Negligent Discharge of an Involuntary Admitted Patient: Third Party’s Cause of Action for Harm Caused by Prematurely Released Patient

A. Introduction:
Continuing the theme of two recent articles1 by our partners, Mark Abramson and Holly Haines, this article addresses yet another area in which a medical care provider can be held liable for harm to a non-patient third party. Specifically, we address the law that applies when a dangerous involuntarily admitted psychiatric patient is prematurely discharged and causes harm to another.

The law permits the involuntary admission of a mentally ill person to a psychiatric treatment facility when the patient is deemed to be a danger to himself or others. However, it also allows the administrator of the facility to summarily discharge such a patient. There is often tremendous pressure to do so because of space limitations, staffing issues, and financial concerns. What happens then when an involuntarily admitted patient is negligently released and harms someone?

B. Involuntary Emergency Admissions:
An involuntary emergency admission is appropriate if the patient is in such a mental condition as a result of mental illness to pose a likelihood of danger to himself or others.2 A person is a danger to himself if he has inflicted or threatened to inflict serious bodily injury on himself within the past forty days and there is a likelihood that an act or attempt of serious self-injury will occur if admission is not ordered.3 A person is a danger to others if he has inflicted, attempted to inflict, or threatened to inflict serious bodily harm on another within the past forty days.4 Our Supreme Court has summarized the involuntary admission statute as requiring Aa threat of, a likelihood of, an attempt to inflict, or an actual infliction of >serious bodily injury to oneself or another…5
The statute requires a probable cause hearing in the District Court within three days (not including Sundays and Holidays) following an involuntary emergency admission.6 However, A[a]t any time during the period of involuntary emergency admission the administrator of the receiving facility or designee in such facility shall discharge the person admitted if the administrator decides that the person no longer meets the [statutory] criteria…7 Under the statute, therefore, the administrator of a psychiatric facility is directed to discharge an involuntarily admitted patient if he or she decides that there is no longer a threat of or a likelihood of serious bodily injury to the patient himself or to another.

If the patient is released under this section, the statute requires the facility to return him to the place where he resides and notify the community mental health program in that region and in the region from which he was admitted.8
What remedy is available when the administrator of a psychiatric facility negligently discharges an involuntarily admitted patient and the patient harms someone?

C. Duty of Care and Private Cause of Action:
In Chasse v. Banas9, our Supreme Court held that an involuntarily admitted patient=s medical negligence claim against the New Hampshire Hospital and individual doctors employed there was not barred by sovereign immunity. In so holding, the court focused on the fact that the involuntary admission statute was enacted to guarantee humane treatment for the mentally ill10 and that it expressly grants every mentally ill patient a right to Aadequate and humane treatment.11 Thus, under the circumstances of that case, the court concluded that the legislature had impose[d] a duty upon employees of the State hospital to provide adequate and humane treatment.12
The court then determined that the duty to provide adequate and humane treatment could be enforced by a private cause of action.13 The private cause of action applied to those whom the statute was intended to protect.14 In this particular case, the court noted that the plaintiff asserting the cause of action was the involuntarily committed patient herself so she was clearly within the protection of the statute. 15
Next, the court addressed the applicable duty of care since adequate and humane treatment is quite vague. The court concluded that adequate and humane treatment means that the doctors must treat an involuntary civilly committed patient in a manner that is consistent with accepted medical standards.16 In the case at hand, this meant that the plaintiff had to prove that the dosage of the medication given to her by the defendants Awas negligent under recognized medical standards.17 The court emphasized that this is the same duty owed by a physician to a patient under the common law.18
The Supreme Court re-affirmed Chasse four years later in State v. Brosseau19. However, in 1982, the court held that the duty of care recognized in Chasse did not apply to a claim by a Connecticut police officer who was injured in the course of a high speed chase involving a patient who escaped from New Hampshire Hospital. In Dunaisky v. State20 , the court rejected the argument that the officer had a claim under the involuntary admission statute since the statute Awas enacted to protect the rights of mentally ill persons confined to State institutions by allowing them to bring legal actions for damages against the State21. Thus, under the existing statute, a private cause of action applied only to suits brought by involuntarily committed patients.22

