Rodriguez v. Catholic Health Initiatives

297 Neb. 1

899 N.W.2d 227

Angela RODRIGUEZ and Adan Rodriguez, Special Administrators of the Estate of Melissa Rodriguez, Appellants,

v.CATHOLIC HEALTH INITIATIVES, doing business as CHI Health, et al., Appellees.

No. S–15–1205.

Supreme Court of Nebraska.

Filed June 23, 2017.

Brian E. Jorde, of Domina Law Group, P.C., L.L.O., for appellants.

Patrick G. Vipond, William R. Settles, and Cathy S. Trent–Vilim, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellees Catholic Health Initiatives, doing business as CHI Health, et al.

J. Scott Paul and Jay D. Koehn, of McGrath, North, Mullin & Kratz, P.C., L.L.O., and, on brief, Elizabeth Bruening Smith, Omaha, for appellee The Noll Company.

Joseph S. Daly and Mary M. Schott, of Sodoro, Daly, Shomaker & Selde, P.C., L.L.O., Omaha, for appellees UNMC Physicians and Jane Doe Physician # 1.

Heavican, C.J., Miller–Lerman, Stacy, and Kelch, JJ., and Bishop, Judge.

Miller–Lerman, J.

NATURE OF CASE

After Melissa Rodriguez was killed by Mikael Loyd, Melissa's parents, Angela Rodriguez and Adan Rodriguez, as the special administrators of Melissa's estate (collectively the appellants), brought this negligence and wrongful death action in the district court for Douglas County. The appellants filed their second amended complaint against numerous defendants whom we treat as three groups. The first group is collectively referred to as the "Lasting Hope defendants," composed of Catholic Health Initiatives, doing business as CHI Health; Alegent Creighton Health, now known as CHI Health Alegent Creighton Clinic; Lasting Hope Recovery Center of Catholic Health Initiatives (Lasting Hope); "John Doe # 1," an employee of Lasting Hope; "John Doe # 2," an employee of Lasting Hope; three Noll entities (Noll Human Resource Services, The Noll Company, and Noll, Inc.); and "Jane Doe Nurse # 1," an employee of a Noll entity. The second group is collectively referred to as the "UNMC defendants," composed of UNMC Physicians (UNMC) and "Jane Doe Physician # 1," an employee of UNMC. The third group is collectively referred to as the "City defendants" composed of the City of Omaha, "Officer Doe # 1," and "Officer Doe # 2." The appellants claimed that the defendants were negligent in various respects and specifically in failing to protect Melissa from Loyd. All the defendants moved to dismiss the second amended complaint. The district court granted the defendants' motions to dismiss. The district court denied the appellants' leave to amend their second amended complaint except as to the City defendants. The appellants did not amend their allegations regarding the City defendants, and the City defendants stood dismissed. The appellants filed this appeal challenging the dismissal of the Lasting Hope defendants and UNMC defendants. The City defendants are not parties to this appeal. We determine that the district court erred when it dismissed the appellants' second amended complaint as to the Lasting Hope defendants. We further conclude that the district court erred when it denied the appellants' motion to amend the second amended complaint to add allegations relative to the UNMC defendants and dismissed the UNMC defendants. We reverse, and remand for further proceedings.

STATEMENT OF FACTS

According to the appellants' second amended complaint, which is the operative pleading in this case, on or about June 11, 2013, Loyd assaulted and battered Melissa. The Omaha Police Department (OPD) was contacted regarding the incident, and officers completed a domestic violence report. Charges were not brought against Loyd at that time, but an investigation was ongoing. The second amended complaint alleges that in July, Loyd falsely imprisoned Melissa for a period of time. Melissa contacted the OPD regarding Loyd at various times in July and August.

On August 7, 2013, the OPD issued an arrest warrant for Loyd for the misdemeanor assault and battery of Melissa. On August 8, Loyd contacted the OPD and voluntarily met with and spoke to officers. During this meeting, "Loyd expressed a desire to kill." The OPD then placed Loyd under emergency protective custody because it believed that Loyd was "mentally ill and an imminent threat of danger to himself or others." Loyd was transferred to Lasting Hope. The appellants allege that at the time Loyd was placed under emergency protective custody, Lasting Hope was "aware of his misdemeanor warrant." The second amended complaint further states: "Lasting Hope knew or should have known that the [emergency protective custody] hold placed on Loyd was the result of Loyd threatening to kill his mother and professing he was a danger to himself and others."

