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Supreme Court Redefines and Creates New Mental Healthcare Duty

In Carole Kuligoski, Individually and On Behalf of Michael J. Kuligoski, Mark Kuligoski and James Kuligoski v. Brattleboro Retreat and Northeast Kingdom Human Services, 2016 VT 54 (May 6, 2011), the Vermont Supreme Court reversed the superior court’s granting of defendants’ motions to dismiss for failure to state a claim on the failure to warn and train claims, and affirmed on the failure to treat, improper release, and negligent undertaking claims.

Issue: In October 2010, E.R. was voluntarily admitted to the Psychiatric ward of the Central Vermont Medical Center with a “psychotic disorder.” While the hospital began the paperwork to have him involuntarily committed, E.R. was transferred to the Vermont State Hospital and then to the Brattleboro Retreat for psychiatric care. Both the state hospital and the Retreat determined that E.R. had schizophreniform disorder. E.R. was ultimately discharged in November 2010, even after his doctor noted that he had stopped taking his medication and had been hearing voices telling him to kill himself. In February 2011, while ostensibly receiving out-patient treatment from Northeast Kingdom Human Services, E.R. went with his father to an apartment building owned by E.R.’s grandparents, where he physically assaulted Michael Kuligoski, who was there working on the furnace. Plaintiffs then filed a complaint alleging that both the Retreat and NKHS were negligent in failing to warn E.R.’s parents that he might pose a risk to the general public and in failing to treat E.R. properly. Defendants moved to dismiss, and when their motion was granted, plaintiffs appealed.

Holding: After walking through the history of psychiatric cases starting with Tarasoff, the Court found that the Retreat and NKHS had a duty to warn E.R.’s parents of his potential for violent behavior after being released from the hospital, determining that Peck does not limit liability for failure to warn to a case where there is an identifiable victim. Instead the Court found that Peck stands for the proposition that the Retreat and NKHS had a duty to warn E.R.’s caretakers because his doctors knew that he had a capacity for violence and aggressive behavior. The Court also found that there was a duty to warn because E.R.’s parents were in the “zone of danger” of E.R.’s conduct – by failing to warn his parents, the Retreat put third parties, including the parents, in danger. The Court did note, though, that this holding does not constitute a duty to warn the general public. The Court further found that there was a duty to inform the parents, but that the case was not yet at the stage where the extent of that duty could be determined. The Court also held, though, that the Retreat did not have a duty to not release E.R. as a matter of public protection, rejecting the Restatement (Third) of Torts §41(b)(4). So, the Court ultimately held that the Retreat and NKHS had a duty to inform plaintiffs of E.R.’s mental health status, his danger to the plaintiffs or others, and how to perform the caretaker role in light of the warnings, and that each defendant negligently violated that duty. As to other the other counts of the complaint, the motion to dismiss was affirmed, and the Court chose not to adopt §43 of the Restatement (Third) of Torts.

Dissent: Reiber, C.J. dissented, arguing that the majority erred in “embracing modern trends” to create a new common-law duty for mental healthcare providers. While both science and the law have changed since Tarasoff was decided forty years ago, they have not changed in a way that supports the majority’s decision to greatly expand the duty owed by mental health professionals to third parties. The Chief Justice identifies a twofold problem: the majority greatly expanded the scope of a therapist’s duty and created a completely new duty of care – a duty to provide information. The Chief Justice also noted that the zone of danger argument is flawed and unpersuasive as well.

Dissent: Skoglund, J., dissented as well, concurring with the Chief Justice’s dissent. Justice Skoglund also argued that E.R.’s parents knew how dangerous he was, and that they were supposed to ensure that E.R. was taking his medications. Since they knew all of that, it is unclear what sort of training should have been offered. In sum, Justice Skogland is worried about the majority’s decision to create and impose a new legal duty on mental healthcare professionals without extensively researching and discussing “the professional knowledge, skills, and practice standards.” In Justice Skoglund’s words, this decision “is the essence of judicial arrogance.”

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