Jenks v. City of West Carrollton

• Decision Date: 15 June 1989
• Docket Number: No. 10788,10788
• Citation: 58 Ohio App.3d 33,567 N.E.2d 1338
• Parties: JENKS , Appellant, v. CITY OF WEST CARROLLTON; Youth Drug Program, Appellee. *
• Court: Ohio Court of Appeals

Page 33

58 Ohio App.3d 33

567 N.E.2d 1338

JENKS [Exrx.], Appellant, v. CITY OF WEST CARROLLTON; Youth Drug Program, Appellee. ^*

No. 10788.

Court of Appeals of Ohio, Second District, Montgomery County.

June 15, 1989.

Syllabus by the Court

1. Recognizing the great difficulty in psychiatric evaluations and treatment plans, and the right of patients to be protected from unnecessary confinement by a psychiatrist, or other health provider, fearful of liability to third persons, the Ohio Supreme Court, in Littleton v. Good Samaritan Hospital & Health Ctr. (1988) 39 Ohio St.3d 86, 529 N.E.2d 449, in the syllabus, adopted the "professional judgment rule." Under this rule, the psychiatrist or other provider is not required to assume the risk of improper treatment. Rather, grounds for liability, including premature discharge and failure to warn, can be a basis for liability only in the absence of good faith or a failure to exercise professional judgment.

2. The "professional judgment rule" does not displace the standard to establish medical malpractice set forth in Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 75 O.O.2d 184, 346 N.E.2d 673, at paragraph one of the syllabus, but, instead, supplements it. Thus, the traditional malpractice rule stated in Bruni applies in situations in which standards of care may be determined, and the Littleton "professional judgment rule" applies when standards cannot be determined.

3. An exception to Civ.R. 51(A)'s requirement that a party may not assign as error the giving or failure to give an instruction exists where the error has seriously affected the basic fairness, integrity or public reputation of the judicial process.

4. Where an appellee orders a transcript because of the appellant's failure to comply with App.R. 9(B), the appellee may not recover the costs of the transcript from the appellant. Under such circumstances, the proper procedure for appellee to follow is to file a motion in the court of appeals to compel the appellant to designate the parts of the transcript ordered. By going forward unilaterally to order his own transcript, the appellee assumes the obligation to pay for the transcript.

Terry L. Lewis, Dayton, for appellant.

David E. Beitzel, Dayton, for appellee.

GRADY, Judge.

This matter comes on appeal from a jury verdict in the court of common pleas adverse to plaintiff-appellant, Arlene Jenks, and in favor of defendant-appellee, Youth Drug Program. Appellant's two assignments of error concern the trial court's charges on instructions to the jury.

Arlene Jenks brought an action for wrongful death arising from the killing of her son, David Jenks, age thirteen. David was raped and murdered on June 25, 1983, by James Louden, age eighteen.

Louden had, from an early age, a history of drug use and other criminal activity, including acts of violence. In July 1979, Louden was adjudicated delinquent and committed to the custody of the Ohio Department of Youth Services.

After three years, Louden was paroled and placed in the custody of the Youth Drug Program, a private agency funded by the mental health board and the Ohio Youth Commission. The Youth Drug Program provides both residential and outpatient care and treatment. The program provides a structured system of rewards and punishments to deter misconduct and promote socially acceptable behavior. Louden began as a resident in the program.

The Youth Drug Program was aware of Louden's history of violence and criminal activity. While a resident in the program, Louden threatened another inmate with a baseball bat. On another occasion he threatened another resident with violence. He was allowed to visit his sister, but admitted to use of drugs while doing so. The program was also aware that Louden had a serious problem of sexual identity. The view was developed, however, that Louden had made progress in controlling his negative behavior and that, by April 15, 1983, his long-term residential treatment goals had been met. Psychological testing indicated that Louden was in the normal range of behavior.

The next step in Louden's treatment was outpatient care. The Youth Drug Program, with the approval of the Ohio Department of Youth Services, placed Louden in foster care with the Cooper family, who also had a son in the program. The Cooper family was not made aware of Louden's history of violence or his sexual identity problem. The Youth Drug Program told the Coopers that Louden was in the program for "a few B & E's and breaking probation."

