Sellers v. U.S.

• Decision Date: 24 March 1989
• Docket Number: No. 88-1179,88-1179
• Citation: 870 F.2d 1098
• Parties: James SELLERS, conservator of the estate of Terrance Sellers, an incompetent person, Plaintiff-Appellant, and Frank J. Kelley, Attorney General of the State of Michigan and the Michigan Department of Social Services, Plaintiffs-Intervenors, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1098

870 F.2d 1098

James SELLERS, conservator of the estate of Terrance Sellers, an incompetent person, Plaintiff-Appellant and Frank J. Kelley, Attorney General of the State of Michigan and the Michigan Department of Social Services Plaintiffs-Intervenors, v. UNITED STATES of America, Defendant-Appellee.

No. 88-1179.

United States Court of Appeals Sixth Circuit.

Argued Jan. 31, 1989.

Decided March 24, 1989.

Gary C. Newton (argued), Sloan, Benefiel, Farrer, Newton & Glista, Kalamazoo, Mich., for James Sellers.

Janis Meija, Asst. Atty. Gen., Stephen H. Garrard, Asst. Atty. Gen., Lansing, Mich., for Frank J. Kelley, Attorney General of the State of Mich., Michigan Dept. of Social Services.

Anne Vandermale Tuuk, Asst. U.S. Atty., Janice Kittelmann (argued), Asst. U.S. Atty., Grand Rapids, Mich., for U.S.

Before KRUPANSKY and BOGGS, Circuit Judges, and EDWARDS, Senior Circuit Judge.

PER CURIAM.

Sellers appeals the decision of the district court finding that, as a matter of law, the government owed no duty to Sellers's ward for the conduct of Allen Firestine, who was treated for manic depression at the Veteran's Administration Hospital (VAH) in Battle Creek, Michigan. Sellers's ward, Terrance Sellers, was severely beaten by Firestine on February 17, 1985. Firestine had been an inpatient and was still receiving outpatient treatment at the time of the incident. Sellers filed suit against the VAH under the Federal Tort Claims Acts (FTCA), 28 U.S.C. Sec. 2671 et seq., for negligent discharge of Firestine from the VAH, negligent outpatient treatment, and negligent failure to warn the public of Firestine's potentially violent behavior. We affirm the district court's decision on the grounds that a psychiatrist has no duty to warn the general public in such situations, but has only a relatively narrow duty to warn readily identifiable potential victims.

I

Sellers filed an administrative claim on August 16, 1985. On February 21, 1986, the claim was denied, at which time a complaint was filed in district court. The complaint alleged that the VAH was negligent in discharging Firestine and that, during the outpatient phase of treatment, the VAH was negligent in its medication and treatment regimen, as well as in failing to recognize that Firestine was again becoming manic.

On June 2, 1986, the government moved for summary judgment, which motion focused on the issues of duty and proximate cause. In addition, the government moved for dismissal of the allegations regarding improper treatment and medication because they had not been raised at the administrative level. The district court held that the administrative claim was sufficient as a prerequisite to the claims filed in the district court, but that the government owed no duty to Sellers's ward arising from the outpatient treatment. Thus, summary judgment for the government was entered on January 13, 1988.

Firestine was voluntarily admitted to the VAH on October 1, 1984, stating "I cannot handle myself without proper medications, I have mood swings and I need help." In further conversations, he stated that he could become very angry. The discharge summary shows that Firestine was described as hyperactive and labile (unstable). He was diagnosed as having a bipolar disorder, commonly known as manic depression, and was initially placed on Thorazine. This was replaced with Haldol for a short time; however, because of side-effects, he was later switched back to Thorazine. He was then started on lithium carbonate. Lithium carbonate is typically used in cases involving bipolar disorder, or manic depression, often during maintenance phases of treatment. While in the VAH, Firestine exhibited aggressive or assaultive behavior a number of times. Notes in his files indicate that he was variously hyperactive, threatening (including having threatened a student nurse with harm and, ultimately, death), demanding of attention and extremely aggressive. While an inpatient, he was involved in an altercation with another veteran in which nobody was hurt. He was discharged on December 19, 1984 and was to continue to receive outpatient treatment. He was prescribed lithium carbonate.

