Torts. Health care provider has duty to warn caregivers of dangerous mental patient.

Kuligoski v. Brattleboro Retreat. 2016 VT 54A [filed September 16, 2016]

DOOLEY, J. This case arises out of an assault by a former patient of the Brattleboro Retreat, a mental health treatment facility, while the patient. E. R., was undergoing outpatient treatment with Northeast Kingdom Human Services (NKHS). Plaintiffs sued the 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.

Plaintiffs complaint alleged (1) the Retreat was negligent in discharging E.R. knowing of his dangerous tendencies and that he was a high risk for decompensation; (2) the Retreat was negligent in failing to warn E.R.’s parents that he posed a risk to the general public; (3) the Retreat was negligent in failing to train E.R.’s parents how to supervise him, monitor and manage his medications, and take necessary and appropriate measures to protect potential victims; (4) the Retreat was negligent in its undertaking “to render a service that it recognized or should have recognized as necessary for the protection of third persons”; (5) NKHS was negligent in failing to warn E.R.’s parents that he posed a risk to the general public; (6) NKHS was negligent in failing to take “immediate and affirmative steps” to treat E.R.; and (7) NKHS was negligent in undertaking its duty to render services to E.R.

In Vermont, our most significant decision on the duty of mental health professionals to third parties is Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422 (1985), Peck is a 3 to 2 decision with no majority opinion. Two Justices would have held 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 serious risk of danger to an identifiable victim has a duty to exercise reasonable care to protect him or her from that danger.” Id. at 68, 499 A.2d at 427. We hold that Peck and other precedents bar plaintiffs’ duty-to-treat and negligent-undertaking claims.

However, we also hold that Peck extends to both  identifiable and foreseeable victims, and that plaintiffs’ duty-to-warn claims should not be dismissed at this stage in the litigation. While 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 E.R.’s caretakers, here, his parents.

We conclude that the Retreat had a duty to give such warnings for two reasons. First the complaint alleges that the parents had assumed the role of E.R.’s caretakers were monitoring E.R.’s needs and treatment, were involved in his discharge, and were available to receive information on his continuing need for treatment and the actions that should have been taken based on his behavior. the Retreat owed 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. Second E.R.’s parents fell within the “zone of danger” from E.R.’s conduct. The Retreat had a duty to warn E.R.’s parents as individuals in the “zone of danger” of E.R.’s dangerous propensities. The duty to “warn” may be better described as a duty to “inform” we decline to recognize a distinct cause of action for failure to “train” E.R.’s parents.

This duty 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.

We are imposing the duty to warn or inform as a matter of tort law only in circumstances where the mental health professionals and institution are authorized, but not obligated, to disclose under HIPAA, which is the situation as alleged here.

We hold that both the Retreat and NKHS had a duty to provide information to E.R.’s parents, both to warn them of E.R.’s risk of violence to themselves and others and to provide them reasonable information to enable them to fulfill their role in keeping him safe.

We stress that we are only defining the duty owed by the mental health services providers, and allowing this action to proceed to determine whether defendants breached their duties, and if so, were negligent in doing so. We affirm on plaintiffs’ failure-to-treat, failure-to-train, and negligent-undertaking claims. We reverse the dismissal of Counts II and V of plaintiffs’ complaint and remand for those counts to proceed.