Cooke v. Berlin
| Decision Date | 08 January 1987 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 153 Ariz. 220,735 P.2d 830 |
| Parties | Laura U. COOKE, Plaintiff-Appellant, v. Sanford BERLIN and Jane Doe Berlin, husband and wife; State of Arizona, Defendants-Appellees. 8529. |
| Court | Arizona Court of Appeals |
In this case of first impression in Arizona, we must determine whether a psychiatrist and his employer are liable to the surviving spouse of a person who was killed by an individual who received treatment as an out-patient.
The facts are taken in a light most favorable to the plaintiff-appellant, Laura U. Cooke, against whom summary judgment was entered. In late 1981 and early 1982, Tanya Robinson, a single 22 year old student at the University of Arizona, came to believe that she was the subject of surveillance by the Central Intelligence Agency (CIA). She conveyed this belief to her sister who recommended that she seek help from the Southern Arizona Mental Health Center (SAMHC). SAMHC is a tax-supported public health facility operated by defendant-appellee State of Arizona. See generally A.R.S. § 36-501, et seq. Robinson was first seen at SAMHC on February 11, 1982, by Gypsy Barker Lyle, a social worker, who took a history from Robinson and came to a working diagnosis of "paranoia." Robinson was seen on February 23, 1982, by defendant-appellee, Dr. Sanford Berlin, a psychiatrist employed as a consultant to SAMHC. Berlin agreed with Lyle's diagnosis of paranoia and prescribed Navane, an anti-psychotic drug.
On February 26, 1982, Robinson was taken off Navane, because of adverse side effects, and Trifluoperazine was prescribed. Robinson was seen on March 9, but cancelled her March 17 and 29 appointments. She was also seen again at the clinic on April 1 and 22, but cancelled her April 9 appointment. She was last seen at the clinic on May 24, 1982.
At the March 9 appointment, Robinson told Lyle that she was now convinced that the CIA was not responsible for the continuing surveillance of herself and home, but that she still felt the surveillance was continuing. Lyle concluded that the surveillance delusion was connected to Robinson's having been raped in 1981. Although Robinson missed appointments in March, her sister called Lyle and related problems with Robinson not taking her medication and expressing suicidal thoughts. Robinson missed another appointment initiated by Lyle as a result of the sister's call, but was seen by both Lyle and Berlin on April 1 and 22.
In April, Robinson related to Lyle and Berlin that she now concluded that a Tucson disc jockey, Robert Cooke, was responsible for the surveillance which was being carried on through her radio. With Robinson's permission, Lyle contacted Cooke to arrange a meeting between the two. Cooke refused. Both Berlin and Lyle at that point felt that there was no likelihood that Cooke was endangered by Robinson's delusion.
On May 24, 1982, Robinson was seen by Joan Bussanich, a hypnotherapist at SAMHC. Bussanich did not consider Robinson an appropriate candidate for hypnotherapy. Robinson did, however, inform Bussanich that she was going to leave Tucson to get away from Cooke. Bussanich attempted to make another appointment for Robinson to see Lyle on May 25. Although Robinson agreed to call Lyle, she never contacted Lyle or anyone else at SAMHC thereafter. This was the last contact by Robinson with SAMHC.
In early June 1982, Robinson moved to Phoenix, Arizona, and stayed with her sister. In July, she left Arizona and moved to Virginia to live with her grandmother. While in Virginia, Robinson for the first time concluded that the only way she could escape from Cooke's surveillance was to kill him. She never relayed these thoughts to anyone, until after the fatal shooting.
On August 14, 1982, Robinson returned to Tucson, but did not contact her family, friends or anyone at SAMHC. She stole a gun from her parents' home and on August 22, 1982, after waiting for Cooke to leave a bar where he worked as a disc jockey, shot and killed him in a parking lot.
Robinson was subsequently arrested and tried for murder. Pending trial, on petition, she was admitted to Kino Community Hospital where she was again diagnosed as having a paranoid schizophrenic disorder. She was again treated with Navane. She was found not guilty by reason of insanity and was readmitted to Kino on November 22, 1982.
Subsequent testing at Kino revealed several chemical imbalances and a revised diagnosis of "atypical psychosis." Robinson was treated with anti-depressant medication and her condition improved. On June 22, 1983, Robinson was discharged to SAMHC's halfway house.
Laura U. Cooke, Robert Cooke's surviving spouse, commenced this action against the State of Arizona, Berlin and Robinson in Pima County Superior Court. The state sought and was granted a change of venue to Maricopa County pursuant to A.R.S. § 12-824(B). 1 The supreme court declined to review this ruling on a special action brought by Berlin, Robinson and Cooke. Robinson subsequently settled with Cooke and was dismissed from this litigation.
The trial court granted the motion of both the state and Berlin for summary judgment. In doing so, it stated:
Laura U. Cooke has appealed.
Before addressing the issues of duty and foreseeability, we dispose of the trial court's contention that Cooke failed to present any evidence of negligence on the part of Berlin or SAMHC. 2 In doing so, we focus on what Cooke contends are the negligent acts giving rise to the alleged liability in this case.
Appellant's allegations of negligence are derived primarily from the opinion of her expert, Dr. Wesley A. McEldoon. Basically, Dr. McEldoon found fault with SAMHC's "system" of having social workers perform the work of a physician. As Dr. McEldoon testified:
I mean, I think there is a real fault in the entire system, any system that would take a person without medical training [Gypsy Baker Lyle] and make them responsible for the diagnosis and medical care of a person that might present to them, any system that puts a non-physician in that position is doing a disservice.
In addition, Dr. McEldoon concluded that Berlin fell below the applicable standard of care by not re-evaluating the initial misdiagnosis and thus correcting a misguided treatment plan. In Dr. McEldoon's opinion if SAMHC and Berlin had not acted negligently in this case, Robinson would have been cured and thus would not have killed Cooke.
In our opinion, this testimony, at least at the summary judgment stage, is sufficient to raise a material issue of fact as to whether the "system" established by the state to render mental health care was deficient, and whether Berlin's treatment of Robinson fell below the applicable standard of care.
We also reject the state's argument that assuming arguendo that Berlin was negligent, the state would not be vicariously liable because Berlin was an independent contractor. We reject this argument for two reasons. First, even if Dr. Berlin were an independent contractor, it appears that the state undertook to provide a nondelegable duty to provide adequate care. See DeMontiney v. Desert Manor Convalescent Center, 144 Ariz. 6, 695 P.2d 255 (1985). Second, the appellant has alleged independent negligence of the state in allowing non-physicians to perform work which in the opinion of Dr. McEldoon can only be performed by a physician. Dr. McEldoon was qualified to render such an opinion.
We therefore conclude that the appellant for the purposes of avoiding summary judgment, has raised an issue of fact concerning appellees' failure to meet an appropriate standard of care, in the diagnosis and treatment of Robinson's mental condition.
Having concluded that appellees may have been negligent in the diagnosis and treatment of Robinson, the question remains whether such negligence gives rise to any liability for Robinson's killing of Robert Cooke. In focusing on this issue it is important to state what theories are not espoused by the appellant. The appellant does not contend that the appellees had a duty to warn Robert Cooke that Robinson posed a threat to him, as there is no evidence that the appellees knew that Robinson had formed an intent to harm Cooke. See Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976). It is clear that this intent, according to Robinson, was not formed until she was in Virginia, some two months after she was last...
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