Growing Trend of Litigation re Student Self-Harm

Transcription

1 Colleges ad Uiversities I the Face of Liability Risks By Michael J. Sepaik Could a likelihood of litigatio press educatioal istitutios to withdraw studet metal health services? Growig Tred of Litigatio re Studet Self-Harm Michael Sepaik is a attorey with Carr Maloey, P.C. i Washigto, D.C. He serves as a Marylad Liaiso to DRI s Medical Liability ad Health Care Law Committee ad is a member of the Marylad Defese Cousel. 16 For The Defese November DRI. All rights reserved.

2 Lawsuits seekig to hold colleges ad uiversities resposible for studet acts of self-harm are o the rise. Although suicide ad other forms of self-harm are amog the most upredictable behavioral patters faced by metal health practitioers ad studet health ceters, a growig umber of jurisdictios have recogized a duty to take steps to prevet studet self-harm. As this ascet form of liability is fast-developig, educatioal istitutios are forced ito a difficult positio oe requirig a balace betwee providig the best health care ad couselig to metally ill studets ad actig withi the parameters of liability law ad best risk maagemet practices. A great deal of publicity has recetly focused o George Washigto Uiversity s decisio i the fall of 2004 to bar a suicidal sophomore from campus after the studet sought couselig i the wake of a fellow studet s suicide. See Susa Kizie, GWU Suit Prompts Questios of Liability, Washigto Post, March 10, 2006, at A01. George Washigto admiistrators faced tremedous pressure to explai their ratioale for treatig a potetially suicidal studet as a disciplie case. As litigatio is ogoig, however, they have ot bee able to do so publicly. As addressed below, George Washigto admiistrators likely faced cofusio i determiig the maer i which to treat the studet, as oly scat ad sometimes coflictig judicial opiios offer guidace as to how educators should address the risks posed by suicidal studets. How Commo Is Suicide or Suicidal Ideatio amog College-Age Studets? The Natioal College Health Assessmet Survey (NCHA), completed i 2000, surveyed depressio, suicidal ideatio, ad suicide attempts amog approximately 16,000 college studets. See Natioal College Heath Assessmet: Aggregate Report, Sprig 2000; America College Heath Associatio (2001). NCHA fidigs reported that 1.5 percet of studets reported that they had attempted suicide withi the last school year; ad 9.5 percet of studets reported that they had seriously cosidered a suicide attempt. Id. The NCHA statistical rates of attempted suicide ad suicidal ideatio essetially mirrored data reported i a 1995 Natioal College Health Risk Behavior Survey coducted by the Ceters for Disease Cotrol ad Prevetio. See Jeremy Kisch, et al., Suicide & Life-Threateig Behavior; 35, 1 (Feb. 2005). Accordig to the NHCA survey, less tha 20 percet of studets reportig suicidal ideatio or attempts were receivig treatmet. Suicide is presetly the third-leadig cause of death amog the U.S. collegeaged populatio (youg adults 18 to 24 years of age). Id. It should be oted, however, that mere attedace at college is ot a risk factor i ad of itself, as suicide is higher amog o college-matched peers. See id. That fact leads to the circumstatial coclusio that colleges ad uiversities offer at least to some extet a more protective ad urturig eviromet tha foud i o-uiversity life. Lodestar Decisios I 2000, the Supreme Court of Iowa held that a uiversity owed o duty to iform a studet s parets of a suicide attempt. Jai v. State of Iowa, 617 N.W.2d 293 (Iowa 2000). Jai arose from the death of a freshma at the Uiversity of Iowa, who committed suicide i his dormitory room o campus. I the weeks prior to his death, residet assistats were called to the studet s room due to a argumet betwee the studet ad his girlfried. The girlfried reported that the studet had brought his moped ito his dormitory room with the itetio of selfadmiisterig carbo mooxide poisoig. The studet s dorm coordiator spoke to the studet, ecouraged him to see the studet couselig service, ad also urged the studet to call her if he thought he was goig to hurt himself. Id. at 295. The studet was also forced to remove the moped from his room. The dorm coordiator, followig uiversity protocol, discussed the icidet with a assistat director for residece life. I a meetig betwee the For The Defese November

