Mich. Court Gives Therapists Free Pass for Negligence

In an undeserved legal windfall for mental health professionals, the Michigan Court of Appeals has thrown out a $646,000 jury award to a woman who was shot by a psychotic former patient of her psychiatrist.

The jury found the practice of psychiatrist Dr. Reuven Bar-Levav liable for the shooting of Elizabeth Dawe at his Southfield office in June 1999. Joseph Brooks Jr., a diagnosed paranoid schizophrenic, shot dead Bar-Levav before opening fire on the therapy group he had once attended, killing one woman and injuring Dawe.

Bar-Levav failed to warn other patients of Brooks's dangerousness as required by a Michigan statute, Dawe argued, and breached his common-law duty to provide her with a safe environment for treatment.

MCL 330.1946(1) imposes a statutory duty to warn “If a patient communicates to a mental health professional who is treating the patient a threat of physical violence against a reasonably identifiable third person and the recipient has the apparent intent and ability to carry out that threat in the foreseeable future ...”

But a 2-1 majority of the appeals court said Dawe had “failed to present evidence from which a reasonable jury could conclude that Brooks communicated a threat of physical violence against Dawe to defendant.” And because the Legislature abrogated “any other conceivable duty” when it enacted MCL 330.1946, she had no common-law claim for negligence either.

“MCL 330.1946 preempts the field on the issue of a medical health professional’s duty to warn or protect others, including the psychiatrist’s other patients,” Judge William C. Whitbeck wrote in the majority decision.

In a dissent, Judge Michael R. Smolenski said the statute “does not apply to a mental health professional’s duty to refrain from harming a third party through his or her own negligent acts” and warned that under the majority's “broad” interpretation,

a psychiatrist would have no duty to refrain from leaving his keys in his unlocked car for a patient to steal, to refrain from giving a loaded weapon to an agitated patient, to refrain from encouraging minors to associate with a pedophile patient, or from placing a known rapist-patient into group therapy with a woman and then encouraging her to associate outside of group with the rapist-patient.

Dawe alleged in her suit that before the shootings at Bar-Levav's office, Brooks had made threatening statements fantasizing about murder to another therapist in the practice and had shown up at the office with a handgun.

Whitbeck said there was “compelling proof” that “defendants knew or should have known that Brooks posed a danger to the other patients in his therapy group” and admitted it was “an unfair result to shield defendants from liability in this case.” However, he continued,

we are bound to interpret plain statutory language as written. The plain language of [MCL 330.1946] dictates the result we reach today, and any arguments that the statute is unwise or results in bad policy must be addressed to the Legislature.

But Smolenski's strong dissent should help persuade the Michigan Supreme Court to review the majority's dangerous opinion. “There was malpractice committed when [Brooks] was introduced to group therapy,” an attorney for Dawe said. “Group therapy is not for people who are really sick mentally.”

The jury's award of $2 million to Dawe was reduced by the trial judge to $646,000 to comply with caps on medical malpractice damages.

By Matthew Heller
7/15/08