November 26, 1985

MOOT COURT

FOR DEFENSE  November 26, 1985, writing section 4, fictitious essay/persuasive

Memorandum of Law In Support of Defendant's Motion for Summary Judgment

Janey Doe, Plaintiff -vs.-Dr. Deb Joda, and Fictivity Hospital, Defendants.

Questions Presented:

I.  Whether a motion for summary judgment should be granted where there has been no negligence on the part of a staff psychiatrist and Fictivity Hospital in observance of a professional standard of care in the treatment of a psychiatric outpatient.

II.  Whether a motion for summary judgment should be granted where a psychiatrist has no duty to warn the community of an unforeseeable danger from the actions of an outpatient.

III.  Whether a motion for summary judgment should be granted where a hospital has observed a duty of care to invitees by taking security precautions without incurring upon itself a further duty to protect its community.

Statement of Facts:

Janey Doe, a patient at Fictivity Hospital, was sexually assaulted and injured by an outpatient under the care of Dr. Deb Joda;--Darnell Dudley;-- as she was making a purchase from the hospital's basement vending machine.  Mr. Dudley was a parolee/outpatient with a history of a criminal rape of a woman nine years before the Janey Doe incident; he was undergoing thrrapy twice weekly in the psychiatric clinic as required by his five year parole status.  During the time of his parole-probation, Mr. Dudley was a patient of staff psychiatrist Dr. Deb Joda, who had diagnosed him as "making remarkable progress" in his therapeutic sessions.  The area in which Ms. Doe was attacked is a well-lit public place for purchasing goods from vending machines, and Fictivity Hospital staffs a protective security force at all times.

Janey Doe has filed a cause of action against Dr. Deb Joda, the attending psychiatrist of Mr. Dudley, and Fictivity Hospital.  The claims allege that Dr. Joda "was negligent in releasing Darnell Dudley from her care," and that she was negligent "in not warning the intended viction of his intentions."  The complaint further alleges that Fictivity Hospital "negligently failed to provide her with adequate protection against the foreseeable criminal acts of Darnell Dudley."

The defendants, Dr. Deb Joda and Fictivity Hospital, move for summary judgment, claiming no negligence in the execution of their professional duties, and no causation of the events that led to an unforeseeable assault on the person of Janey Doe in the hospital basement.

Argument:

I.  Summary Judgment should be granted, because Dr. Joda was not negligent in performance of a professional standard of care in the treatment of Darnell Dudley; furthermore, she had no knowledge of the actual intent of her patient to commit a crime from her diagnosis of the condition of the patient.

Prior holdings on liability for negligence include the comment that "Proof, aided by hindsight, that the therapist judges wrongly is insufficient to establish negligence."  Tarasoff, et al. v. Regents of University of California, et al., 131 Cal. Rptr. 14, 551 P.R.2d 334 (1976).  The Tarasoff court further ruled that "it is not required that a therapist render a perfect performance, rather, the therapist need only exercise that reasonable degree of skill, knowledge, and care ordinarily posessed and exercised by members of the profession under similar circumstances."  See id. at 131 Cal. Rptr., 551 P.R.2d.  In order to impose liability for negligence upon a psychotherapist, one must show that a reasonable practitioner of the profession could not have reached the diagnosis rendered of a patient's condition using the ordinary skill required of the profession.

In Tarasoff, an action for wrongful death was brought against regents and psychotherapists of the university hospital; because therapists who had predicted violence from a patient, and who had known of the patient's intent to kill a young girl in the community did not exercise due care in warning the intended victim of an actual threat to her life revealed during psychotherapy.

However, in this case a distinction may be made between the revelation of dreams or fantasies during treatment involving members of the community, a diagnosis of non-dangerous, non-violent behavior and constructive improvement; and the knowledge exhibited in Tarasoff of an actual threat issued during the treatment of a patient diagnosed as potentially violent.

To impose liability for a failure to exercise reasonable care to persons foreseeably endangered by a psychiatric patient., the patient must have been diagnosed as potentially dangerous or violent.  "Only if the therapist...determines, or under professional standards should have determined, that a patient poses a serious danger of violence to others, does he bear a dury to exercise reasonable care to protect the foreseeable victim of that danger."  Thompson, et al. v. County of Alameda, 167 Cal Rptr. 70, 614 P.R.2d 728 (1980).

The diagnosis of Dudley as non-violent precluded any duty on the part of Dr. Joda or the hospital of controlling or restraining the conduct of this patient, or in committing to inpatient status an outpatient seen twice-weekly.  As the patient was a parolee who had not committed a crime in nine years, and who had been "making remarkable progress" during his five years of requisite psychotherapy, the staff psychiatrist observing reasonable care had no grounds for predicting the assaultive behavior from a fantasy revealed during a routine therapeutic session.

Since a reasonable practictioner of psychiatry had not considered Mr. Dudley a danger to the community sufficient enough to require inpatient status during his entire five-year parole therapy, and therefore the conduct of the outpatient outside of the twice-weekly psychiatric session was outside of the control of the psychiatrist and hospital; Dr. Joda and Fictivity Hospital are not liable for the subsequent unforeseeable assault of the outpatient Dudley, and are not negligent in observing the standard of care imposed by their profession, and summary judgment should be granted.

