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Mental health care providers may be sued for breach of duty to the general public following the violent act of an outpatient who was receiving treatment on a voluntary basis, Judge Denny Chin of the Southern District of New York has ruled. In a suit filed against several hospitals after a deranged patient pushed a man in front of a subway train, Chin said there is no “bright-line rule” holding that providers of services to the mentally ill owe no duty of care to the public. However, Chin, while finding that there was also no “bright-line rule” relieving homeless shelters from a duty of care to the general public, nonetheless ruled that two New York City shelters could not be sued in the case, Rivera v. New York City Health and Hospitals Corporation, 00 Civ. 5279. The decision will be published Tuesday. The suit was filed after Julio Perez, a mentally ill man, pushed Edgard Rivera onto the subway tracks as a train entered the subway station at 51st Street and Lexington Avenue on April 28, 1999. Rivera lost both legs in the incident. Perez, a homeless man, had been receiving care from three different medical facilities, including a Veterans Administration hospital. The lawsuit charged that, on the day of the attack, Perez was seen by a doctor at the V.A. hospital, and the doctor permitted him to leave despite Perez’s belief that people were out to get him. Deciding motions for summary judgment, Judge Chin said that in general, a physician’s duty of care extends only to the patient. “In the case of mental health practitioners, however, in certain circumstances this duty is owed not only to patients and the narrow category of individuals the physician could expect to be affected by the treatment, but to the outside public as well,” he said. The hospitals argued before Chin that because of New York case law finding no liability in outpatient situations, mental health providers are, in all cases, on the safe side of what they termed a “bright-line rule.” “Defendants cite many cases in an effort to establish such a rule, but the cases they cite are fact-specific and turn on factors other than merely whether the patient was an outpatient or an inpatient,” he said. One important case, Chin said, was Schrempf v. New York, 496 N.Y.S. 2d 973 (1985), where the New York Court of Appeals reversed a finding of negligence against a state institution. A patient who had been released from the institution, but was still receiving outpatient treatment at the facility, shot and killed a man. While the Court of Appeals in Schrempf found the psychiatrists at the institution were not negligent, Chin said, the “court recognized that the State had a duty, albeit a more limited one, to prevent him from harming others.” “The patient’s outpatient status did not absolve the State of responsibility,” he said. Chin said that other courts, in other jurisdictions, have recognized that “mental health care providers may have a duty to protect others from the actions of voluntary outpatients,” particularly where a care provider is faced with a decision on placing the outpatient on inpatient status. Finally, Chin said that “although the treatment of the mentally ill is a difficult and delicate task and important policy concerns are implicated by the imposition of liability on psychotherapists,” a psychiatrist nonetheless has a duty to conduct a careful and competent examination of an outpatient. Moreover, he said, “New York law provides a variety of mechanisms by which a mental health provider can seek commitment, including commitment on an emergency basis, where an outpatient presents a significant and immediate threat to himself or others.” Those mechanisms, he said, “also provide safeguards for the protection of the patient.” HOMELESS SHELTERS As to homeless shelters, Judge Chin said that most cases have found that shelters “lack the requisite control over residents to warrant the imposition of a duty of care to others.” But there are exceptions to that general rule, he said, and like the duty owed by mental health care providers, the facts of each case concerning homeless shelters, examined in light of general negligence principles, will determine the result. In this case, Chin said, Rivera had failed to allege any facts “that would give rise to a duty of care to the general public” by the shelters. Michael A. Santo of Levine & Grossman in Mineola, N.Y., represented Rivera. Lawrence S. Wasserman of New York’s Gordon & Silber represented the Citiview Connections shelter. Robert J. Walker of Gallagher, Walker & Bianco in Mineola represented the Fort Washington Men’s Shelter. Assistant Corporation Counsel Matthew J. Moriana represented the City of New York. Gregory J. Radomisli of New York’s Martin, Clearwater & Bell represented New York Presbyterian Hospital. Assistant U.S. Attorney Ross E. Morrison represented the United States.

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