The Week in Torts – Cases from the Week of June 5, 2020
“Hard To Find Someone Responsible For Someone Else’s Crimes”
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 22
CASES FROM THE WEEK JUNE 5, 2020
MENTAL HEALTH FACILITY OWED NO DUTY TO PREVENT MARJORY STONEMAN DOUGLAS SCHOOL SHOOTER FROM BEING MAINSTREAMED INTO PUBLIC SCHOOL; NOR DID IT OWN ONE TO WARN OF HIS DANGEROUS PROPENSITIES—THE TRIAL COURT PROPERLY DISMISSED THE COMPLAINT AGAINST THE FACILITY.
Pollack v. Cruz, 45 Fla. L Weekly D1244 (Fla. 4th DCA May 27, 2020):
The parents of Meadow Pollack, a child killed in the Marjory Stoneman Douglas High School shootings on February 14, 2018, sued the mental health facility that provided outpatient medical health services to the shooter at various times between 2009 and December 2016.
The facility had provided services to the shooter for his anger issues, and had participated in meetings with school officials to discuss the shooter’s behavioral issues. The facility also participated in meetings to discuss mainstreaming the shooter, which started in January of 2016. The facility was involved in dealing with the shooter’s anger, ADHD and autism issues until December of 2016 when the shooter turned eighteen. At that time he was no longer interested in continuing with therapy, and the case was closed.
In the intervening months, reports of weapons and scary behavior were reported to law enforcement. The shooting took place more than a year after the shooter discontinued services with the facility.
Florida law does not recognize a duty of mental health providers to warn third parties that a patient may be dangerous. Due to the inherent unpredictability associated with mental illness, it is nearly impossible to accurately or reliably predict dangerousness.
A legal duty in Florida also requires more than just foreseeability alone. It requires one to be in a position to “control the risk.” A traditional analysis of a defendant’s liability in negligence for the criminal acts of another, links the existence of a legal duty, to the defendant’s special relationship to the injured party, or to an ability to control some aspect of the criminal act.
The one case in Florida where the Florida Supreme Court recognized that a doctor might owe a duty of care to third persons, arose out of a duty to warn a patient’s children about a genetic condition that the children could inherit (Pate v. Threlkel, 661 So. 2d 278 (Fla. 1995). However, the Fourth District explained that Pate dealt with a far narrower scope of duty than the one at issue, describing that duty as being for the obvious benefit of certain identified third parties whose existence was known to the physician.
The court also rejected the plaintiff’s reliance on the “undertaker’s doctrine,” which states that whenever one undertakes to provide a service to others, whether gratuitously or by contract, the individual assumes a duty to act carefully, and not put others at an undue risk of harm. Voluntarily undertaking to do an act that if not accomplished with due care might increase the risk of harm to others, or might result in harm to others due to the reliance upon the undertaking, confers a duty of reasonable care because it creates a foreseeable zone of risk.
The court observed that even if the facility had played a key role in the decision to mainstream the shooter by consulting with the School Board and making recommendations, that conduct still did not give rise to a duty to protect the administration, teachers and students at the high school from harm, especially when the decision to mainstream the shooter was ultimately up to the School Board, and not the facility.
There was also no “special relationship” giving rise to a duty. While there was a special relationship between the facility and the shooter, and a separate one between the high school and the students, there was no special relationship between a student patient’s mental health provider, and the other students who attended school with the patient.
Finally, the court found public policy weighed against ruling that the facility would owe a duty to the appellants. To find one would not only undermine an effective patient-therapist relationship, but would also discourage mental health professionals from providing mental health services to students. It is difficult to predict any human being’s future conduct, and unlike scientific disciplines firmly grounded in mathematics, psychology is not a precise science, forcing courts to be cautious about expanding liability beyond the therapist-patient relationship.
In a concurring opinion, Judge Gerber also pointed out that when the Legislature amended §456.059, Fla. Stat. to impose a legal duty upon psychiatrists to disclose patient communications to law enforcement agencies to the extent necessary to communicate a specific threat of serious bodily injury or death to an identified or readily available person, the amendments still did not impose a legal duty upon psychiatrists to warn potential victims. This amendment and others similar to it, further support that there was no civil duty in this case.
