Volk v. DeMeerleer

Wiggins, J.

(dissenting)

¶76 I agree with the majority on one of two points. I agree that medical malpractice suits are generally not available to nonpatient third parties. Majority at 254. We have never recognized a claim for medical malpractice brought by a nonpatient third party against a physician. See Paetsch v. Spokane Dermatology Clinic, PS, 182 Wn.2d 842, 850 n.6, 348 P.3d 389 (2015). I therefore join in the majority’s opinion to the extent that it reverses the Court of Appeals on this issue and rejects Beverly Volk’s medical malpractice claim.

¶77 However, I do not agree that Volk presented a viable medical negligence claim. Indeed, our analysis should end upon establishing the medical malpractice claim’s failure. While the majority proceeds to take up Volk’s medical negligence claim, Washington law establishes medical malpractice as the exclusive means of recovery for a healthcare-related injury: “No award shall be made in any action . . . for damages for injury occurring as the result of health care” except in the following three circumstances: (1) where the health care provider failed “to follow the accepted standard of care,” (2) where the provider “promised ... that the injury suffered would not occur,” or (3) where the patient did not consent to treatment that resulted in injury. RCW 7.70.030. The first category describes negligence *281actions.15 Here, the claim fails to meet the requirements for medical malpractice; thus, the party cannot recover “for injury occurring as the result of health care,” id,., as the majority permits here, majority at 255.

¶78 Even if we allow for a medical negligence claim outside the medical malpractice framework, I strongly disagree with the majority’s interpretation of Restatement (Second) of Torts §§ 315-319 (Am. Law Inst. 1965) (Second Restatement), and with the majority’s unheralded adoption of the substantially broadened Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41 (Am. Law Inst. 2012) (Third Restatement).16 The Second Restatement § 315 states that “[t]here is no duty so to control the conduct of a third person ... unless ... a special relation exists.” The Third Restatement, however, and the majority’s holding, would broaden the special relationship exception to encompass any mental health professional, and by its reasoning any ongoing relationship of influence, regardless of that person’s ability or inability to exercise the control required.

¶79 This expansion of liability is unsupported either by our case law or by the Second Restatement §§ 315-319; the majority functionally adopts the Third Restatement § 41, declining to find any capacity for control before imposing a duty to control. Such a substantial transition should be made plainly, explicitly, and only after full discussion and careful consideration—none of which has happened here.

¶80 Nor do I think such an expansion of liability is wise, as it singles out mental health professionals to uniquely answer for the actions of others against third parties. Moreover, broadening the duties and potential liabilities of these professionals threatens to chill critical mental health services while sparking unnecessary litigation.

*282¶81 For these reasons, I respectfully dissent.

I. The Second Restatement Does Not Establish a Duty To Control Where There Is No Ability To Control

¶82 Generally, there is no duty to protect third parties from the actions of others. At issue is the Second Restatement § 315(a) exception to this rule: where a “special relation” exists with the person causing the harm, there is a duty to control the person so as to prevent harm to a third party. We have adopted this provision as an exception to Washington common law, which generally precludes tort liability for the actions of others against third parties. See Petersen v. State, 100 Wn.2d 421, 426, 671 P.2d 230 (1983) (citing Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185, 188 (D. Neb. 1980)).

¶83 The Second Restatement enumerates instances of such special relationships in subsequent §§ 316-319. See Hertog v. City of Seattle, 138 Wn.2d 265, 277, 979 P.2d 400 (1999) (noting that there are “several special relationships described in the Restatement (Second) of Torts,” with § 319 being most relevant to that case); see also Taggart v. State, 118 Wn.2d 195, 219, 822 P.2d 243 (1992) (noting the sections following § 315 “define various ‘special relations’ that, in accordance with the general principle stated in § 315, give rise to a duty to control a third person”). As § 315 requires a party to exercise control, the ensuing sections list relationships allowing for such control.

¶84 This understanding is consistent with our approach to third-party liability in Binschus v. Department of Corrections, 186 Wn.2d 573, 578-81, 380 P.3d 468 (2016). In that case, we considered what special quality triggers a § 315 special relationship, thereby creating a duty to control the conduct of others. “Crucial to our analysis,” we emphasized, “is the nature of that duty: ‘to control the third person’s conduct.’” Id. at 578 (internal quotation marks omitted) (quoting Restatement (Second) § 315). In Binschus, we ex*283plained that some of our case law may be misinterpreted to suggest that there is “a broad duty to prevent all reasonably foreseeable dangers” independent of the ability to control. Id. at 580 (noting that certain concluding language in Taggart “can be taken out of context”). Thus, we clarified:

[A] “duty ... to control” is, indeed, a duty to control. We did not previously, and do not today, expand it to a general duty to prevent a person from committing criminal acts in the future.

Id. at 580-81 (second alteration in original) (quoting Restatement (Second) § 319). In contrast to this careful cabin-ing of §§ 315-319 duties, here the majority asserts that “there is no prerequisite of actual control” before imposing a duty to control. Majority at 261 n.10. This result we plainly foreclosed in Binschus.

