Hokansen v. U.S.

• Decision Date: 16 February 1989
• Docket Number: 86-2137,Nos. 86-2136,86-2139 and 86-2140,s. 86-2136
• Citation: 868 F.2d 372
• Parties: Karen L. HOKANSEN, fka Karen L. Neil; Cecile Lou Browning, heir-at-law and next of kin of Aimee Uffner, deceased minor, Cecile Lou Browning, Successor To Randall J. Price, Special Administrator of the Estate of Aimee Uffner, deceased; Amalia R. Zapata; and Amalia R. Zapata, Plaintiffs/Appellants, v. UNITED STATES of America, Defendant/Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 372

868 F.2d 372

Karen L. HOKANSEN, fka Karen L. Neil; Cecile Lou Browning heir-at-law and next of kin of Aimee Uffner, deceased minor Cecile Lou Browning, Successor To Randall J. Price, Special Administrator of the Estate of Aimee Uffner, deceased Amalia R. Zapata; and Amalia R. Zapata, Plaintiffs/Appellants, v. UNITED STATES of America, Defendant/Appellee.

Nos. 86-2136, 86-2137, 86-2139 and 86-2140.

United States Court of Appeals, Tenth Circuit.

Feb. 16, 1989.

Roger M. Theis, Render & Kamas, Wichita, Kan. (Paul L. Thomas, Render & Kamas and Andrew W. Hutton, Michaud, Cordry, Michaud, Hutton & Hutton, Wichita, Kan., with him on the briefs), for plaintiffs-appellants.

Alleen S. Castellani, Asst. U.S. Atty., Topeka, Kan. (Benjamin L. Burgess, Jr., U.S. Atty., D. Kansas, with her on the brief) for defendant-appellee.

Before HOLLOWAY, Chief Judge, and SETH and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Seven and one-half months after being released from nine days' treatment as a voluntary inpatient at the Veterans Administration Medical Center ("VAMC") in Wichita, Kansas, Robert Garcia shot four people, killing Maria Robles, her son Gabriel Longoria, and Aimee Uffner, and causing permanent injuries to Karen Neil. Ms. Neil and representatives of the deceased victims sued the United States under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671, et seq. They alleged that the VAMC had negligently breached a duty to the victims not to release Garcia because he had a known general history of mental and emotional problems which included violent tendencies. The district court granted a summary judgment to the government, dismissing plaintiffs' action on the ground, among others, that under the circumstances the VAMC owed no duty to the victims not to release Garcia. ¹ The plaintiffs' appeal that decision. We affirm.

BACKGROUND

Garcia was first admitted to the VAMC in Wichita, Kansas, as an outpatient on July 27, 1976. On this occasion, he was treated for various physical ailments and then released. He was next hospitalized at the VAMC between May 11 and May 15, 1979 for injuries reportedly suffered in an assault. On March 25, 1980, Garcia was involved in a fight for which he was later charged with aggravated assault. During January of 1981, Garcia was also twice treated as an outpatient for headaches and neck pain.

On February 2, 1981, Garcia was admitted as a voluntary psychiatric inpatient at the VAMC following a suicide attempt. He was subsequently discharged on March 12, 1981, on continued medication and under a plan whereby he would receive outpatient treatment from the VAMC Departments of Psychology and Social Work. On March 23, Garcia was voluntarily readmitted to the VAMC. He remained until April 1, 1981, at which time he was released and again placed under an active outpatient treatment plan. Apparently Garcia did not request, but did not oppose, the release to outpatient treatment.

On April 24, 1981, Garcia pleaded guilty to aggravated assault before the District Court of Sedgwick County, Kansas. As a condition of his suspended sentence, Garcia was ordered to continue his outpatient treatment by the VAMC until the VAMC chose to release him from such care. The On November 16, 1981, Garcia shot the victims. ² One of the victims, Maria Robles, had dated Garcia. The others lived in the same house with Robles but otherwise had no apparent connection with Garcia. The record does not reveal any previous incidents of violence between any of them and Garcia, or any threats directed against them or any other person by Garcia, to the knowledge of anyone at the VAMC.

VAMC was to report to the district court every six months regarding Garcia's treatment and progress. Garcia actively participated in and cooperated with his outpatient treatment plan, meeting with a VAMC psychologist on a fairly regular weekly or bi-weekly basis until sometime in September or October of 1981. On October 23, 1981, he was last seen by the VAMC psychologist who had been working with him.