Loyd remained at Lasting Hope from August 8 to 14, 2013. Pursuant to Neb. Rev. Stat. § 71–919 (Reissue 2009), within 36 hours of being admitted to a mental health facility, an individual under emergency protective custody must undergo a mental health evaluation to be performed by a mental health professional. Section 71–919(4) provides that "[a] person shall be released from emergency protective custody after completion of such evaluation unless the mental health professional determines, in his or her clinical opinion, that such person is mentally ill and dangerous or a dangerous sex offender." On August 11, Jane Doe Physician # 1, an employee of UNMC, prepared a mental health evaluation of Loyd and found "Loyd not to be a danger to himself or others."

According to the second amended complaint, while Loyd was at Lasting Hope, he made repeated calls to Melissa from Lasting Hope's landline telephone. Loyd called Melissa on August 8, at least 6 times on August 10, and 18 times on August 11.

On August 12, 2013, Loyd called the OPD to effectively turn himself in on the outstanding arrest warrant. OPD officers went to Lasting Hope to arrest Loyd, but Lasting Hope refused to release Loyd to the officers because the emergency protective custody hold was still in effect. The second amended complaint states that "[i]t is believed Jane Doe Nurse # 1, employed by Noll, was responsible for the discharge of Loyd and involved in the failure to properly review the circumstances of Loyd's admission and communicate effectively to the OPD that Lasting Hope planned to release Loyd."

According to the second amended complaint, on August 14, 2013, "Loyd left Lasting Hope on his own, without supervision, being questioned or stopped, and without Lasting Hope even noticing he was gone. Loyd freely walked out the facility sometime between 12:49 p.m. and 2:22 p.m." Lasting Hope did not notify the OPD on August 14 that Loyd had left its premises. Sometime after 4:15 p.m. on August 14, Loyd killed Melissa and later returned to Lasting Hope at approximately 8 p.m. Subsequently, on August 16, while he was still at Lasting Hope, Loyd was arrested for the murder of Melissa.

The second amended complaint notes that in September 2013, Loyd was found not competent to stand trial, and that in January 2014, Loyd was diagnosed as paranoid schizophrenic.

The appellants filed their second amended complaint on July 17, 2015. They claimed that the defendants were negligent in part for failing to provide Loyd with adequate mental health treatment and for failing to protect Melissa from Loyd. All the defendants filed motions to dismiss for failure to state a claim upon which relief can be granted. The defendants also filed motions to stay discovery. On July 31, the district court filed an order in which it granted the defendants' motions to stay discovery until it had had an opportunity to rule on the pending motions to dismiss.

After a hearing, on October 16, 2015, the district court filed an order in which it granted all of the defendants' motions to dismiss. The district court stated that the only issue raised by the motions to dismiss was whether any of the defendants owed a duty. The district court quoted Munstermann v. Alegent Health , 271 Neb. 834, 716 N.W.2d 73 (2006) :

"a psychiatrist is liable for failing to warn of and protect from a patient's threatened violent behavior, or failing to predict and [warn of and] protect from a patient's violent behavior, when the patient has communicated to the psychiatrist a serious threat of physical violence against himself, herself, or a reasonably identified victim or victims. The duty to warn of or to take reasonable precautions to provide protection from violent behavior shall arise only under those limited circumstances ...."

The district court determined that the duty required of psychologists, psychiatrists, and other mental health practitioners. as set forth in Munstermann , is the same duty that was required of the defendants in this case, except for the City defendants. The district court then stated that

there is no allegation contained in [the appellants'] Second Amended Complaint which suggests that ... Loyd ever indicated in any way, any thought or suggestion of causing harm to specifically Melissa ... the decedent herein.... Nowhere in [the appellants'] Second Amended Complaint is there an allegation that ... Loyd indicated in any manner to any of the named Defendants his thoughts regarding or his intention to cause any injury to the victim Melissa ....

Accordingly, the district court determined that based on the facts alleged in the second amended complaint, the Lasting Hope defendants and the UNMC defendants did not owe a duty to Melissa.

The district court further determined that based on the allegations set forth in the second amended complaint, the City defendants owed no duty to Melissa. Therefore, the district court granted all the defendants' motions to dismiss. The district court gave the appellants 2 weeks to amend their second amended complaint against the City defendants. The appellants did not amend their second amended complaint against the City defendants.

On October 23, 2015, the appellants filed a motion to alter or amend the October 19 order or, in the alternative, a motion to certify the October 19 order as a final judgment....