¶85 Nor is the majority’s interpretation consistent with the language of the Second Restatement §§ 315-319. When we interpret nonexclusive lists, we follow the interpreta-tional canon of ejusdem generis. Ejusdem generis requires that “ ‘specific terms modify or restrict the application of general terms where both are used in sequence.’ ” State v. Otton, 185 Wn.2d 673, 700, 374 P.3d 1108 (2016) (Gordon McCloud, J., concurring) (internal quotation marks omitted) (quoting State v. Stockton, 97 Wn.2d 528, 532, 647 P.2d 21 (1982)). In the Second Restatement, the general term is § 315, titled “General Principle”; the special relationships in the following sections (each describing a specific “Duty”) constitute the specific terms. The feature common to the enumerated specific sections is the ability to exercise control in the special relationship: § 316 describes a parent’s control over a child, § 317 describes a master’s control over a servant, § 318 describes a landowner’s control over the use of his/her land,17 and § 319 describes a person’s duty to exert control when taking charge of another. See Binschus, 186 Wn.2d at 581 n.3 (“[T]he concept of‘control’ must be a *284part of any § 319 analysis.”). Thus, the list, §§ 316-319, while not exclusive, narrows the scope of special relationships to those situations where the ability to control exists. This narrowing is also logical, as without the ability to control, the § 315 requirement to exercise control would be to no effect; one cannot use what one does not have. Critically, this requirement to exercise “control” is shed by the Third Restatement, instead requiring “reasonable care.” Restatement (Third) § 41(a).

¶86 In contrast to the language of the Second Restatement, the majority seeks to impose the § 315 duty to control on an outpatient relationship in which the ability to control is expressly absent. Volk concedes that Howard Ashby lacked the ability to control his outpatient James DeMeer-leer; this lack was the reason for the failure of Volk’s § 319 argument, as § 319 imposes a duty to control when one “takes charge” of a dangerous person. Where the duty to exert control is required by § 315, I cannot agree with the majority’s assertion that “the amount of control or the nature of control [in the relationship] ... is not determinative” for a Second Restatement analysis. Majority at 262.

¶87 The majority further holds that a “definite, established, and continuing relationship” is sufficient to create a “duty to protect against foreseeable dangers” under § 315. Id. at 256 (citing Honcoop v. State, 111 Wn.2d 182, 193, 759 P.2d 1188 (1988)). However, in Honcoop, we refused to impose a § 315 duty to protect third parties precisely because there was a lack of control. 111 Wn.2d at 193 (“Regulatory control over a third party is not sufficient to establish the necessary control which can give rise to an actionable duty.”). We declined to broaden the scope of the special relationship beyond the sphere of an ability to control.

¶88 In Petersen, we similarly found that there was an ability to exercise control before imposing a § 315 duty to exercise control. In Petersen, the dangerous party was involuntarily incarcerated and subject to the control of *285doctors and hospital staff. 100 Wn.2d at 423-24. Petersen does not stand for the proposition that any therapist-patient relationship constitutes a special relationship, triggering a duty to exercise control; rather, it acknowledged that control existed and from there required that control be exercised. We recently restated this interpretation of Petersen, highlighting that “the injury to the plaintiff was a foreseeable consequence of the failure to control the patient.” Binschus, 186 Wn.2d at 582. The majority’s contention that “under Petersen,... a duty exists without regard for the ‘control’ principle” is thus novel and contradicted by our language in Binschus. Majority at 261.

¶89 In its holding, the majority would expand the duty to intervene for the benefit of third parties wherever a “definite, established, and continuing relationship” exists; while appearing to apply this definition only to mental health professionals pursuant to the Third Restatement § 41 comment g, the majority’s reasoning could easily encompass teammates, partners, and other ongoing relationships in which control is absent but influence exists. Imposing a duty to protect third parties from the actions of others wherever a “definite, established, and continuing relationship exists” is unsupported by our case law or the Second Restatement. I can conclude only that the majority instead invokes and quietly adopts the expansive language of the Third Restatement, free of the need for “control.”

II. The Third Restatement Would Substantially Broaden Liability to Third Parties Who Are Injured by Others

¶90 The Third Restatement § 41, as adopted by the majority, departs substantially from the Second Restatement §§ 315-319. Rather than requiring a controlling relationship before imposing a duty to exercise control, the Third Restatement’s comments explicitly state that control *286is not necessary in mental health contexts.18 Under the Third Restatement, the ability to seek the involuntary commitment of an outpatient is sufficient to give rise to a duty to act.

¶91 As a result of the majority’s holding, a special relationship invoking an uncommon duty to act to protect third parties from others is imposed, not merely on the basis of relationships of control—be it master and servant, parent and child—but on the basis of any relationship of influence that is “definite, established, and continuing.” Majority at 261. Control is unnecessary; action must be taken where “reasonable.” Id. at 262-63. This decision strays far from describing a narrow exception imposing liability only for the actions of those already within one’s control; instead, the exception swallows the rule.

