The Supreme Court of Vermont Holds That Psychiatrists Have a Duty to Warn the Caretakers of a Dangerous Patient About Foreseeable Risk, Despite the Lack of a Specific Threat, and to Inform Them on How to Take Measures to Protect Third Parties
In Kuligoski v. Brattleboro Retreat & Northeast Kingdom Human Services, 2016 Vt. 54A (Vt. 2016), the Supreme Court of Vermont considered whether an inpatient psychiatric service was negligent, not only in discharging a patient and failing to warn his parents of his risk to the public, but also in failing to train the patient's parents in how to manage him so as to mitigate the risk he posed to the public. Separate counts were filed against outpatient services including failure to warn the parents. The majority opinion by the Supreme Court of Vermont breaks new legal ground in risk mitigation and liability and establishes a new legal duty for psychiatrists beyond the conventional boundaries iterated in Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976) and its progeny.
Facts of the Case
(Note: The facts outlined in the decision are supplemented here with undisputed facts cited in a different action brought by the Kuligoski family.)
On October 9, 2010, E.R. was voluntarily admitted to the Psychiatric Department of Central Vermont Medical Center (CVMC) for treatment of a “psychotic disorder” after having threatened young children at his home. He was transferred to Vermont State Hospital on October 16, then a week later to the Brattleboro Retreat (BR), a nonprofit psychiatric hospital in Windham County, Vermont. E.R.'s clinical presentation was consistent across these hospitalizations. It included auditory and visual hallucinations, suicidal and homicidal ideation, and poor judgment. He was deemed to represent a danger to himself, his family, and others. He had a consistent diagnosis of schizophreniform disorder and was prescribed antipsychotic and anxiolytic medications.
E.R. was discharged from BR in November 2010. His physician expressed concerns in the medical record that E.R. had recently stopped taking his medication and had experienced an exacerbation of his hallucinations, and that there was a high risk of poor compliance with aftercare plans. At the time of his discharge, E.R.'s parents were told that their son was “going through a phase” and “would recover.” E.R.'s mother was told to monitor and administer her son's medication daily. He was referred for outpatient treatment at Northeast Kingdom Human Services (NKHS). In mid-December 2010, after E.R. disclosed to his mother that he had stopped taking his medication, she called and informed a physician on his outpatient treatment team. The physician indicated that this was a cause for concern, but that E.R. had to decide to take care of himself. After his mother's call, no one at the clinic reached out to E.R., and he was not seen there for further assessment and treatment.
On February 26, 2011, E.R. went with his father on a visit to an apartment building owned by his family. Once inside, E.R. proceeded to the basement, and without known provocation, assaulted Michael Kuligoski, who was working on the furnace, “causing serious injuries.”
Mr. Kuligoski's family filed a complaint against BR and NKHS before the Windham County Superior Court. The complaint alleged failure to warn E.R.'s parents of his risk to the public, as well as failure to train his parents in how to supervise E.R., monitor and manage his medications, and take appropriate steps to protect potential victims.
In April 2014, the defendants separately filed motions to dismiss, citing the Vermont Rule of Civil Procedure, Vt. Code R. § 12(b)(6) (2014), arguing that the plaintiffs failed to state a claim upon which relief can be granted, since the defendants owed no duty to protect Mr. Kuligoski from E.R., nor were the actions of BR and NKHS the proximate cause of Mr. Kuligoski's injuries. The motion was granted by the superior court, relying upon the definition of a potential victim that establishes a duty to protect, as elucidated in Peck v. Counseling Service of Addison County, Inc., 499 A. 2d 422 (Vt.1985). In Peck, the Supreme Court of Vermont held that a mental health agency had a duty to exercise reasonable care to protect an identifiable victim when its patient posed a serious risk of danger, in that case, threatening to burn his family's barn, a threat that he carried out.
The Kuligoski family appealed to the Vermont Supreme Court, arguing that the Peck holding should in fact extend beyond identifiable victims, based on current tort laws, as well as public policy which emphasizes the protection of the public from dangerous individuals.
Ruling and Reasoning
Justice Dooley delivered the opinion for the three-to-two majority; Justices Robinson and Morris joined. The Supreme Court of Vermont held that BR had a duty and failed to discharge it. It is worth noting that the court used the term “duty to warn”; however, it can be reasonably inferred that the majority's opinion was concerned with the duty to protect. The holding was based primarily on the doctrine of the “zone of danger” as described in Hamman v. County of Maricopa, 775 P.2d 1122 (Ariz. 1989), a case the court said was very much like the Kuligoski case. The Hamman court noted the “constant physical proximity” of the parents to their son, placing them at high risk as the “most likely victims” of his violence and rendering them foreseeable victims, despite the absence of a specific threat against them. In Kuligoski, the court reasoned that E.R.'s parents fell in the “zone of danger” specifically because they assumed a caretaker role upon his discharge, and he had threatened his caretakers (staff) repeatedly while at BR.
