Leavitt v. Brockton Hosp., Inc.

• Decision Date: 09 June 2009
• Docket Number: SJC-10296.
• Citation: 907 N.E.2d 213,454 Mass. 37
• Parties: Dean LEAVITT v. BROCKTON HOSPITAL, INC., & others.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

907 N.E.2d 213

454 Mass. 37

Dean LEAVITT v. BROCKTON HOSPITAL, INC., & others.¹

SJC-10296.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued February 5, 2009.

Decided June 9, 2009.

Jeffrey S. Beeler, Natick, for the plaintiff.

Daniel J. Buoniconti, Cambridge, for the defendants.

The following submitted briefs for amici curiae:

Michael D. Riseberg & Chad P. Brouillard, Boston, for Massachusetts Defense Lawyers Association.

Mary Jane McKenna, Boston, & J. Michael Conley, Braintree, for Massachusetts Academy of Trial Attorneys.

John J. Barter, Boston, for Professional Liability Foundation, Ltd.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

MARSHALL, C.J.

The plaintiff, Dean Leavitt, is a police officer for the town of Whitman. While on duty on November 1, 2004, he responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, Leavitt's police cruiser was hit by another vehicle.² Leavitt was seriously and permanently injured. It subsequently was determined that the pedestrian involved in the accident to which Leavitt was responding had earlier that day undergone a colonoscopy at the Brockton Hospital, Inc. (hospital); the patient was struck by a vehicle while walking home from the hospital.

Leavitt alleges that the hospital and two of its registered nurses owe him a duty of care and committed a breach of that duty when it "released" the patient without an escort—allegedly in violation of hospital policy—after the patient had received sedating medication for his colonoscopy.³ On the hospital's motion to dismiss for failure to state a claim on which relief can be granted, Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974), a judge in the Superior Court concluded that the hospital did not owe Leavitt, an unrelated third party, any duty of care, and allowed the hospital's motion. Judgment entered for the hospital, and Leavitt appealed. We granted his application for direct appellate review. We affirm.⁴

I

The allegations concerning the pedestrian accident to which Leavitt was responding, which we take as true, Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d 870 (1977),⁵ are as follows. The patient underwent a colonoscopy at the hospital on November 1, 2004. In connection with that procedure, he was administered fifty milligrams of Meperidine (Demerol) and two milligrams of Midazolam (Versed), narcotics "specifically used as sedatives and anesthetics" and "known to have the effect of causing tiredness, weakness, problems with coordination, and the inability to think clearly." The policy of the hospital, as well as (it is alleged) "good and accepted practices," required that colonoscopy patients be escorted when leaving the hospital while under the influence of narcotics. The patient was discharged from the hospital without an escort,⁶ and shortly thereafter, as he was walking home, he was struck and killed by a car on the side of the road.

II

To prevail on his negligence claims, Leavitt must prove that the hospital owed him a duty of reasonable care, that the hospital committed a breach of that duty, that damage resulted, and that there was a causal relation between the breach of duty and the damage. See Jupin v. Kask, 447 Mass. 141, 146, 849 N.E.2d 829 (2006), citing J.R. Nolan & L.J. Sartorio, Tort Law § 11.1 (3d ed. 2005); Bennett v. Eagle Brook Country Store, Inc., 408 Mass. 355, 358, 557 N.E.2d 1166 (1990). The hospital argues that the motion judge correctly dismissed the complaint because Leavitt cannot establish the first element, duty, as a matter of law. We agree.

Whether a duty of care exists is a question of law, Jupin v. Kask, supra, and an appropriate subject of a motion to dismiss pursuant to rule 12(b)(6). See O'Meara v. New England Life Flight, Inc., 65 Mass.App.Ct. 543, 544, 842 N.E.2d 953 (2006) (affirming dismissal under rule 12[b][6] on ground that defendants owed no duty to plaintiff). See also Remy v. MacDonald, 440 Mass. 675, 677, 801 N.E.2d 260 (2004) ("If no such duty exists, a claim of negligence cannot be brought").