3 C o l l e g e s a d U i v e r s i t i e s studet, the dorm coordiator ad the assistat director for residece life, the studet blamed the evet o exhaustio, ad the studet was oce agai ecouraged to seek couselig. Id. at 296. The school took o further actio, ad the studet died of carbo mooxide poisoig approximately two weeks followig the iitial icidet after the studet ra his moped i his There is geerally o duty to protect a idividual from self-iflicted harm i the absece of a special relatioship. locked dormitory room. Id. I 2002, the Uited States District Court for the Wester District of Virgiia held that a uiversity owes a duty to protect a studet from the dager of self-harm, based o a special relatioship betwee the uiversity ad the studet. See Schieszler v. Ferrum College, et al., 236 F. Supp. 2d 602 (W.D. Va. 2002). I Ferrum College, the court deied the college s motio to dismiss for failure to state a claim. The suit stemmed from the suicide of a freshma amed Michael Fretzel. Mr. Fretzel had experieced discipliary problems, icludig beig required to complete ager maagemet classes, durig his first semester. Id. Upo completio of the ager maagemet classes, he was permitted to eroll i the secod semester. Id. Durig February of 2000, after a argumet with his girlfried, he set a letter to her idicatig suicidal itet. Id. She showed the letter to campus police, who visited Fretzel s room, ad foud him i distress with selfiflicted bruises to the head. Id. The campus police reported the icidet to the Dea of Studet Affairs, who required Fretzel to sig a statemet promisig that he would ot hurt himself. Id. Over the ext few days, Fretzel set otes to two frieds with cryptic, yet potetially suicidal cootatios. The otes were give to the dea, who took o actio. Id. Three days after 18 For The Defese November 2006 the police had iitially bee called to his dormitory room, Fretzel was foud i his room hagig by his belt. Id. A wrogful death (egligece) suit was iitiated by Fretzel s persoal represetative. Does a Special Relatioship Arise from Foreseeability of Self-Harm? At the outset, it is importat to ote that there is geerally o duty to protect a idividual from self-iflicted harm i the absece of a special relatioship. Restatemet (Secod) of Torts 314, at 116 (1965). Hospital ad priso settigs are the most commo loci where such a relatioship is foud. I Jai, the Supreme Court of Iowa held that o special relatioship existed betwee the uiversity ad a studet that gives rise to a affirmative duty to prevet a suicide. Jai v. State of Iowa, 617 N.W.2d at I Jai, the Supreme Court of Iowa rejected plaitiff s argumet that the uiversity s kowledge of the studet s metal coditio or emotioal state requirig medical care created a special relatioship givig rise to a affirmative duty of care toward the studet. Id. at 297. The Supreme Court of Iowa oted a uwritte uiversity policy dictatig that, with evidece of a suicide attempt, uiversity officials will cotact a studet s paret. Id. at 296. Uder the uwritte policy, however, paretal otificatio rests solely with the Dea of Studets, who bases his decisio o the gatherig of iformatio from a variety of sources. Id. The record i Jai revealed that o iformatio regardig the studet i questio was trasmitted to the dea s office util after his death. Id. Due to the relatively short period of time (approximately two weeks) betwee the iitial otice to officials ad the act of suicide, the issue of the theoretical policy violatio did ot appear to carry weight i the fial determiatio of the court. Although arguably ot thoroughly reasoed, the Jai decisio serves to protect uiversity officials who act reasoably whe faced with evidece of potetial suicidal behavior, but could also merely be dealig with a studet uder stress or exhaustio from a difficult examiatio period. The decisio also protects uiversities omedical ad oprofessioal staff (such as residet assistats ad housig officials) who ofte serve as the frot lie i dealig with studet behavior that may or may ot evidece determied suicidal itet. I rejectig plaitiff s cotetio that the failure to otify the studet s parets placed the studet at a greater risk of selfharm, the court reasoed: it is udisputed that the RAs appropriately iterveed i a emotioally charged situatio, offered [the studet] support ad ecouragemet, ad referred him to couselig [RAs] sought permissio to cotact his parets but he refused. I short, o actio by uiversity persoel preveted [the studet] from takig advatage of the help ad ecouragemet beig offered, or did they do aythig to prevet him from seekig help o his ow accord. Id. at 299. Further, the Supreme Court of Iowa focuses o the omissios of the studet himself: it appears by all accouts that he failed to follow up o his recommeded couselig or seek the guidace of his parets, as he assured staff he would do. Id. at 300. Educatioal istitutios should ot assume that a despodet studet s failure to act properly for his or her ow well-beig will become a widely embraced defese to claims stemmig from self-harm. As demostrated by other recet caselaw, certai courts madate that educatioal istitutios act o the assumptio that a despodet or depressed studet caot be charged with the duty of care toward his or her ow well-beig. I Ferrum College, the Uited States District Court for the Wester District of Virgiia oted that Virgiia law recogized that a special relatioship ca give rise to a duty to take affirmative actio to assist or protect aother. Schieszler v. Ferrum College, 236 F. Supp.2d at 607. At the time the Ferrum College decisio was issued, however, the Virgiia Supreme Court had ot addressed whether a special relatioship exists betwee a uiversity ad its studets. While rejectig that a special relatioship exists betwee a istitutio ad its studets as a matter of law, Ferrum College held that a duty ca arise based o kowledge of the potetial harm (foreseeability) based o the particular facts alleged i Ferrum College. Id. at 609. The particular facts cosidered oteworthy by the Uited States District Court for the Wester District of Virgiia icluded that Fretzel was a fulltime studet at Ferrum College; he lived

