M CHAE MAR 4 2015

M Chae Mar 4 2015-Free PDF

  • Date:05 Oct 2020
  • Views:15
  • Downloads:0
  • Pages:87
  • Size:2.81 MB

Share Pdf : M Chae Mar 4 2015

Download and Preview : M Chae Mar 4 2015


Report CopyRight/DMCA Form For : M Chae Mar 4 2015


Transcription:

TABLE OF CONTENTS,I Identity of Petitioner 1,11 Citation to Court of Appeals Decision 1. III Issues Presented for Review in the Petition 3,IV Statement of the Case 3. V Legal Argument 4, A De novo is standard of review for summary judgment 4. B Standards and requirements for summary judgment 4. C Washington has not directly and unequivocally, answered the public policy question presented for review 5. D Dr Knoll s expert testimony fails to satisfy even a. showing of foreseeable risk of harm as defined,in Peterson v State and the Restatement 2nd.
ofTorts 315 and 320 17, E SPC and Dr Ashby is immune from Yolk s Theory of. Liability based upon failure to properly assess and. commit Jan DeMeerleer 19,1 Immunity is required under RCW 71 05 120 19. 2 Yolk did not present any evidence that Jan Demeerleer. communicated actual threat against Rebecca Schiering. or her sons 21, F The Peterson v State duty conflicts with Washington s. physician patient privilege potentially damaging mental. health treatment in Washington 22,VI Conclusion 22. Appendix A Court of Appeals Decision Incorporated by reference. to Appellant s Petition,TABLE OF CASE LAW AUTHORITIES.
Berrocal v Fernandez 155 Wn 2d 585 590 121 P 3d 82 2005 4. Enter Leasing Inc v City ofTacoma Fin Dep t 139 Wn 2d 546. 551 52 988 p 2d 961 1999 4, Estate of Davis v State Dept ofCorrections 127 Wn App 883 841. 113 P 2d 487 491 2005 21,Freese v Lemmon 210 N W 2d 576 Iowa 1973 14. Gooden v Tips 651 S W 2d 364 Tex Ct App 1983 14, Hanson Indus Inc v Kutschkau 158 Wn App 278 239 P 3d 367. rev den 171 Wn 2d 1011 249 P 3d 1028 2011 4, Hutchins v 1001 Fourth Ave Assocs 116 Wn 2d 217 236 802 P 2d. 13 60 1991 17, Joy v Eastern Maine Medical Center 529 A 2d 1364 Me 1987 15.
Kaiser v Suburban Transp Sys 65 Wn 2d 461 398 P 2d 14 1965 14. Kelly v Board ofTrustees 87 N M 112 529 P 2d 1233 Ct App. cert denied 87 N M 111 529 P 2d 1232 1974 13, Kirk 117 Il1 2d at 53 111 Ill Dec at 956 513 N E 2d at 399 14. Lipari v Sears Roebuck Co 497 F Supp 185 188 D Neb. 1980 10 11, Moore v Pay N Save Corp 20 Wn App 482 484 581 P 2d 159. Nivens v 7 11 Hoagy s Comer 133 Wn 2d 192 199 943 P 2d 286 1997. quoting Hutchins v 1001 Fourth Ave Assocs 116 Wn 2d 217. 236 802 P 2d 1360 1991 17, Owen v Burlington N Santa Fe R R 153 Wn 2d 780 789 108 P 3d. 1220 2005 4, Petersenv State 100Wn 2d421 671 P 2d230 1983 5 7 10 12 17 22. Richards v Stanley 1954 43 Ca 2d 60 65 271 P 2d 23 8. Ruffer v St Cabrini Hasp 56 Wn App 625 628 784 P 2d 1288 1990. rev den 114 Wn 2d 1023 1990 5 18, Stake v Woman s Div of Christian Serv 73 N M 303 387 P 2d 871.
Tarasoffv Regents of University of California 17 Cal 3d 425. 551 P 2d 334 1976 7 10 11 13,Thompson v County of Alameda 614 P 2d 728 1980 11. Young v Key Pharmaceuticals 112 Wn 2d 216 226 770 P 2d 182 1989 4 5. Wharton Transp Corp v Bridges 606 S W 2d 521 Tenn 1980 14. Welke v Kuzilla 144 Mich App 245 375 N W 2d 403 1985 15. Wilschinsky v Medina et al 108 N M 511 775 P 2d 713 12 13 15. Wright v Arcade School Dist 230 Cal App 2d 272 277 40 Cal Rprt. RCW 71 05 120 3 19,RCW 71 05 120 1 21,RCW 71 05 120 2 21. RCW 71 05 330 2 20,RCW 71 05 340 1 b 20,Court Rules. ER 702 18 19,Miscellaneous,PROSSER HANDBOOK OF THE LAW OF TORTS 244 45. 4 1hed 1971 8,Restatement 2nd ofTorts 314 6 8,Restatement 2nd of Torts 315 6 8 13.
Restatement 2nd of Torts 316 11,Restatement 2nd of Torts 317 11. Restatement 2nd of Torts 318 11,Restatement 2nd a Torts 319 6 9 12. Restatement 2nd ofTorts 320 6 9 11 17,I Identity of Petitioner. Petitioner Spokane Psychiatric Clinic P S a Washington. professional services corporation petitions the Court for review of the. Court of Appeals Division III s Opinion and joins in the Petition for. Review filed by Dr Ashby,II Citation to Court of Appeals Decision. Spokane Psychiatric Clinic P S hereinafter SPC requests. review of the Division Three Court of Appeals decision in Volk v. DeMeerleer et al Cause No 31814 1 III decided on November 13 2014. SPC was granted summary judgment based upon the fact that Plaintiffs. did not offer any expert testimony or proof that SPC violated any standard. of care However the Court of Appeals held that SPC remains vicariously. liable for Dr Ashby s conduct, Unfortunately Washington State has not developed a clear.
