Durflinger v. Artiles

• Decision Date: 02 December 1983
• Docket Number: No. 55594,55594
• Parties: Irvin L. DURFLINGER, Raymond Durflinger, and Ronald Durflinger, Plaintiffs, v. Benjamin ARTILES, Preciosa Rosales and Eduardo Medrano, Defendants.
• Court: Kansas Supreme Court

Page 86

673 P.2d 86

234 Kan. 484

Irvin L. DURFLINGER, Raymond Durflinger, and Ronald Durflinger, Plaintiffs, v. Benjamin ARTILES, Preciosa Rosales and Eduardo Medrano, Defendants.

No. 55594.

Supreme Court of Kansas.

Dec. 2, 1983.

Syllabus by the Court

1. Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence.

2. Negligence is an essential element of a medical malpractice action.

3. A physician is obligated to his patient to use reasonable and ordinary care and diligence in the treatment of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill and experience which is ordinarily possessed by other physicians in the same or similar locations.

4. The duty of a physician to exercise reasonable and ordinary care and discretion remains the same for all physicians, but what constitutes negligence in a particular situation is judged by the professional standards of the particular area of medicine with which the practitioner is involved.

5. Where a physician is employed by a state mental hospital and, as a part of such employment, participates in a hospital team recommendation to the hospital superintendent that a committed patient be discharged as being no longer in need of care or treatment, i.e. no longer dangerous to himself or others, said physician has a duty to use reasonable and ordinary care and discretion in making such recommendation. This duty is owed to the patient and the public.

6. Liability for negligent release of a mental patient committed to a state hospital is discussed and distinguished from liability predicated upon a therapist's failure to warn a readily identifiable potential victim of danger to him or her presented by the patient and a therapist's failure to take affirmative action to cause the commitment of a patient.

7. The superintendent of a state mental hospital is a public officer. Staff physicians employed in a state mental hospital are public employees rather than public officers.

Deborah Carney, of Turner & Boisseau, Chartered, Great Bend, argued the cause, and Christopher Randall and Casey R. Law, Great Bend, of the same firm, were with her on briefs, for plaintiffs.

Mary Beth Mudrick, Asst. Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., and Reid Stacey, Asst. Atty. Gen., were with her on briefs, for defendants.

John E. Wilkinson, Topeka, was on amicus curiae brief, for Kansas Psychiatric Ass'n.

Sheila M. Janicke, of Shawnee Mission, was on amicus curiae brief, for Kansas Trial Lawyers Ass'n.

Mary Beth Blake, of Fallon, Holbrook & Ellis, of Kansas City, was on amicus curiae brief, for State of Kansas and State Treatment Facilities.

John E. Shamberg, Lynn R. Johnson and Ruth M. Benien, of Schnider, Shamberg & May, Chartered, of Shawnee Mission were on amicus curiae brief, for party-plaintiffs in complaints numbered 80-2095 and 83-2094 filed in the United States District Court for the District of Kansas.

McFARLAND, Justice:

This case comes before us on a certification from the United States Court of Appeals, Tenth Circuit, under authority of the Uniform Certification of Questions of Law Act, K.S.A.1982 Supp. 60-3201 et seq.

The two certified questions are:

I. WOULD THE KANSAS SUPREME COURT RECOGNIZE AS A VALID CAUSE OF ACTION A CLAIM WHICH GREW OUT OF A NEGLIGENT RELEASE OF A PATIENT WHO HAD VIOLENT PROPENSITIES, FROM A STATE INSTITUTION, AS DISTINGUISHED FROM NEGLIGENT FAILURE TO WARN PERSONS WHO MIGHT BE INJURED BY THE PATIENT AS THE RESULT OF THE RELEASE?

II. DO STAFF DOCTORS, AS DISTINGUISHED FROM THE SUPERINTENDENT OR HEAD OF THE HOSPITAL OR INSTITUTION, HAVE LEGAL IMMUNITY UNDER KANSAS LAW FROM CIVIL LIABILITY RESULTING FROM A RELEASE OR FAILURE TO WARN OF THE RELEASE OF A DANGEROUS PATIENT?

The factual background giving rise to the litigation may be summarized as follows. On December 25, 1973, Butler and Carol Elliott returned to their Hutchinson, Kansas, home after a few days' absence. As they walked into their home, the Elliotts were confronted by their nineteen-year-old grandson, Bradley Durflinger, who was armed with a hatchet and a meat fork. It was Bradley's intention to kill his grandparents and steal their automobile. The planned attack was averted. The following day Butler Elliott filed a petition in the probate court of Reno County, Kansas, seeking commitment of Bradley to a mental hospital on the grounds he was, or probably would become, dangerous to himself or to the person or property of others. Bradley had a history of disciplinary problems. He had run away from home on numerous occasions. His United States Navy service had ended in discharge after he was absent without leave. In March, 1973, Bradley attempted suicide and in November, 1973, Bradley was placed on probation for shoplifting. The probate court found Bradley to be a mentally ill person and ordered he be given care or treatment at the Larned State Hospital in Larned, Kansas.