Sellers alleges that the dosage of lithium was too small during the outpatient stage of treatment. Indeed, tests showed that Firestine's lithium blood level dropped from 1.00 mEq (milli-equivalent) while an inpatient to 0.67 mEq during his first outpatient visit after having been released. At that time, his prescribed dosage was decreased twenty percent. He was seen again about a month later, on February 13, 1985, at which time his blood lithium level was 0.52 mEq. At the time of that visit, he was cheerful and complained of poor sleep, both symptoms of relapse. Dr. Nagler Sellers's expert, stated that "[f]alling lithium levels and sleep disturbances are sirens that should alert one to potential difficulties in patients with bipolar disorders and require further blood tests and immediate followup and monitoring."

Early on February 17, 1985, Firestine confronted Terrance Sellers and beat him over the head with a baseball bat. A witness to the beating, Frank Wagner, testified that Sellers was not armed nor was he angry or intruding. The altercation took place in a motor home of Sellers's former girlfriend, Colleen Savage, who had become Firestine's girlfriend and is now his wife. Savage testified that Sellers had arrived intoxicated and armed with "nun-chucks" to confront Firestine. The investigating police officer saw no evidence that the door had been struck by nun-chucks, as Firestine claims it had. Kenneth Dubois, the taxi-driver who drove Sellers to Savage's home, stated that Sellers was not belligerent when he got out of the cab.

Dr. Nagler stated that the therapeutic blood lithium level is 0.6 to 0.8 mEq, as did Dr. Abad, who treated Firestine as an inpatient. However, Dr. Abad later changed his testimony, stating that 0.5 is the proper level. Dr. Brophy, the government's expert, testified that the maintenance level is 0.4 to 1.0. However, on cross-examination, Brophy admitted that the man who he regards as the "top authority in the world," Dr. Schou, states that the standard level is 0.6 to 0.8. Dr. Halaris, another expert, stated that "a lithium plasma level below 0.7 milliquivalents per liter is not generally associated with clinical efficacy." The Physician's Desk Reference states that "desirable serum lithium levels are 0.6 to 1.2." Dr. Inumerable testified that a psychiatrist would worry about a person with bipolar disorder becoming violent if he had a relapse.

It is undisputed that Firestine never mentioned Terrance Sellers to any of the personnel at the VAH, nor did he voice any threats towards Sellers prior to the incidents. In fact, there is nothing in the record to indicate that Firestine knew Sellers at all until after his release.

The trial judge granted summary judgment, finding that the government had no duty towards Sellers. First, the court noted that, in Michigan, the rule is that duty hinges on foreseeability, which itself hinges on whether the victim was readily identifiable as a likely target of a patient's aggression. Thus, because Firestine had never mentioned Sellers to anybody at the VAH, Sellers was not readily identifiable, and thus any incident with Sellers could not have been foreseen. In fact, with respect to the claim that Firestine was negligently released from the VAH, the judge noted that Firestine did not even know Sellers at that time. With respect to the claims of negligence in post-release monitoring, the judge found that Sellers was no more readily identifiable after Firestine's release than before it, and that a psychiatrist owes no general duty to the public at large, unlike a physician, who may have a more expansive duty of care in some circumstances. The court explained that this difference in the scope of the duties of physicians and psychiatrists is based on the greater indefiniteness, and thus decreased foreseeability, with regard to psychological, as opposed to physical, illness. Thus, the judge concluded that the VAH owed Sellers no duty of care regarding the post-release monitoring of Firestine.

II

On appeal, Sellers argues that the VAH did owe a duty to Sellers's ward as a member of the public. He argues that it was entirely foreseeable that Firestine would exhibit aggressive behavior, and that he might act violently. In addition, because of decreased lithium blood levels and increased symptoms associated with manic depression, Sellers argues that the VAH knew or should have known that Firestine was in need of greater doses of medication, and that he was heading towards a relapse. The government argues that the psychiatrist's duty is only to readily identifiable persons, and that Sellers was in no sense readily identifiable.

The standard of review of a summary judgment is that a summary judgment should be sustained if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

The law to be applied in cases brought under the FTCA is "the law of the place where the act or omission occurred." 28 U.S.C. Sec. 1346(b). Thus, because all of the acts and omissions alleged here occurred in Michigan, the law of the state of Michigan applies.

However, intermediate state court decisions are not controlling "where the highest court of the State has not spoken on the point." Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967) (citations omitted). If there has been no decision by the state's highest court on an issue, "federal authorities must apply what they find to be the state law after giving 'proper regard' to relevant rulings of other courts of the State." Ibid. In...