Volk v. Demeerleer

• Decision Date: 13 November 2014
• Docket Number: No. 31814–1–III.,31814–1–III.
• Citation: 184 Wash.App. 389,337 P.3d 372
• Court: Washington Court of Appeals
• Parties: Beverly R. VOLK as Guardian for Jack Alan Schiering, a minor; and as Personal Representative of the Estates of Philip Lee Schiering and Rebecca Leigh Schiering, and on behalf of the statutory beneficiaries of Philip Lee Schiering; and Brian Winkler, individually, Appellants, v. James B. DEMEERLEER, as Personal Representative of the Estate of Jan DeMeerleer; Howard Ashby, M.D. and “Jane Doe” Ashby, husband and wife, and the marital community composed thereof; Spokane Psychiatric Clinic, P.S., a Washington business entity and healthcare provider ; and Does 1 through 5, Respondents.

184 Wash.App. 389

337 P.3d 372

Beverly R. VOLK as Guardian for Jack Alan Schiering, a minor; and as Personal Representative of the Estates of Philip Lee Schiering and Rebecca Leigh Schiering, and on behalf of the statutory beneficiaries of Philip Lee Schiering; and Brian Winkler, individually, Appellants

v.James B. DEMEERLEER, as Personal Representative of the Estate of Jan DeMeerleer; Howard Ashby, M.D. and “Jane Doe” Ashby, husband and wife, and the marital community composed thereof; Spokane Psychiatric Clinic, P.S., a Washington business entity and healthcare provider ; and Does 1 through 5, Respondents.

No. 31814–1–III.

Court of Appeals of Washington, Division 3.

Nov. 13, 2014.

Michael Jon Riccelli, Attorney at Law, Spokane, WA, for Appellants.

David A. Kulisch, Attorney at Law, Spokane, WA, for Defendant.

Robert F. Sestero, II, Patrick Mark Risken, Evans, Craven & Lackie, P.S., David A. Kulisch, Attorney at Law, Spokane, WA, for Respondents.

Paul Arthur Bastine, Attorney at Law, Spokane Valley, WA, Amicus Curiae on behalf of Washington State Psychological Association.

Opinion

FEARING, J.

¶ 1 We undertake the humbling and daunting task of demarcating the duty a mental health professional owed to third parties to protect them from the violent behavior of the professional's outpatient client. The parties, the mental health care profession, and the residents of Washington State would be better served by the legislature addressing this question after a comprehensive review of scientific data and statistics and after a thorough airing of the competing interests and policies involved. Since we conclude that the state legislature has not addressed the duty owed in the context of an outpatient client, we follow the Supreme Court precedent of Petersen v. State, 100 Wash.2d 421, 671 P.2d 230 (1983). We rule that a question of fact exists as to whether Dr. Howard Ashby and his employer, Spokane Psychiatric Clinic, P.S., owed a duty to protect the general public, including plaintiffs, from violent behavior of patient Jan DeMeerleer.

¶ 2 During the early morning of July 18, 2010, Jan DeMeerleer entered the home of his former girl friend, Rebecca Schiering, and killed her and her son Phillip. He attempted to kill another son, Brian, but left Phillip's twin, Jack, alive. Afterward, DeMeerleer killed himself. Prior to the killings, Jan DeMeerleer received outpatient treatment for his depression and bipolar disorder from psychiatrist Dr. Howard Ashby.

¶ 3 Brian Winkler, individually, and Beverly Volk, as guardian ad litem for Jack Schiering, and as personal representative for the estates of Rebecca Schiering and Phillip Schiering (collectively Schierings) brought suit against Dr. Howard Ashby and the clinic that he worked, Spokane Psychiatric Clinic, P.S., for professional malpractice, loss of chance, and negligence. The trial court dismissed the Schierings' action on summary judgment because Jan never threatened the Schierings in his sessions with Dr. Ashby.

¶ 4 To the extent the Schierings argue Dr. Howard Ashby should have involuntarily committed Jan DeMeerleer, we affirm the trial court's dismissal. We also affirm dismissal of the Schierings' lost chance claim and dismissal of the Schierings' claim of independent negligence against Spokane Psychiatric Clinic, P.S. But because a question of fact exists as to whether Dr. Howard Ashby owed a duty to protect the general public, including the Schierings, we reverse the dismissal of the claim against Howard Ashby for negligence in treating Jan DeMeerleer and the claim against Spokane Psychiatric Clinic, P.S. for vicarious liability and remand for further proceedings.

FACTS

¶ 5 Since the Schierings claim Jan DeMeerleer's psychiatrist committed malpractice, we review DeMeerleer's psychiatric background. In response to the summary judgment motion, the Schierings provided the trial court with some of Dr. Howard Ashby's chart notes. We do not know if all notes were provided.

