The News Story

Burlington’s CBS TV affiliate, WCAX, Channel 3, covered the subject of my last post, “Mental Health Care Providers Have a Duty to Adequately Inform Caregivers About Dangerous Patients.” Reporter Kyle Midura took on the challenge of summarizing a complex problem in 2 minutes  and 39 seconds.

The story asks a fair question: Will the Vermont Supreme Court’s decision drastically affect mental health care in Vermont?

WCAX.COM Local Vermont News, Weather and Sports-

Breaking New Ground?

Former Vermont Bar Association President Dan Richardson’s comment, “”There’s new law being broken here,” seems to suggest that it will. And he is right that the decision “makes new law.”

Kuligoski v. Brattleboro Retreat obligates mental health care providers releasing mental health care patients who are known to be dangerous, to warn caregivers of the risk of violence and provide “reasonable information to enable them to fulfill their role” in maintaining safety.

This is progress, but hardly profound change.

For more than 30 years, Vermont mental health care providers have had an obligation to warn identifiable victims of the risk presented by dangerous patients. Kuligoski goes one short step beyond previously well-established Vermont law. It is hardly a revolution in personal injury or mental health law.

This is “making new a law,” but only in the classic way that judges interpreting the common law have always made new law: by applying existing principles to a particular factual setting.

Mental Health Commissioner Goes Over the Top

Vermont Commissioner of Mental Health Frank Reed’s comment on the decision is just over the top: “We’re seeing a number of folks who are probably staying in-hospital longer than they should be for their care needs[.]” His comment simply can’t be accurate.

The Supreme Court’s original decision was handed down only last May. Motions to reargue were filed and the revised decision was filed September 16, 2016. Motions to clarify the ruling have already been filed, and so the decision has not even become final yet.

To this date, no one has seen any effect from the decision. It is a narrow decision. Even Reed acknowledges that very few mental health patients present any danger at all. So the decision is applicable to few patients and is unlikely to have any widespread impact on mental health care.

The Commissioner’s comments reflect his unsupported belief that the mental health industry will practice overly defensive medicine instead of doing what the Court obviously intends that it do. That is to act reasonably to see to it that caretakers taking responsibility for bringing mental health patients known to be dangerous into the community understand the problems they face. All the Court mandates is that, in this particular way, mental health care providers take the interests of patients and the public into account.

This is not too much to expect.



Do Hard Cases Make Bad Law?

The idea that hard cases make bad law is often repeated,[1] but is not always correct. Law professors using the Socratic Method often change the facts of a hypothetical to flesh out the meaning and limitations of a legal principle for students.

For example, a law professor might say, it’s reasonable and therefore self-defense to use deadly force to protect oneself from an imminent threat of death or serious bodily injury. All would agree that a person who is attacked by knife wielding assailant is entitled to shoot to kill if the assailant is six feet away.  But what about 10 feet? Twenty feet? Fifteen feet, but across a rushing stream?

I think it is nearer the truth to say that, like law students grappling with a changing hypothetical, hard facts help us to see the full implications of a rule. Then a judge or legislator draws upon an internal sense of fairness and justice to decide whether a rule should stand even though it creates an apparently unjust result, whether an exception should be crafted, or whether the rule itself should be consigned to the junk heap.

Vermont Supreme Court Decides Kuligoski v. Brattleboro Retreat

The Seal of Vermont over the Entrance to the Vermont Supreme CourtThat is exactly the process the Vermont Supreme Court completed on Friday when it denied the motions to reargue and issued an amended opinion in Kuligoski v. Brattleboro Retreat.[2]

The facts are hard: Michael Kuligoski was a furnace repairman working in basement of an apartment building in St. Johnsbury, Vermont on February 26, 2011. He never meet E.R, the young man who walked up behind Michael and assaulted him with his own pipe wrench and belt, and tried to drown him in bucket of water. Michael’s life was shattered. The family will never be the same.

