Stay for Awhile

By Daniel Richardson

White and Searles v. Harris, 2011 VT 115 (mem.)

Here is the game for attorneys representing plaintiffs and defendants in a personal injury case.  Plaintiffs want to sue as many defendants with as deep pockets as possible.  Defendants want to exit the case as soon as they can.  Both sides are held by the rules of the larger game, which require plaintiffs to have a legitimate basis for bringing a defendant into a lawsuit and defendants to stay in so long as there is such a claim pending against them.  The reasons behind each party’s position should be obvious, but at the forefront, a defendant is trying to terminate or limit any potential liability while plaintiff is trying to keep the defendant in the game for the purposes of either hooking them for a portion of the settlement or judgment.  For proof of any of this, one need not look any further than the full caption and the substance of today’s case. 

Defendant is one of eight parties who plaintiffs hold liable for the death of their daughter.  From the record, it seems that daughter had serious psychological issues.  As part of her larger course of treatment, she was enrolled in defendant’s “telepsychiatry” research study.  This basically involved the daughter filling out a pre-assessment statement, consulting with defendant in a 90-minute video conference, and then filling out a post-conference questionnaire.  Defendant later completed a consultation evaluation that included the patient’s history, a diagnosis/analysis of her condition, and a preliminary treatment plan.  Afterwards, defendant had no further contact or consultation with the daughter or her treatment team.  In other words, defendant appears to have been acting as a researcher who used daughter to help him test a new diagnosis process.  In return, daughter received a free evaluation from a medical professional. 

Tragically, ten months after this session, daughter overdosed on opiates, pain killers, and anti-depressants.  Her death was ruled a suicide.  Mother and father filed the present lawsuit alleging malpractice against defendant and seven other of daughter’s treating doctors, caregivers, and medical offices. 

At the trial court, defendant argued that his time with daughter was limited and that because he was not her regularly treating psychiatrist and prescribed her no medication, he owed her no particular duty of care.  In the alternative, defendant argued that any duty that he owed to take case of daughter ended when the research program did.  The trial court accepted defendant’s argument that the nature of the “treatment” was limited and secondary to the research purpose of the project as to render no applicable duty. 

On appeal, the SCOV disagrees.  Despite the limited scope and time of treatment, the nature of defendant’s work was treatment.  Therefore, defendant is subject to the same scrutiny as the other physicians.  Dismissing defendant from the case without defining the scope of defendant’s duty and establishing whether there was any malpractice within this limited scope that did or did not harm daughter is premature.

The SCOV then takes up the second question of whether defendant’s completion of the evaluation report effectively terminated the doctor–patient relationship.  Again, the SCOV disagrees with the trial court and concludes that the defendant’s hand-off does not excuse or terminate any liability defendant might have for the time he was treating the daughter.  Defendant remains on the hook for any mistake or errors he might have created during treatment.  Plaintiffs have a right to conduct discovery and develop a theory of liability stemming from this period.

The SCOV reverses and remands to the trial court with instructions to return defendant to the litigation.  What is interesting is that the SCOV does not go any further.  Because the trial court’s original decision rested upon the question of whether a duty of care between defendant and daughter even existed, the SCOV appears content to rule that one does exist.  As to what type of duty and the extent of it, the SCOV is silent and instructs the trial court to figure it out.  No doubt this will lead to another round where defendant tries to capitalize on his limited involvement with daughter as a basis to leave the case.  Plaintiffs will also seek to keep defendant at the table through discovery and any mediation.

And the trial court has full discretion, in applying the duty of care and determining exactly what duty defendant owed to the daughter.  The SCOV includes language indicating this decision is preliminary will have to be flushed out further by the trial court.  Defendant meanwhile is compiling his second motion no doubt to be called Son of Summary Judgment.