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Volk v. DeMeerleer

Court of Appeals of Washington, Division 3

November 13, 2014

Beverly R. Volk, as Guardian, as Personal Representative, and on behalf of Statutory Beneficiaries, et al., Appellants ,
v.
James B. DeMeerleer, as Personal Representative, Defendant, Howard Ashby et al., Respondents

Oral Argument June 12, 2014

Reconsideration denied February 3, 2015.

Page 373

Appeal from Spokane Superior Court. Docket No: 11-2-00277-7. Judge signing: Honorable Tari S Eitzen. Judgment or order under review. Date filed: 06/21/2013.

Michael J. Riccelli, for appellants.

Robert F. Sestero II and Patrick M. Risken (of Evans, Craven & Lackie PS ); and David A. Kulisch (of Randall & Danskin PS ), for respondents.

Paul A. Bastine on behalf of Washington State Psychological Association, amicus curiae.

Concurring: Robert E. Lawrence-Berrey. Dissenting: Stephen M. Brown.

OPINION

Page 374

[184 Wn.App. 394] George B. Fearing, J.

[¶1] We undertake the humbling and daunting task of demarcating the duty a mental health professional owed to third parties to protect them from the violent behavior of the professional's outpatient client. The parties, the mental health care profession, and the residents of Washington State would be better served by the legislature addressing this question after a comprehensive review of scientific data and statistics and after a thorough airing of the competing interests and policies involved. Since we conclude that the state legislature has not addressed the duty owed in the context of an outpatient client, we follow the Supreme Court precedent of Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983). We rule that a question of fact exists as to whether Dr. Howard Ashby and his employer, Spokane Psychiatric Clinic, P.S., owed a duty to protect the general public, including plaintiffs, from the violent behavior of patient Jan DeMeerleer.

[¶2] During the early morning of July 18, 2010, Jan DeMeerleer entered the home of his former girl friend, Rebecca Schiering, and killed her and her son Phillip. He attempted to kill another son, Brian, but left Phillip's twin, Jack, alive. Afterward, DeMeerleer killed himself. Prior to the killings, Jan DeMeerleer received outpatient treatment for his depression and bipolar disorder from psychiatrist Dr. Howard Ashby.

[¶3] Brian Winkler, individually, and Beverly Volk, as guardian ad litem for Jack Schiering and as personal representative for the estates of Rebecca Schiering and Phillip Schiering (collectively Schierings), brought suit against Dr. Howard Ashby and the clinic where he worked, [184 Wn.App. 395] Spokane Psychiatric Clinic for professional malpractice, loss of chance, and negligence. The trial court dismissed the Schierings' action on summary judgment because Jan never threatened the Schierings in his sessions with Dr. Ashby.

[¶4] To the extent the Schierings argue Dr. Howard Ashby should have involuntarily committed Jan DeMeerleer, we affirm the trial court's dismissal. We also affirm dismissal of the Schierings' lost chance claim and dismissal of the Schierings' claim of independent negligence against Spokane Psychiatric

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Clinic. But because a question of fact exists as to whether Dr. Howard Ashby owed a duty to protect the general public, including the Schierings, we reverse the dismissal of the claim against Howard Ashby for negligence in treating Jan DeMeerleer and the claim against Spokane Psychiatric Clinic for vicarious liability and remand for further proceedings.

FACTS

[¶5] Since the Schierings claim Jan DeMeerleer's psychiatrist committed malpractice, we review DeMeerleer's psychiatric background. In response to the summary judgment motion, the Schierings provided the trial court with some of Dr. Howard Ashby's chart notes. We do not know if all notes were provided.

[¶6] Jan DeMeerleer was born in 1971 and received his degree in mechanical engineering from Purdue University, where his bipolar disorder and depression first surfaced. He was hospitalized with suicidal thoughts and first diagnosed with the diseases during the summer of 1992. A mental health professional then placed DeMeerleer on Depakote, a medication that treats manic episodes resulting from bipolar disorder. DeMeerleer soon ceased taking the medication. He moved to the Midwest for education and jobs. He imbibed alcohol to treat his depression.

