Legislative Impact on Duty of Care Determinations:
Alien Intruder or Statutory Lyric:
Williams v. Steward Health System (SJC August 14, 2018)
In its recent decision in William v. Steward Health System, the Supreme Judicial Court refused to recognize a tort duty of care upon a hospital where a patient who was previously involuntarily committed was later released by one of the hospital’s physicians. The patient, shortly after her release, killed the plaintiff’s decedent in front of the decedent’s eight year old grand-daughter.
The claims were premised on the assertion that the hospital violated the initial commitment order of the District Court. The order provided that the patient “be committed to the [hospital] 'for a period not to exceed six months or until there is no longer a likelihood of serious harm by reason of mental illness, whichever period is shorter . . .'” The contention was that the order was violated by the release of the patient eleven days later when, at that time, there was a likelihood of serious harm to all persons who came in contact with patient including decedent. The claimant argued that a duty of care existed as to the hospital under the common law, the court order, and/or due to the purported special relationship between the hospital and patient. A central contention was that the hospital violated the commitment order on the grounds it was a non-delegable duty with it otherwise asserted that the order of commitment was directed at the hospital alone, the hospital delegated the duty to a particular physician, and the hospital was responsible for the decision to release the patient.
The Superior Court, which entered summary judgment below, "decline[d] to apply common law [to the plaintiffs' claims, as they requested,] where there is clear, unambiguous statutory guidance to the contrary," in the form of G. L. c. 123, § 36B. That statute provides that a licensed mental health professional owes no duty "to take reasonable precautions to warn or in any other way protect a potential victim or victims of said professional's patient except in a narrow set of circumstances not present here.”
The Supreme Judicial Court upheld the entry of summary judgment for the hospital as it agreed that the hospital did not owe the victim or her family any duty of care at the time of the killing. According to the Court, the order of civil commitment to hold the patient, which arose out of the actions of an individual medical professional's clinical judgment, did not impose an independent duty on the hospital for the patient’s treatment, and did not require the hospital to exercise any medical judgment as to the appropriateness of release. The Court emphasized that the decision to release the patient was made by the attending physician who was not a named defendant. Based on the statutory structure, the Court found that any duty involving the release of the patient and any negligence in authorizing his release under the terms of the order of commitment, belonged to the treating clinician, who was required to use professional medical judgment in determining that commitment was required and when it was no longer needed. As such, the hospital did not owe a duty of care to decedent or her family at the time of her death.
In determining there was no duty of care upon the hospital, the Supreme Judicial Court reiterated the familiar principle that whether there is a tort duty of care turns on “existing social values and customs and appropriate social policy.” Jupin v. Kask, 447 Mass. 141, 143 (2006) quoting Cremins v. Clancy, 415 Mass. 289, 292 (1993). It then found controlling the policy reflected in the legislative scheme pertaining to involuntary commitments stating: “That the duty to make a clinical determination whether release is appropriate falls on an individual medical professional is consistent with the statutory scheme involving involuntary psychiatric commitment, which reflects the Legislature's understanding of the professional role of health care professionals in making clinical judgments.”
Williams is notable as it recognizes that negligence, including tort duties of care, are not the exclusive province of the judiciary or common law. Indeed, it has been long recognized that the role of statutes are “not an alien intruder in the house of the common law.” Harlan Stone, The Common Law of the United States, 50 Harv. L. Rev. 4, 15 (1936). Legislative role and presence in tort takes a variety of forms and has evolved over time including a sometimes uneasy relationship with the common law. For instance, statutes in derogation of the common law were to be strictly construed. Further, while courts are to give deference to legislative enactments, they did not have to capitulate on issues or areas not expressly covered and are able to find “implied” private causes of action in pertinent circumstances. Similarly, under the common law, where there is a right there is a remedy which includes rights created by statute. These principles are further complicated by the notion that there are times where the judiciary must refrain from substituting its notions of correct policy for that of the legislature.
In addition to these functions, although much less known or defined, is the role of statutes as a primary policy source as to tort duties of care. In many, if not most instances, statutes or statutory policy is relied upon to impose or recognize a duty of care. In Jupin, for instance, the Supreme Judicial Court relied upon various enactments “acknowledging that the unauthorized use of firearms is a significant problem and placing requirements on owners of guns for the purpose of preventing their use by persons not competent to use them" in recognizing existence of "a duty of the person in control of the premises to exercise due care with regard to the storage of guns on the premises". Indeed, Williams is notable in that it relied on a statutory scheme not to justify a duty of care but to reject any such imposition.
Statutes and statutory presence as a source for tort policy is a much under-appreciated driver as well as restraint on the common law. A statute, for instance, need not be directly on point to provide fundamental policy for either recognition or rejection of an asserted duty of care. In fact, the legislative establishment of policy may well carry significance beyond the specific statute or statutes implicated in the dispute. Just as courts routinely refer to and rely upon rules or policies reflected in precedent, they should heed, as in Williams, the policy pronouncements of its own legislature. The legislature is an important and appropriate player in common law policy-making and cannot fairly be ignored. Such recognition gives proper homage to the separation of powers and that the legislature remains a primary source of policy choice by the elected individuals of government. It is not only a potential source of imposing duty but can equally be a source of policy mandating a rejection of an imposition of a common law duty.
While some might bemoan that over reliance upon statutes in tort marks an unwarranted retreat of the common law rendering it “background music for a modern statutory lyric,” such complaints go too far. Stated directly, although the common law evolves with the changing times, it is not fashioned solely in that context, but is shaped consistent with the policy considerations set forth by the legislature. Indeed, a formidable argument can be made that any time the judicial resolution of a private dispute turns on “public policy,” there ought to be a reference to an express source of that policy in a statute, statutory rule, or constitutional provision. To the extent calibrating tort duties involve competing or complex social policies, it remains the preferable domain of the democratically elected body of government.