Society, or Vermont Psychiatric Association, are “aspirational in nature and not enforceable by law.” Bryson v. Tillinghast,
Peck accepted, without analysis, that 12 V.S.A. § 1612(a) prohibited disclosure outside of judicial proceedings and held that the privilege could be waived “under appropriate circumstances” by judicial decision. Peck,
The defendants, and amici curiae who support their position, have raised in their reargument motions potential sources of restrictions on disclosure not identified in the presentations to the trial court or to this Court in the briefs. We have considered them in the interest of fully reflecting the effect of disclosure restrictions on the duty in this case. We do not consider whether a duty of confidentiality between a patient and mental health professional arises from any other source. See, e.g., Schuster,
This duty is also contained in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 43(a).
The presence of superseding statutes in many jurisdictions has made many judicial decisions irrelevant to the current law such that the subject is now controlled primarily by legislation.
This point is now explicitly recognized in the comparable section of the Restatement (Third) of Torts § 43.
The caregiver need not be formally charged with legal responsibility for the patient, as in a guardianship. The fact that the treatment plan relies on the participation of the caregiver, even if the caregiver has no legal responsibility for or authority over the patient, is sufficient to trigger a duty to inform.
Exceptions to the general rule of nondisclosure under HIPAA may include disclosures the provider believes in good faith are necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public to a person reasonably able to lessen that threat, 45 C.F.R. § 164.512(j), as well as information conveyed with the patient’s consent or pursuant to a valid authorization. Id. § 164.506(b) (consent); id, § 164.508(a) (authorization).
Dissenting Opinion
¶ 85. dissenting. Chief Justice Roger Traynor of the California Supreme Court, one of the great common-law innovators in American legal history, nevertheless repeatedly cautioned restraint, or what he called “circumspection,” in the evolution of judicial precedent. “The greatest judges of the common law have proceeded in this way,” he explained, “moving not by fits and starts, but at the pace of a tortoise that explores every inch of the way, steadily making advances though it carries the past on its back.”
¶ 86. The majority abandons this cautious approach with no apparent awareness that it is even doing so. It dresses its decision in the clothes of the “modern,” suggesting that its holding flows from a natural “evolution of the duties articulated in decades of case law” and thus represents no dramatic departure. Ante, ¶¶ 21, 23, 38. It embraces these “precedents and modern trends” to define for mental health care providers a new common-law duty. Ante, ¶ 51.
¶ 87. But the argument is a fiction. Science and the law have indeed evolved in the forty years since the California Supreme Court’s seminal decision in Tarasoff v. Regents of University of California that a therapist who “determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, . . . incurs an obligation to use reasonable care to protect the intended victim against such danger.”
¶ 88. The majority observes at the outset that since Tarasoff “several courts have limited the duty to identifiable victims, or a class of individuals whose injury is foreseeable because of their relationship or proximity to a specifically identifiable victim.” Ante, ¶ 36 (emphasis added). Among these, of course, is our own holding in Peck v. Counseling Service of Addison County, Inc. that “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
¶ 89. This is decidedly not the case. The voluminous literature canvassing the legal and medical ramifications of Tarasoff over the past four decades agree that the 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. See, e.g., D. Katner, Confidentiality and Juvenile Mental Health Records in Dependency Proceedings, 12 Wm. & Mary Bill of Rt. J. 511, 532 (2004) (Although “most jurisdictions now recognize a Tarasoff-type duty, the vast majority . . . limit it to situations in which ... the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.” (quotations omitted)); C. Cantu, et al., Bitter Medicine: A Critical Look at the Mental Health Care Provider’s Duty to Warn in Texas, 31 St. Mary’s L.J. 359, 377 (2000) (“The majority of states that have addressed this issue follow the Tarasoff/Thompson rule, which states that when a mental health care provider foresees or should foresee that a patent poses a serious risk of violence to a readily identifiable third person, a duty arises to use reasonable care to protect that individual against the danger.”).
