Volk v. Demeerleer

187 Wash.2d 241

386 P.3d 254

Beverly R. VOLK, as guardian for Jack Alan Schiering, a minor; and as personal representative of the Estates of Philip Lee Schiering and Rebecca Leigh Schiering; and on behalf of the statutory beneficiaries of Philip Lee Schiering; and Brian Winkler, individually, Respondents/Cross-Petitioners,

v.James B. DEMEERLEER, as personal representative of the Estate of Jan DeMeerleer; Howard Ashby, M.D., and Jane Doe Ashby, husband and wife, and the marital community composed thereof; Spokane Psychiatric Clinic, P.S., a Washington business entity and health care provider; and Does 1 through 5, Petitioners/Cross-Respondents.

No. 91387-1

Supreme Court of Washington.

Argued Nov. 17, 2015

Filed Dec. 22, 2016

Robert F. SesteroII, Michael Early McFarland Jr., Christopher Joseph Kerley, Evans, Craven & Lackie, P.S., 818 W. Riverside Ave., Ste. 250, Spokane, WA, 99201-0994, David A. Kulisch, Attorney at Law, 1500 Bank of America Financial Center, 601 W. Riverside Ave., Spokane, WA, 99201-0621, for Petitioners.

Michael Jon Riccelli, Attorney at Law, 400 S. Jefferson St., Ste. 112, Spokane, WA, 99204-3144, Bruce E. Cox, Mutual of Enumclaw Insurance Company, 1460 Wells St., Enumclaw, WA, 98022-3098, for Respondents.

Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., 800 Fifth Ave., Ste. 4141, Seattle, WA, 98104-3175, Ryan Marshall Beaudoin, Matthew William Daley, Samuel Charles Thilo, Witherspoon Kelley Davenport & Toole PS, 422 W. Riverside Ave., Ste. 1100, Spokane, WA, 99201-0300, as Amicus Curiae on behalf of Washington Defense Trial Lawyers.

Bryan Patrick Harnetiaux, Attorney at Law, 517 E. 17th Ave., Spokane, WA, 99203-2210, Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave., Ste. 1300, Spokane, WA, 99201-0305, as Amicus Curiae on behalf of Washington State Association for Justice Foundation.

Gregory Mann Miller, Carney Badley Spellman PS, 701 5th Ave., Ste. 3600, Seattle, WA, 98104-7010, as Amicus Curiae on behalf of Washington State Medical Association.

Gregory Mann Miller, Carney Badley Spellman PS, 701 5th Ave., Ste. 3600, Seattle, WA, 98104-7010, as Amicus Curiae on behalf of American Medical Association.

Gregory Mann Miller, Carney Badley Spellman PS, 701 5th Ave., Ste. 3600, Seattle, WA, 98104-7010, as Amicus Curiae on behalf of Washington State Psychiatric Association.

Gregory Mann Miller, Carney Badley Spellman PS, 701 5th Ave., Ste. 3600, Seattle, WA, 98104-7010, as Amicus Curiae on behalf of Washington Chapter-American College of Emergency Physicians.

Gregory Mann Miller, Carney Badley Spellman PS, 701 5th Ave., Ste. 3600, Seattle, WA, 98104-7010, as Amicus Curiae on behalf of Washington State Council of Child & Adolescent Psychiatry.

Gregory Mann Miller, Carney Badley Spellman PS, 701 5th Ave., Ste. 3600, Seattle, WA, 98104-7010, as Amicus Curiae on behalf of Washington Academy of Family Physicians.

Mark Leemon, Leemon + Royer PLLC, 2505 2nd Ave., Ste. 610, Seattle, WA, 98121-1483, as Amicus Curiae on behalf of Victim Support Services.

Mark Leemon, Leemon + Royer PLLC, 2505 2nd Ave., Ste. 610, Seattle, WA, 98121-1483, as Amicus Curiae on behalf of Washington Affiliate of the National Alliance on Mental Illness.

Paul Arthur Bastine, Attorney at Law, 806 S. Raymond Rd., Spokane Valley, WA, 99206-3530, as Amicus Curiae on behalf of Washington State Psychological Association.

Gregory Mann Miller, Carney Badley Spellman PS, 701 5th Ave., Ste. 3600, Seattle, WA, 98104-7010, as Amicus Curiae on behalf of American Psychiatric Association.

FAIRHURST, J.

¶1 Jan DeMeerleer murdered Rebecca Schiering and her nine year old son Philip and attempted to murder Schiering's older son, Brian Winkler. After the attack, DeMeerleer committed suicide. DeMeerleer had been an outpatient of psychiatrist Dr. Howard Ashby for nine years leading up to the attack, during which time he expressed suicidal and homicidal ideations but never named Schiering or her children as potential victims. We must decide whether Ashby, a mental health professional, owed DeMeerleer's victims a duty of care based on his relationship with DeMeerleer. We hold that Ashby and DeMeerleer shared a special relationship and that special relationship required Ashby to act with reasonable care, consistent with the standards of the mental health profession, to protect the foreseeable victims of DeMeerleer. Ashby concedes the existence of a special relationship between him and DeMeerleer. The foreseeability of DeMeerleer's victims is a question of fact appropriately resolved by the fact finder. Accordingly, we affirm the Court of Appeals in part and reverse the trial court's summary judgment dismissal of the medical negligence claim.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual background

¶2 Ashby began treating DeMeerleer at the Spokane Psychiatric Clinic PS (Clinic) in September 2001. DeMeerleer had previously been diagnosed with bipolar disorder and associated disorders.

