Kuligoski ex rel. Kuligoski v. Brattleboro Retreat & Ne. Kingdom Human Servs.

• Decision Date: 06 May 2016
• Docket Number: No. 2014-396,2014-396
• Citation: 2016 VT 54
• Parties: Carole Kuligoski, Individually and On Behalf of Michael J. Kuligoski, Mark Kuligoski and James Kuligoski v. Brattleboro Retreat and Northeast Kingdom Human Services
• Court: Vermont Supreme Court

2016 VT 54

Carole Kuligoski, Individually and On Behalf of Michael J. Kuligoski,Mark Kuligoski and James Kuligoski v. Brattleboro Retreat and Northeast Kingdom Human Services

No. 2014-396

Supreme Court of Vermont

May Term, 2015

May 6, 2016

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Windham Unit, Civil Division

John P. Wesley, J.

Richard T. Cassidy and Matthew M. Shagam of Hoff Curtis, Burlington, for Plaintiffs-Appellants.

Ritchie E. Berger and Angela R. Clark of Dinse, Knapp & McAndrew, P.C., Burlington, for Defendant-Appellee Brattleboro Retreat.

Stephen J. Soule and Pamela L. Eaton of Paul Frank + Collins P.C., Burlington, for Defendant-Appellee Northeast Kingdom Human Services.

Joslyn L. Wilschek and Shireen T. Hart of Primmer Piper Eggleston & Cramer PC, Montpelier, for Amicus Curiae The Vermont Association of Hospitals and Health Systems.

O. Whitman Smith of Mickenberg, Dunn, Lachs & Smith, PLC, Burlington, for Amicus Curiae Vermont Council of Developmental and Mental Health Services, Inc.

Allan R. Keyes of Ryan Smith & Carbine, LTD., Rutland, for Amici Curiae University of Vermont Medical Center, Central Vermont Medical Center and Rutland Regional Medical Center.

A.J. Ruben, Montpelier, for Amicus Curiae Disability Rights of Vermont, Inc.

PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morris, Supr. J., Specially Assigned

¶ 1. DOOLEY, J. This case arises out of the assault of Michael Kuligoski by a former Brattleboro Retreat patient, E.R., after the patient was discharged from the Retreat, a mental health treatment facility, and while he was undergoing outpatient treatment with Northeast Kingdom Human Services (NKHS). Plaintiff Carole Kuligoski, individually and on behalf of Michael, Mark Kuligoski, and James Kuligoski (collectively "plaintiffs"), filed suit in Windham Superior Court against defendants Brattleboro Retreat and NKHS, raising claims of failure to warn of E.R.'s danger to others, failure to train E.R.'s parents in handling E.R., failure to treat, improper release, and negligent undertaking. The superior court granted defendants' motions to dismiss for failure to state a claim, and plaintiffs appealed. We reverse on the failure to warn and train claims, and affirm on the failure to treat, improper release and negligent undertaking claims.

¶ 2. Plaintiffs' complaint alleges the following facts,¹ as relevant to this appeal. On October 9, 2010, E.R. was voluntarily admitted to the Psychiatric Department at Central Vermont Medical Center (CVMC) with a "psychotic disorder" after having threatened young children in his home. During his first few days at CVMC, E.R. was easily agitated, made threatening remarks, reported auditory hallucinations, was easily agitated, and had fair-to-poor judgment. The examining physician tentatively diagnosed E.R. with a schizophreniform disorder.

¶ 3. On October 15, 2010, the medical professionals at CVMC completed the necessary documents to have E.R. involuntarily committed. The documents stated that he was mentally ill, posed a danger to himself and others, and was in need of involuntary hospitalization. The following day, E.R. was placed in restraints and transferred from CVMC to the Vermont State Hospital where a physician examined him and determined that he was a danger to othersand, if released, would pose a danger to his family. There is no indication that either the documents prepared at CVMC or the determination of the physician at the Vermont State Hospital were ever used to start a formal involuntary commitment proceeding. Nor is there an explanation of the basis on which E.R. continued to be held at the Vermont State Hospital. We can conclude only that E.R. must have been held as a voluntary patient.²

¶ 4. While at the Vermont State Hospital, E.R. was administered anti-psychotic and anxiety medication. He repeatedly asked to leave the hospital, once tried to escape, threatened to punch out a window, and, although he denied having auditory hallucinations, was observed reacting to unseen stimuli. After E.R. reported feeling unsafe at the hospital, a social worker made a referral for his transfer to the Retreat, a nonprofit psychiatric hospital in Windham County, Vermont. Upon his discharge from the state hospital, he was diagnosed with schizophreniform disorder.