¶ 91. A few states, weighing these countervailing concerns, have determined that public policy simply does not support the imposition of any duty upon a mental health care provider to protect third parties from a potentially violent patient. See Boynton v. Burglass,
¶ 93. Thus, those courts that have broadened the therapist’s duty to all “foreseeable” victims without limitation have resolved the dilemma posed by the risk of over-commitment essentially by ignoring it; under these rulings, anyone injured by a mental health patient may argue that, in retrospect, the therapist was negligent in failing to detain the patient. In states like Vermont, however, where public policy militates against the recognition of a duty to control a patient through involuntary hospitalization — a policy reaffirmed by the majority today — extending the duty to the public at large is not a sound or practical option. See ante, ¶ 77 (rejecting imposition of duty to institutionalize mental health patient in order to avoid “an increase in unjustified commitments and abandonment of treatment-in-the-least-restrictive-environment” policy).
¶ 94. Most states, as noted, have pursued an approach between these two extremes. Through case law or legislation they have struck a balance among the competing concerns by recognizing a relatively narrow duty of care limited to situations where the therapist knows or should know that a patient poses a specific threat to an identified or reasonably identifiable third person. This standard, as one court has observed, “evinces a sound public policy against expanding the liability of health professionals to an indeterminate class of potential plaintiffs.” Eckhardt,
¶ 95. This balancing of interests was cogently addressed by the Pennsylvania Supreme Court in considering “the conundrum a mental health care professional faces regarding the competing concerns of productive therapy, confidentiality and other aspects of the patient’s well being, as well as the interest in public safety.” Emerich v. Phila. Ctr. for Human Dev., Inc.,
¶ 96. The point here is not that the Court has adopted a minority position without expressly acknowledging it. If that were the problem, it would be enough to simply articulate the competing viewpoint, and agree to disagree. However ill-advised the majority’s choice, it would at least be based on familiar ground. And while the decision to abandon a standard that so many states have found to be the proper
¶ 97. The problem here is altogether different, however, and far more serious. For the majority not only expands the scope of a therapist’s duty beyond the limits recognized by this Court in Peck, it creates an entirely new duty of care which plaintiffs here have labeled a duty to “train” and the majority sees fit to recast as “a duty to ‘inform’ that incorporates some elements of what plaintiffs describe as a distinct duty to ‘train.’ ” Ante, ¶ 53. Elsewhere, the majority variously describe this as: “a duty of care to provide reasonable information to the parents to enable them to recognize the dangers and fulfill the responsibilities envisioned for them in the treatment plan,” ante, ¶ 44; a duty that “contemplates more than simply advising the parents that their son posed a risk,” but also providing “reasonable information . . . to help keep their son safe,” ante, ¶ 53; and a duty to notify the caregiver of the risks “and of steps he or she can take to mitigate the risks,” ante, ¶ 82.
¶ 98. If mental health care providers, patients and their families, and the legal counsel who advise them remain uncertain as to the precise nature and scope of this new duty, they are to be forgiven. For the Court is making this up as it goes, with no input from the mental health profession on whether standards even exist for such a duty. This is not an easy task. But the real difficulty lies ahead, when this Court has moved on and the mental health care community must continue to grapple with the implications.
¶ 99. For make no mistake, this holding is extraordinary in its scope and implications. To recall, most duty-to-protect cases have divided along a fault-line between those limiting the duty to identified or reasonably identifiable targets of violence and those that would include all “foreseeable” victims, the latter generally predicated on a duty to treat and, if necessary, confine a dangerous patient given the general impracticality of warning all remote, albeit foreseeable victims. The majority rejects the рrinciple that a therapist’s duty extends only to reasonably identifiable targets of specific threats by the patient. It also rejects as a matter of policy any duty to control a mental health patient through involuntary commitment. Ante, ¶ 79.
¶ 100. Out of this seeming impasse the majority creates a new duty — a duty to warn not the patient or the patient’s targeted victims, but the patient’s parents or, more broadly, his or her “caretakers” so that they may control the patient and prevent injury to the public. This is worth a moment’s reflection. As a matter of policy, according to the majority, no liability may attach to E.R.’s mental health providers for their allegedly negligent failure to control E.R.’s conduct by providing for his involuntary commitment. Nevertheless, liability may attach to the same defendants for their allegedly negligent failure to enable E.R.’s parents to control his conduct by providing them with adequate warning and information to “mitigate the risks.” Ante, ¶ 82.