II.  Summary Judgment should be granted because a psychiatrist in a confidential professional relationship with a patient has no duty to warn the community at large of a patient's fantasies revealed during the course of treatment where the patient was considered non-violent; and due to outpatient status, outside of the control of hospital and staff.

The general rule for imposing tort liability is that "one owes no duty to control the conduct of another," Tarasoff, 131 Cal. Rptr. 14, 531 P.R.2d 334 (1976), although a duty may arise if a special relationship exists between "the actor and the third person which imposes a duty upon the actor to control the third person's conduct."  Id., 551 P.R 2d.  While a psychiatrist-patient relationship fulfills the special relationshi[p requirement, courts have held that "the therapist's obligation to his patient requires that he not disclose a confidence unless such disclosure is necessary to avert danger to others,..."  Id., 614 P.R.2d.

Due to the therapeutic nature of the psychiatrist-patient relationship, confidential disclosures made during the course of treatment are privileged as a matter of policy, only to be released at the discretion of the physician should a reasonably foreseeable harm to another party be predicted from threats of a potentially dangerous patient.

If no harm to the community is expected from a non-violent outpatient, no duty to warn of thoughts, fantasies, or dreams discussed during therapy exists.  Court precedent has held that "a psychiatrist has neither right nor ability to control [patient's] conduct so as to give rise to a duty to warn others of [patient's] dangerousness...where psychiatrist's assessment,...carried with it lack of prediction of any identifiable danger posed by [patient] to any person."  Hasenei v. United States, 541 F.Supp. 999 (1982).

In Hasenei, a veteran being treated as an outpatient for alcoholism collided with the vehicle of the plaintiff while driving his car.  The defendant' psychiatrist was under no duty to warn the community of the possibility that an outpatient outside of his control with a known history of alcohol-related incidents might drive while intoxicated and possibly cause injuries to members of the community.

Since Dudley, who was also an outpatient in a psychiatric clinic while under the care of Dr. Joda, was not relegated to inpatient status due to apprehension of future danger; he was outside of the control of both psychiatrist and hospital.  His dreams and fantasies of two hospital patients had been interpreted as "a socially constructive manifestation of Dudley's personality" during therapy.

Since Dr. Joda had no reason to predict the intent of her patient to act upon fantasies mentioned during psychotherapy; she therefore had no duty to warn the community of an unforeseeable danger from the confidential discussions of a non-violent outpatient.  The treatment and diagnosis of Mr. Dudley's fantasies did not cause the attack upon Janey Doe, and his five-year behavior pattern did not enable his therapist to predict his actions when outside of her control, therefore a summary judgment should be granted.

III.  Summary Judgment should be granted because a hospital providing security measures for the benefit of invitees has no further duty to provide safety precautions for the protection of its community.

Previous holdings have determined that "the owner of a business place is not an insurer of his invitees safety, but is required to exercise reasonable care for their safety, and is liable for injuries resulting from a breach of this duty."  Winn v. Holmes, 143 Cal.App. 2d 501, 299 P.R.2d 994 (1956).  Reasonable care requires that should the owner have reasonable cause to anticipate danger, he must "warn invitees of danger or...use ordinary care to keep premises in a reasonably safe condition."  See id., 299 P.R.2d.

The Winn case concerned the obligation of a restaurant owner to prevent other customers from assaulting the plaintiff; however, no precautions had been taken by the owner of the business, and the fact situation does not correlate with the measures taken to secure Fictivity Hospital.  Although Fictivity Hospital does not have a history of violent crime associated with the premises; after a 1984 mugging in the parking lot, the building and grounds have been secured at all times.  A security guard has been stationed in the parking lot, and another patrols the inner hospital.  Past cases have held that "ordinarily, a warning is sufficient" to absolve the owner from liabllity for providing reasonable precautions for the safety of invitees.  Id., 299 P.R.2d.

Since the time of the mugging, only vandalistic attacks on vending machines have been reported prior to the assault on Janey Doe.  The area in which this patient was attacked is a well-lit public area.  A prior holding concedes an exception to the standard of reasonable care imposed upon the owner of a business in keeping premises safe for invitees only where it is "reasonably foreseeable that members of the public could rely upon continued presence of building attendants after business hours," and imposes a higher duty only "where person's injuries resulting from the criminal acts of a third party wre a foreeeable eventuality."  Nallan, et al. v. Helmsley Speer, Inc., et al., 50 N.Y.2d 507 (1980), 407 N.E.2d 451 (1980).

In this case, the assault on Janey Doe was in a low-crime area, during business hours, and the conduct of her assailant was unprecedented and unforeseeable in the history of the community.  Mr. Dudley's criminal act could not have been predicted, and therefore there was no apprehension in the mind of the owner of the business place that would give the hospital cause to further warn employees and patients; however, the standard of care observed by the hospital in maintaining full-time security was beyond the requisite standard of ordinary care in providing for the safety of invitees.  Therefore, summary judgment should be granted on the claim against Fictivity Hospital.

Conclusion: 

The defendants, Dr. Deb Joda and Fictivity Hospital, respectfully request that their motion for summary judgment be granted, as there was no negligence in the treatment or discharge of an uncommitted patient; no duty to warn the community of a psychiatric outpatient's fantasies; no negligence in the provision of security measures for Fictivity Hospital; and because none of the aforementioned charges contributed to circumstances of unforeseeable behavior causing injury to the plaintiff.

Respectfully submitted in fiction,

Writing Section 4
November 26, 1985

MOOT COURT