454 Mass. 37 | Mass. | 2009
Lead Opinion
The plaintiff, Dean Leavitt, is a police officer for the town of Whitman. While on duty on November 1, 2004, he responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, Lea-vitt’s police cruiser was hit by another vehicle.
Leavitt alleges that the hospital and two of its registered nurses owe him a duty of care and committed a breach of that duty when it “released” the patient without an escort — allegedly in violation of hospital policy — after the patient had received sedating medication for his colonoscopy.
The allegations concerning the pedestrian accident to which Leavitt was responding, which we take as true, Nader v. Citron, 372 Mass. 96, 98 (1977),
II
To prevail on his negligence claims, Leavitt must prove that the hospital owed him a duty of reasonable care, that the hospital committed a breach of that duty, that damage resulted, and that there was a causal relation between the breach of duty and the damage. See Jupin v. Kask, 447 Mass. 141, 146 (2006), citing J.R. Nolan & LJ. Sartorio, Tort Law § 11.1 (3d ed. 2005);
Whether a duty of care exists is a question of law, Jupin v. Kask, supra, and an appropriate subject of a motion to dismiss pursuant to rule 12 (b) (6). See O’Meara v. New England Life Flight, Inc., 65 Mass. App. Ct. 543, 544 (2006) (affirming dismissal under rule 12 [b] [6] on ground that defendants owed no duty to plaintiff). See also Remy v. MacDonald, 440 Mass. 675, 677 (2004) (“If no such duty exists, a claim of negligence cannot be brought”).
Leavitt contends that a duty of care exists under any one of three theories: general negligence; a “special relationship” the hospital had with the patient and with Leavitt, respectively; and a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by “impaired” patients. We reject each theory. Reduced to its essence, each rests on a proposition that a hospital or medical provider owes a duty of care to a nonpatient third party to detain a sedated patient in its care and to prevent such a patient from leaving the hospital without an escort.
Citing Coombes v. Florio, 450 Mass. 182, 213-214 n.6 (2007) (Cordy, J., dissenting), Leavitt argues that the hospital’s duty to him under the first two theories (general negligence and special relationship) rests on the “control” it had over the patient before he left the hospital. The proposition is unpersuasive.
Ill
The hospital also claims that it should not be held liable on a separate, independent ground: the injury to Leavitt was not “caused” by any action on its part. We agree. Leavitt’s injury was not “caused” by the hospital because it falls outside the scope of foreseeable risk arising from any negligent conduct that would make the hospital’s alleged misconduct tortious.
As noted earlier, this case is here on the allowance of the hospital’s motion to dismiss. Although causation is generally left to a jury to decide, Mullins v. Pine Manor College, 389 Mass. 47, 58 (1983), it may be determined as a question of law where there is no set of facts that could support a conclusion that the plaintiffs injuries were within the scope of liability. See Kent v. Commonwealth, 437 Mass. 312, 320, 322 (2002) (scope of liability [“proximate cause”] determined on motion to dismiss);
The law does not impose liability for all harm factually caused by tortious conduct.
Leavitt also argues that the hospital is liable under the “rescue” doctrine, quoting Judge Cardozo: “Danger invites rescue.” Wagner v. International Ry. Co., 232 N.Y. 176, 180 (1921). Massachusetts has recognized the rescue doctrine, albeit in circumstances very different from those presented here. Hopkins v. Medeiros, 48 Mass. App. Ct. 600, 602-612 (2000) (police officer who responded to call for assistance injured after arriving at scene and attempting to assist another officer). However, not all injuries to rescuers are within the scope of foreseeable risk: liability does not attach for injuries suffered as a result of “risks that would not be anticipated to arise from the rescue.” Restatement (Third) of Torts, supra at § 32 comment c, at 653. Leavitt cites no authority to support his claim that a collision between a police cruiser and a vehicle unrelated to the accident to which the officer in the cruiser was responding is a risk that would be anticipated to arise from the rescue. We decline to extend the rescue doctrine to encompass such a risk.
IV
For the foregoing reasons, the judgment of the Superior Court is affirmed.
So ordered.
The vehicle that struck Dean Leavitt’s cruiser was not involved with the pedestrian-automobile accident to which Leavitt was responding.
The complaint does not allege that the patient was impaired by any medications when he left the hospital or when he was hit by the vehicle while walking home, although that is implicit in the relief Leavitt seeks.
We acknowledge the amicus briefs filed by the Massachusetts Academy of Trial Attorneys in support of Leavitt, and by the Massachusetts Defense Lawyers Association and the Professional Liability Foundation, Ltd., in support of the hospital.