E.R’s Psychiatric History

Before the attack, E.R. had been treated at three in-patient psychiatric facilities in Vermont. He had a history of violence and threats. He was released from the Brattleboro Retreat into the care of his parents, even though his condition, schizophrenia, had gotten worse in his last 24 hours at the hospital after he stopped taking his medication. His parents were given only limited information about his condition.

At home for a month, E.R. told his mother that he had stopped taking his medication again. She called the local community mental health agency, his after-care provider, Northeast Kingdom Human Services, which told her only that there was cause for concern, but — as her son was an adult — he would have to decide to take care of himself.

Within two months, E.R.’s father took him to work on is grandfather’s apartment building, and E.R assaulted Michael Kuligoski.

Superior Court Litigation

We sued the Retreat and NKHS in Windham County Superior Court, alleging that negligent discharge, failure to warn ER’s parents, failure to train them, negligent undertaking, negligent treatment, and negligent failure to treat, were proximate causes of the assault and the resulting damages.

Both defendants moved to dismiss, arguing that under Peck v. Counseling Service of Addison County,[3] the duty of a mental health professional to protect third parties from dangerous mental health patients is limited to warning identifiable third parties who were at risk.

We argued that Peck did not control, and that mental health professionals should have a duty act reasonably to protect third parties, known or unknown, from the very small number of psychiatric patients who are dangerous, citing Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41 (2012). The Superior Court dismissed and we appealed.

On Appeal, the Mental Health Industry Lines Up

On appeal, the entire mental health industry lined up against us: the Vermont Association of Hospitals and Health Systems, the Vermont Council of Developmental and Mental Health Service, Inc., the University of Vermont Medical Center, the Central Vermont Medical Center, the Rutland Regional Medical Center, and Disability Rights of Vermont, Inc. On reargument, even the State of Vermont, Agency of Human Services, sought reconsideration.

A Narrow Victory

But Friday’s decision gave our clients a narrowly won, (3-2, with written dissents from Chief Justice Reiber, and Justice Skoglund) and a narrowly crafted, victory. Even the majority declined to adopt Restatement (Third) and require that mental health professionals act reasonably to protect the public. Instead, the majority, in an opinion by Associate Justice John Dooley, held that the defendants had a duty to inform E.R.’s parents based on their active engagement with the providers, and their assumption of custody and caretaking responsibilities, putting them in the ‘zone of danger’ from E.R.’s conduct. It required that mental health providers convey ‘reasonable information to notify the caregiver of the risks, and of any steps he or she can take to mitigate the risks.[4] It rejected the defendants’ arguments that doctor/patient privilege and HIPPA confidentiality precluded disclosure.[5]

The Battle Is Not Over

Even though the Vermont Supreme Court is the final authority on questions of Vermont law, the decision does not bring this matter to an end, either with respect to the outcome of this case, or on the larger policy question.

Now, at trial we will have the chance to prove that the Retreat and NKHS failed to adequately inform E.R.’s parents of the dangers of assuming caretaking responsibilities for E.R. and that those failures were a proximate cause of the assault on Michael Kuligoski.

And it seems likely that, as has happened in some other states, the mental health industry will seek to overturn the policy of Kuligoski v. Brattleboro Retreat in the next session of our legislature. 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.

Sometimes Hard Facts Help to Improve the Law

Sometimes, as they did here, hard facts help to improve the law. As Chief Justice Reiber put it in dissent, the common law typically moves “like a tortoise that explores every inch of the way, steadily making advances though it carries the past on its back.”[6] Although the Chief Justice sees the majority’s holding as “extraordinary in its scope and implications,” we see it as a small, but positive step.  Not every lawyer, nor every personal injury lawyer, gets to help make even such slow progress occur.

I thank the Kuligoski family for entrusting me with representing them in this struggle. And I thank my associate, Matt Shagam, and my former colleague, Graydon Wilson, for their assistance in bringing this case this far successfully.

Advocating for justice for people have been seriously injured and working to make the law more just and more protective of public safety is a privilege that I do not take lightly.


[1] That maxim seems to come from Winterbottom v. Wright:

This one of those unfortunate cases…in which, it is no doubt a hardship upon the plaintiff to be without a remedy but by that consideration we ought not to be influenced. Hard cases, it has frequently been observed, are apt to introduce bad law.