The duty to train the parents presented a legal and ideological challenge to the court. Ultimately, the court found that since E.R.'s parents were not only involved in his discharge and aftercare, but also assigned the responsibility to administer drug treatment and monitor his medication compliance at home, BR essentially transferred custody of a patient with psychosis to caretakers who lacked psychiatric training. It followed that BR owed a duty of care to supply the patient's parents with “sufficient information” so that they could undertake their responsibility as caretakers, assist in their son's treatment, and minimize the risk of any violent behavior in which E.R. could engage. The court expressed this duty to train as a “duty to inform.”
The two dissenting justices contemplated long-term repercussions of the ruling. In Justice Reiber's dissent, the salient argument was that of the slippery-slope aspect of extending the duty to warn beyond identifiable victims. He argued that the majority had expanded the duty of clinicians to control dangerous patients so as to include “the public at large.” His dissent poignantly cautioned that “To suggest that a threat against a nurse, therapist, physician, or other mental health care provider somehow represents a threat against an identifiable class of all family members and friends who help with the patient's outpatient care would stretch the ‘zone of danger’ doctrine beyond recognition” (Kuligoski, p 55). Justice Reiber also expressed concerns vis-à-vis the ramifications of the decision on the policy of treating psychiatric patients in the least restrictive environment, given that the fear of this newly dilated circle of liability may drive unwarranted psychiatric commitments.
Justice Skoglund not only joined Justice Reiber in his dissent, but also voiced grave misgivings in his own dissent. He deemed that lowering the threshold for disclosures to include foreseeable victims was so detrimental as to be “potentially fatal” to therapeutic relationships between clinicians and recipients of care. He underscored that generalized threats by patients are commonplace in psychiatric practice.
Although the Vermont Supreme Court's majority opinion specified that the duty to inform (formerly duty to train) was to be explored and defined by the trial court within the context of this particular case, this decision raises many questions regarding the application of this duty in clinical practice. The dissent astutely pointed out the lack of existing professional standards or clinical convention around this new duty. What constitutes “sufficient information” to be given to the caretakers so as to satisfy this duty may depend on several variables, including the caretakers' ability to comprehend, their willingness to engage, or their concurrence with the treatment plan. The participation of the mental health profession in the elucidation of this duty can lead to a more workable model that involves caretakers more intimately in aftercare while placing realistic expectations of duty and liability on practicing clinicians.
In Tarasoff, the court highlighted the importance of examining the “foreseeability of harm” toward an identifiable victim. At face value, swinging the pendulum of the duty to warn away from the specificity of “identifiable victims” (as in Tarasoff and Peck) toward the sensitivity of “foreseeable victims” (as in this ruling) is intended to benefit the safety of individuals in the “zone of danger” in proximity to the patient. The case of Regents of University of California v. Superior Court of L.A. County, 193 Cal. Rptr. 3d 447 (Cal. Ct. App. 2015), which is currently before the Supreme Court of California, mirrors these competing notions. In that case, the American Psychiatric Association officially joined in an amicus curiae brief expressing concerns about the effects of such a duty expansion on expectations of confidentiality, that it may discourage patients from seeking care, and possibly deter psychiatrists from assuming care for potentially violent and risk-laden patients.
The Supreme Court of Vermont withdrew the decision it initially released. The majority's new opinion affirmed and reversed the same count dismissals as the previous opinion. However, the court added caveats that carve out the extent of liability incurred by providers as a result of this holding. Specifically, it identifies three conditions that must be met for the duty to inform caretakers to apply. The caregiver must be “actively engaging” with the provider in relation to the patient's care, the treatment or discharge plans must “substantially rely” on the caretaker's ongoing involvement, and the caregiver must be within the zone of danger, rendering the caregiver susceptible to the patient's “violent propensities.” Once established, this duty is fulfilled by providing “reasonable information to notify the caregiver of the risks, and of steps he or she can take to mitigate the risks” (Kuligoski, p 41). The court also assigned the burden of defining reasonable disclosure, as well as proving duty, breach and causation to the plaintiffs. Justice Reiber amended his dissent, describing these new “obstacles” to litigation as “cold comfort” to mental health providers, given that the duty to inform, as laid out by the Kuligoski majority, remains “amorphous.”
Disclosures of financial or other potential conflicts of interest: None.
- © 2017 American Academy of Psychiatry and the Law