precedent for the duty owed by private practice psychotherapists and. psychotherapist clinics to third parties under circumstances like those. involved here The Court of Appeals was left in the untenable position of. trying to analyze existing precedent in the absence of clear direction from. the Legislature or this Court, A clear public policy issue is presented to the Court i e whether a. private practice psychotherapist or psychotherapist clinic can practice. under the impossible foreseeable harm standard that fails to provide a. reasonable method for a practitioner to know when to breach the. psychotherapist patient privilege Washington is one of a few remaining. states that has not addressed this gap in developing case precedence. Specifically Spokane Psychiatric seeks review of this case so that. the Court may articulate the duty owed by private practice. psychotherapists and psychotherapist clinics and identify under what. circumstances the private practice psychotherapist or clinic is required to. breach the patient psychotherapist privilege and warn authorities or others. to protect third parties Spokane Psychiatric requests that this Court accept. review of this case in order to bring Washington in line with the. overwhelming number of states that require such disclosures only when. the patient expresses a specific threat of harm to a readily identifiable. Respondents filed a motion for reconsideration of the Court of. Appeals decision on December 3 2014 The Court of Appeals issued its. decision denying reconsideration on February 3 2015. A copy of the Court of Appeals decision is attached as Appendix. III Issues Presented for Review in the Petition,No 1 What is the appropriate standard for review. No 2 Should this Court recognize the clear public policy and. importance of the patient psychotherapist privilege and the necessity of. protecting that privilege except when a clear established threat of harm. has been disclosed identifying an individual or individuals. No 3 If Petersen v State 100 Wn 2d 421 671 P 2d 230 1983. applies to a private practice psychotherapist or psychotherapist clinic did. the Plaintiff present sufficient admissible evidence to create a genuine. issue of fact to avoid summary judgment in this case. No 4 Does RCW 71 05 120 have application when a private. practice psychotherapist or psychotherapist clinic treats a patient in a. private setting and the patient intentionally injures or kills a third person. without expressing any specific threat or intent to harm that person. IV Statement of the Case, SPC adopts and incorporates the Statement of the Case set forth in. Dr Ashby s Petition for Review as though set forth hereat. V Legal Argument,A De Novo is Standard of Review for Summary. In Hanson Indus Inc v Kutschkau 158 Wn App 278 239 P 3d. 367 rev den 171 Wn 2d 1011 249 P 3d 1028 2011 the Court stated. An order of summary judgment is reviewed de novo This court. engages in the same inquiry as the trial court and views the facts in. the light most favorable to the nonmoving party Berrocal v. Fernandez 155 Wn 2d 585 590 121 P 3d 82 2005 Summary. judgment is proper ifthere is no genuine issue of material fact and. the moving party is entitled to judgment as a matter of law CR. 56 c A material fact is one that affects the outcome of the. litigation Owen v Burlington N Santa Fe R R 153 Wn 2d 780. 789 108 P 3d 1220 2005 Questions of law and questions of. statutory interpretation are reviewed de novo Enter Leasing Inc. v City ofTacoma Fin Dep t 139 Wn 2d 546 551 52 988 P 2d. B Standards and Requirements for Summary Judgment, The purpose of a motion for summary judgment is to examine the.
sufficiency of the evidence underlying a plaintiffs formal allegations to. avoid unnecessary trials when no genuine issue of material fact exists. Young v Key Pharmaceuticals 112 Wn 2d 216 226 770 P 2d 182 1989. Civil Rule 56 c provides that a judgment shall be rendered forthwith if. here is no genuine issue as to any material fact and the moving party is. entitled to judgment as a matter of law, It is well settled under Washington law that defendants may test. the plaintiffs potential proof by moving for summary judgment on the. ground the plaintiff lacks competent medical evidence to make out a prima. facie case of medical malpractice d Once a party seeking summary. judgment has made an initial showing of the absence of any genuine issues. of material facts and the propriety of summary judgment under applicable. law applied to those facts the non moving party has the burden to. demonstrate the existence of unresolved factual issues Ruffer v