Estates of Morgan v. Fairfield Family Counseling Center

Stratton, J.,

dissenting. I concur with Justice Cook’s dissenting opinion. However, I have additional concerns raised by the majority’s murky opinion. After having read the opinion several times, I find it difficult to determine what liability this court is intending to impose, and upon what principles of law it is based.

There are two distinct issues in this case. The first is the liability of Dr. Harold Brown, a “consultant contract psychiatrist,” to third parties for the acts of violence committed by Matt Morgan, an outpatient. With respect to the issues concerning Dr. Brown, I concur in Justice Cook’s dissenting opinion. While Dr. Brown may be liable in malpractice for failing to adequately treat and/or monitor his patient, I find that the imposition of liability in negligence for the actions of Matt Morgan occurring nine months after his last visit with Dr. Brown imposes an impossible standard upon the medical profession. The majority seems to leap *320over sound legal principles of foreseeability and causation to find a “special relation” which creates some sort of perpetual duty and strict liability. Would Dr. Brown’s liability for Matt’s actions have ended twelve months after his last visit? Or would potential liability exist for two years, five years or ten years? The majority provides no answers to these difficult questions. A popular axiom is that bad facts make bad law. The facts in this case are so tenuous that bad law has indeed been created.

The second issue is whether the mental health agency and its employees are immune under R.C. 5122.34 for a decision not to hospitalize Matt Morgan. Against a backdrop of a number of social issues, the General Assembly passed R.C. 5122.34 to provide immunity from liability to various persons providing mental health services. The statute specifically provides:

“Persons, including * * * community mental health agencies, acting in good faith, * * * who procedurally or physically assist in the hospitalization or discharge, determination of appropriate placement, or in judicial proceedings of a person under this chapter, do not come within any criminal provisions, and are free from any liability to the person hospitalized or to any other person. No person shall be liable for any harm that results to any other person as a result of failing to disclose any confidential information about a mental health client, or failing to otherwise attempt to protect such other person from harm by such client. * * * ” (Emphasis added.)

To qualify for immunity under the statute, one must meet two requirements. The first is the duty to act “in good faith.” Good faith is “that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation.” Black’s Law Dictionary (6 Ed.1990) 693. By contrast, bad faith is the “conscious doing of a wrong because of dishonest purpose or moral obliquity.” Id. at 139.

Second, the act performed in good faith must be one for which the statute provides immunity, i.e., “procedurally or physically assisting] in the hospitalization or discharge, determination of appropriate placement, or in judicial proceedings of a person under this chapter.” In an analysis consisting of only two paragraphs, the majority concludes that a decision not to initiate commitment procedures to involuntarily hospitalize a person is a decision not to get involved. The result is that the person will be protected from liability by the statute only if the decision is to involuntarily hospitalize. However, if the person decides against involuntary commitment to a hospital or decides upon some other form of placement, then that person is left open to liability.

I fail to see how an evaluation to determine whether a patient meets the statutory criteria for involuntary hospitalization does not constitute “procedurally * * * assisting]” in hospitalization. Furthermore, the phrase “determination of *321appropriate placement” is obviously intended to cover alternatives to hospitalization. Appropriate placements may include the patient’s own home setting, outpatient treatment, or a special care facility or long-term treatment facility that does not qualify as “hospitalization.” A patient is generally at least risk to others when carefully monitored in the hospital setting; the greater risk lies with the decision not to hospitalize or to place the patient in some other “appropriate placement.” These are all decisions that must be made during that same evaluation period to see whether the patient meets the statutory criteria for individual hospitalization.

Matt Morgan’s case is one of tragic consequences. All concur in hindsight that a different course of action would have been chosen had the outcome been predictable. Unfortunately, however, the consequences of mental illness are unpredictable. Medical science still hotly debates whether mental illness has a physical or chemical basis or is the result of life’s difficult experiences. There is some agreement in the mental health profession as to standards of treatment. However, the ability to predict what patient with which particular mental illness will turn suddenly on society with an act of rage or violence is still, with all the advances in medicine, only a matter of speculation.

