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Did Retreat have ‘a duty to warn?’

State Supreme Court rules that victim of a 2011 assault in St. Johnsbury can pursue legal claims against Brattleboro Retreat and Northeast Kingdom Human Services, which previously had treated the assailant for mental illness. But critics — including two dissenting justices — say the court’s decision sets a bad precedent.

BRATTLEBORO—A sharply divided Vermont Supreme Court has opened the door for Brattleboro Retreat to face negligence claims in connection with a 2011 assault committed by a former patient.

A majority of justices ruled that the family of the assault victim, Michael J. Kuligoski of St. Johnsbury, can pursue claims that the Retreat and Northeast Kingdom Human Services failed to warn of the dangers posed by assailant Evan Rapoza, who had been under the care of both facilities for mental illness.

Burlington attorney Richard Cassidy, representing the Kuligoski family, said the Supreme Court ruling is important — though he cautioned against making any broad assumptions about mental disabilities.

“We’re not saying that most people who have a mental illness are dangerous. In fact, nothing could be further from the truth,” Cassidy said. “It’s only a small percentage of the population that really represents this kind of risk, and not all of them can be identified in advance. But some of them can be.”

But some say the ruling will greatly expand the duty of mental health workers to warn of potential dangers. That worries two dissenting Supreme Court justices as well as the Retreat’s attorney, Burlington-based Ritchie Berger.

“We are very disappointed by the majority decision of the Vermont Supreme Court, which creates a legal duty of care that did not exist in Vermont — or anywhere else in the country — when the patient at issue was being cared for,” Berger said.

One of the dissenting jurists — Associate Justice Marilyn Skoglund — went even further. The majority decision is “illogical, potentially fatal to effective patient-therapist relationships, and places an impossibly onerous obligation on those who provide mental health care to the people of this state,” Skoglund wrote.

At issue is Rapoza’s treatment in fall 2010, and what happened afterward. During stays at Central Vermont Medical Center, the Vermont State Hospital, and the Retreat, he was diagnosed with a psychotic disorder and exhibited symptoms associated with schizophrenia, according to court documents.

While at the Retreat, Rapoza experienced auditory and visual hallucinations, displayed “menacing behavior,” and expressed homicidal and suicidal ideas, documents show. He also stopped taking his medication, leading one doctor to observe that Rapoza “actually seems to have experienced an increase in his voices [after] only missing one night’s medications.”

But he was discharged from the Retreat that same day into the care of his parents. “Exactly what the parents were told at the time of discharge is disputed, although it appears they were told that [Rapoza] ‘might have schizophrenia,’” Supreme Court justices wrote in summarizing the case. “They understood that [Rapoza] was ‘going through a phase and would recover.’”

Rapoza’s treatment plan involved medication and regular visits to Northeast Kingdom Human Services. When Rapoza’s mother reported that her son had stopped taking his medication, a physician at that agency told her “that this was a cause for concern but that [Rapoza] had to decide to take care of himself,” court documents say.

That was in December 2010. On Feb. 26, 2011, at an apartment building in St. Johnsbury owned by his family, authorities said Rapoza assaulted Kuligoski, who was working on a furnace at the time.

Cassidy said Kuligoski was struck in the head with a pipe wrench and dragged across the floor by a belt wrapped around his neck before his head was forcibly submerged in a bucket of water. He suffered brain damage and partial paralysis, the attorney said.

Rapoza was not tried for the crime because he was declared insane. A psychiatrist commented that Rapoza had committed the assault in a “psychotic storm.”

The question is whether anyone at the Retreat or Northeast Kingdom Human Services should have warned Rapoza’s parents that such a storm was possible.

A Windham Superior Court judge struck down the Kuligoskis’ initial lawsuit, ruling that the two mental health providers shouldn’t be held responsible because Kuligoski couldn’t have been foreseen as a victim and the defendants “were under no duty to control” Rapoza at the time of the assault.

The Kuligoskis appealed to the Vermont Supreme Court. The majority ruling, issued May 6, was a mixed bag for the victim’s family.

The decision says the lower court was correct in throwing out failure to treat, improper release, and “negligent undertaking” claims that had been filed against the Retreat and Northeast Kingdom Human Services.

But the justices also reversed the dismissal of two other claims — that mental health workers had failed to properly warn and train Rapoza’s parents upon his release.

The ruling indicates that the assailant’s parents lacked a “a complete warning” of what might happen if Rapoza stopped taking his medication. The justices also say the Kuligoskis’ complaint “is replete with allegations that staff members at [the] Retreat were well aware of [Rapoza’s] capacity for violence.”

“We conclude that, by transferring custody of a patient with a psychotic disorder to caretakers whom they knew lacked psychiatric training and experience, the Retreat owed a duty of care to provide sufficient information to the parents so they could fully assume their caretaker responsibilities to assist [Rapoza] and protect against any harmful conduct in which he might engage,” the justices wrote.

While mental health workers have a duty to warn known, potential victims of a patient’s conduct, the justices note that previous case law is divided on how far that duty extends. In this case, they decided, Rapoza’s parents qualified for a warning because they were “individuals in the ‘zone of danger’ of [his] dangerous propensities.”

The same duties applied to Northeast Kingdom Human Services, they ruled.

The justices aren’t finding either agency guilty of negligence; rather, they are remanding the case back to Superior Court for further proceedings. Nonetheless, the reaction to the majority’s opinion was swift and strong.

“We empathize deeply with the Kuligoski family; however, we do not believe that the Brattleboro Retreat is in any way responsible for the tragedy they experienced,” Berger said in a statement issued May 9. “Like hospitals and institutions across the nation, the Retreat is committed to the well-being of its clients and their family members.”

The Retreat’s attorney said his comments were limited due to “further [court] proceedings that may lead to trial.”

D.W. Bouchard, executive director of Northeast Kingdom Human Services, cited the same concerns. But he also concurred with the Retreat’s consternation about the ruling’s potential impacts.

“It is actually a rather frightening precedent,” Bouchard said. “It’s very early. We’re still trying to assess the impact of all of this.”

State Supreme Court Chief Justice Paul Reiber needs no such time to assess. In a dissenting opinion, he accused his colleagues of throwing judicial caution to the wind.

In the past, Reiber wrote, the “predominant legal response has been to specifically define and limit a metal health provider’s duty to protect third parties, generally requiring a serious threat to a readily identifiable victim.”

Significantly expanding that duty, as the majority does in this case, has “potentially broad consequences,” Reiber wrote.

“To impose such a duty on health care providers undermines the fundamental policy underlying our mental health care system — a policy designed to maximize a patient’s freedom and dignity by providing treatment in the least restrictive environment available,” Reiber wrote.

From his position as the Kuligoskis’ legal advocate, Cassidy doesn’t see it that way. He believes it all comes down to different interpretations of case law, along with the unique circumstances of Rapoza’s treatment and discharge.

In instances where patients pose a danger, Cassidy believes the message for mental health workers is clear: “Your obligations are not just to patients, but also to the general public.”

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Originally published in The Commons issue #356 (Wednesday, May 11, 2016). This story appeared on page A1.

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