'At odds with the real interests of Vermont's health care providers, patients, and the public at large'

BRATTLEBORO >> An amended Vermont Supreme Court decision may end up harming the very people it is intended to help, contend the state of Vermont and two dissenting justices.

The majority's ruling "has immediate and potentially far-reaching consequences for Vermont's system of care," wrote Chief Justice Paul Reiber and Justice Marilyn Skoglund, in their dissent. "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."

In its filing urging the Supreme Court to reconsider, the state noted "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."


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The family of Michael Kuligoski filed suit against the Brattleboro Retreat and Northeast Kingdom Human Services for injuries sustained after Evan Rapoza, attacked and beat Kuligoski with a wrench in March 2011. Kuligoski, a furnace technician, was working at a property owned by the Rapoza family, when he was severely beaten in 2011. Kuligoski requires constant medical attention, according to the complaint filed by the family. Rapoza was found to be insane at the time of the attack and criminal charges were eventually dismissed.

Before the attack, Rapoza was diagnosed with schizophrenia and in 2010 he spent nearly two months at the Retreat. After he was discharged from the Retreat, his treatment plan was turned over to Northeast Kingdom Human Services, where he was prescribed antipsychotic and anti-anxiety medications.

After the local court dismissed the suit in 2014, Kuligoski's family appealed to the Vermont Supreme Court, which affirmed the decision. However, the three-member majority ruled that mental health care providers have a responsibility to inform patients and patient caretakers of known risks in caring for dangerously mentally ill patients. The court held that Vermont law requires that doctors provide information reasonably necessary to keep patients, their caretakers, and others who foreseeably encounter a dangerous patient, safe. Previous court rulings had acknowledged only a duty to warn an identifiable victim of the risk of attack from a dangerously ill mental patient.

In the amended decision, the majority affirmed the lower court's dismissal of failure-to-treat and negligent-undertaking claims but ordered the local court to rehear the failure-to-inform claims.

The court's decision, wrote the state in its motion for re-argument, "may also deter family members and others from helping to care for those with mental illness."

Though the majority, in the amended decision, made changes to "narrow" the May 2016 ruling, noted Reiber and Skoglund, "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."

The Retreat's attorney, Ritchie Berger, of Dinse, Knapp & McAndrew, issued a statement to the media, in which he stated the Retreat was disappointed that the three justices in the majority refused to reconsider their decision.

"Multiple agencies and mental healthcare organizations, even the Vermont Agency of Human Services, urged the Court to reconsider this newly created legal duty that the dissenters. ... We strongly agree with the dissenting Justices' view that the majority decision, 'is at odds with the real interests of Vermont's health care providers, patients, and the public at large.'"

Following the local court's decision in 2014, Berger noted that as a matter of law, neither the Retreat nor Northeast Kingdom Human Services had a legal duty to Kuligoski or his family. "(Windham Superior Court) Judge John Wesley applied a very long-standing Vermont Supreme Court precedent in his decision," said Berger. In the 2014 motion to dismiss, Retreat attorneys contended making mental health providers liable for patients harming "anyone in the world," even if its "days, weeks or even years after discharge," was unreasonable.

According to the Vermont Supreme Court, prior to the May 2016 decision, therapists and mental health facilities have a duty to warn when a patient makes a threat against an identifiable victim. However, the court noted, there is generally no duty to control the conduct of another person to prevent harm to a third party, such as Rapoza's attack on Kuglioski. While a therapist has a duty to exercise reasonable care to prevent harm to third parties, that duty to warn arises only when triggered by risk of danger to an identifiable victim.

While a therapist or facility might bear responsibility when they know of an imminent threat to a defined group of people, wrote Wesley, neither the Retreat nor Northeast Kingdom could predict "when or under what circumstances (Evan Rapoza) would become generally dangerous, and the foreseeability of his particular danger to Michael Kuligoski was non-existent. The claim that Defendants could have exercised reasonable care that would have prevented an eventual injury to an unknown person months after (Rapoza) terminated treatment, stretches the concept of common-law duty to act reasonably to prevent harm ..."

In its amended decision, the majority wrote "defendants had no duty enforceable by a third party to treat (Evan Rapoza), to seek involuntary commitment of (Evan Rapoza), or to adopt a particular discharge plan. The only potential duty we recognize in this case ... involves a duty to provide certain information in a specific class of cases. That duty applies when a caregiver is actively engaging with the patient's provider in connection with the patient's care, the patient's treatment plan (or in this case, discharge plan) substantially relies on that caregiver's ongoing participation, and the caregiver is himself or herself within the zone of danger of the patient's violent propensities. The information to be conveyed is reasonable information to notify the caregiver of the risks, and of steps he or she can take to mitigate the risks."

The majority also noted that anyone seeking to file a lawsuit for a care provider's perceived failure to notify face "significant obstacles ... plaintiffs here will have to establish the content of the reasonable disclosure, and a failure to provide that information. Not only must plaintiffs prove duty and breach, they will have to prove causation — that any failure to inform they can prove was more likely than not a but-for cause of their injuries."

"Even though we have great empathy for the Kuligoski family, the lawsuit will continue to be vigorously defended based on the facts and on the medicine involved," Berger said on Tuesday. "And in the interest of all Vermonters, it is hoped that the Legislature will act promptly to overturn this decision."

Bob Audette can be contacted at 802-254-2311, ext. 160.