¶ 101. The imposition of a duty so novel and with such potentially broad consequences for mental health care providers, their patients, and the general public surely requires a more solid foundation than an allegation in a complaint. Recognizing that this case remains at the pleading stage, duty nevertheless constitutes an essential element of plaintiffs’ cause of action, and its existence is a question of law which this Court must decide in the first instance in light of all relevant policy concerns. See Endres v. Endres,
¶ 102. We do, on the other hand, know from plaintiffs’ complaint that certain actions were taken by defendants after E.R.’s discharge. We know that the Brattleboro Retreat made an aftercare treatment plan for E.R. and reviewed it with E.R. and his parents, and that the plan “involved E.R. being seen on a regular basis” at NKHS. We know that the medical professiоnals at the Retreat prescribed medications for E.R. to take on a daily basis. We know that E.R. met with a “treatment team” at NKHS, and that a “cognitive remediation therapy” plan was put in place and signed by E.R. We know that E.R told his mother in mid-December 2010 that he had ceased taking his medications, and that she reported this to NKHS. And we know that, on the day of the assault, E.R.’s father had taken E.R. with him to oversee work being done at an apartment building owned by E.R.’s grandfather.
¶ 103. These facts themselves, hardly unique, highlight the most significant deficiency in the majority’s newfound duty. Even assuming that plaintiffs could establish through expert evidence some professional standards for the duty owed to a patient’s caretaker, the imposition of such a duty demands consideration of the policy implications underlying it — its practical benefits against its societal costs. See Langle v. Kurkul,
¶ 104. The facts alleged by plaintiffs show that, even with the practical steps undertaken by defendants and E.R.’s parents to facilitate his functioning safely in a less restrictive environment than a closed hospital ward — providing an aftercare plan and reviewing it with E.R.’s parents, establishing an outpatient treatment team, prescribing him daily medication, endeavoring to monitor his activity by taking him to job sites, and reporting that he had stopped his medication — they could not prevent him from perpetrating a spontaneous act of violence.
¶ 105. The majority’s speculation that defendants might have provided some additional “information” to E.R.’s parents to prevent the assault simply misses the point. To impose such a duty on health care providers undermines the fundamental policy underlying our mental health care system, a policy designed to maximize a patient’s freedom and dignity by providing treatment in the least restrictive environment available. It is the same policy resoundingly reaffirmed by the majority today in refusing to impose a tort duty on health care providers to institutionalize a patient. See ante, ¶ 77 (rejecting duty to institutionalize mental health patient to avoid “an increase in unjustified commitments and abandonment of treatment-in-the-least-restrictive-environment” policy).
¶ 107. The expected response to these concerns is that they are merely “speculative” while we know — in contrast — that mental health providers routinely make predictions of dangerousness in deciding to commit a patient and routinely apply Tarasoff when deciding whether a patient poses a threat. Thus, it is easy to posit that the concern for overcommitment is exaggerated or unfounded, that no responsible mental health care provider would involuntarily hospitalize a nondangerous patient to avoid a lawsuit, much less release a dangerous one despite the risk to the public.
¶ 108. The flaw in this response is the assumption that there are “yes” or “no” answers to the mental health clinician’s decisions. The relevant medical and legal literature, however, belies this assumption. There are, in fact, no answers, but only imperfect assessments of differential levels of risk, and there are no clear standards defining the level of risk sufficient to trigger protective measures. See, e.g., Mossman, supra,
¶ 109. To dismiss the concerns of the mental health care profession in this case as speculative or even self-serving, moreover, is presumptuous. 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.
¶ 110. The majority ultimately attempts to minimize its decision’s impact by noting the “significant obstacles” in the way of any successful lawsuit, including the plaintiffs’ need to prove the “necessary facts,” a failure to disclose the necessary information, as well as “causation — that any failure to inform . . . was more likely than not a but-for cause of their injuries.” Ante, ¶ 83. This may reassure the majority, but it is cold comfort to the mental health care providers and their colleagues and families compelled to endure the personal and professional disruptions, stress, and financial burdens of protracted lawsuits predicated on this amorphous new duty, regardless of their ultimate success.