4 i a o-campus dormitory; college staff ad admiistrators were aware that Fretzel was experiecig emotioal problems; ad they had required him to seek ager maagemet couselig before permittig him to retur to school for a secod semester. Id. Obviously, several of the precedig factors (excludig the ager-maagemet couselig) could apply to a broad rage of studets at educatioal istitutios. The more extreme elemets of Fretzel s fial days are seemigly what led to the fidig of a special relatioship. The facts alleged by plaitiff icluded: college staff ad admiistrators kew that, withi days of his death, Fretzel was foud by campus police aloe i his room with bruises o his head ad that he claimed these bruises were self-if licted; ad the defedats kew that, at aroud the same time, Fretzel had commuicated to his girlfried ad aother fried that he iteded to kill himself. Id. at 609. Fially, [A]fter Fretzel was foud aloe i his room with bruises o his head, Ferrum College required Fretzel to sig a statemet that he would ot hurt himself. This last fact, more tha ay other, idicates that the defedats believed Fretzel was likely to harm himself. Id. (emphasis added). Thus, the Uited States District Court for the Wester District of Virgiia held that a trier of fact could coclude that there was a immiet probability that Fretzel would try to hurt himself, ad that the defedats had otice of this specific harm. Id. The Ferrum College decisio reached a compromise, ad istead of declarig a special relatioship as a matter of law, held that a fidig of a special relatioship requires a factual aalysis, oe that focuses heavily o foreseeability. The fulcrum of the court s decisio was whether the act was foreseeable: I reachig this coclusio, I have also cosidered whether defedats could reasoably have foresee that they would be expected to take affirmative actio to assist Fretzel. It is true that colleges are ot isurers of the safety of their studets. It is also true that Ferrum did ot techically stad i loco paretis visà-vis Fretzel ad his fellow studets. Noetheless, [p]arets, studets, ad the geeral commuity still have a reasoable expectatio, fostered i part by colleges themselves, that reasoable care will be exercised to protect residet studets from foreseeable harm. Id. at (iteral citatios ad quotatios omitted). I somewhat circular logic, it was Fretzel s ow behavior that led to the determiatio of a special relatioship that gave rise to a duty to protect Fretzel from the foreseeable dager that he would hurt himself. Fretzel exhibited very extreme behavior, ad thus the decisio may ot be applicable to less extreme acts precedig a suicide or a attempted suicide. It is istructive to ote that eve whe cofroted with specific threats of suicide ad self-iflictio of bruises by Fretzel the Ferrum College decisio foud the actios of the college admiistrators to be the most dammig piece of evidece i the foreseeability equatio. This leads to the coclusio that although courts may be willig to fid that acts associated with severe depressio, metal illess ad attempts at self-harm to be irratioal ad upredictable, courts may demad a measured ad well-reasoed respose to such acts, specifically oe that is i the best iterest of the studet i light of all the surroudig circumstaces. Illegal Act/Iterveig Cause Defeses The Ferrum College decisio rejected the argumet that the studet s illegal act of suicide barred his recovery, sice the studet was of usoud mid at the time of his death. Ferrum College relied upo a decisio by the Virgiia Supreme Court holdig that although suicide is a illegal act, if the suicide was the result of the victim beig of usoud mid at the time of his death, the defese of illegality will ot bar recovery for wrogful death. See Molcho v. Tyler, 262 Va. 175, 181, 546 S.E.2d 691 (2000). The Jai decisio held that the act of suicide is cosidered a deliberate, itetioal ad iterveig act that precludes aother s resposibility for the harm. Jai v. State of Iowa, 617 N.W.2d at 300. The Jai decisio ackowledged, however, the exceptio arisig where there is a special relatioship that imposes a duty to prevet foreseeable acts of self-harm by a plaitiff. Id. at 300. Similar to the reasoig i Ferrum College, the exceptio is warrated because the iterveig act, amely suicide, is the very risk the special duty is meat to prevet. Id. Recet Massachusetts Opiio Adopts Reasoig of Ferrum College A recet decisio by the Superior Court of Massachusetts (Middlesex Couty), Shi, et al. v. Massachusetts Istitute of Techology, et al., 19 Mass.L.Rep. 570, 2005 Mass. Super. LEXIS 333, * (Mass. Dist. Ct. Jue 27, 2005), adopted the reasoig of Ferrum College ad held that