The statute at issue in Chasse and Dunaisky was repealed and replaced in 1986. The new statute contains virtually identical language to that which the court relied upon in Chasse, stating that [e]ach client has a right to adequate and humane treatment provided in accordance with generally accepted clinical and professional standards. 23 However, unlike its predecessor, the new statute explicitly states that one of its purposes is to [p]revent mentally ill persons from harming themselves or others.24 Thus, the Dunaisky court’s conclusion that persons harmed by an involuntarily committed patient are not within the protection of the statute is no longer true. It follows that the statutory duty and private cause of action recognized in Chasse now plainly apply in favor of one harmed by an involuntarily admitted patient.
A decision by the Colorado Supreme Court illustrates how this duty applies. In Perrereira v. State25 , a police officer was shot and killed by a patient who had been released from an involuntary admission more than three months earlier. The officer’s wife sued the State, the facility from which the patient had been discharged, and the attending psychiatrist and won a jury verdict. The intermediate court of appeals reversed, holding that the defendants did not owe a duty of care to the plaintiff. The Supreme Court reversed, holding that the defendants had such a duty.

The evidence showed that the patient, Seth Buckmaster, had been involuntarily admitted three times in a six month period with delusions and obvious psychosis. He also was known to carry a handgun. On the fourth involuntary admission, a psychiatrist concluded that he did not pose a risk of violence to others and released him. The doctor was aware that Buckmaster intended to obtain the gun that had been taken by police after a recent arrest. Approximately, three and a half months later, Buckmaster shot and killed a police officer who was trying to remove him from a convenience store. He was found not guilty of the murder by reason of insanity.
The Colorado Supreme Court began its inquiry into whether the defendants owed a duty of care by citing Restatement provisions recognizing that one who has an obligation to control the conduct of another is under a duty to prevent him from causing physical harm to another26 , and one who takes charge of another whom he knows or should know is likely to cause bodily harm to others if not controlled owes a duty to exercise reasonable care to prevent such harm.27
The court then examined relevant cases from other jurisdictions. First, it considered those cases at one end of the spectrum where the potentially violent person is being treated as an outpatient. The court noted that, because of the limited opportunity in the outpatient context to observe and determine the patient’s violent propensities and to control the patient=s behavior, some courts had limited the duty imposed on a psychiatrist in such cases to those instances where the patient made a specific threat against a readily identifiable victim.28
The court then considered cases in the middle of the spectrum in which the patient voluntarily sought inpatient treatment. The court explained that other courts had reached different conclusions on the existence of a duty in such cases.29
Finally, the court examined decisions involving patients who had been involuntarily committed. According to the court,
Once a mentally ill person has been involuntarily committed to a mental health facility, the treating psychiatrist has adequate opportunity to learn of the patient’s condition, including any propensity to violence, and the corresponding ability to prolong the patient’s confinement in the interest of the patient’s safety and the safety of others.30

Citing decisions from the Supreme Courts of Kansas, Delaware, and Washington, and intermediate appeals courts in New York and North Carolina, the Perreira court wrote, A[t]he ability of a psychiatrist to exercise control over the decision to release an involuntarily committed patient has led several courts to recognize a duty on the part of the treating psychiatrist to protect members of the public from violent acts committed by such person upon that person’s release from an involuntary commitment.31
The court articulated the duty of care imposed on the psychiatrist by those other courts as follows:
The duty of the psychiatrist in such a case is to use reasonable care, in accordance with the knowledge and skill ordinarily possessed by psychiatric practitioners under similar circumstances, to protect potential victims from future acts of violence by the patient. That duty comes into being when the psychiatrist, again in accordance with accepted psychiatric practices, knows or has reason to know that due to the patient’s propensity for violence the unconditional release of the patient will create an unreasonable risk of serious bodily harm to others.32
While the existence of specific threats by the patient against particular individuals made during the course of the involuntary admission was said to be indicative of a propensity to commit violent acts upon release, the court emphasized that the case law recognizes that specific threats or overt violent behavior are not always necessary.

The patient’s history of behavioral disorders and present mental condition may be such that, notwithstanding the absence of specific threats and past or present violent behavior, a reasonably competent psychiatrist, utilizing accepted diagnostic criteria, would conclude that the patient’s mental condition is such as to render the patient disposed to commit violent acts against others. Under such circumstances, the psychiatrist would be obliged to take reasonable precautions, consistent with accepted psychiatric standards of practice, to protect potential victims from the patient’s propensity for violence.33

On the other hand, under existing case law, [a] psychiatrist, of course, will not be held liable for the violent acts of a patient released from an involuntary commitment if the psychiatrist, after employing accepted techniques of psychiatric diagnosis, makes a reasonable and good faith decision that the patient does not have a propensity for violent acts and thus would not constitute an unreasonable risk of serious bodily harm to others after release.34