¶ 111. Finally, I would note that the majority’s alternative basis for imposing a duty of care predicated on its conclusion that “E.R.’s parents fell within the ‘zone of danger’ from E.R.’s conduct” is equally flawed and unpersuasive. Ante, ¶ 47. The zone-of-danger doctrine, as noted, simply extends the therapist’s duty to persons within a finite class of reasonably identifiable potential targets. Thus, in the case cited by the majority, Hammam v. County of Maricopa, the record showed that the patient had “expressed jealousy of his stepfather” to the therapist; that the patient’s parents had expressed concern to the therapist for their safety and begged the therapist to admit the patient to the hospital; that the therapist failed to do so; and that the patient subsequently attacked his stepfather with an electric drill.
¶ 112. Despite the majority’s statement that it “find[s] Hammam persuasive and follow[s] its reasoning,” ante, ¶ 49, nothing on the limited factual record here brings this case within the “zone of danger” doctrine articulated in Hammam and elsewhere. First, the complaint did not allege that E.R. had threatened either his parents or a class of persons that might reasonably be construed to include his parents.
¶ 113. Second, and more significantly, the doctrine was designed to protect a slightly expanded class of reasonably identifiable potential victims, and E.R.’s parents were not the victims here. As noted,
¶ 114. This Court has repeatedly cautioned against placing “our imprimatur” upon a new legal duty “without first determining whether there is a compelling public policy reason for the change.” Langle,
¶ 115. I am authorized to state that Justice Skoglund joins this dissent.
R. Traynor, Transatlantic Reflections on Leeways and Limits of Appellate Courts, 1980 Utah L. Rev. 255, reprinted in The Traynor Reader 200 (1987).
Traynor, supra, at 200.
In Thompson v. County of Alameda,
As discussed more fully below, a few courts have expanded the duty slightly to include persons within a “zone of danger” who were sufficiently targeted by the patient even if not specifically threatened. See, e.g., Jablonski v. United States,
See, e.g., D. Rosenhan, et al., Warning Third Parties: The Ripple Effects of Tarasoff, 24 Pac. L.J. 1165, 1222 (1993) (concluding, based on survey of mental health providers, that in accordance with Tarasoff “psychotherapists continue to warn patients that certain conversation is not confidential,” and “in accord with expectation, many of these patients simply abandon treatment,” posing additional risks to the public).
The clinical difficulties in (1) assessing the risk of violence posed by a patient and (2) determining whether that risk is sufficient to warrant protective actions, recognized in Tarasoff, have not appreciably lessened in the decades since. See, e.g., D. Mossman, Critique of Pure Risk Assessment or, Kant Meets Tarasoff, 75 U. Cin. L. Rev. 523, 601-02 (2006) (explaining that clinicians do not “predict dangerousness” but simply identify different “levels of risk,” and that more significantly few empirical studies reveal “what level of risk is sufficient to justify . . . action”); P. Herbert, The Duty to Warn; A Reconsideration and Critique, 30 J. Am. Acad. of Psychiatry & Law 417, 421 (2002) (observing that, “despite advances in risk assessment,” such assessments fall “substantially short of exact science” and involve at best “approximations of the degree of risk”).
This concern was cogently summarized by the court in Sherrill v. Wilson,
The plaintiff could undoubtedly find qualified psychiatrists who would testify that the treating physicians exercised negligent judgment, especially when they are fortified by hindsight. The effect would be fairly predictable. The treating physicians would indulge every presumption in favor of further restraint, out of fear of being sued. Such a climate is not in the рublic interest.
See Herbert, supra, 30 J. Am. Acad. of Psychiatry & Law, at 422 (explaining that “mental health workers must grapple with threats of suicide or of violence against others regularly as an integral part of their work,” and that such threats “are daily grist”).
At the motion hearing, plaintiffs’ counsel readily conceded that ‘There was no identifiable victim” in this case.