While with the Coopers, Louden was supervised by a parole officer of the Ohio Department of Youth Services, who observed no problems. Mrs. Cooper observed, however, that Louden was becoming depressed and isolated, and she called the Youth Drug Program on several occasions to advise them of the fact. A clinical psychologist, John Korte, who had been a consultant with the Youth Drug Program, confirmed that Louden began to deteriorate after leaving the residential program. However, no change was made in Louden's case plan.

Several weeks prior to the murder, the Coopers were told by their son that Louden threatened a young neighbor boy with a knife. Louden gave the knife to Mr. Cooper when asked to do so. The Youth Drug Program was advised of the event. The Coopers and the program only learned after the murder that this earlier act also involved rape.

Mrs. Cooper made several telephone calls to the Youth Drug Program prior to June 25, 1983, to advise the program of Louden's problems. The program took no action. On June 25, 1983, Louden raped, repeatedly stabbed, and murdered David Jenks, a neighbor.

Dr. Korte testified at trial that, based on his experience and review of the case, there was no way to predict with any accuracy that Louden would commit murder, and that in his opinion the counsellors at the Youth Drug Program did not deviate from the applicable standard of care in their treatment of Louden. However, immediately after the killing, Jeff Chandler, a counsellor on the program staff, told the Coopers "they knew Louden was going to snap but they didn't know when."

Testimony presented at trial supported the view that the Youth Drug Program was prohibited by law from giving out to anyone information received about Louden from the Ohio Department of Youth Sevices, which was the party responsible to counsel foster families concerning a foster child's past history and emotional problems.

Arlene Jenks brought an action for wrongful death against the Youth Drug Program and the city of West Carrollton. The claims against West Carrollton were settled and dismissed, with prejudice. Trial was had of the claims against the Youth Drug Program. After five days of trial ending November 2, 1987, the jury found in favor of the Youth Drug Program.

Plaintiff-appellant perfected her appeal, and makes two assignments of error:

First Assignment of Error

"The trial court should have properly instructed the jury that the standard of care utilized by the appellee must meet the professional judgment standard."

Appellant argues that the court's instruction concerning the alleged negligence of the Youth Drug Program should properly have included recitations consistent with the decision of the Ohio Supreme Court in Littleton v. Good Samaritan Hospital & Health Ctr. (1988), 39 Ohio St.3d 86, 529 N.E.2d 449. We agree that Littleton now sets out the applicable rule for malpractice of a physician, hospital, or other health care professional or program that has a "special relation" to a patient or client which imposes a duty on the actor to control the conduct of the patient or client. Littleton, supra, at 92, 529 N.E.2d at 455, citing Gelbman v. Second Natl. Bank of Warren (1984), 9 Ohio St.3d 77, 79, 9 OBR 280, 281-282, 458 N.E.2d 1262, 1263. However, Littleton was decided on October 12, 1988 and the instructions of the trial court below were given on November 2, 1987. The trial court did not ignore precedent, therefore. Any error adequate to mandate reversal must be evident from the extent to which the instructions given failed to provide the jury with a view of the alleged negligence consistent with the scope set out in Littleton.

The court's instructions to the jury were extensive. The court gave instructions on reasonable care and probable cause. The jury was instructed that the complaint alleged that the Youth Drug Program was negligent in its care and treatment of Louden in failing to use reasonable care to protect David Jenks from Louden. On the question of negligence, the court stated:

"A special relationship between a psychologist, therapist or counselor and the person being treated imposes a duty upon the former to use reasonable care to protect a potential victim if the professional knew or should have known that the person being treated presented a serious danger of violence for others or was likely to cause harm to others.

"A therapist in the performance of his or her professional responsibilities has the duty to exercise that degree of skill, knowledge, and care ordinarily possessed and exercised by members of that specialty under the same or similar circumstances. That is, he has the duty to exercise reasonable care in the diagnosis and treatment of Louden.

" * * *

"In determining whether reasonable care was used, you will consider whether defendant ought to have foreseen under the circumstances that the natural and probable results of an act or failure to act would cause someone to be injured or killed.

"The test for foreseeability is not whether defendant should have foreseen the rape and murderer [sic ] precisely as they happened to David Jenks. The test, rather, is whether under all the circumstances a reasonably cautious, careful and prudent person would have anticipated that serious injury or death was likely to result to someone * * *."

As to whether the Youth Drug Program negligently failed to prevent harm caused by a person with dangerous propensities, the...