Adams v. Board of Sedgwick County Com'Rs, 99,195.

CourtUnited States State Supreme Court of Kansas
Citation214 P.3d 1173
Docket NumberNo. 99,195.,99,195.
PartiesKatherine ADAMS, Appellant, v. BOARD OF SEDGWICK COUNTY COMMISSIONERS, Appellee/Cross-appellant, and Garry Porter, M.D., and Joan Hertlein, Appellees. Alexandra Paige Cummins, Appellant/Cross-appellee, v. Board of Sedgwick County Commissioners, Appellee/Cross-appellant.
Decision Date04 September 2009

Christopher A. McElgunn, of Klenda, Mitchell, Austerman & Zuercher, L.L.C., of Wichita, argued the cause, and Gary M. Austerman, of the same firm, was with him on the briefs for appellee Joan Hertlein.

Robert E. Keeshan and William Rein, of Scott, Quinlan, Willard, Barnes & Keeshan, LLC, of Topeka, were on the brief for amicus curiae Kansas Association for Justice.

David R. Cooper, Teresa L. Watson, and J. Steven Pigg, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, were on the brief for amicus curiae Kansas Association of Counties.

The opinion of the court was delivered by LUCKERT, J.:

In this appeal, we hold that an outpatient mental health center and its employees did not owe a duty to those injured by a psychiatric patient who became violent 9 months after an outpatient treatment order was allowed to expire, even though there existed a basis for the continuation of the order. We conclude that an outpatient mental health treatment facility does not take charge of an outpatient subject to an outpatient treatment order in a manner that gives rise to a duty to control the outpatient's conduct or to protect others from the outpatient.

Because no duty arose, we do not consider the question of whether an exception to liability exists because of the discretionary function exception to the Kansas Tort Claims Act (KTCA), K.S.A.2008 Supp. 75-6104(e), which served as the basis for the district court's grant of summary judgment.

Facts and Procedural Background

Katherine Adams and her granddaughter Alexandra Cummins (the Plaintiffs) brought suits against the Board of Sedgwick County Commissioners and several mental health care professionals after Adam Cummins, Katherine's son and Alexandra's father, attacked Katherine with a hammer. In an effort to save her grandmother's life, Alexandra fatally shot her father.

During the 3-year period before this tragic incident, Adam had been treated at ComCare, a mental health agency operated by Sedgwick County, Kansas. Adam was first seen at ComCare in 1997 after he was discharged from inpatient treatment at the Topeka State Hospital (TSH). Adam's admission to the TSH was triggered by his threats to kill family members, and while there he was diagnosed with "bipolar disorder, manic with psychotic features." Later, he was diagnosed with "[s]chizophrenia, depressive type, continuous with prominent negative features, polysubstance abuse, personality disorder, NOS [not otherwise specified] with antisocial and dependent features."

Upon release from the TSH and while under the care of ComCare, a cycle began that repeated itself several times: Shortly after discharge from inpatient treatment, Adam would refuse to take his medications, and Adam's mental health would gradually deteriorate. He would become less compliant with the suggested treatment regimen; he would avoid one-on-one contact with his ComCare case managers; he would fail to keep appointments with various ComCare employees; and his behavior would become more hostile and threatening. On at least two occasions, Adam's threats of violence resulted in him being hospitalized. He received court-ordered treatment at Osawatomie State Hospital (OSH) beginning in November 1997 and, for the final time, beginning in May 1999. With each hospitalization, the cycle would come full circle and then begin anew—Adam would stabilize, be discharged, refuse medications, and eventually threaten violence.

ComCare's records relating to treatment before Adam's final hospitalization, which began in May 1999, reflect this cycle, as well as individual practitioner's concerns about Adam's refusal to take medications and his potential for violence. These pre-May 1999 records also reflect that on occasion Katherine called ComCare to express her concerns for and about her son and his behavior. As a result of these contacts and because of other information, ComCare's employees were aware that Adam had threatened Katherine, other family members, social workers, and others on several occasions.

