BRATTLEBORO — After more than two years of legal battles and two rulings from a bitterly divided Vermont Supreme Court, a case involving an assault committed by a former Brattleboro Retreat patient still is far from over.
That's because the Supreme Court's rulings, the latest of which came Sept. 16, have created a new legal standard - dubbed a “duty to warn” - for mental health workers who are treating potentially dangerous patients. And that standard is causing worry for health care providers, state officials, and even two of the high court's justices.
As the assault case returns to the Superior Court level for further action, attorneys on both sides of the dispute also are predicting that the state Legislature may step in to resolve the larger legal matter.
Retreat attorney Ritchie Berger, while saying he has “great empathy” for assault victim Michael Kuligoski, vowed that “the lawsuit will continue to be vigorously defended based on the facts and on the medicine involved.”
“And in the interest of all Vermonters, it is hoped that the Legislature will act promptly to overturn this decision,” Berger said.
Defense of decision
But attorney Richard Cassidy, representing the victim's family, has penned a detailed defense of his clients' legal claims and the Supreme Court majority's support for them.
“It seems likely that, as has happened in some other states, the mental health industry will seek to overturn the policy of Kuligoski vs. Brattleboro Retreat in the next session of our Legislature,” Cassidy wrote. “There is no one that I know of who will be paid to defend the rule in the legislative halls. But the result is not a forgone conclusion.”
The basic facts of the case aren't in dispute.
A patient named Evan Rapoza received mental-health treatment in 2010 at Central Vermont Medical Center, the Vermont State Hospital and the Retreat. Rapoza was diagnosed with a psychotic disorder and showed symptoms associated with schizophrenia, court documents show.
He was discharged from the Retreat into the care of his parents, and his treatment plan included medication and visits to Northeast Kingdom Human Services. But at the end of 2010, Rapoza stopped taking his medication.
On Feb. 26, 2011, at an apartment building in St. Johnsbury owned by his family, Rapoza assaulted Kuligoski, who had been working on a furnace there. The attack - which involved a pipe wrench and a belt around the victim's neck - left Kuligoski with brain damage and partial paralysis, Cassidy has said.
Rapoza was declared to have been legally insane at the time of the attack and wasn't tried. A psychiatrist said Rapoza was in a “psychotic storm” when the assault happened.
The Kuligoski family sued the Retreat and Northeast Kingdom Human Services in 2014, but that suit was dismissed by a Windham Superior Court judge who said the defendants “were under no duty to control” Rapoza when the assault happened. The judge also said Kuligoski couldn't have been foreseen as a victim by the mental health service providers.
May ruling
The Kuligoskis appealed to the state Supreme Court, which gave them a partial victory via a controversial ruling in May. A three-member majority said there was evidence that mental health workers at both the Retreat and Northeast Kingdom Human Services had failed to properly warn and train Rapoza's parents in regards to his continued treatment.
The majority ruling said Rapoza's parents didn't have a “complete warning” of what would happen if he stopped taking his medication. Justices also noted evidence that staff members at the Retreat - where the patient had experienced hallucinations and displayed “menacing behavior” - had been “well aware of [Rapoza's] capacity for violence.”
The case was sent back to Superior Court for further legal action.
Supreme Court Chief Justice Paul Reiber and Associate Justice Marilyn Skoglund sharply dissented from the majority's May opinion, arguing that the court had just created a new legal obligation for mental health workers without understanding its ramifications. Skoglund went so far as to call the majority's ruling “the essence of judicial arrogance.”
Numerous objections followed from those who were concerned about the majority decision: The director of Northeast Kingdom Human Services called it “a rather frightening precedent.” Both defendants requested reargument of the case, as did other parties including the Vermont Agency of Human Services.
Attorneys for the state agency wrote that the Supreme Court's ruling “creates great uncertainty and potentially conflicting legal obligations for the agency and its departments in their roles as mental health treatment providers, legal custodian of numerous Vermonters who receive mental health treatment, and public officials responsible for supervising and coordinating the state's mental health system of care.”
New 'duty to warn'
State officials argued that the new “duty to warn” of a patient's potential danger to others is “so ambiguous that providers cannot reasonably understand and satisfy it.” As a result, the agency says, the court's ruling could encourage providers to seek more-restrictive care for mentally ill patients who don't require it, and it could discourage family members and other caretakers from assuming responsibility for a patient upon discharge.
“There is too much uncertainty about who to warn, what to say and how to avoid violating federal privacy law while doing it,” the state's attorneys wrote.
The state also wondered what type of behavior would trigger the new duty to warn, arguing that mental health providers “do not have the benefit of hindsight.”
“Most people with mental illnesses, even serious illnesses, are able to live in the community without harming others,” the state's motion for reargument says. “The facts relied upon by the court do not meaningfully distinguish [Rapoza] from many others with serious illnesses.”
But the Supreme Court majority on Sept. 16 rejected all requests for new argument in the case. The justices also issued a revised opinion that doesn't change the substance of the May ruling but includes further argument from justices who favor and oppose the new care standard.
The majority is emphasizing the “narrowness” of its decision. For example, the duty to warn applies only to cases in which a caregiver is “actively engaging” with a mental health service provider.
Also, there must be a treatment or discharge plan that substantially relies on the caregiver's ongoing participation, and the caregiver must be “within the zone of danger of the patient's violent propensities.”
“The information to be conveyed is reasonable information to notify the caregiver of the risks and of steps he or she can take to mitigate the risks,” justices wrote, adding that the duty to warn is restricted by federal privacy laws.
A confusing precedent?
But Reiber and Skoglund again dissented, saying the high court should have vacated its May decision and allowed additional arguments. The two justices assailed “the majority's failure to recognize that it has created and imposed on mental health care providers a duty so ill-defined and uninformed that even the best, and the best-intentioned, providers will be confused and conflicted as to their professional obligations.”
Berger said Retreat administrators are disappointed in the majority's decision to not reconsider the case. “We strongly agree with the dissenting justices' view that the majority decision 'is at odds with the real interests of Vermont's health care providers, patients and the public at large,'” he said.
Cassidy hailed the majority's decision and noted that “on appeal, the entire mental health industry lined up against us.” He sees his clients' Supreme Court victory as both “narrowly won” and “narrowly crafted.”
While he often hears the legal axiom that “hard cases make bad law,” Cassidy argues that, “sometimes, as they did here, hard facts help to improve the law.”