Bardoni v. Kim

• Decision Date: 09 August 1986
• Docket Number: Docket Nos. 76111,76333
• Citation: 390 N.W.2d 218,151 Mich.App. 169
• Parties: Timothy BARDONI, Personal Representative of the Estate of Catherine Bardoni, Deceased, and Patricia Capps and Timothy Bardoni, Individually, Plaintiffs-Appellants, v. Soon K. KIM, M.D., Defendant-Appellee. Nancy BARDONI, Personal Representative of the Estate of Robert Bardoni, Plaintiff-Appellant, v. Soon K. KIM, M.D., Defendant-Appellee. 151 Mich.App. 169, 390 N.W.2d 218
• Court: Court of Appeal of Michigan — District of US

Page 218

390 N.W.2d 218

Timothy BARDONI, Personal Representative of the Estate of Catherine Bardoni, Deceased, and Patricia Capps and Timothy Bardoni, Individually, Plaintiffs-Appellants, v. Soon K. KIM, M.D., Defendant-Appellee.

Nancy BARDONI, Personal Representative of the Estate of Robert Bardoni, Plaintiff-Appellant, v. Soon K. KIM, M.D., Defendant-Appellee.

Docket Nos. 76111, 76333.

151 Mich.App. 169, 390 N.W.2d 218

Court of Appeals of Michigan.

Submitted Nov. 6, 1984.

Decided April 22, 1986.

Released for Publication Aug. 9, 1986.

[151 MICHAPP 171] Sommers, Schwartz, Silver & Schwartz, P.C. (by Norman D. Tucker), Southfield, for plaintiffs.

Coticchio, Zotter & Sullivan, P.C. (by Timothy J. Sullivan and Ronald A. Muresan), Detroit, for defendant.

Before GRIBBS, P.J., and HOLBROOK and N.J. LAMBROS, ^* JJ.

PER CURIAM.

Plaintiffs appeal the trial court's orders granting defendant Dr. Soon K. Kim's motions for summary judgment pursuant to GCR 1963, 117.2(3), now MCR 2.116(C)(10). Plaintiffs brought suit against Dr. Kim for the deaths of Catherine and Robert Bardoni the mother and brother of Richard Bardoni, Dr. Kim's patient. Plaintiffs claimed that Dr. Kim negligently failed to diagnose Richard Bardoni as dangerous to members of his family and failed to warn them of Bardoni's potential dangerousness. The trial court held that defendant did not owe plaintiffs' decedents a duty to warn because, as a matter of law, they were not readily identifiable victims, and granted summary judgment for defendant. Plaintiffs appeal as of right. Their appeals were consolidated by this Court. We affirm in part and reverse in part.

Background

Medical records and depositional testimony established[151 MICHAPP 172] the following facts which are not in dispute.

On February 24, 1978, Richard Bardoni (Bardoni) came under the care and supervision of Dr. Kim, a psychiatrist. Bardoni was initially referred to Dr. Kim for a social security disability evaluation. Bardoni had been psychotic for at least ten years and was previously under psychiatric care. From his initial evaluation, Dr. Kim classified Bardoni as a paranoid schizophrenic. Because paranoid schizophrenics can become dangerous to themselves or others, Dr. Kim told his patient's wife, Evelyn Bardoni, to contact him immediately if her husband showed any signs of violence or if she thought he could no longer control himself. The major treatment at this point was psychotropic drugs.

Between March 10, 1978, and October 25, 1978, Dr. Kim saw Richard Bardoni on a total of about nine occasions. The sessions lasted between 30 and 60 minutes and Dr. Kim recorded his impressions after each session. Dr. Kim's notes indicated that his patient was highly nervous, anxious, unable to function properly, and delusional, with the delusions centering primarily on his former employer. Bardoni had been fired as a school teacher and he believed that the school system had "attacked his character". He also believed that the school administrator had mental problems. Evelyn Bardoni also informed Dr. Kim that her husband thought someone was out to get him.

During the course of treatment under Dr. Kim, Richard Bardoni often refused to take medication prescribed and in the summer of 1978 broke off treatment altogether. Evelyn Bardoni indicated that her husband stopped seeing Dr. Kim during the summer because, in her opinion, his condition had improved significantly.

[151 MICHAPP 173] On September 15, 1978, Richard Bardoni left home and traveled to Ohio. He was taken into custody by Ohio police and transported to a local hospital after he repeatedly told the officers he wanted to commit suicide. The Toledo Mental Health Center records indicated that Bardoni was brought in there in a psychotic state. During his four-day stay at the Center, the staff's notes recorded its impression that Bardoni was potentially dangerous and showed signs of aggressive behavior. The records also indicated that Bardoni told the staff that he had recently found out that his wife had been poisoning him and that she had been dating his older brother, Robert Bardoni. A progress note on September 18, 1978, indicated that Bardoni stated that his family was not safe and that somebody was going to hurt them and that he had a great deal of guilt towards the things he had done to his family and others. The Center classified Bardoni as a possible threat to himself or others. Dr. Kim did not recall whether or not he received a copy of these Ohio records, but recalled that he had spoken with someone at the Center regarding his patient. The Toledo Health Center records indicated that Dr. Kim had been contacted and that Richard Bardoni had been put on a waiting list for an available bed in a private hospital.