Having exhaustively reviewed the decisions from other jurisdictions, the court turned directly to the question whether Colorado should recognize a duty of care under the circumstances of this case. In reaching its decision, the court cited the following considerations which supported the existence of such a duty:

[T]he existence of a special relationship between a psychiatrist and an involuntarily committed mental patient and the resulting degree of control which the psychiatrist has over the patient as a result of that relationship; the foreseeability of harm to others from the failure of the psychiatrist to take protective action for the benefit of others; the social utility of the psychiatric decision to release an involuntarily committed patient; the magnitude of the burden of guarding against violent acts committed by an involuntarily committed mental patient subsequent to release; and the practical consequences of placing that burden upon the psychiatrist.35

As an initial matter, the court found that [t]he extent of control vested in [the psychiatrist] over the conditions and duration of Buckmaster’s involuntary commitment is sufficient to warrant a corresponding duty on the doctor’s part to exercise due care, consistent with accepted psychiatric practices, in determining whether Buckmaster had a propensity for violent behavior and thus would pose an unreasonable risk of serious bodily harm to others if released.36

Next, the court concluded that an involuntarily committed patient’s propensity to violence and the corresponding risk associated with the patient’s release are sufficiently foreseeable to the trained psychiatrist, using the skill and knowledge ordinarily possessed by practicing members of that profession, to impose upon the psychiatrist a duty to exercise due care in determining whether to release an involuntarily committed patient from commitment.37 The court acknowledged that predicting the future is impossible, so the psychiatrist is only required to Aexercise that reasonable degree of skill and knowledge ordinarily possessed by practicing psychiatrists in arriving at an informed and realistic assessment of the patient’s present mental condition and propensity for violence so that an informed judgment can be made as to whether the release of the patient will create an unreasonable risk of serious bodily harm to others.38

The court rejected the argument that the recognition of this duty is inconsistent with the legislature=s stated goal of treating mental illness in the least restrictive means possible. In this respect, the court explained that the psychiatrist=s statutory obligation to discharge a patient from involuntary admission as soon as he feels that the patient Ahas received sufficient benefit from such treatment for him to leave does not mean that such decisions can’t be questioned.

This statutory authority . . . does not contemplate that the decision to release an involuntarily committed patient may be made without regard to the safety of others. On the contrary, the psychiatrist responsible for the treatment of such patient is expected to balance the various therapeutic considerations concerning the patient’s condition against the public dangers reasonably apparent from releasing the patient in his present condition. In short, the commendable goal of restoring mentally ill persons to an active and productive life, or even a moderate level of self-sufficiency, does not serve to relieve a treating psychiatrist of the concomitant responsibility to adequately consider the public interest in releasing an involuntarily committed patient whose condition might render him a present danger to the safety of others.39
Next, the court determined that the burden placed on a psychiatrist by the requirement of due care in releasing an involuntarily committed patient is certainly not so formidable as to relieve the psychiatrist of any and all legal responsibility in arriving at that decision. 40 This is so because a psychiatrist will not be liable if: a) the patient does not manifest a propensity for violent behavior and there is no reason to believe that the patient will become violent after release; b) the patient manifests what might appear to be violent propensities, but the psychiatrist conducts a thorough evaluation and makes a good faith decision, in accordance with accepted psychiatric practices, that the patient does not have a propensity for violence; or c) the patient is diagnosed with a propensity for violence but, after a thorough evaluation and a balancing of the patient=s interests and the interests of potential victims, the psychiatrist rejects an extended term of commitment and makes a good faith decision to release the patient under a psychiatrically acceptable treatment program and other conditions reasonably calculated to protect potential victims from acts of violence. 41

The court quickly rejected the argument that imposing such a duty will result in the overcommitment of mentally ill patients. The court said such an argument is speculative and unsupported by any reliable statistical data.42 Plus, [t]his duty is no greater than the duty already owing to the patient.43

The court summed up its analysis as follows:
No one can reasonably dispute the proposition that it would be contrary to both the interest of the patient and the interest of society to release an involuntarily committed patient from institutional care when such release, as a result of the patient’s propensity for violent behavior and continuing mental illness, would endanger the safety of the patient, the safety of the public, or perhaps both. In a very real sense, the practical consequences of recognizing a duty of due care under the circumstances of this case amount to no more than imposing on the psychiatrist a responsibility commensurate with that which can reasonably be expected of a psychiatric practitioner in treating an involuntarily committed patient and no less than that to which the public is entitled.44