Dissenting Opinion
¶ 116. dissenting. I concur in the Chief Justice’s well-reasoned, indeed unassailable, dissent. The majority has created a heretofore unheard of duty based on an allegation in a complaint. This new duty to train or assist or inform 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.
¶ 117. The facts of this case center around an unprovoked, spontaneous act of violence directed against a stranger by an individual suffering from a serious mental illness. Nothing short of anticipatory confinement in a hospital could have prevented it. But now, severely crippling Vermont’s public policy of treatment of the mentally ill in the least restrictive environment, the majority has delivered a cautionary tale involving the threat of tort liability for releasing a mentally ill person to people not sufficiently warned/ trained to provide care and control. This is a preposterous, reckless decision.
¶ 118. The majority opinion identifies the cautious and thoughtful evolution of the duty owed by mental health professionals begun in Tarasoff v. Regents of University of California,
¶ 119. First of all, I posit that the parents of E.R. knew he could be dangerous as it was his behaviors in their home that precipitated his initial hospitalization. They were privy to the discharge summary from the Brattleboro Retreat and worked with the Retreat to develop an aftercare treatment plan that included regular visits to Northeast Kingdom Human Services (NKHS). They were aware he was on antipsychotic medications and had been told that they should give E.R. his medications and not rely on him to medicate himself. The mother knew enough to be concerned when E.R. told her he had stopped taking his medication. They had been warned.
¶ 120. What is substantially more troubling is the framework upon which the majority builds its new duty. As explained by the Chief Justice in his dissent, the majority relies on the “zone-of-danger” doctrine that simply is not implicated in this case. There is no allegation E.R. threatened his parents. The parents were not injured. And, the actual victim could not have been identified as a reasonably identifiable potential victim, the expanded class the doctrine is designed to protect.
¶ 121. The majority finds Hamman v. County of Maricopa,
¶ 122. Under this new duty, 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. As the Chief Justice notes, the majority identifies no professional standards, legal authority, or public policies to support a duty so “extraordinary in its scope and implications.” Ante, ¶ 99. Long after this Court has forgotten about it, this amorphous duty to train or assist will continue to perplex and bedevil practitioners in the field of mental health who must actually attempt to understand the obligations imposed and comply.
¶ 123. Finally, thе majority disposes of statutes and regulations that govern confidential communications between patient and physician by suggesting that, one, they only codify an evidentiary privilege, and two, they do not prohibit disclosure to “caregivers” involved in the patient’s aftercare plan. Ante, ¶ 61. This is a breathtaking disregard for the tort liabilities or ethical claims that can result from the disclosure of health information or history and a startling conclusion that no objection occurs to them for the wholesale disclosure of a person’s mental health condition and history to the ambiguous sobriquet “caretaker.”
¶ 124. The manner in which the majority disposes of the requirements of HIPAA’s Privacy Rule is rather cavalier. It notes two exceptions relevant to the disclosure obligation imposed in this decision. The first, the dangerous patient exception to the confidentiality requirement intended to “avert a serious threat to health or safety,”
¶ 125. The majority identifies a second useful exception, one providing for standard uses and disclosures for involvement in an individual’s care and notification purposes, citing to the provision for emergency circumstances. 45 C.F.R. § 164.510(b)(3). The majority forgets to mention that the section’s primary application is for “Limited uses and disclosures when the individual is not present.” It then latches onto the conjunctive modifying language contained in the section, “[i]f the individual is not present, or the opportunity to agree or object to the use or disclosure cannot practicably be provided because of the individual’s incapacity or an emergency circumstance,” to support its dismissal of HIPAA concerns. I suggest that the section is intended to apply when “the individual’s incapacity” is of a sort that renders him unconscious. Again the majority finds the subsection permits disclosure.
¶ 126. Decisions to create and impose new legal duties on other learned professions have profound consequences. To impose a novel legal duty on mental health care professionals without extensive discussion of the professional knowledge, skills, and practice standards — if any — that may apply and the policy consequences that may result, is not merely, as the Chief Justice suggests, “presumptuous.” It is the essence of judicial arrogance.