After Richard Bardoni was discharged from the Toledo Mental Health Center, Dr. Kim attempted to have him placed in a hospital in Michigan, but Bardoni refused to go voluntarily, and his wife refused to sign commitment papers because she did not feel that he was dangerous. Upon Richard Bardoni's return from Ohio, Dr. Kim noted that Bardoni was having somatic delusions and that he believed his blood was being poisoned. Dr. Kim testified that, upon inquiry into who Bardoni thought was poisoning him, Bardoni indicated it [151 MICHAPP 174] might be the school system where he had been employed or air pollution. After the Ohio incident, Dr. Kim saw Bardoni only two more times, the last meeting being on October 25, 1978. Richard Bardoni failed to show up for any further appointments.

At no time during his sessions with Richard Bardoni did Dr. Kim ever note any signs of violent behavior. Evelyn Bardoni informed Dr. Kim that she did not think that her husband was dangerous. Evelyn Bardoni did indicate in her deposition that her husband had expressed a desire to kill his brother on several occasions. Although Dr. Kim had requested that she inform him if she felt her husband was dangerous, she had never passed this information on to Dr. Kim, nor did she think Dr. Kim was aware of this fact.

On January 14, 1979, Richard Bardoni assaulted his wife, and murdered his brother, Robert Bardoni, and his mother, Catherine Bardoni, before being captured by police.

Separate suits arising from the deaths of Robert and Catherine Bardoni were commenced in Wayne County Circuit Court. The complaints alleged that Dr. Kim failed to properly diagnose Richard Bardoni and failed to warn members of the Bardoni family who were foreseeable victims of Richard Bardoni's violence.

In both suits Dr. Kim filed motions for summary judgment after discovery. Dr. Kim asserted that Richard Bardoni showed no signs of violent behavior and that plaintiffs' decedents could not be considered readily identifiable victims to whom Dr. Kim owed any duty to warn.

Plaintiffs responded with the affidavits of psychiatrist Dr. Bruce Danto, which stated that Dr. Kim had failed to exercise the appropriate standard of [151 MICHAPP 175] care of a psychiatrist and that, if he had done so, plaintiffs' decedents would have been readily identifiable as persons endangered by Richard Bardoni.

The trial court ruled as a matter of law in both cases that plaintiffs' decedents were not readily identifiable victims as required by Davis v. Lhim, 124 Mich.App. 291; 335 N.W.2d 481 (1983), remanded on other grounds 422 Mich. 875, 366 N.W.2d 7 (1985), on rem. 147 Mich.App. 8; 382 N.W.2d 195 (1985), and granted defendant Dr. Kim's motions for summary judgment pursuant to GCR 1963, 117.2(3).

Discussion

A motion for summary judgment brought pursuant to GCR 1963, 117.2(3), now MCR 2.116(C)(10), has the limited function of determining whether or not material issues of fact exist. Goldman v. Loubella Extendables, 91 Mich.App. 212, 217; 283 N.W.2d 695 (1979), lv. den. 407 Mich. 901 (1979). It should be granted only when there are no material issues of fact and the court may determine, as a matter of law, the appropriate disposition of the claim. Reeder v. Hammond, 125 Mich.App. 223, 227; 336 N.W.2d 3 (1983). Thus the motion should not be granted unless it is impossible for the opposing party to support its claim or defense because of some deficiency which cannot be overcome. Rizzo v. Kretschmer, 389 Mich. 363, 372; 207 N.W.2d 316 (1973). In deciding whether or not to grant the motion, the trial court must consider the available documentary evidence, including affidavits, pleadings, depositions and admissions. GCR 1963, 117.3; Rizzo, supra, 389 Mich. p. 373, 207 N.W.2d 316.

When a psychiatrist determines or, pursuant to the standard of care of his profession, should determine that his patient poses a serious danger [151 MICHAPP 176] of violence to a readily identifiable third person, ¹ the psychiatrist has a duty to use reasonable care to protect that individual against such danger. ² Davis, 124 Mich.App. 301-305, 335 N.W.2d 481, citing Thompson v. Alameda County, 27 Cal.3d 741; 167 Cal.Rptr. 70 614 P.2d 728 (1980), with approval. Absent the existence of material issues of fact pertinent to these determinations, the existence of the psychiatrist's duty to the third person is a question of law for the court. See Moning v. Alfono, 400 Mich. 425, 436-439; 254 N.W.2d 759 (1977); ³ see also Leedy v. Hartnett, 510 F.Supp. 1125, 1130 (M.D.Pa.1981) (interpreting the law of Pennsylvania), aff'd. without published opinion 676 F.2d 686 (CA 3, 1982).

Before further discussing a psychiatrist's duty to protect a readily identifiable person endangered by his patient, we distinguish this type of situation from the situation in this Court's recent decision in Duyall v. Goldin, 139 Mich.App. 342; 362 N.W.2d 275 (1984). See also Welke v. Kuzilla, 144 Mich.App. 245; 375 N.W.2d 403 (1985). Duvall dealt with the question of whether a physician could be held liable to a third party for his negligence in treatment[151 MICHAPP 177] (malpractice) of a patient who, as a result of his negligently treated medical...