After the judge had ruled on the hospital’s motion to dismiss, we adopted as applicable to our civil rules the United States Supreme Court’s revision of the standard for reviewing the adequacy of a complaint challenged by a motion to dismiss pursuant to Fed. R. Civ. R 12 (b) (6). See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (“What is required at the pleading stage are factual ‘allegations plausibly suggesting [not merely consistent with]’ an entitlement to relief . . .”). The hospital does not ask that we apply the new, “stricter” standard. See Flomenbaum v. Commonwealth, 451 Mass. 740, 751 n.12 (2008). The complaint would not survive the hospital’s motion to dismiss under either standard.
Leavitt alleges that the individual defendants, Sullivan and Smith, “negligently and carelessly” released the patient without an escort, violated hospital policy and a physician’s orders in so doing, and failed to take “reasonable and appropriate steps” to ensure that the patient was properly escorted when released. We do not regard as “true” legal conclusions cast in the form of factual allegations. Schaer v. Brandeis Univ., 432 Mass. 474, 477-478 (2000), citing Judge v. Lowell, 160 F.3d 67, 77 (1st Cir. 1998).
This is not a case of a physician or medical provider’s failure to warn a patient. See, e.g., Coombes v. Florio, 450 Mass. 182, 191 (2007) (Ireland, J., concurring) (liability to third parties limited to failure of physician to warn patient “of the effects of treatment”); id. at 196 (Greaney, J., concurring in part and dissenting in part) (liability to third parties limited to failure of physician to warn patient in circumstances in which physician “has knowledge of a danger that may be posed to others from a patient’s decision to operate a motor vehicle while under the influence of prescribed medication”). Leavitt has not alleged (and does not argue here) that the hospital failed to warn the patient of any dangers of leaving without an escort.
Leavitt’s reliance on Justice Cordy’s discussion of “present control” in Coombes v. Florio, supra at 213-214 n.6 (Cordy, J., dissenting), is misplaced. As noted earlier, see note 7, supra, that case concerned a duty to warn the
Restatement (Second) of Torts § 315 (1965) provides in pertinent part: “There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct . . . .” The special relationships between the actor and the third person that require the actor to control the conduct of the third person are stated in §§ 316-319. Id. at § 315 comment c. Sections 316-318 set forth three specific relationships imposing such a duty — parent and dependent children, master and servant, and possessor of land or chattels and licensee — none of which is applicable here.
Section 319, in turn, addresses the duty of those in charge of a person who has “[d]angerous [propensities,” and provides that, “[o]ne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” Leavitt does not argue that § 319 applies in the circumstances of this case. In any event we agree with the reasoning of the court in Hoehn v. United States, 217 F. Supp. 2d 39, 47 (D. D.C. 2002), that medicated patients do not have “dangerous propensities” simply because they are medicated, and that a medical facility does not “take charge” of a patient undergoing a voluntary colonoscopy within the meaning of § 319.
Restatement (Third) of Torts: Liability for Physical Harm § 41 (Proposed Final Draft No. 1, 2005), titled “Duty to Third Persons Based on Special Relationship with Person Posing Risks,” replaces §§ 315(a), 316, 317, and 319 of the Restatement (Second), see note 9, supra, and enumerates four special relationships that give rise to a “duty of reasonable care to third persons”: “(1) a parent with dependent children, (2) a custodian with those in its custody, (3) an employer with employees when the employment facilitates the employee’s causing harm to third parties, and (4) a mental health professional with patients.” Id. at § 41 & comment a, at 778, 779. The American Law Institute’s Council and its membership have given final approval to the substance of the Proposed Final Draft, with the exception of certain comments
Relying on Irwin v. Ware, 392 Mass. 745 (1984), Leavitt argues that a special relationship existed between the hospital and himself sufficient to warrant a duty of care to him. That reliance is misplaced. In the Irwin case, this court concluded that “there is a special relationship between a police officer who negligently fails to remove an intoxicated motorist from the highway, and a member of the public who suffers injury as a result of that failure.” Id. at 762. This conclusion was based, in part, on the existence of “statutes requiring police officers to act.” Id. at 759. The hospital is not obligated by statute or otherwise to detain a patient undergoing a voluntary procedure.
In Coombes v. Florio, supra, a majority of the justices of this court rejected the claim that a duty to third parties to warn a patient derived from a special relationship between the physician and patient. See id. at 187 (Ireland, J., concurring) (special relationship theory “inapplicable”); id. at 202 (Marshall, C.J., dissenting) (physician owed no duty); id. at 207 n.3 (Cordy, J., dissenting) (special relationship argument is “without merit”). Any claimed duty to control a patient similarly cannot derive from any special relationship between physician and patient. See Restatement (Third) of Torts, supra at § 41, Reporters’ Note to comment h, at 808-809 (“Some courts have reasoned that because a physician does not have control over the patient, no special relationship exists. . . . That reasoning is most persuasive when the plaintiff claims defendant’s negligence in failing to control the patient”). The Restatement (Third) of Torts also states in pertinent part, “[n]o black-letter provision imposes an affirmative duty to third parties on non-mental-health physicians.” Id. at § 41 comment h, at 789. While comment h “addresses that question” and states that the absence of the physician-patient relationship from the enumerated list of relationships in this section “does not mean that physicians have no affirmative duty to third parties,” id. at 790, the Restatement ultimately “leaves to further development the question of when physicians have a duty ... to protect third persons.” Id. at 790-791.