¶ 6 Jan DeMeerleer was born in 1971 and received his degree in mechanical engineering from Purdue University, where his bipolar disorder and depression first surfaced. He was hospitalized with suicidal thoughts and first diagnosed with the diseases during the summer of 1992. A mental health professional then placed DeMeerleer on Depakote, a medication that treats manic episodes resulting from bipolar disorder. DeMeerleer soon ceased taking the medication. He moved to the Midwest for education and jobs. He imbibed alcohol to treat his depression.

¶ 7 In 1996, DeMeerleer married Amy after living with her for three years. The two first met at a Moscow, Idaho high school where they graduated in 1989.

¶ 8 Jan DeMeerleer next sought treatment for his disorders in 1997, when he once again developed suicidal thoughts. A physician treated DeMeerleer on an outpatient basis and prescribed Depakote again. DeMeerleer ceased his sporadic use of the drug in 1998, because he disliked its side effects. The drug decreased his creativity. He was embarrassed for others to know he took antipsychotic drugs.

¶ 9 Jan and Amy DeMeerleer moved to Spokane in 2000, where their daughter was born that year. Amy, with the daughter, vacated the family home in 2003. The couple divorced in 2004 and agreed to share residential care of the daughter, exchanging her every four days.

¶ 10 Jan DeMeerleer sought psychiatric care from defendant Dr. Howard Ashby beginning September 13, 2001. His wife, Amy, attended Jan's first visit to Ashby. Dr. Howard Ashby obtained a history from his patient, Jan DeMeerleer. Ashby's 2001 intake notes contain the history recited above. The notes also read in part:

September 13, 2001 Dr. Ashby Jan Demueller [sic] N/P Intake

....

By August of 1998 after sporatic [sic] use [of Depakote ] when he stopped it totally, he immediately went into a high and had “great feelings.” He describes very much grandiose behavior. Over the past 2 years he has not received treatment and approximately 2 months ago quit his job in a grandiose manipulation and play at work where he basically states he made a fool of himself at work, said stupid things and engineered himself out of the job in his delusional state thinking this was a grandiose thing to do. He states that earlier this summer he had suicidal ideation and even homicidal ideas, was going to leave the country. He states that in less manic situations he has a tendency to want to feel powerful, manipulates his wife, relatives and friends with stories. He indicates that at work he was so productive and good that at one time they even went along with his desire to be called by some fantastic name because he was so active and “gung ho”. He states that last March he was grandiose to the point that he felt “I'm here to show earthlings what they are capale [sic] of”. He indicates that as he looks back he recognizes that he was completely out of control.

In August of this year, his wife had to start working because he had quit his job. He started having some depression again and suicidal ideation including playing Russian Roulette. That gun and other weapons have been removed from the home and on Labor Day weekend he had an “intervention” with his family in which he invited them together and finally showed them the records of his previous hospitalization, etc., came clean with everything and asked for their support and help particularly to be able to help his wife when he gets into a manic or depressive swing.

Regarding mania, if he feels suicidal, it's to drive high speeds and hurt himself that way, regarding depression he states he is so immobile that he can't do it although he has had thoughts. He does describe 10 years ago however of being placed in the hospital because he laid down on railroad tracks with the idea of being decapitated.

... He was placed in jail at age 20 because of the train having to stop when he was trying to kill himself and was detained in the hospital. Subsequently, at age 21, while in college he was in jail for alcohol, stealing bikes and states it was during one of his out of control episodes during college.

Mental Status Exam: He is logical and goal oriented, somewhat labile [emotionally unstable].... He expresses motivation to get help and to be compliant with medication at this time, however. His mood overall is neutral but again at times he can be very serious but not necessarily depressed but quite intense. Cognition is normal, content is good, judgment is intact. He is not suicidal or homicidal. No obsessions or compulsions.... Interaction with wife in this interview was appropriate.

Impression:

Axis I: Bipolar affective disorder with frank manic episodes but also apparently mixed presentations with a response to Depakote in the past but with poor compliance.

Axis II: A possibility of cyclothymic personality disorder and some obsessive compulsive traits which will all need to be further evaluated as time goes by and he further stabilized.

....

Plan: Reinstitute Depakote, get blood level and baseline labs after he is on 500 mg twice a day for 4 or 5 days. Getting the medication at trough level were all described so he can get the level done appropriately.... I feel that having a fairly aggressive dose would be appropriate due to the description and seriousness of his symptoms and the possibility that he was only partially treated and this may have contributed somewhat to his difficulty with compliance. We will have to watch side effects to help with the compliance also. Set up additional appointments not only to monitor medication but to do therapy.

Clerk's Papers (CP) at 238–40. Cyclothymic personality disorder is a mild form of bipolar disorder, with meeker mood swings between depression and hypomanic.

¶ 11 Dr. James Knoll, the Schierings' expert, averred in a declaration that he reviewed the clinical records from Spokane Psychiatric Clinic, P.S. In turn, Knoll included information in his declaration concerning Jan DeMeerleer's treatment, not included in the chart notes provided to...