Currie v. U.S., 86-2643

• Decision Date: 28 December 1987
• Docket Number: No. 86-2643,86-2643
• Citation: 836 F.2d 209
• Parties: Linda Glenn CURRIE, Administratrix CTA of the Estate of Ralph Augustus Glenn, Jr., deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, v. INTERNATIONAL BUSINESS MACHINES CORP., Third Party Defendant, American Psychological Association, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 209

836 F.2d 209

Linda Glenn CURRIE, Administratrix CTA of the Estate of Ralph Augustus Glenn, Jr., deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, v. INTERNATIONAL BUSINESS MACHINES CORP., Third Party Defendant, American Psychological Association, Amicus Curiae.

No. 86-2643.

United States Court of Appeals Fourth Circuit.

Argued March 2, 1987.

Decided Dec. 28, 1987.

G. Jona Poe, Jr. (Terry D. Fisher; Stubbs, Cole, Breedlove, Prentis & Poe, Durham, N.C., on brief), for plaintiff-appellant.

Harry L. Hobgood, Asst. U.S. Atty. (Robert H. Edmunds, Jr., U.S. Atty., Greensboro, N.C., on brief), for defendant-appellee.

Paul R. Friedman, Donald N. Bersoff, Ennis, Friedman & Bersoff, Washington, D.C., on brief, for amicus curiae The American Psychological Ass'n.

Before WIDENER and WILKINS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

HAYNSWORTH, Senior Circuit Judge:

The difficult question for decision is whether the North Carolina Supreme Court would impose upon a psychotherapist an affirmative duty to seek the involuntary commitment of a patient the therapist believed to be dangerous to others when the therapist had given warnings to those believed to be within the zone of danger. In this suit under the Federal Tort Claims Act (because the therapists are federal employees), the district court held that the North Carolina Supreme Court would impose such a duty, but that the duty would not be violated by a simple want of due care; a competent therapist exercising his best professional judgment and otherwise acting in good faith, would be protected from tort liability. Since the therapists in this case were clearly competent, indeed, highly qualified, and acted in entire good faith, the district judge entered judgment for the United States. 644 F.Supp. 1074 (M.D.N.C.1986).

On appeal, we affirm, but upon the alternative ground that the North Carolina Supreme Court would not hold a competent therapist to a duty of affirmatively seeking control over his patient through involuntary commitment.

I.

On the afternoon of August 30, 1982, the plaintiff's decedent Ralph A. Glenn, Jr., was gunned down and killed by Leonard Avery, a Vietnam veteran suffering from Post-Traumatic Stress Disorder. Avery had been absenting himself from his work at The International Business Machines medical facility at Research Triangle Park, North Carolina. The absences were excused without loss of pay on the basis of written excuses given by a physician working at the Veterans Administration mental health clinic in Durham, North Carolina. Avery stopped attending weekly group sessions, however, and was told by IBM that he should attend the group session scheduled for August 16. Inquiry by a physician at IBM was met by a threat of violence, and, after further discussions with physicians at the Veterans Administration, Avery was informed by telephone on August 19 or 20 that he was discharged. The psychiatrist at the Veterans Administration declined to issue any more excuses for Avery's absences because of his failure to attend therapeutic sessions.

Just as he had threatened to do, on the afternoon of August 30, 1982, Avery entered IBM's medical facility at Research Triangle Park. He was clad in army fatigues and carried a semi-automatic rifle and some homemade bombs. He opened fire on those IBM employees he encountered, killing Glenn and wounding others. He was later convicted of Glenn's murder.

In April 1981, Avery consulted psychiatrists at the mental hygiene clinic at the Veterans Administration hospital in Durham. He was treated on an outpatient basis and, in June, was described as suffering from Post-Traumatic Stress Disorder. Some anti-psychotic medication was prescribed, and he was assigned to group therapy sessions.