¶92 Notably, the Third Restatement § 41(b)(4), concerning the liability of mental health professionals, has not been explicitly adopted by any state, nor have the implications of its adoption been fully explored. On the contrary, where § 41 has been considered in other states, those courts have declined to rely on it. See Kuligoski v. Brattleboro Retreat, 2016 VT 54A, ¶ 44, 156 A.3d 436 (“Although we have discussed it above for background, we have not adopted and relied upon § 41(b)(4) of the Restatement (Third) of Torts.”).19 Here, the majority sheds the Second Restate-*287merit's “control” principle and adopts instead broad new liability inherent in the Third Restatement; yet this step is taken without carefully considering the ramifications of such a transition.

¶93 If it is indeed appropriate to so broaden the duty to answer for the actions of others, it behooves us to articulate the precise scope of this new duty, to whom it will apply, and why we make such a change.

III. Public Policy Does Not Support Broadening Liability for Acts by Others Where There Is No Ability To Control

¶94 The majority supports the imposition of broad liability on mental health professionals by highlighting the public’s interest in safety from violent assaults by the mentally ill. Majority at 265-66. While I agree that there is a strong policy interest in protecting the public, imposing liability on mental health professionals for the potential actions of their patients seems an uncertain means of achieving this public protection.

¶95 The majority accepts as unquestioned the proposition that expanding liability advances the public’s interest in safety, yet there are a number of reasons why this may not be the case: First, excessive involuntary commitment greatly harms those unnecessarily confined.20 See Br. of Amicus Curiae of Wash. State Psychological Ass’n at 10-11. Second, alerting the authorities in the absence of a clear target or imminent threat by the patient hardly assists in the prevention of harm (while breaching patient confidentiality). See Br. of Amicus Curiae of Wash. State Med. Ass’n et al. at 14. Third, the risk of involuntary commitment on *288the one hand and a weakened confidentiality shield on the other hand may actively discourage the mentally ill from seeking treatment. It seems contrary to the public interest to transform therapy sessions into a doorway to involuntary commitment; chilling treatment harms, rather than protects, the public body.21

¶96 Thus, while I would decline to consider a medical negligence case divorced from the comprehensive medical malpractice framework, I would also require that the ability to control be first established before imposing a duty to control the acts of others to protect third parties.

IV. Conclusion

¶97 While I agree that Volk failed to present a viable medical malpractice claim, I disagree with the majority’s conclusion that any mental health professional’s relationship with a patient gives rise to a general duty to protect third parties from harm by those patients. This is a substantial and unheralded departure from our previous case law and from the Second Restatement. Like the majority, I would reverse the Court of Appeals and reject the medical malpractice claim. However, I would affirm the trial court’s grant of summary judgment in favor of Ashby and the Spokane Psychiatric Clinic on all issues, and thus respectfully dissent.

Madsen, C.J., and Owens, J., concur with Wiggins, J.

Reconsideration denied March 9, 2017.

See 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 16:4, at 674-75 (4th ed. 2013) (noting that medical negligence claims are brought under RCW 7.70.030).

The Third Restatement § 41 explicitly replaces the Second Restatement §§ 315(a), 316, 317, and 319. See Restatement (Third) § 41 cmt. a.

More specifically, the Second Restatement § 318(a) confines any duty owed by a landowner to those situations in which “he has the ability to control’’ the person using or in possession of his land.

See Restatement (Third) § 41 cmt. g (noting that “reasonable care may require providing appropriate treatment, warning others of the risks posed by the patient, seeking the patient’s agreement to a voluntary commitment, making efforts to commit the patient involuntarily, or taking other steps to ameliorate the risk posed by the patient’’). Thus, a practitioner could be expected to violate patient confidentiality by contacting county-designated mental health professionals, who would then evaluate the case and, in their discretion, petition the court for involuntary commitment of a given patient. RCW 71.05.150(l)(a)-(b). A patient could then be involuntarily committed if there is evidence that the patient’s actions “constitute a likelihood of serious harm’’ or that the patient is otherwise severely disabled. RCW 71.05.160.

The Massachusetts Supreme Judicial Court noted the changes promulgated by the Third Restatement in its 2009 Leavitt v. Brockton Hospital, Inc. case, but neither explicitly adopted it nor discussed its implications. 454 Mass. 37, 41, 907 N.E.2d 213; see also Roe No. 1 v. Children’s Hosp. Med. Ctr., 469 Mass. 710, 714, *28716 N.E.3d 1044 (2014) (mentioning but not discussing the Third Restatement § 41). The Connecticut Appellate Court also noted the Third Restatement's development while declining to embrace it absent adoption by that state’s Supreme Court. Cannizzaro v. Marinyak, 139 Conn. App. 722, 734, 57 A.3d 830 (2012), aff’d on other grounds, 312 Conn. 361, 93 A.3d 584 (2014).

It is worth emphasizing that the mentally ill constitute a part of, not simply a threat to, our public body.

When the legislature cabined Petersen in RCW 71.05.120, it emphasized the importance of balancing both public safety and patient privacy. As a result, designated crisis responders, tasked with reviewing patients for potential involuntary commitment, are required to take reasonable precautions in case of violent behavior only where there is “an actual threat of physical violence against a reasonably identifiable victim.’’ RCW 71.05.120(3).