[¶7] In 1996, DeMeerleer married Amy after living with her for three years. The two first met at a Moscow, Idaho, high school where they graduated in 1989.

[184 Wn.App. 396] [¶8] Jan DeMeerleer next sought treatment for his disorders in 1997, when he once again developed suicidal thoughts. A physician treated DeMeerleer on an outpatient basis and prescribed Depakote again. DeMeerleer ceased his sporadic use of the drug in 1998 because he disliked its side effects. The drug decreased his creativity. He was embarrassed for others to know he took antipsychotic drugs.

[¶9] Jan and Amy DeMeerleer moved to Spokane in 2000, where their daughter was born that year. Amy, with the daughter, vacated the family home in 2003. The couple divorced in 2004 and agreed to share residential care of the daughter, exchanging her every four days.

[¶10] Jan DeMeerleer sought psychiatric care from defendant Dr. Howard Ashby beginning September 13, 2001. His wife, Amy, attended Jan's first visit to Ashby. Dr. Howard Ashby obtained a history from his patient Jan DeMeerleer. Ashby's 2001 intake notes contain the history recited above. The notes also read in part:

September 13, 2001 Dr. Ashby Jan Demueller [sic] N/P Intake
... .
By August of 1998 after sporatic [sic] use [of Depakote] when he stopped it totally, he immediately went into a high and had " great feelings." He describes very much grandiose behavior. Over the past 2 years he has not received treatment and approximately 2 months ago quit his job in a grandiose manipulation and play at work where he basically states he made a fool of himself at work, said stupid things and engineered himself out of the job in his delusional state thinking this was a grandiose thing to do. He states that earlier this summer he had suicidal ideation and even homicidal ideas, was going to leave the country. He states that in less manic situations he has a tendency to want to feel powerful, manipulates his wife, relatives and friends with stories. He indicates that at work he was so productive and good that at one time they even went along with his desire to be called by some fantastic name [184 Wn.App. 397] because he was so active and " gung ho" . He states that last March he was grandiose to the point that he felt " I'm here to show earthlings what they are capale [sic] of" . He indicates that as he looks back he recognizes that he was completely out of control.
In August of this year, his wife had to start working because he had quit his job. He started having some depression again and suicidal ideation including playing Russian Roulette. That gun and other weapons have been removed from the home and on Labor Day weekend he had an " intervention" with his family in which he invited them together and finally showed them the records of his previous

Page 376

hospitalization, etc., came clean with everything and asked for their support and help particularly to be able to help his wife when he gets into a manic or depressive swing.
Regarding mania, if he feels suicidal, it's to drive high speeds and hurt himself that way, regarding depression he states he is so immobile that he can't do it although he has had thoughts. He does describe 10 years ago however of being placed in the hospital because he laid down on railroad tracks with the idea of being decapitated.
... He was placed in jail at age 20 because of the train having to stop when he was trying to kill himself and was detained in the hospital. Subsequently, at age 21, while in college he was in jail for alcohol, stealing bikes and states it was during one of his out of control episodes during college.
Mental Status Exam: He is logical and goal oriented, somewhat labile [emotionally unstable] ... . He expresses motivation to get help and to be compliant with medication at this time, however. His mood overall is neutral but again at times he can be very serious but not necessarily depressed but quite intense. Cognition is normal, content is good, judgment is intact. He is not suicidal or homicidal. No obsessions or compulsions. ... Interaction with wife in this interview was appropriate.
Impression:
Axis I: Bipolar affective disorder with frank manic episodes but also apparently mixed presentations with a response to Depakote in the past but with poor compliance.

[184 Wn.App. 398] Axis II: A possibility of cyclothymic personality disorder and some obsessive compulsive traits which will all need to be further evaluated as time goes by and he further stabilized.

... .
Plan: Reinstitute Depakote, get blood level and baseline labs after he is on 500 mg twice a day for 4 or 5 days. Getting the medication at trough level were all described so he can get the level done appropriately. ... I feel that having a fairly aggressive dose would be appropriate due to the description and seriousness of his symptoms and the possibility that he was only partially treated and this may have contributed somewhat to his difficulty with compliance. We will have to watch side effects to help with the compliance also. Set up additional appointments not only to monitor medication but to do therapy.