Late in 1981, Avery became acutely upset over a dispute with his former wife about child support. He sought an emergency meeting with Dr. Buck, his group leader at the VA hospital, and voluntarily admitted himself to the hospital. At that time, Dr. Buck noted that Avery presented a "significant homicidal risk." The next day, however, Avery was calmed down by telephone conversations with his lawyer and with his former wife. Upon his request, he was then released.

Avery attended a group therapy session on July 26, 1982. He received a written excuse for absence from his work through August 2. He did not attend the group session on August 2, however. Avery told physicians at IBM that his continued absences were medically excused, but on August 13 IBM physicians consulted Dr. Buck at the VA hospital. They were told by Dr. Buck that Avery's absences had been excused only through August 2. The IBM physicians requested Avery to attend a group session scheduled to be held on August 16, and were apparently willing to excuse earlier absences. Avery failed to attend the August 16 session, however, and when an IBM physician, Dr. Connor, inquired of Avery about his failure to attend, Avery responded with a threat to blow up IBM's medical facility and its employees there. IBM reported these threats to a psychiatrist at the VA hospital, and was told that Avery had the potential for such acts of violence and that the threats should be taken seriously.

Upon learning of Avery's threat to blow up IBM's facility, Dr. Buck, Avery's group leader at the VA hospital, telephoned Avery. He succeeded in getting Avery to agree to a voluntary commitment, but Avery never showed up for it.

It was only upon IBM's learning of Avery's failure to submit to a voluntary commitment that he was called on the telephone and told that he was discharged.

On August 20, Avery called Dr. Buck and sought to obtain another written medical excuse. Dr. Buck declined to give it because Avery had ceased to attend group therapy sessions and had not come to the hospital for a voluntary commitment. Dr. Buck's refusal was met by a general threat that Dr. Buck immediately reported to IBM.

There was another telephone conversation between Dr. Buck and Avery on August 26. During that conversation, Avery threatened the psychiatrists. He charged them with having done nothing to help him and threatened to "blow your asses away" if he could get them in the same place at the same time.

That threat was also reported to IBM.

The psychiatrists also kept law enforcement agencies fully informed. They notified the United States Attorney, the Veterans Administration district counsel and security, the FBI and Durham city and county police departments. Special police protection was requested for Dr. Buck.

Meanwhile, there were repeated discussions among the psychiatrists about Avery and a possible commitment. There were eight physicians in the group. Each was a member of the faculty of Duke University Medical School, and seven of the eight had Board certification in psychiatry. Each time Avery's case was discussed, the psychiatrists came to the conclusion that Avery could not be committed involuntarily. In his conversations, Avery was lucid and in touch with reality. His dangerousness, the psychiatrist thought, was the product of his anger at IBM for discharging him and at the psychiatrists for declining to give him further written medical excuses, and not the product of mental illness. They thought the problem was for law enforcement officials.

The psychiatrists also discussed their possible obligations under the principles of Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976). They felt their duty to give warnings had been fully discharged by keeping IBM informed and by their notification to all relevant law enforcement agencies.

After an unsuccessful administrative claim, the plaintiff brought this wrongful death action under the FTCA, 28 U.S.C. Secs. 2671-2680 (1982), alleging negligence on the part of the psychiatrists at the VA hospital in not seeking to obtain an involuntary commitment of Avery.

As indicated above, the district court thought that the North Carolina Supreme Court would recognize some duty to seek involuntary commitment by a psychiatrist of his patient, but, after weighing competing policy considerations, concluded that a duty to commit would not be violated by simple negligence. The psychiatrists were eminently qualified, and the district judge thought their good faith was abundantly demonstrated by their failure to seek involuntary commitment despite the fact that the psychiatrists themselves were among those seriously threatened by Avery. The fact that they sought no more than extra police protection for Dr. Buck seemed a demonstration of the sincerity of that belief that they must depend upon warnings and extra protective measures and that involuntary commitment was not an available alternative.

II.

On appeal, it is much debated whether the conclusion of the psychiatrists that Avery was not subject to involuntary commitment was a diagnostic...