No Felony Conviction Recovery Rule as It Relates to Psychiatric Malpractice

Facts of the Case

In December 2016, Cosmo DiNardo, who had been previously diagnosed with bipolar disorder, schizophrenia, and schizoaffective disorder, was taken to Jefferson Torresdale Hospital in Philadelphia by police after he assaulted his father with a brick and chased him with a pellet gun. Mr. DiNardo had also threatened to break into his aunt’s home and kill his aunt’s parents and children to obtain firearms he believed she possessed. Christian Kohler, MD, Mr. DiNardo’s treating psychiatrist at the hospital, recommended Mr. DiNardo be involuntarily committed. After Mr. DiNardo threatened hospital staff and threatened to kill members of his own family, the hospital indicated it was not equipped to manage his care. Mr. DiNardo was subsequently transferred to Brooke Glen Behavior Hospital, where he continued to make suicidal and homicidal threats.

One week following his discharge from Brooke Glen, Dr. Kohler evaluated Mr. DiNardo and determined he was no longer a risk to himself or others. In February 2017, Mr. DiNardo was involved in a physical altercation at Temple University. Despite knowledge of this incident, Dr. Kohler found that Mr. DiNardo’s illness was “in remission” and reduced the dosage of his mood stabilizer and antipsychotic medication. Five months later, on July 6, 2017, Dr. Kohler, unaware that Mr. DiNardo had murdered an individual the previous day, evaluated him, determined he did not pose an imminent risk to himself or others, and recommended Mr. DiNardo discontinue all psychotropic medication. The following day, July 7, 2017, Mr. DiNardo murdered three additional individuals.

In May 2018, Mr. DiNardo confessed and pleaded guilty to four counts of first-degree murder. The victims’ families subsequently filed wrongful death suits against Mr. DiNardo. In response, Mr. DiNardo’s mother, Ms. Sandra DiNardo, acting as Mr. DiNardo’s legal power of attorney, filed a complaint against Dr. Kohler, the Hospital of the University of Pennsylvania (where Dr. Kohler practiced), the University of Pennsylvania Health System, and the Trustees of the University of Pennsylvania (collectively, “appellees”). Ms. DiNardo asserted Mr. DiNardo committed the murders in light of grossly negligent psychiatric care, stating he otherwise “would not have fallen into a violent homicidal psychosis” (DiNardo, appellant brief, p 19).

In fact, Ms. DiNardo identified Dr. Kohler as the “active participant” in the murders. She stated Mr. DiNardo would have a valid medical malpractice claim even absent his criminal conviction, alleging Dr. Kohler failed to obtain records from Mr. DiNardo’s Brooke Glen psychiatric hospitalization, failed to communicate with Brooke Glen hospital staff, minimized the significance of Mr. DiNardo’s physical altercation at Temple University, and incorrectly asserted Mr. DiNardo did not pose a risk to himself or others. Recovery was sought for the following damages: emotional distress and pain because of the murders, impact upon Mr. DiNardo’s family’s business, litigation costs, and lifelong imprisonment because of the murders.

The appellees filed preliminary objections, arguing the following: liability was precluded under Pennsylvania’s “no felony conviction recovery” rule, which states an individual may not benefit or profit via civil laws from his own misconduct, and Mr. DiNardo pled guilty and was convicted of four counts of first-degree murder. The appellees stated the claim failed to identify any malpractice damages unrelated to the murders, supporting the assertion that the losses were directly linked to Mr. DiNardo’s criminal conduct. They further asserted that Mr. DiNardo’s guilty pleas (as opposed to claims of not guilty by reason of insanity or guilty but mentally ill) were evidence of his “active participation” in the murders.

The trial court sustained part of the appellees’ objections related to indemnification and counsel fees, relying on Vattimo v. Lower Bucks Hospital, Inc., 465 A.2d 1231 (Pa. 1983). Vattimo held that even a murderer who was found not guilty by reason of insanity yet played an active role in events resulting in injury could not recover legal damages. The court reasoned that, because Mr. DiNardo pled guilty to volitionally committing the murders, he played an active role in the events resulting in injury. Conversely, the trial court found that the compensatory damages Mr. DiNardo suffered, which included “severe emotional distress, mental anguish, humiliation, and loss of life’s pleasures” (DiNardo, p 1207), were not directly attributable to his criminal convictions, and the court therefore over-ruled this aspect of the appellees’ preliminary objection.

On appeal, the superior court reversed this ruling, dismissing the appellant’s complaint in its entirety. The court held the compensatory damages Mr. DiNardo suffered were in fact “expressly linked” to Mr. DiNardo’s criminal convictions. The court further held that the appellant’s distinction between seeking “compensation” as opposed to “profit” regarding damages was an “exercise in semantics,” as the underlying principle is that the damages occurred as direct result of the criminal conduct. This court also relied upon Vattimo, asserting Mr. Vattimo was found not guilty by reason of insanity and still played an active role, whereas Mr. DiNardo confessed to, and was convicted of, four counts of first-degree murder. The court supported the trial court’s finding that the appellant was not entitled to recovery of compensatory and indemnification damages; however, it relied upon the no felony conviction recovery rule, as opposed to Vattimo, for this finding.

Ruling and Reasoning

The Pennsylvania Supreme Court rejected the appellant’s claim that Dr. Kohler was the active participant in the murders, finding Mr. DiNardo’s guilty plea precluded attempts to evade personal responsibility. The court reviewed the reasoning from the superior court and found it persuasive. The court ruled that the “no felony conviction recovery” barred the appellant’s claims against the psychiatric providers.

The court said that the losses for which Mr. DiNardo sought recovery flowed from his “own volitional homicidal conduct,” relying on the common law principle referred to as the “outlaw” doctrine. The first principle of this doctrine from the Latin maxim “ex turpi causa nonoritur acio” (“from a wicked cause there arises no action”) holds that an individual cannot sue another for damages arising from the individual’s criminal misconduct. The second principle, “in pari delicto potior est conditio defendentis” (“of equal guilt or fault”), holds that, in cases where the plaintiff (in this case Mr. DiNardo) has been an active, voluntary participant in the wrongful conduct, the individual cannot recover damages “if their cause of action is based at least partially on their own illegal conduct” (DiNardo, p 1203). The modern version of this principle, the “no felony conviction recovery” rule, holds that an individual may not be compensated for harm resulting from the individual’s own wrongdoing.