Clerk's Papers (CP) at 238-40. " Cyclothymic personality disorder" is a mild form of bipolar disorder, with meeker mood swings between depression and hypomania.

[¶11] Dr. James Knoll, the Schierings' expert, averred in a declaration that he reviewed the clinical records from Spokane Psychiatric Clinic. In turn, Knoll included information in his declaration concerning Jan DeMeerleer's treatment not included in the chart notes provided to the trial court. According to James Knoll, Jan DeMeerleer provided the following information, in a written submission, about his mental state when he first met with Dr. Howard Ashby in September 2001:

o Despises lesser creatures; no remorse for my actions/thoughts on other living creatures.
o Delusional and psychotic beliefs argued to the point of verbal abusive [sic] and fighting.
o No need for socialization; in fact, prefers to psychotically depopulate the world (i.e. " do Your Part" [CYP] terrorist philosophies).
o Wants to destroy; pounds on computer keyboard, slams phone receiver, swings fists.
o Has no use for others; everyone else in world is useless.

[184 Wn.App. 399] o Reckless driving; no fear of danger in any circumstance, even " near misses."

o Acts out fantasies of sex with anyone available.

CP at 85 (alteration in original).

[¶12] On September 13, 2001, Amy DeMeerleer described her husband's mental states, according to James Knoll, as follows:

o Makes mistakes on projects (i.e. breaking something) and quickly moves into

Page 377

dangerous rage; actually easily slips into depression after this type of trigger.
o Severe lack of sleep coupled with dreams of going on killing or shooting sprees.
o Drives automobiles very fast (at least 20 to 30 MPH above speed limit) without seat belt while showing no fear at all when in dangerous situations; applies even with child in car.
o Expresses severe " road rage" at other slower drivers, even as a passenger (he's NOT driving).
o Has an " All or Nothing" attitude; will actually verbally express " Live or Die!"

CP at 85-86.

[¶13] Jan DeMeerleer expressed suicidal and homicidal ideas to psychiatrist Howard Ashby on several occasions after September 2001. But, according to Dr. James Knoll, Dr. Ashby made " no thorough inquiry ... as to the nature and extent of [DeMeerleer's] ideas, such as: planning; access to weapons; prior attempts; acting out, etc; stress; access to victims; and so forth." CP at 86.

[¶14] Jan DeMeerleer visited Dr. Howard Ashby on December 2, 2002. Dr. Ashby's notes for that visit read:

Jan indicate[d] that he had an episode of approximately an hour, hour and a half of having angry, aggressive thoughts, even to the point of suicidal, homicidal thoughts, wouldn't act on them and it went as quickly as it came but on close questioning, he admits that during that period of time he was not checking himself or censoring those thoughts except not letting himself [184 Wn.App. 400] act on them. All told, there are some indications that he was still being responsible, i.e. he didn't want to leave because his daughter was sleeping etc. so there is an element of safety and keeping things under control that continue to be maintained. Mental status exam today is WNL [within normal limits] and he indicates that he is sleeping, doing fine, there is stress with his job as he has two job offers and now just has to wait to see which one comes through but he will be hired on permanently within the next month or two in one of the two jobs. This will be of great help to him.
The last episode he had was in September which was approximately 2 months ago so we will have to keep an eye on this. It lasted about 3 hours, so hopefully the trend is that the medication is keeping things under control.
Plan: Take an extra Risperdal at the earliest onset, also use cognitive behavioral therapy principles that we've discussed prior and reviewed today.

CP at 241.

