Kuligoski ex rel. Kuligoski v. Brattleboro Retreat & Ne. Kingdom Human Servs., No. 2014-396

Docket NºNo. 2014-396
Citation2016 VT 54 A
Case DateSeptember 16, 2016
CourtUnited States State Supreme Court of Vermont

2016 VT 54A

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

No. 2014-396

Supreme Court of Vermont

May Term, 2015
September 16, 2016


ENTRY ORDER

AUGUST TERM, 2016

APPEALED FROM:

Superior Court, Windham Unit, Civil Division

DOCKET NO. 47-2-14 Wmcv

In the above-entitled cause, the Clerk will enter:

An amended opinion has been issued in this case in response to appellant's motion for reargument. The opinion issued May 6, 2016, Kuligoski v Brattleboro Retreat, 2016 VT 54, is withdrawn and replaced by an amended opinion, Kuligoski v Brattleboro Retreat, 2016 VT 54A. The State of Vermont's motion to file for reargument as amicus curiae is granted. Appellees' and amici curiaes' motions for reargument are denied.

REIBER, C.J. and SKOGLUND, J. dissenting. After this opinion first issued in May 2016, the Court received an astonishing number of motions for reargument—from the parties, amici, and not least the State of Vermont, Agency of Human Services—urging the majority to reconsider its decision to impose a new, ill-defined, and unprecedented duty of care on mental health care providers in the State of Vermont.

The State's motion is especially noteworthy because it represents neither a party to the case nor one of the many amicus curiae invested in its outcome, but rather the broader interests of health care patients and their families statewide. The State's clear and dispassionate analysis of both the immediate and long term damage resulting from the majority's misguided judgment is essential reading for anyone interested in the subject. While far too nuanced to summarize adequately, the State's view is captured in its introduction, which is well worth quoting in full:

The Court's May 6, 2016 decision imposes on mental health care providers a "duty of care to provide sufficient information" to a patient's "caretakers" so those individuals can "fully assume their caretaker responsibilities to assist [the patient] and protect against any harmful conduct in which he might engage. . . . " The ambiguous scope of this new duty creates the very real risk that providers—facing uncertain liabilities and potentially conflicting legal obligations—will err on the side of providing treatment in more restrictive settings and making more requests for involuntary treatment. The ruling thus has immediate and potentially far-reaching consequences for Vermont's system of care. It may also deter family members and others from helping to care for those with mental illness. . . . The Court should vacate the opinion and reconsider its decision to adopt this novel duty of care.

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Unfortunately, although the majority has made changes to "narrow" its holding, the changes are entirely inadequate to address the harm identified by the State: the majority's failure to recognize that it has created and imposed on mental health care providers a duty so ill-defined and uninformed that even the best, and the best-intentioned, providers will be confused and conflicted as to their professional obligations. Ironically, although the majority clearly believes that its decision represents progressive thinking, it is at odds with the real interests of Vermont's health care providers, patients, and the public at large. The State is correct; the Court should grant the several motions for reargument, vacate its decision, and reject this novel duty.

FOR THE COURT:

/s/_________
John A. Dooley, Associate Justice

Dissenting:

/s/_________
Paul L. Reiber, Chief Justice

/s/_________
Marilyn S. Skoglund, Associate Justice

Concurring:

/s/_________
Beth Robinson, Associate Justice

/s/_________
Walter M. Morris, Jr., Superior Judge (Ret.)
,
Specially Assigned

Page 3

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. (Ret.), 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

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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 claim and train claims, and affirm on the failure to treat, improper release, failure to train, 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, 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 others and, if released, would pose a danger to his family. There is no indication that either the documents

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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 further

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decompensation."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...

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