As a former trial judge, I encountered many criminal defendants in my court suffering from mental illness or dealing with mental health issues. Often the crime committed did not merit incarceration. Even more often the mental illness had nothing to do with the crime committed, but was simply a facet of the defendant’s personality. Few of these people would physically injure another. Therefore, unless there was a finding of criminal insanity, or mental incompetence to stand trial, a trial court does not have jurisdiction to order commitment or treatment and I was dependent on the civil system to effectuate commitment proceedings if necessary.

Mental health agencies that evaluate these defendants or other indigents constantly battle problems of inadequate available treatment, placement and resources. Many drug treatment facilities will not accept a defendant or indigent with an underlying mental illness. Few can be hospitalized because most do not meet the criteria for involuntary commitment.

Society puts low priority on allocating resources for mental health treatment. Mental health agencies are often underfunded. Many insurance companies do not offer coverage for this kind of treatment. Agencies are often the only available resource for help and, as such, are burdened by an overload of indigent patients. Evaluations are often based on scant information, because mental health patients may be a less than reliable source of information or history. Often there is no caring family to provide rich detail or daily logs of activities.

*322Under these difficult circumstances, mental health professionals are required to evaluate the mentally ill. They are not doctors with high incomes. Most are underpaid and compassionate individuals. They must be dedicated and caring to be able to survive in their profession. They must struggle with the abused, the neglected, and the traumatized, many with criminal histories. In the midst of all this reality, these professionals try to make the best decision for the most unpredictable of human behavior.

Today, the majority exposes thousands of mental health professionals to liability only if they choose not to hospitalize the outpatient. In an age where we encourage the least restrictive environment in caring for the mentally ill, we have just created the greatest incentive to do the opposite, as Justice Cook points out in her dissent. The majority appears to mandate hospitalization of all patients and to create strict liability for violent acts of the outpatient if hospitalization is not ordered. The majority is advising thousands of mental health workers that they have statutory immunity for making a choice to hospitalize if made in good faith. However, if they choose, in good faith, not to recommend hospitalization, they are completely liable to the patients themselves, and to anyone else the patient may injure because of their “special relation.” I do not believe that this was the intent of the legislature. This interpretation defies even common sense. Mental health workers must now be responsible for protecting or controlling the violent propensities of their patients even in the absence of specific threats made against specific individuals and regardless of whether the professional exercised good faith when making a recommendation for placement.

The record reflects that Matt Morgan exhibited few signs that would alert anyone to the tragic events of July 25, 1991. He drew a picture of a gun during psychotherapy in 1990; he attempted to hit his father; he struck a telephone pole with a baseball bat. His recorded behavioral changes (becoming quiet, withdrawn, moody, eating poorly, and talking to himself) were hardly signs that indicated a potential for the degree of violence that occurred. No one could have predicted that during a game of cards, this young man would get up from the table, go and get a gun, and shoot his family.

I believe that R.C. 5122.34 applies not only to the decision to hospitalize, but also to the decision not to hospitalize and to decisions recommending other placement.

Further, I do not agree with the majority that a special relationship between a psychotherapist and an outpatient creates some sort of “common-law duty” to take affirmative steps to protect third parties from an outpatient’s violent conduct. The majority’s statement that R.C. 5122.34 “does not preclude the finding” of a special relationship appears to create a new standard. This renders meaningless the immunity provisions of R.C. 5122.34 because all psychotherapists *323and their outpatients have a special relationship. The majority has created a new liability for the mental health profession despite the good-faith provision of R.C. 5122.34 and common-law principles of causation and foreseeability.

Finally, I note that paragraphs two, three and four of the syllabus appear to apply only to “psychotherapists.” I am perplexed as to whether the majority intended the law created by this opinion to apply only to those professionals labeled as “psychotherapists” or also to psychiatrists and to the broader category of all persons in the mental health field who are involved in the care and treatment of an outpatient.

It appears that the majority wanted to reach a particular result in this case, so it fashioned a new remedy outside the statute rather than interpreting the statute to reach the result. This is not our role. As tragic as the facts of this case are, the legal principles which flow from the majority’s opinion are flawed. Although the professionals at Fairfield Family Counseling Center may have exercised poor judgment with respect to appropriate placement or failure to involuntarily hospitalize Matt, the law grants them immunity for what is a subjective evaluation of another’s mental state.