Hokansen v. United States

HOLLOWAY, Chief Judge,

dissenting:

I respectfully dissent. I am unable to agree that the record in this case supports the granting of summary judgments against the plaintiffs. In light of the principles in Kansas law, particularly as stated in Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983), the summary judgments were erroneous.

First, I am deeply concerned because of the evidence of Garcia’s mental problems. The extraordinarily strong nature of his problems obviously served to heighten the responsibilities of the physicians at the Veterans Hospital at Wichita, where he was hospitalized several times. Garcia’s background is stated generally in the majority opinion, but I am concerned by additional particularly distressing circumstances.

On February 2, 1981, Garcia was admitted as a voluntary psychiatric inpatient at the VAMC following a suicide attempt. The hospital records during this hospitalization refer to Garcia’s reporting a history of difficulty with his parents and wanting to know what bad dreams about murder and robbery meant. A clinical psychologist performed tests on Garcia and concluded he was a type who would be unpredictable, tending to be angry, irritable and assaultive. This hospitalization continued from February 2 until March 12, 1981 when the staff discharged him. On March 23 Garcia was voluntarily readmitted to the VAMC. He expressed fear of being alone, fear of losing control, and fear of suicidal thoughts. On this occasion he remained hospitalized until the staff discharged him on April 1.

Thus, just over seven months prior to the November tragedy of three homicides and the serious wounding of another person by Garcia, he had been hospitalized with the VAMC for over 45 days, and twice discharged at the initiative of the staff despite the distressing history of his mental illnesses. In opposition to the Government’s motion for summary judgment, the plaintiffs submitted a detailed memorandum and an attached affidavit of Dr. William O’Connor. I R. Item 38. Dr. O’Connor listed 14 factors Garcia’s doctors should have assessed before releasing him. These assessments would have checked for symptoms related to violence or a threat of violence. Dr. O’Connor concluded that the failure to assess Garcia on these criteria prior to his discharge was a departure from standard approved psychiatric practice. Id. In addition to Garcia’s disturbing history mentioned above, there were reports of Garcia having struck persons over the head with a lead pipe and a bottle. Thus the record as a whole made a strong showing to support the plaintiffs’ negligent release claim.

Second, under Kansas general negligence principles a summary judgment for the defendants dismissing these cases is unjustified. Plaintiffs allege negligence by the Government physicians at the VAMC and rely primarily on the general principles *380of negligence discussed in the Kansas Supreme Court’s Durflinger opinion answering certified questions. Our court affirmed recovery in that case on general negligence principles. Durflinger v. Artiles, 727 F.2d 888 (10th Cir.1984). I am unable to agree that those general principles allowing recovery for negligent release are confined, as the majority opinion concludes, to cases where there is involuntary commitment of a patient pursuant to K.S.A. 59-2917 (Supp. 1987). It is true that the Durflinger opinion refers to the determination by the head of the hospital, which was required, that the mentally ill patient there be discharged when “no longer in need of ‘care and treatment,’ ” citing K.S.A. 59-2924 (Supp.1973). And the Durflinger opinion said this meant “ie. no longer dangerous to himself or others.” 673 P.2d at 94 (emphasis in original). Durflinger involved an involuntarily committed patient whom the doctors in the State hospital were required to release when he was no longer in need of care and treatment, but the opinion in no way supports the conclusion that recovery for a negligent release resulting in injury to others is limited to cases involving that partió ular type of determination.1

Durflinger says the following rationale applies to a therapist’s duty in a negligent release case:

Thus the judgment of the therapist in diagnosing emotional disorders and in predicting whether a patient presents a serious danger of violence is comparable to the judgment which doctors and professionals must regularly render under accepted rules of responsibility.

Id. 673 P.2d at 93 (quoting Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976). The reference to “a serious danger of violence” resulting from negligent release is stated in general terms, logically applicable to either a voluntary or involuntary commitment.

In sum, the negligent release principles announced in Durflinger, in harmony with Kansas law generally, are in no way confined to circumstances where the dangerous patient came into the care of the physicians following an involuntary commitment. In state facilities a voluntary patient, like Garcia, must be discharged where the head of the treatment facility determines treatment “to be no longer advisable.” K.S.A. 59-2906 (Supp.1987). Thus a parallel professional judgment is required before discharge of a voluntary patient, although in somewhat different terms. The difference in no way indicates that consideration of the safety of others and the danger of violence to them is not involved. Consistent with this reasoning, one federal district judge in Kansas has interpreted Durflinger as allowing a cause of action for negligent treatment of a psychiatric patient, without distinguishing voluntary and involuntary patients or mentioning the Kansas involuntary commitment statute. See Beck v. Kansas University Psychiatry Foundation, 580 F.Supp. 527, 539-40 (D.Kan.1984). Other federal courts have discussed recovery on FTCA claims based on negligent treatment or release of dangerous mental patients without relying on state involuntary commitment statutes. See Eanes v. United States, 407 F.2d 823, 824 (4th Cir.1969) (voluntary mental patient); Soutear v. United States, 646 F.Supp. 524, 531, 538 (E.D.Mich.1986); Lipari v. Sears, Roebuck & Co., 497 F.Supp. 185, 193-94 (D.Neb.1980).

