Mental Health Law

Brief - Duty to protect patients against sexual assault by other patients. - Delk v. Columbia/Healthcare Corp., 259 Va. 125, 523 S.E.2d 826 (Va. 2000)

Plaintiff was admitted to defendant psychiatric hospital for exacerbation of her bipolar condition and observation because she was felt to be a danger to herself.  As known to defendant, she had been chronically mentally ill since being sexually molested as a child and gang raped as a teenager.  Defendant documented that its staff allowed a male patient, believed to be HIV-positive, to enter plaintiff's room and remain there without supervision, and failed to note plaintiff's claims that she had been sexually assaulted.  Defendants plead that they owned no duty to protect plaintiff from criminal attack because there was no special relationship between defendant and plaintiff, and, secondarily, the criminal attack was unforeseeable.  The trial judge accepted defendants' claims and gave them summary judgment. 

The Virginia Supreme Court rejected this ruling, first finding that there is a special relationship creating a duty between a psychiatric patient who is admitted for 24 hour observation and protection and the psychiatric facility where she is housed.  The court then reviewed its precedent on the foreseeability and duty to warn about criminal assaults.  The defendants relied on a case involving the duty of a newspaper to warn minor independent contractor carriers about the danger of being sexually assaulted on their routes.  While there has been assaults in the past, none happened anywhere near the route of the plaintiff carrier.  The court in that case relied on traditional legal requirement of some notice of the danger and found that there was not adequate notice of risk to require the newspaper to warn the carriers.  In the instant case, however, the court found that defendants were on sufficient notice of the risk to plaintiff, both because of the special nature of her hospitalization and their information about the alleged assailant.  The court found that these allegations also support a cause of action under Restatement of Torts sec. 315(a) and 319, which both deal with the duty to control third persons.  The plaintiff made a claim for intentional infliction of emotional distress against defendant for withholding the information that she has been exposed to HIV.  The court found that, if true, it would at a minimum be reckless behavior and would support this claim.  The court dismissed plaintiff's claim for negligent infliction of emotional distress because she did not properly plead the nature of her injuries under Virginia law.  This is a useful case for reviewing the standards for duty to control other patients.