On January 8, 1974, the Elliotts delivered Bradley to the Larned State Hospital. Bradley was diagnosed by the hospital as having a passive-aggressive personality with sociopathic tendencies. On April 19, 1974, Bradley was discharged from the hospital as being no longer in need of care or treatment. On that day, the Elliotts picked Bradley up at the hospital and a few days later put him on a commercial airliner bound for Oregon in order that Bradley could reside with his parents and siblings. A week after his discharge, Bradley killed his mother (Margaret Durflinger) and his younger brother (Corwin Durflinger) by shooting each person several times with a rifle. Bradley was subsequently convicted of the two homicides and was sentenced to serve time in the Oregon penal system.

On March 25, 1975, this wrongful death action was commenced in the United States District Court for the District of Kansas. The plaintiffs are Irvin L. Durflinger (husband of Margaret and father of Corwin) and Raymond and Ronald Durflinger (sons of Margaret and brothers of Corwin). Defendants named in the action were all doctors employed at Larned State Hospital during the time of Bradley Durflinger's confinement at that institution. Liability was predicated on the alleged negligent release of Bradley from the hospital. Dr. G.W. Getz was granted summary judgment on the basis that, as superintendent of the hospital, he was a public officer acting pursuant to a special statutory duty when he approved Bradley's hospital dismissal (K.S.A.1973 Supp. 59-2924). Dr. Francisco Izaguirre (psychiatrist) was dismissed from the action on the basis of improper service. Dr. Terry Keeley (psychologist) settled with plaintiffs immediately before trial. The present defendants are Dr. Benjamin Artiles (psychiatrist and hospital clinical director), Dr. Preciosa Rosales (attending physician) and Dr. Eduardo Medrano (ward physician). Drs. Rosales and Medrano were members of the hospital team which made the recommendation to Dr. Getz to discharge Bradley. Initially the team tentatively decided Bradley should be transferred to an Oregon mental hospital. This plan would have necessitated he be flown to Oregon at the expense of the State of Kansas and be accompanied on the trip by a Larned hospital staff member. Such arrangement would be subject to the approval of the Division of Institutional Management in Topeka. Dr. Artiles, hospital clinical director, sent a note to a member of the hospital team opposing the transfer plan. Subsequently, the recommendation was made simply to discharge Bradley.

The case was tried to a jury which returned a verdict in favor of the plaintiffs in the amount of $92,300. After deducting the Keeley settlement, judgment was entered against Drs. Artiles, Rosales and Medrano in the amount of $67,300. These three defendants then appealed to the United States Court of Appeals for the Tenth Circuit. Numerous issues have been raised in the appeal. Two questions of law have been certified by the federal appellate court to this court as being substantially determinative of the appeal and entirely subject to Kansas law. We have accepted the certification.

We turn now to the first question of law certified to this court for determination. For convenience the question is repeated.

WOULD THE KANSAS SUPREME COURT RECOGNIZE AS A VALID CAUSE OF ACTION A CLAIM WHICH GREW OUT OF A NEGLIGENT RELEASE OF A PATIENT WHO HAD VIOLENT PROPENSITIES, FROM A STATE INSTITUTION, AS DISTINGUISHED FROM NEGLIGENT FAILURE TO WARN PERSONS WHO MIGHT BE INJURED BY THE PATIENT AS THE RESULT OF THE RELEASE?

Preliminarily, some fundamental principles of the law of negligence need to be stated.

Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence. See Marks v. St. Francis Hospital & School of Nursing, 179 Kan. 268, 270-71, 294 P.2d 258 (1956). An accident which is not reasonable to be foreseen by the exercise of reasonable care and prudence is not sufficient grounds for a negligence action. Trimyer v. Norfolk Tallow Co., 192 Va. 776, 780, 66 S.E.2d 441 (1951); and Carrington, Victims' Rights Litigation: A Wave of the Future?, 11 U.Rich.L.Rev. 447, 461 (1977). In Kansas it is a fundamental rule actionable negligence must be based on a breach of duty. Hanna v. Huer, Johns, Neel, Rivers & Webb, 233 Kan. 206, 221, 662 P.2d 243 (1983). See also Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982); and Madison v. Key Work Clothes, 182 Kan. 186, 192, 318 P.2d 991 (1957). Robertson v....