As Judge Gerber aptly concluded his concurring opinion: “While this explanation provides no solace to this tragedy’s many surviving victims, or the seventeen families who continue to endure indescribable grief, this is the decision which we must render in this case.”
SUMMARY JUDGMENT IN A PREMISES LIABILITY CASE UPHELD ON FAILURE TO MAINTAIN—HOWEVER, ISSUES OF FACT STILL REMAINED REGARDING THE DUTY TO WARN, REQUIRING REVERSAL.
Frederick v. Dolgen Corp, LLC. 45 Fla. L Weekly D1259 (Fla. 2nd DCA June 27, 2020):
After a customer dropped a bottle of laundry detergent near the checkout counter at a Dollar General Store, the store manager immediately left to retrieve cleaning supplies while the other employee continued to check out customers. The manager did not alert the other employee to the spill.
Approximately forty-one seconds after the spill, the plaintiff entered the store and as he was walking past the counter, stepping into the detergent and fell, sustaining injuries.
In light of the fall having occurred fifty-one seconds after the spill, the court found there was not enough time for the defendant to have reasonably corrected the condition, and entered summary judgment on the failure to maintain, which the appellate court upheld.
However, one employee testified that there were “sandwich boards” located behind the counter, to warn customers of wet floors. The store manager admitted that the other employee could have notified the plaintiff of the detergent, if he had told his employee of the spill, which he failed to do. This testimony created an issue of fact about whether the store had a sufficient opportunity to warn of the dangerous condition, thereby necessitating reversal of the summary judgment. That said, the court left open the issue of whether the patch of laundry detergent constituted an “open and obvious” condition, which would have eliminated the need to warn. Because that issue had not been raised on appeal, the court could not rule on it, but said the defendant could raise it on remand.
CLAIM ARISING OUT OF THE ALLEGED FAILURE TO COMPLETE A MEDICALLY NECESSARY PATIENT TRANSFER AS PART OF A SCHEME TO INCREASE ADMISSION RATES OF A MEDICAL CENTER FOR FINANCIAL REASONS, STILL ARISES OUT OF A “FAILURE TO RENDER MEDICAL CARE,” AND REQUIRES COMPLIANCE WITH THE PRESUIT NOTICE REQUIREMENTS.
Rockledge, HMA LLC. v. Lawley, 45 Fla. L Weekly D1282 (Fla. 5th DCA May 29, 2020):
The issue presented was whether a claim arising out of the alleged failure to complete a medically necessary transfer as part of a scheme to increase admission rates–strictly for financial reasons–sounds in medical malpractice for pre-suit notice purposes.
There, the decedent entered the ER at Wuesthoff Medical Center and was diagnosed with several problems requiring intensive care treatment. Plaintiffs asserted that the defendant (1) knew the hospital had no available ICU beds; (2) knew that six other patients in the ER were also awaiting on those ICU beds; and (3) that other hospitals in the immediate vicinity had beds available and could treat the decedent.
That said, instead of making the transfer, the ER physician retained the patient, admitting the decedent, and placing her in the hallway of the ER for several hours where she ultimately became unresponsive and died. Prior to initiating a presuit investigation, the plaintiff sued, alleging that the decedent’s admission was for the sole purpose of generating hospital and/or physician revenue.
The legislature has defined a claim for “medical negligence” as one aim “arising out of the rendering of or failure to render medical care or services.” The Florida Supreme Court has interpreted the statutory language to mean that for an action to sound medical malpractice, the act from which the claim arises must be directly related to medical care or services, thereby requiring the use of professional judgment or skill.
By focusing on acts from which the claim arose, courts have held on several occasions that a claim responsible for an intentional tort, fraud or RICO violation, may also present a medical malpractice claim.
Because the plaintiff here would need to show that the decision to admit the decedent rather than transfer her to another facility was improper—in other words, that the doctor improperly exercised medical judgment—the decision was inescapably linked to the alleged failure to provide appropriate medical care. Thus, compliance with presuit was necessary.