Leavitt contends that a duty of care exists under any one of three theories: general negligence; a "special relationship" the hospital had with the patient and with Leavitt, respectively; and a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by "impaired" patients. We reject each theory. Reduced to its essence, each rests on a proposition that a hospital or medical provider owes a duty of care to a nonpatient third party to detain a sedated patient in its care and to prevent such a patient from leaving the hospital without an escort.⁷

Citing Coombes v. Florio, 450 Mass. 182, 213-214 n. 6, 877 N.E.2d 567 (2007) (Cordy, J., dissenting), Leavitt argues that the hospital's duty to him under the first two theories (general negligence and special relationship) rests on the "control" it had over the patient before he left the hospital. The proposition is unpersuasive.⁸ Absent a special relationship with a person posing a risk, there is no duty to control another person's conduct to prevent that person from causing harm to a third party, and as we shall explain, there is no special relationship between the hospital and the patient that would give rise to such a duty in the circumstances of this case. See Restatement (Second) of Torts § 315(a) (1965).⁹ See also Restatement (Third) of Torts: Liability for Physical Harm § 41 (Proposed Final Draft No. 1, 2005).¹⁰ Consistent with that principle, this court has recognized a duty to control the conduct of another for the benefit of a third party in narrowly prescribed circumstances. See, e.g., Jean W. v. Commonwealth, 414 Mass. 496, 513-514, 610 N.E.2d 305 (1993) (Liacos, C.J., concurring) (Department of Correction and parole board "may have been in a special relationship with [the released prisoner] because of their custody of and control over him"). We have also recognized such a duty based, in part, on statutory responsibilities. See, e.g., Irwin v. Ware, 392 Mass. 745, 467 N.E.2d 1292 (1984) (town liable to motorist injured by intoxicated driver whom police officer had permitted to drive on highway).¹¹ We have not previously recognized, and do not now recognize, a duty to a third person of a medical professional to control a patient (excluding a patient of a mental health professional, see note 10, supra) arising from any claimed special relationship between the medical professional and the patient.¹² In so deciding we are in accord with courts in other jurisdictions that have addressed the question. See, e.g., Hoehn v. United States, 217 F.Supp.2d 39, 47, 48 (D.D.C.2002) (where patient was "voluntary outpatient," hospital "had no right or ability to control her" and "owed no duty to unidentified third parties to control [the patient] and prevent her from driving upon release"); Young v. Gastro-Intestinal Ctr., Inc., 361 Ark. 209, 214-216, 205 S.W.3d 741 (2005) (rejecting argument that medical center's policy, which required staff to ensure that no colonoscopy patient was sedated unless patient had another person to drive patient from hospital, imposed duty to control patient and restrict her ability to leave medical center); Myers v. Quesenberry, 144 Cal. App.3d 888, 894 n. 3, 193 Cal.Rptr. 733 (1983) (rejecting theory of physician liability based on failure to control patient's conduct by permitting her to drive: such liability "certainly cannot be imposed" in conventional doctor-patient relationship); Shortnacy v. North Atlanta Internal Med., P.C., 252 Ga.App. 321, 325-326, 556 S.E.2d 209 (2001) (physician had no duty to third party to control patient under Restatement [Second] of Torts § 315).¹³,¹⁴ Cf. Hoehn v. United States, supra at 47 (fact that patient who decided to drive while medicated "may have created a dangerous situation" does not "compel the conclusion that medicated patients in general are inherently dangerous").¹⁵ The hospital owed no duty to Leavitt to control or detain the patient.

III

The hospital also claims that it should not be held liable on a separate, independent ground: the injury to Leavitt was not "caused" by any action on its part. We agree. Leavitt's injury was not "caused" by the hospital because it falls outside the scope of foreseeable risk arising from any negligent conduct that would make the hospital's alleged misconduct tortious.¹⁶

As noted earlier, this case is here on the allowance of the hospital's motion to dismiss. Although causation is generally left to a jury to decide, Mullins v. Pine Manor College, 389 Mass. 47, 58, 449 N.E.2d 331 (1983), it may be determined as a question of law where there is no set of facts that could support a conclusion that the plaintiff's injuries were within the scope of liability. See Kent v. Commonwealth, 437 Mass. 312, 320, 322, 771 N.E.2d 770 (2002) (scope of liability ["proximate cause"] determined on motion to dismiss); Stamas v. Fanning, 345 Mass. 73, 76, 185 N.E.2d 751 (1962) ("There are situations where it can be said, as matter of law, that a cause is remote rather than proximate").¹⁷ Cf. Poskus v. Lombardo's of Randolph, Inc., 423 Mass. 637, 638, 670 N.E.2d 383 (1996) (causation resolved on motion for summary judgment); Foley v. Boston Hous. Auth., 407 Mass. 640, 646, 555 N.E.2d 234 (1990) (same).

The law does not impose liability for all harm factually caused by tortious conduct.¹⁸ See Restatement (Third) of Torts, supra at special note on proximate cause, at 574. Liability for conduct obtains only where the conduct is both a cause in fact of the injury and where the resulting injury is within the scope of the foreseeable risk arising from the negligent conduct.¹⁹ See id. at § 29, at 575; Kent v. Commonwealth, supra at 320, 771 N.E.2d 770 (plaintiff must show cause in fact and that injury was "foreseeable result" of conduct); Foley v. Boston Hous. Auth., supra (no causation where "harm which...