Winterbottom v. Wright, 10 M&W 109 (1842) (Robert Rolf, J)(consumer injured by defective product had no legal action against the defective execution of a contract to which they were not expressly privy.), overruled, Donoghue v. Stevenson, UKHL 100, 1932 SC (HL) 31, [1931] UKHL 3, [1932] AC 562.

[2] 2016 VT 54A.

[3] 146 VT 6 (1985). Peck is one of the many progeny of Tarasoff v. Regents of University of California, 551 P.2d. 33 (Cal. 1976).

[4] 2016 VT 54 ¶82.

[5] Id. at __, ¶ 61.

[6] Kuligoski at ¶85, quoting the late California Chief Justice Roger J. Traynor, Transatlantic Reflections on Leeways and Limits of Appellate Courts, 1980 Utah L. Rev. 255, reprinted in The Traynor Reader 200 (1997).


End of Summer Reflections

September 6, 2016

Labor Day has passed. And OnLawyering has inadvertently taken the whole summer off! I assure you that’s not because its principal has done the same. Just the opposite. For me it has been an outrageously busy and quite productive summer. There just was no time to post. Summertime is really quite different now than it […]

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Judge Rules That That the Collateral Consequences of Conviction Justify the Release of a Drug Offender

May 27, 2016

“Earth’s most impassable barriers – as Lincoln the lawyer knew, as Lincoln the writer knew – are often those formed not of walls and trenches, nor even of mountains and oceans, but of laws and words.”[1] Senior United States District Judge Fredric Block, in an opinion issued on May 24, [2] ruled that the collateral […]

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Deflategate is a Legal Vacuum

May 3, 2016

Last week the Second Circuit Court of Appeals[1] upheld the ruling of NFL Commissioner Roger Goodell to suspend Tom Brady for four games because of his alleged role in the Deflategate scandal. It is a decision that should have been no surprise to lawyers who understand the law of arbitration. That is because — as a […]

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Should Your Law Firm Have a Social Mission?

April 1, 2016

That question has been running through my mind anew since I happened to pick up the March issue of Inc. Magazine last weekend. The cover story, Why Shark Tank’s Kevin O’Leary Wants You to be Evil,” pits traditional entrepreneur O’Leary against Adam Lowery, who is described as co-founder and chief global sustainability officer of Method, […]

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Hon. John L. Pacht: John, Congratulations, Farewell and Good Luck!

March 12, 2016

“For everything, there is a season.” –Pete Seeger On Friday, one of our founders at Hoff Curtis, John L. Pacht, left us as Vermont Governor Peter Shumlin swore him in as a Superior Judge. Our Superior Court Judges are generalist trial court judges, but Governor Shumlin appointed John to fill a judgeship recently funded to help […]

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Truth is Stranger than Fiction

January 4, 2016

Review: John Surratt: The Lincoln Assassin Who Got Away (Seattle, WA: Bennett & Hastings Publishing 2015) 361 pages, $18.95 “Truth is stranger than fiction, but it is because Fiction is obliged to stick to possibilities; Truth isn’t.” ―Mark Twain, Following the Equator: A Journey Around the World (Hartford, CT: American Publishing Company 1897). Certainly, the […]

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The Joys of “To Do” Lists — Wunderlist

December 14, 2015

Organization has never come easily to me. I am focused on the substance of my work and it’s hard to find time and energy for getting and staying well-organized. But not being well organized makes things harder and slower. Many years ago, I went to a time management seminar and learned a lesson that has served me […]

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“Young Mr. Lincoln:” No Jackleg Lawyer

November 9, 2015

“Youngmrlincoln“. Via Wikipedia. Last weekend, I watched a classic lawyer movie, Young Mr. Lincoln. The 1939 film, directed by John Ford, stars a young Henry Fonda as Abraham Lincoln deciding to pursue a career in the law, and trying his first murder case. Lincoln is portrayed as saving the lives of two clients-–a pair of […]

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