Our standard of review on appeal of summary judgment is settled:

"When reviewing a grant of summary judgment, this court must examine the record to determine whether any genuine issue of material fact pertinent to the ruling remains and, if not, whether the substantive law was correctly applied.... [W]e may affirm the granting of summary judgment if any proper ground exists to support the district court's ruling."

Setliff v. Memorial Hospital of Sheridan County, 850 F.2d 1384, 1391-92 (10th Cir.1988); see also Fed.R.Civ.P. 56(c). In the present case, none of the material facts underpinning the disposition of the case are disputed. ³ The only question is whether the district court properly applied the law of Kansas in holding that VAMC owed no duty to the plaintiffs for the allegedly negligent release of Garcia. ⁴

DISCUSSION

Plaintiffs characterize their action and the basis of their appeal as follows:

"Plaintiffs' action in the district court was predicated upon the theory that treating physicians at the VAMC failed to adhere to approved psychiatric practice in their treatment of Robert Garcia in failing to determine that he posed an extremely high risk for lethal behavior and negligently released him from inpatient care at the hospital. In support of their action, plaintiffs contended that the Kansas Supreme Court's decision in Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983), governed the case, rendering defendant liable for its negligent release of Garcia into the general public. In granting defendant's motion for summary judgment, the district court held that Durflinger and its application of general negligence principles to a similar case of injuries inflicted by a mental patient were not controlling, and that absent some special relationship between the parties, defendant owed no duty to plaintiffs respecting Garcia's violent outburst. The district court's ruling was a clear misapplication to the governing law of Kansas and should be reversed."

Brief of Plaintiffs-Appellants at 11-12 (emphasis added).

As the plaintiffs indicate, their action is one for negligent release, relying upon Durflinger and the proposition that ordinary negligence principles create, define and govern the alleged duty owed to the plaintiffs by the defendants. The central legal issue is whether, according to the decision in Durflinger, Kansas state mental hospital personnel have a duty not to release a voluntary inpatient under certain circumstances. The district court held that Durflinger applies only to involuntarily committed patients. We agree, and adopt the well reasoned analysis on the point by the district court.

Durflinger involved an action against personnel of a Kansas state mental hospital by relatives of an involuntarily committed mental patient for injuries inflicted by the patient following his release. The Kansas Supreme Court held that in certain circumstances a cause of action did exist in Kansas for the negligent release from a state institution of a patient who had violent propensities. Durflinger, 673 P.2d at 99-100. The plaintiffs stress language in that opinion to the effect that the origin of the duty underlying the cause of action found by the court lay in traditional tort concepts, including due care and foreseeability of harm, not in the involuntary commitment statute, or in the special relationship rules under Restatement (Second) of Torts Sec. 315. ⁵

There is considerable merit to the argument. The Kansas Supreme Court said, among other things: "The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." Id. 673 P.2d at 91 (emphasis in original). "The particular area of the law of negligence with which we are concerned herein is that of medical malpractice." Id. 673 P.2d at 92. "The ... standards for medical malpractice actions are applicable to an action for negligent release of a patient from a mental hospital." Id. 673 P.2d at 94. And, "[i]n actions where liability is predicated on negligent release of a patient from a mental hospital, general rules of negligence and medical malpractice control and there is no reason to apply the concept of special relationship and the resulting affirmative duty to take some special step to protect a third party or the public." Id. 673 P.2d at 99. Finally, the court said:

"In answering the question presented, we are only concerned with whether a duty exists in such circumstance and if so, what the duty is. We have concluded the duty exists and it is encompassed in the general duties of physicians and surgeons."

Id. 673 P.2d at 100 (emphasis in original).

At least one writer has commented upon the fact that the medical malpractice language in Durflinger raises more questions than it answers:

"The court's characterization of Durflinger as a medical malpractice action is puzzling. One wonders if the court intended to limit Durflinger to its facts. As the court itself noted: '[A] physician is obligated to his patient under the law to use reasonable and ordinary care....' The typical plaintiff in a medical malpractice action is the patient or someone acting in the patient's behalf. In Durflinger, the plaintiffs were family members of the patient, but that fact seemed irrelevant to the court's analysis. The court did not indicate whether a medical malpractice characterization would be equally applicable had the victims been total strangers rather than family members of the patient. A negligent release suit by a total stranger could hardly be considered a 'medical malpractice' action."

Note, Torts--Liability of Psychiatrists for Violent Acts Committed By Dangerous Patients--Durflinger v. Artiles, 33 Kans.L.Rev. 403, 414 (1985) (authored by Matthew D. Bunker) (emphasis in original) (footnotes omitted).

A firmer ground for the Supreme Court's reasoning lies...