St. Cabrini Hasp 56 Wn App 625 628 784 P 2d 1288 1990 rev den. 114 Wn 2d 1023 1990 Established case law clearly places the burden on. the non moving party to submit affidavits affirmatively presenting the. factual evidence relied upon Ruffer 56 Wn App at 634. C Washington has not Directly And Unequivocally,Answered The Public Policy Question Presented For. The Court of Appeals held that Petersen v State 100 Wash 2d. 421 671 P 2d 230 1983 articulated an appropriate standard of care for a. psychotherapist treating a private patient and it was controlling under the. facts presented Volk 337 P 3d at 374 However this Court s decision in. Petersen dealt with disparate facts and relationships among the parties and. it relied primarily upon the Restatement of Torts 315 Restatement of. Torts 315 provides as follows, There is no duty so to control the conduct of a third person as to. prevent him from causing physical harm to another unless. a a special relation exists between the actor and the third person. which imposes a duty upon the actor to control the third person s. conduct or, b a special relation exists between the actor and the other which. gives to the other a right to protection, In addition Comment c clarifying the application of clauses a.
and b above states, c The relations between the actor and a third person which. require the actor to control the third person s conduct are. stated in 316 319 The relations between the actor and the. other which require the actor to control the conduct of third. persons for the protection of the other are stated in 314A. and 320 Emphasis added, In Petersen this Court held that Dr Miller a state employed. psychiatrist had a special relationship with Mr Knox the state. committed patient because Dr Miller was treating Mr Knox Concurrent. with that special relationship Dr Miller had an obligation under. Restatement ofTorts 319 as a person in charge not to release Mr Knox. if Mr Knox might harm others Restatement of Torts 319 states. One who takes charge of a third person whom he knows or should. know to be likely to cause bodily harm to others if not controlled is. under a duty to exercise reasonable care to control the third person. to prevent him from doing such harm, It was the combination of both those factors that established the. State s duty and liability in Petersen It is the absence of the second factor. that requires this Court to affirm the trial court s grant of summary. judgment here The existence of a special relationship alone should not. impose a general duty upon a private practice psychotherapist to protect. anyone who might be injured by a patient Such a standard places the. private psychotherapist in the untenable position of trying to anticipate a. patient s future behavior which is clearly impossible unless there are. expressed threats or predictable behaviors that put the psychotherapist on. notice of a patient s risk to others, In Tarasoff v Regents of University o f California 17 Cal 3d 425. 551 P 2d 334 1976 the California Supreme Court established a new duty. of care owed by a mental healthcare provider to a person injured by a. patient where the psychotherapist was told by the patient that he intended. to harm a particular person The facts of that case were that Podder killed. Tatiana Tarasoff Two months earlier Podder had expressed an intention. to kill Tarasoff to Dr Lawrence Moore a psychologist employed by a. University of California Berkeley hospital On Dr Moore s request the. campus police briefly detained Podder but let him go when he appeared. rational Dr Moore took no further steps to detain Podder or warn others. about him Tarasoffs parents and estate sued the University Dr Moore. and the campus police The trial court dismissed all claims on California s. equivalent of a 12 b 6 motion, On appeal the California Supreme Court reversed dismissal of the.
plaintiffs claims against Dr Moore 1 In so doing the court held that when. a psychotherapist determines or pursuant to the standards of his. profession should determine that his patient presents a serious danger of. violence to another he incurs an obligation to use reasonable care to. protect the intended victim against such danger In establishing a new. duty the California Supreme Court stated at pp 435 36. Although as we have stated above under the common law as a general. Key Pharmaceuticals 112 Wn 2d 216 226 770 P 2d 182 1989 Civil Rule 56 c provides that a judgment shall be rendered forthwith if here is no genuine issue as to any material fact and the moving party is

Related Books