Leavitt argues that this case is “somewhat similar to a licensed commercial establishment that knowingly overserves an intoxicated person and then discharges [that person] onto the roadway where they cause plainly foreseeable carnage.” The analogy is misplaced. In a negligence case against a tavern owner or bartender, liability is premised on a defendant’s failure to refrain from serving liquor to an intoxicated patron in circumstances (a) in which the defendant should have known that the patron was intoxicated and (b) where the patron’s subsequent operation of a motor vehicle was reasonably foreseeable. See, e.g., Cimino v. Milford Keg, Inc., 385 Mass. 323, 331-332 & n.9 (1982). Liability is not premised on a tavern owner or bartender’s “discharg[ing]” an intoxicated person “onto the roadway.” See O’Gorman v. Antonio Rubinaccio & Sons, 408 Mass. 758, 761-762 (1990) (bar owner who did not serve alcohol to already intoxicated patron had no right or duty to prevent intoxicated patron from driving patron’s vehicle away from defendant’s bar); Shortnacy v. North Atlanta Internal Med., P.C., 252 Ga. App. 321, 327 (2001), quoting Armstrong v. State, 244 Ga. App. 871, 873 (2000) (law does not mandate “provider of alcoholic beverages must prevent an intoxicated person from driving”); McKeown v. Homoya, 209 Ill. App. 3d 959, 963 (1991) (“a tavern has no duty to restrain a patron from driving away no matter how intoxicated that individual may be”).
Leavitt cites to cases from other jurisdictions that, he argues, support his claim that a medical provider has a duty to third parties in circumstances similar to this case. None establishes that a hospital has a duty to third parties to restrain or prevent a patient from leaving the hospital. Some of the cases on which he relies concern a duty to warn a patient, see, e.g., McKenzie v.
Leavitt’s de minimis argument as to the third theory — that the hospital voluntarily assumed a duty of care to nonpatient third parties — lacks merit. A similar argument was rejected in Coombes v. Florio, 450 Mass. 182 (2007), and Leavitt provides no reason for us to revisit it. See id. at 187 (Ireland, J., concurring); id. at 200-201 & n.5 (Greaney, J., concurring in part and dissenting in part); id. at 207 n.2 (Cordy, J., dissenting).
See Restatement (Third) of Torts, supra at § 29 comment b, at 576: “the term ‘proximate cause’ is a poor one to describe limits on the scope of liability. It is also an unfortunate term to employ for factual cause or the combination of factual cause and scope of liability.”
See also Restatement (Third) of Torts, supra at § 29, Reporters’ Note to comment e, at 614 (“in some recurring factual situations in which the specific details are not critical to the analysis or the outcome, courts can provide a scope-of-liability rule applicable to all such cases. Some of these cases involve secondary harm — harm that occurs after the primary hazard posed by the tortious conduct has already occurred, such as injuries to a person attempting to rescue someone injured by tortious conduct . . .”).
We assume, arguendo, that any negligence by the hospital was a cause in fact of Leavitt’s injury.
The Restatement (Third) of Torts describes this limitation on liability as the “risk standard,” rather than “proximate cause.” Restatement (Third) of Torts, supra at § 29 comment d, at 580-581. See id. at special note on proximate cause, at 574. Applying the risk standard requires consideration of “the risks that made the actor’s conduct tortious” and “whether the harm for which recovery is sought was a result of any of those risks.” Id. at § 29 comment d, at 579-580. As applied to this case, assuming the hospital had a duty to prevent the patient from leaving its premises, the risk standard would limit the hospital’s liability to foreseeable harms created by the risk that made the conduct (release of the patient) negligent: the risk of harm to the patient, and to others injured by the patient as a result of the patient’s medicated condition. Stated differently, the reason a hospital might be held liable to a third party for releasing a medicated patient is not to protect a police officer injured in an accident unrelated to the patient, but to prevent the patient from doing harm to himself or others. See Palsgraf v. Long Island R.R., 248 N.Y. 339, 344 (1928) (“risk imports relation; it is risk to another or to others within the range of apprehension”).
Restatement (Third) of Torts, supra at § 29 comment j, at 594, provides
Concurrence Opinion
(concurring in the judgment, with whom Cordy and Botsford, JJ., join). I join in parts I and II of the opinion of the court. Because it is not necessary to reach the issue of causation in this case, I do not join in part IIL