The allegations in this case relate to the cycle that began in May 1999 with Adam's court-ordered—i.e., involuntary—hospitalization at OSH. Adam was released from inpatient hospitalization at OSH in July 1999 and placed in outpatient therapy at ComCare. On July 20, 1999, which was several days after Adam's discharge from OSH, the district court entered an outpatient treatment order. The court ordered that Adam:

"Shall comply with all directives and treatment as required by the treatment staff of the outpatient treatment facility;

"Shall take all medications prescribed without making any changes prior to authorization by the Outpatient Medicine Clinic Staff;

"Shall keep scheduled appointments with the Outpatient Medicine Clinic;

"Shall report use of any medication prescribed by other physicians;

"Shall abstain from using alcohol or illegally obtained drugs;

"Shall submit to random drug testing when requested by Outpatient Medicine Clinic;

"Shall meet with his designated Case Manager, Crisis or Homeless Team Staff member as scheduled; ...

"Shall attend Day Treatment Program when recommended by clinical staff;

"Shall take all prescribed medications in the presence of the Outpatient Medicine Clinic Physician;

"Shall submit himself for lab work as prescribed by the Outpatient Medicine Clinic Staff."

The order also required ComCare to immediately report to the district court any noncompliance by Adam with the terms of the order.

Even before this outpatient treatment order was entered, Adam's reluctance to take his medications was reflected in a note made by Dr. Garry Porter, a ComCare employee, who wrote that Adam was trying to "chisel down" his medications. Then, 2 days after the outpatient treatment order was entered, Dr. Porter noted that Adam was not taking all his prescribed medications. Dr. Porter notified Adam's case manager about the noncompliance and "assumed" that the noncompliance had been reported to the district court. In fact, the noncompliance was not reported.

On August 13, 1999, ComCare issued a report recommending that the involuntary outpatient care and the treatment order be allowed to expire. The report indicated that Adam was compliant with physician appointments, was taking his medications, and was meeting with his case manager. It was signed by nurse practitioner Joan Hertlein on behalf of Dr. Porter, who testified he had never seen the report. The involuntary treatment order expired on August 27, 1999.

Adam voluntarily saw Dr. Porter on September 10, 1999. At that time, Dr. Porter noted Adam had "taken himself off all his meds," and Adam stated he "feels much better" and "denies any aggressivity." Dr. Porter's diagnosis stated that Adam was "in partial remission" and that he had not heard anything from Adam's family members recently. The following month, Adam's ComCare case manager recommended that Adam's case be closed to all services because of his refusal of ComCare's services and being noncompliant with any services.

By April 2000, Adam's condition had noticeably deteriorated, and on May 15, 2000— almost 9 months after the involuntary order had expired and 6 months after Adam had last been treated at ComCare—Adam became angry with Katherine and placed several phone calls to her home number, leaving messages that frightened both Katherine and Alexandra. They reported Adam's behavior to the police, who told them to keep their doors locked but did nothing else.

Several hours later, Adam arrived at Katherine's home and kicked down the door. Tragically, this time the threats of violence became a reality as Adam beat Katherine's head and face with a hammer, leading Alexandra to fire the fatal shot that killed her father. Katherine sustained serious head injuries and permanent disabilities as a result of Adam's attack.

This incident led to separate lawsuits being filed by Katherine and Alexandra. Katherine sued the Board of Sedgwick County Commissioners (County), Dr. Porter, and Hertlein (referred to collectively as Defendants) (Case No. 05-CV-1927). Alexandra sued only the County (Case No. 05-CV-1926). Although Katherine and Alexandra did not sue the same parties, their allegations relating to the Defendants' duty to them and the basis for their claims of breach of duty were identical. As stated in Katherine's petition, they allege:

"9. The Defendants had a duty to control the conduct of Adam Scott Cummins so as to prevent him from causing physical harm to the Plaintiff because:

a. A special relation existed between the Defendants and Cummins which imposed a duty upon the Defendants to control the conduct of Cummins; and

b. A special relation existed between the Defendants and the Plaintiff which gave rise to the Plaintiff a right of protection.

"10. The Defendants, individually and through the agents and employees of ComCare, were negligent in the treatment of Adam Scott Cummins as follows:

a. The Defendants determined or should have determined, under applicable professional standards, that Adam Scott Cummins posed a risk of violence...

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