Panel Denies Medical Malpractice Claims in Murder by Disturbed Man
Andrew Keshner New York Law Journal August 16, 2011
The husband of a Long Island woman murdered by a mentally disturbed man cannot proceed with medical malpractice claims against a mental health facility and a psychiatrist who treated the attacker, a Brooklyn-based appellate court has ruled.
On an August 2006 trip from the SLS Residential facility in Brewster to visit his mother in Glen Cove, Long Island, Evan Marshall killed and dismembered Denise Fox, a retired teacher who lived two doors away from his mother.
Ms. Fox's husband, Jay, in 2008 sought to hold SLS Residential, its related corporate entities and psychiatrist Dr. Mark J. Stumacher liable for medical malpractice for their alleged failure to correctly diagnose Mr. Marshall.
Mr. Fox also sued other employees at the facility, Mr. Marshall and his mother, Jacqueline. His suit also claimed wrongful death, negligence and infliction of emotional distress.
All defendants, except for Mr. Marshall, brought dismissal motions before Supreme Court Justice F. Dana Winslow in Nassau County (See Profile), who rejected the defense motions in 2009, holding that mental health care providers may owe duties to the general public in some cases.
But the Appellate Division, Second Department, last week narrowed Mr. Fox's claims by removing allegations of medical malpractice.
Taking up the "often muddled issue" on whether third-parties can viably sue physicians despite the absence of a doctor-patient relationship, the unanimous panel in Fox v. Marshall, 14183-2008, held that the physician's duty of care did not extend to Mr. Fox.
Writing for the panel, Justice Sandra L. Sgroi (See Profile) said, "[R]egardless of any sense of outrage which is evoked by the heinous actions of Evan Marshall, society's interest is not best served by concluding that a doctor who treats a patient, within the context of mental health, undertakes a duty to the public at large."
The panel also dismissed Mr. Marshall's mother from the litigation, saying a parent could not be held liable for the acts of an emancipated child.
Justice Sgroi was joined by Justices William F. Mastro (See Profile), Anita R. Florio (
See Profile) and John M. Leventhal (
See Profile), who heard oral arguments on Nov. 19, 2010, and ruled on Aug. 9.
Mr. Marshall had been residing at SLS Residential since November 2005. Mr. Marshall, who collected violent pornography in his room, received a weekend pass on Aug. 16, 2006, to visit his mother.
A day after spending $280 on cocaine, Mr. Marshall murdered Ms. Fox, 57.
Mr. Marshall, now 36, is serving a 30-year-to-life sentence for first-degree murder and burglary.
In September 2009, Justice Winslow refused to dismiss the medical malpractice claims while also letting the other claims go forward.
In his motion to dismiss, Dr. Stumacher argued that a physician's duty is to a patient and he did not owe a duty of care to Ms. Fox.
While Justice Winslow acknowledged that a physician's duty cannot be extended to the public at large, he said mental health practitioners could in some cases owe a duty to protect the public from an outpatient's actions if the practitioners knew about and could control the outpatient's violent acts.
At the Appellate Division, Justice Sgroi observed that New York lacks a "bright-line rule" on when health care providers treating a voluntary patient owe a duty of care to the general public. The issue has been examined on a case-by-case basis, she wrote.
But a doctor-patient relationship was indispensable to a malpractice action, she said. The absence of such a relationship between Ms. Fox and the facility or Dr. Stumacher foreclosed a malpractice claim in this case.
Justice Sgroi acknowledged the law was "flexible enough to imply a duty of care by a doctor, in a medical malpractice context, to those who are not patients." Case law recognized that a physician has duties in certain circumstances to a patient's family and those relying on the doctor for the patient's care, she noted.
She cited a 1978 Second Department decision,
Donohue v. Copiague Union Free School Dist
, 64 AD2d 29, which concerned an allegation of educational malpractice, to discuss the judicial recognition of a duty of care. There, the panel said a duty of care was founded on factors like moral, preventative, economic and administrative considerations.
"Given these considerations, we conclude that the extension of a physician's duty of care beyond a narrow class of potential defendants, such as immediate family members, cannot be supported under any analysis of duty," Justice Sgroi wrote, adding that medical professionals could not be held liable by "a limitless class of potential defendants." Moreover, she said she could not justify extensions of duty based on moral and ethical concerns either.
Justice Sgroi warned that expanded liability for mental health providers could have negative consequences for their patients.
"At worst, mental health care providers may be reluctant to even undertake treatment of those who are most in need of their services," she wrote. "At the very least, the extension of possible liability would encourage such health care providers to opt in favor of what may be unnecessary confinement for such patients, and concomitantly, decrease the ability of such patients to ultimately successfully integrate into society."
Cornelius P. McCarthy of Allegaert Berger & Vogel represented Mr. Fox. Citing a protective order, Mr. McCarthy declined to comment.
William G. Ballaine of Landman Corsi Ballaine & Ford and Jonathan S. Klein of Marcus, Ollman & Kommer represented SLS Residential and related entities.
Stewart G. Milch of Martin Clearwater & Bell represented Dr. Stumacher.
Lynn A. Ingrao of Purcell & Ingrao represented Ms. Marshall.
Daniel S. Ratner of Heidell, Pittoni, Murphy & Bach represented clinic director Dave Moore and Matthew Tracy of Winget, Spadafora & Schwartzberg represented social worker Linda Padroff.
No other attorneys responded to requests for comment.