¶ 5. On October 22, 2010, E.R. was examined by a physician at the Retreat who confirmed the state hospital's diagnosis. The physician reported that E.R. "had verbalized homicidal ideation toward staff." E.R. was thereafter placed on a staff-intensive treatment plan but continued to exhibit "grossly psychotic" behavior, lack of insight, and severely impaired judgment. His physician noted that he "required an in-patient level of care to prevent furtherdecompensation."³ Further reports indicate auditory and visual hallucinations, menacing behavior, and homicidal and suicidal ideation.

¶ 6. On November 1, 2010, E.R.'s physician noted that "E.R. continued to be floridly psychotic, probably paranoid, guarded and gradually improving but that he remained sufficiently ill that he totally lacked insight into his illness and that E.R. would be non-compliant with treatment outside of the hospital." He further noted that E.R. would remain on the treatment plan and be allowed out only for brief intervals.

¶ 7. During his time at the Retreat, E.R.'s behavior did not improve. In his November 10, 2010 assessment, E.R.'s physician stated that, if discharged, E.R. would be a high risk for decompensation, might stop his medication, and might not participate in aftercare treatment. Nevertheless, he stated that E.R. would be discharged on November 12.

¶ 8. On November 12, 2010, E.R.'s physician noted that he stopped taking his medication and had been hearing voices commanding him to kill himself. E.R. said of the commands, "I feel like I should do it." His physician wrote in his assessment, "Obviously [E.R.'s] refusal of medications is very worrisome and exactly what this writer was concerned about. Not only abstractly is it a bad idea, but he actually seems to have experienced an increase in his voices with only missing one night's medications." E.R. was, however, discharged that same day.

¶ 9. Throughout the period of his treatment at both the Vermont State Hospital and the Retreat, E.R. was closely monitored by his parents, with whom he had been living. Exactly what the parents were told at the time of discharge is disputed, although it appears they were told that E.R. "might have schizophrenia." They understood that E.R. was "going through a phase and would recover."

¶ 10. In the discharge summary, E.R.'s physician again stated that E.R. was a high risk for poor compliance with post-discharge treatment; E.R. had been diagnosed as having a "psychotic disorder, not otherwise specified"; and that E.R.'s parents believed his mental health was related to his breakup with a girlfriend in 2009 or possibly a sequela resulting from mononucleosis. He stated that E.R. met the criteria for schizophrenia or, at the very least, schizophreniform disorder.

¶ 11. Prior to E.R.'s discharge, the Retreat developed an aftercare treatment plan with E.R.'s parents that involved regular visits to NKHS. E.R. was also prescribed daily medication, which his mother was told to administer to him. E.R.'s mother believed that E.R.'s condition had considerably improved at the time of his release.

¶ 12. On December 1, 2010, E.R. met with a treatment team at NKHS and signed a cognitive remediation therapy plan. A week later, a member of the treatment team completed a Substance Abuse Addendum, in which he stated "that E.R. was a high risk for Dimension 3 of the Client Placement Criteria (emotional, behavioral or cognitive conditions/complications) because E.R. had recently been diagnosed with a psychotic disorder and had minimal insight surrounding the diagnosis."

¶ 13. In mid-December, E.R. told his mother that he had stopped taking his medication. She called NKHS and spoke with one of the physicians on E.R.'s treatment team. The physician told E.R.'s mother that this was a cause for concern but that E.R. had to decide to take care of himself. E.R. did not meet with anyone at NKHS between mid-December 2010 and March 2011, and no one at NKHS reached out to E.R. during that time or took any action with respect to E.R.'s medication regime.

¶ 14. On February 26, 2011, E.R. accompanied his father to an apartment building in St. Johnsbury owned by E.R.'s grandparents. Plaintiff Michael Kuligoski was also at the apartment building, working on the furnace. E.R. went down to the basement where Mr. Kuligoski was working and assaulted him, causing serious injuries. The forensic psychiatristwho evaluated E.R. at the request of the criminal court stated that the night before the offense, E.R. had not slept well, awoke early that morning, was just "sitting and staring," and was paranoid that people were staring at him en route to the apartment. The psychiatrist believed that E.R. likely was in a "psychotic haze" at the time of the offense, having been "overcome by the symptoms of his condition to the degree where he acted while in a psychotic storm."

¶ 15. Plaintiffs filed a complaint in superior court, alleging seven counts: (1) the Retreat was negligent in discharging E.R. knowing of his dangerous tendencies and that he was a high risk for decompensation; (2) the Retreat was negligent in failing to warn E.R.'s parents that he posed a risk to the general public; (3) the Retreat was negligent in failing to train E.R.'s parents how to supervise him, monitor...