The difference between a dangerous voluntary and involuntary patient is that the former had the presence of mind to commit himself to a treatment facility. One author has suggested that even this difference is often lacking. See “The Voluntary Psychiatric Patient,” Benjamin Farney, 45 Journal of Kansas Bar Association 37, 38 *381(1976).2 Neither the reality of Garcia’s situation, nor the general principles affording recovery for negligent release in violation of professional duty, support a narrow and technical interpretation of those principles.

I think the error of the majority’s holding is revealed by considering what the outcome would have been in Durflinger had Bradley been 17 years old instead of 19. Bradley’s grandparents filed the petition to have him committed. If Bradley had been 17 years old, his grandparents could have made a written application to have him voluntarily committed.3 Even if Bradley had been unwilling, according to Kansas law he would still have been classified as a voluntary patient. Under the majority’s holding, his doctors would have had no duty to the public for his negligent release, no matter how violent and dangerous he was, and no matter how many people they knew he might kill. Or a patient could enter a mental hospital voluntarily, deteriorate rapidly after admission, and finally kill several other patients. The very next day, according to the majority’s opinion, the hospital staff could discharge him, without any liability, even though they knew he might likely kill again. Under the majority opinion, in neither of these situations could the hospitals or physicians have been liable for a negligent release. This distressing interpretation of Durflinger is not supported by the Kansas Supreme Court’s opinion.

Third, I think that by denying recovery because of procedures set out in the Kansas Probate Code, we analyze Kansas tort law at a different level than is proper in this Federal Tort Claims Act case. The state statutes would not control the internal procedures governing the decisions of the physicians and psychotherapists at the federal YAMC. Veterans Administration hospitals have their own procedures on the care and treatment of psychiatric patients. See Castillo v. United States, 552 F.2d 1385 (10th Cir.1977). Such regulations are there cited at length. Id. at 1387.4

38 U.S.C. § 621 (1986) provides:

The Administrator shall prescribe—
(1) such rules and procedure governing the furnishing of hospital, nursing home, and domiciliary care as the Administrator may deem proper and necessary;
(2) limitations in connection with the furnishing of hospital, nursing home, and domiciliary care; and
(3) such rules and regulations as the Administrator deems necessary in order to promote good conduct on the part of persons who are receiving hospital, nursing home, or domiciliary care in Veterans’ Administration facilities.

Regulations promulgated under this statutory rule-making power are controlling instead of a conflicting state statute. See Texas Employers’ Insurance Association v. United States, 569 F.2d 874 (5th Cir.1978).5

It is true that the Federal Tort Claims Act incorporates negligence principles from state law. 28 U.S.C. § 1346(b) (1986). Nevertheless, under the Act claims may be asserted against the Government for the negligence of federal employees when the negligence is related to conduct regulated *382by federal rules. In Sheridan v. United States, — U.S. -, -, 108 S.Ct. 2449, 2454, 101 L.Ed.2d 352 (1988), the Supreme Court reversed dismissal of a Federal Tort Claims Act suit for negligent conduct of Government personnel in violation of federal regulations on possession of firearms. See also Berkovitz v. United States, — U.S. -, -, 108 S.Ct. 1954, 1959-63, 100 L.Ed.2d 531 (1988); Griffin v. United States, 500 F.2d 1059, 1066-68, 1069 (3rd Cir.1974).

The proper framework for analyzing an FTCA case in which state negligence law and federal regulations both apply was elucidated in Underwood v. United States, 356 F.2d 92, 99 (5th Cir.1966):

The law of Alabama imposes upon persons having custody of firearms or other dangerous agencies a high degree of care to the end that third persons should not be injured through those agencies. The law generally as to the handling of firearms requires reasonable or ordinary care, or a degree of care commensurate with the danger. We think that it was in recognition of some such duty that the precautionary measures were adopted by the Air Force. We need not decide to what extent, if any, the state law is applicable. The precautions to be exercised in permitting the withdrawal of firearms and ammunition are so fully prescribed by the Regulation and instructions that it is not necessary to resort to state law. That law is, however, pertinent to meet the test of the Act, which imposes on the United States liability relating to tort claims “in the same manner and to the same extent as a private individual under like circumstances (citations omitted).