¶3 Ashby's notes from the initial meeting show that in 1992 DeMeerleer was hospitalized for two weeks because of suicidal ideation. Following his hospitalization, DeMeerleer began a medication regimen that included Depakote, a medication meant to treat manic episodes of his bipolar disorder, but DeMeerleer ceased taking the medication soon after. In 1996, DeMeerleer married his wife, Amy. In 1997, DeMeerleer again began having suicidal ideations, at which time he sought outpatient treatment. DeMeerleer was again prescribed Depakote but stopped taking it because he disliked the side effects. Around that time, DeMeerleer evidenced grandiose behavior resulting in job loss and also experienced self-professed suicidal and homicidal ideations. DeMeerleer stated that he had played Russian roulette and at one point he lay on train tracks hoping to be decapitated.

¶4 Ashby noted DeMeerleer's history of "poor compliance" with his medication regimens as well as the observation that DeMeerleer's stressors included job loss. Clerk's Papers (CP) at 239. Ashby started DeMeerleer on another regimen of Depakote to treat his bipolar disorder and noted that monitoring compliance would be necessary. DeMeerleer provided a written submission to Ashby where he personally described his condition as follows:

• Despises lesser creatures; no remorse for my actions/thoughts on other living creatures.

• Delusional and psychotic beliefs argued to the point of verbal abusive [sic] and fighting.

• No need for socialization; in fact, prefers to psychotically depopulate the world (i.e. "do Your Part" [CYP] terrorist philosophies).

• Wants to destroy; pounds on computer keyboard, slams phone receiver, swings fists.

• Has no use for others; everyone else in world is useless.

• Reckless driving; no fear of danger in any circumstance, even "near misses."

• Acts out fantasies of sex with anyone available.

CP at 85 (second alteration in original). Amy DeMeerleer also provided written information regarding DeMeerleer's condition where she stated:

• Makes mistakes on projects (i.e. breaking something) and quickly moves into dangerous rage; actually easily slips into depression after this type of trigger.

• Severe lack of sleep coupled with dreams of going on killing or shooting sprees.

• 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.

• Expresses severe "road rage" at other slower drivers, even as a passenger (he's NOT driving).

• Has an "All or Nothing" attitude; will actually verbally express "Live or Die!"

CP at 85-86.

¶5 In 2003, DeMeerleer learned his wife was having an affair. DeMeerleer's wife divorced him shortly after. During this time, DeMeerleer suffered severe depression and expressed suicidal and homicidal thoughts. DeMeerleer assured Ashby he would not act on the thoughts, and Ashby took no additional steps outside of continuing medication and support. DeMeerleer admitted to confronting his ex-wife's new boyfriend. DeMeerleer also admitted to having grudge or revenge thoughts and fantasies following his divorce, but Ashby's notes did not state an identifiable target of the thoughts.

¶6 In 2005, DeMeerleer informed Ashby that he had begun a serious relationship with Schiering. Schiering was the mother of twin sons Philip and Jack Schiering and Brian Winkler, This same year, DeMeerleer began evidencing volatile behavior, particularly after an incident in which his truck was vandalized. DeMeerleer took two loaded firearms and ammunition to the location of the vandalism and waited for the thieves to return so he could exact some form of retribution. This prompted DeMeerleer's family to intervene and remove the firearms from DeMeerleer's home. DeMeerleer's mother also informed Ashby that DeMeerleer's thoughts had progressed from suicidal to homicidal.

¶7 DeMeerleer's relationship with Schiering and her children progressed rapidly, and within the first year he had fallen deeply in love with Schiering and her children often called DeMeerleer "dad." CP at 196. In 2009, Schiering became pregnant with DeMeerleer's child. DeMeerleer and Schiering were initially excited about the prospect of having the child; however, after DeMeerleer struck Jack, Schiering's nine year old autistic son, Schiering moved herself and her children out of DeMeerleer's home and terminated the pregnancy. Around this time, DeMeerleer was also laid off from his job.

¶8 DeMeerleer contacted the Clinic in serious distress, at which time the Clinic referred DeMeerleer to community-based mental health clinics and encouraged him to call back if the referrals proved unsuccessful. Roughly one month after DeMeerleer contacted the Clinic, Schiering read e-mails between DeMeerleer and his mother that discussed Schiering and her children in a negative light. This worsened the divide between DeMeerleer and Schiering.

¶9 In April 2010, DeMeerleer met with Ashby for what would be the final time. Despite what was...