educatioal istitutios have a duty to prevet foreseeable studet self-harm. As with the cases aalyzed above, Shi sought to hold a uiversity liable for the suicide death of Elizabeth Shi, a sophomore at M.I.T. Ms. Shi was a severely depressed studet who had experieced metal health problems while i high school, had overdosed o prescriptio drugs durig her freshma year at M.I.T, ad had udergoe over a year of couselig ad psychiatric care by both uiversity officials ad uiversity health care workers prior to her death. The facts aalyzed by the Shi decisio do ot merely address a studet who did ot receive the proper level of help from a uiversity at the start of severe metal health issues, but focuses o a sigificat period of couselig ad metal health care treatmet withi the umbrella of metal health care services offered by a major educatioal istitutio such as M.I.T. While the superior court grated summary judgmet i favor of uiversity officials o claims ivolvig breach of cotract, egliget iflictio of emotioal distress, ad egliget misrepresetatio, the superior court foud sufficiet issues of fact existed o couts allegig gross egligece agaist M.I.T. medical professioals, breach of duty to prevet harm agaist M.I.T. uiversity admiistrators, gross egligece agaist M.I.T. uiversity admiistrators, ad wrogful death agaist M.I.T. uiversity admiistrators. The decisio i Shi adopted the aalysis of the Uited States District Court for the Wester District of Virgiia i Ferrum College, fidig that a special relatioship existed betwee the M.I.T. admiistrators ad Elizabeth Shi, which imposed a duty o admiistrators to exercise reasoable care to protect Elizabeth from harm. Id. at *38. Similar to the reasoig of Ferrum Studet Self-Harm, cotiued o page 63 For The Defese November

5 Studet Self-Harm, from page 19 College, the Shi decisio determied that M.I.T. admiistrators could reasoably foresee that Elizabeth Shi would hurt herself without proper supervisio. Id. at *37. I additio, the Shi decisio otes Sectio 314A of the Restatemet (Secod) of Torts, which otes that although the fidig of special relatioships were historically oly foud i custodial cotexts, the law appears to be workig slowly toward a recogitio of the duty to aid or protect i ay relatio of depedece. Id. at *33. Pesylvaia Jury Fids i Favor of Alleghey College Metal Health Couselor I August 2006, a Crawford Couty, Pesylvaia, jury retured a verdict i favor of a Alleghey College metal health couselor ad a private practice psychiatrist for their roles i the treatmet of a 20-year-old Alleghey College studet who, after sufferig from legthy period of depressio, haged himself i While the case before the jury was essetially a medical egligece actio, Alleghey College, as the employer of the metal health couselor, could have bee held vicariously liable for a egligece verdict agaist the couselor. I their verdict form, the jury determied that either the couselor or the psychiatrist breached their respective professioal stadards of care, ad the decedet s ow egligece caused his death. This verdict is sigificat eve though the behavior preseted by the studet i questio was comparatively less extreme tha other cases aalyzed i this article (i.e., the studet i questio, despite a progressively deepeig depressio, had either egaged i or threateed ay specific acts of self-harm prior to his death) as it may reflect the fact that juries are ot ready to ascribe blame for suicide o those other tha the actor him- or herself. Will a Detailed Stadard Actually Help Admiistrators at Colleges ad Uiversities? As demostrated i the case law addressed i this article, decisios fidig fault with a educatioal istitutio s failure to act whe studet self-harm was foreseeable, or a immiet probability, are very factspecific. It is easy to imagie that behavior cited as wrogful uder oe set of circumstaces could be see as reasoable whe cosidered i other cotexts. It is therefore difficult, if ot impossible, to draw black- ad-white rules for admiistrators to follow whe dealig with potetially suicidal studets. I additio, a very real potetial outcome of large verdicts or settlemets agaist uiversities could be istitutios steppig back from offerig services for studets i the metal health area, or attemptig to pre-scree applicats based o prior metal health issues or risk factors. O a more basic level, deas, coaches, dorm captais ad others might be less iclied to cousel, or otherwise take a iterest i, a studet facig depressio or icreased stress if they thought that extedig a helpig had could lead to the ucomfortable bracelets of litigatio. Cousel advisig educatioal istitutios should take particular care to offer measured ad balaced advice o this issue, as the law set forth i this article is oly valuable withi the cotext of the particular facts of each situatio. A college or uiversity that withdraws studet metal health offerigs or curtails iformal studet support offered by o-professioal staff would be doig a disservice to its studets, ad potetially icreasig the likelihood of studet self-harm. For The Defese November