Thus, general principles of Kansas negligence law determine whether Kansas would recognize a cause of action between private parties under the circumstances of this case. In that regard, Durflinger held that “[w]e recognize as a valid cause of action, a claim which grew out of a negligent release of a mental patient who had violent propensities_ We have concluded the duty exists and it is encompassed in the general duties of physicians and surgeons.” 673 P.2d at 99-100. Thus, Kansas clearly recognizes a cause of action for negligent release of a dangerous mental patient.

The procedural rules by which a Veterans Administration physician’s conduct is governed are not those prescribed by the state statutes. The incorporation of general tort principles from state law does not subject the federal institutions to state procedures in their internal operations. Here, therefore, the state statutes on voluntary and involuntary commitments do not control the professional procedures in the Veterans Administration facility, although Kansas general negligence principles apply in determining whether wrongful acts or omissions in carrying out those procedures give rise to liability of the Government.

In sum, in light of this record and the principles of Kansas law which are not technically restrictive against recovery for negligent release of mentally ill patients, the summary judgments against these plaintiffs are clearly unjustified.6 In any *383event the Government, as the moving party, has not demonstrated its entitlement to judgment beyond a reasonable doubt. Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33, 36 (10th Cir.1975). To set aside these summary judgments would not, of course, mean automatic recovery for these plaintiffs; it would only afford them the opportunity to present their substantial claims at trial — an opportunity they are entitled to have under Kansas law and the remedial provisions of the Federal Tort Claims Act that “waives the Government’s immunity from suit in sweeping language.” United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 402, 95 L.Ed. 523 (1951).

. When Durflinger was decided, K.S.A. 59-2924 (Supp.1973) provided for such release when the patient was "no longer in need of care and treatment.” 673 P.2d at 94. The statute now provides for such release when “the patient is no longer in need of treatment." Since the definition of treatment includes any service to promote the mental health of the patient rendered by a qualified professional licensed or certified by the state, I see no significant difference for our purposes. See K.S.A. 59-2902(p) (Supp.1987).

. The author is Judge Farney, a Johnson County Probate Judge.

. Any person may be admitted to a treatment facility as a voluntary patient when there are available accommodations and in the judgment of the head of the treatment facility ... such person is in need of treatment therein.... If such person is less than eighteen (18) years of age then the parent or person in loco parentis to such person may make such written application. K.S.A. 59-2905 (1983).

. These regulations were said not to set the standard of conduct for negligence, id. at 1389, and the case was decided on general negligence principles. It is noteworthy that this court’s opinion said that the regulatory procedure was "designed for the protection of the patient and others from the effects of the patient’s ill-ness_” Id. at 1389 (emphasis added).

.I am mindful of the fact that the parties did not plead or place in our record any Veterans Administration regulations. Nevertheless, we cannot ignore the fact that the statute provides for the regulations and that they exist. State procedures are therefore not controlling in the VAMC facility. The parties in this case would be entitled, after the summary judgment stage, to develop the record on Veterans Administration regulations that are applicable.

. The majority opinion states that an alternative ground for finding no duty to exist here is the time lapse of seven and one-half months between the release of Garcia and the deaths and injuries he caused. This is not a proper basis for summary judgment here.

The time intervening is related to the question of proximate causation. This is indicated by the opinions cited by the majority. Novak v. Rathnam, 153 Ill.App.3d 408, 106 Ill.Dec. 226, 505 N.E.2d 773 (1987), held that the time lapse of 14 months was too great and thus “the events were just too far removed in time to establish the requisite causal connection.” Id. 106 Ill.Dec. at 226, 505 N.E.2d at 773.

In Case v. United States, 523 F.Supp. 317 (S.D. Ohio 1981), the court held there was no liability of the Government for actions of a voluntary out-patient 14 months after his last date of treatment where community standards were followed in his psychiatric treatment. Id. at 319. This apparently was a ruling involving one element of lack of proximate cause. Harris v. State, 48 Ohio Misc. 27, 358 N.E.2d 639 (Ct.Cl.1976), held that the state Department of Health was not responsible for an assault committed by a former inmate and current out-patient of its facilities that took place approximately two years after his discharge and where the discharge had been in accordance with state statutes.

*383In our case, in view of Garcia's turbulent mental difficulties in 1981, much closer in time to these murders and assaults, I am convinced that a summary judgment based on lack of proximate cause due to passage of time is not justified. This is a fact issue here for resolution on consideration of all the circumstances related to proximate cause.