[¶15] Jan DeMeerleer saw Dr. Howard Ashby on December 31, 2003. Dr. Ashby's chart notes read:

Jan missed his last appointment approximately 6 weeks ago, was in the middle of separating from his wife, totally spaced it out. Currently, however, he probably would not have made another appointment until some time in January but his family pressured him to get an appointment today. In the wake of the divorce, he was initially quite depressed, admits to having suicidal ideation, it walked through his mind, as he put it, but he would not take it seriously and has no intent, really feels like he could not do it. It actually bothers him that these kinds of ideas are entertained by him from time to time. He became congruently upset and tearful because he states that those thoughts are totally untenable and unlike him and not something he would normally consider because of his daughter and other family members. He specifically documents how much support his family is and how much he knows he is cared about.
An additional negative, however, is that he started seeing a woman for approximately a 4 week period which was a very rewarding relationship, however, the last 2 weeks she has [184 Wn.App. 401] backed off and become more aloof indicating that there are a lot of little things about him as she got to know him that she didn't like and this really sent him for a loop because it's basically the same language his wife used, that there was not one thing but a lot of little things that caused her to divorce. We talked about these issues fully as time allowed

Page 378

and he was able to put things into perspective and already had in many ways. Additionally, however, he states that he does want to make some changes in things he knows are reasonable for him to make so we began a review of some target behaviors that he would like to work on.
Impression: Some emotional lability, but he has not had major symptoms that indicate that medication needs to be changed more than he needs psychological support. He has had depressive symptoms and has had some hypomanic behavior but in the context of the recent stresses, I do not see that the disorder itself is raising its head as much as the situation is creating the symptom response. With this in mind we're going to schedule a number of appointments in succession so that we can work on these issues and give him the support that he needs. I do not feel he is a suicidal risk. I also do not feel he is overly depressed or manic, either one which would cause him not to be able to continue to be functional at work, socially or in his family life at this point. Mental status, in that sense was euthymic in the sense of no push of speech, no rapid mood swings, thought content and production were all totally WNL.

CP at 237.

[¶16] On January 23, 2004, Dr. Howard Ashby met with Jan DeMeerleer. Dr. Ashby's notes read:

Jan is still reeling from his wife divorcing him. He admits that he has had a lot of dark thoughts over the last couple of weeks. Talked about this to some friends, they rallied around him and kept him okay. He apologized to them for being so negative, they were actually homicidal/suicidal thoughts. He indicates that reality check was appropriate and he is embarrassed that he had those thoughts and let himself get that carried away. He knows that he would never go there, but just the fact that he was expressing it out loud to other people is an embarrassment to him. We took a step back and looked at this to try to get a sense of perspective that might be helpful. One [184 Wn.App. 402] thing, is that he really does have strong feelings and this in a man who felt that at times he didn't have the ability to have deep feelings about things. Additionally, the fact that he talked with others and then they responded in a way that was appropriate, and as friends would do, was reassuring. As he has a tendency to look at the half empty side of the glass, we worked on this cognitive behavioral principle.
Mood, affect, psychomotor activity, content, insight, etc were all within normal limits. He does openly expresses [sic] the fact that he is in a lot of pain because of the sense of loss, but it is helpful to him that he has liberal visitation with his daughter who allows him to stay centered. The other five days he struggles. We worked on this also, so that he can have some counter statements to help with the tendency for negative interpretations.
Plan: Continue current medication, continue weekly support.

CP at 236.

[¶17] According to Dr. James Knoll, Jan DeMeerleer, after divorce from Amy, told Dr. Howard Ashby of homicidal thoughts about his ex-wife and her boyfriend. The clinical notes in the record do not confirm such thoughts or reporting to Howard Ashby.

[¶18] In 2005, Jan DeMeerleer met Rebecca Schiering and immediately fell in love with her. Schiering had three sons, Brian Winkler, and Phillip and Jack Schiering. Phillip and Jack, the younger boys, were twins. Jack experiences autism, bipolar disorder, and mood disorder. DeMeerleer eventually referred to the boys as his " children." CP at 196. Phillip and Jack often called DeMeerleer " dad." CP at 196. DeMeerleer spoke often of marrying Rebecca Schiering and becoming a stepfather to her three sons.

[¶19] On September 24, 2005, Gena Leonard, Jan DeMeerleer's mother, wrote to Dr. Howard Ashby, expressing concerns about DeMeerleer's depression and ...


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