The court’s ultimate holding was:
[The psychiatrist] had a legal duty to exercise due care in determining whether Buckmaster had a propensity for violence and, if released from his involuntary commitment, would thereby present an unreasonable risk of serious bodily harm to others, including a police officer in the position of Officer Perreira at the time of his death. . . . [I]f indeed [the psychiatrist] knew or should have known, in accordance with the knowledge and skill ordinarily possessed by psychiatric practitioners under similar circumstances, that Buckmaster had a propensity for violence and thus presented an unreasonable risk of serious bodily harm to others, then [he] was obliged to take reasonable precautions to protect members of the public from the danger created by Buckmaster’s release, including the giving of due consideration to extending the term of Buckmaster’s commitment or to placing appropriate conditions and restrictions on Buckmaster’s release consistent with his needs and the safety of the public.45

Perreira is consistent with our Supreme Court’s recent decisions recognizing a medical professional’s duty of care owed to a third party and recognizing a duty to prevent one from harming another.

With respect to the former, in Hungerford v. Jones46 the court unanimously held that a therapist owes a duty of care to the parent of a patient who is publicly accused of sexual abuse as a result of the therapist’s misdiagnosis.

The court began by noting that it had imposed upon a professional a duty of care toward a third party only in limited circumstances. However, the court explained that a duty does not arise solely from the relationship between the parties but may also arise from the need for protection against reasonably foreseeable harm.47 Thus, a duty arises if the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.48 In other words, Aparties owe a duty to those foreseeably endangered by their conduct with respect to those risks whose likelihood and magnitude make the conduct unreasonably dangerous.49

The court said it examines the following items when determining whether to recognize a duty of care: a) the societal interest involved, b) the severity of the risk, c) the likelihood of occurrence, d) the relationship of the parties, and e) the burden upon the defendant.50
With respect to the societal interest, the court conceded that protecting children from abuse and promoting healing are important goals. However, the court said it was necessary to be vigilant in balancing these critical societal interests against the need to protect parents, families, and society from false accusations of sexual abuse, especially in light of the potentially devastating consequences stemming from misdiagnosis.51

Next, the court explained that [t]he severity and likelihood of harm is compelling and clearly foreseeable when false accusations of sexual abuse arise from misdiagnosis.52

The court rejected the notion that this duty would discourage therapists from performing sexual abuse evaluations of children for fear of civil liability. According to the court, this reasoning overlooks the fact that the standard of care by which a therapist’s conduct is measured is not heightened. Rather, this duty imposes no more than what a therapist is already bound to provide – a competent and carefully considered professional judgment.53

The court added that [n]o social utility can be derived from shielding therapists who make cavalier diagnoses that have profound detrimental effects on the lives of the accused and their family. Furthermore, because the therapist is in the best position to avoid harm to the
accused parent and is solely responsible for the treatment procedure, an accused parent should have the right to reasonably expect that a determination of sexual abuse, touching him or her as profoundly as it will, will be carefully made in those cases where the diagnosis is publicized.55

Hungerford is consistent with Perreira because both recognize that negligent diagnoses by mental health professionals frequently result in harm to persons other than the patient. Furthermore, the consequences when a mental health provider misdiagnoses and releases an involuntarily admitted patient are just as potentially devastating and foreseeable as those when a patient is mistakenly misdiagnosed as having been sexually abused by a parent. Similarly, both Hungerford and Perreira make it clear that the duty of care imposed on the mental health provider is the same as it always has been; the provider must simply exercise reasonable care in the diagnosis and treatment of the patient. And, lastly, our Supreme Court’s observation that there is no social utility in shielding therapists who make cavalier diagnoses is equally applicable in the Perreira context.

Perreira is also consistent with a line of recent cases involving the duty to protect against a criminal attack. The line begins with Iannelli v. Burger King Corporation56, in which the court held that the restaurant had a duty to protect patrons from an unruly group of teenagers. The case arose from an incident in which a father was attacked by a teenager and badly injured after he asked the group to stop swearing.
According to the court, the relevant question was Acould the defendant have anticipated the risk of injury to the plaintiffs when other patrons were engaged in offensive conduct for a measurable period of time?57 The court concluded that the teenagers unruly behavior could reasonably have been anticipated to escalate into acts that would expose patrons to an unreasonable risk of injury. The exact occurrence or precise injuries need not have been foreseen.58

The next case in this line is Dupont v. Aavid Thermal Technologies, Inc.59 In Aavid, an employee was shot and killed by a co-worker in the employer=s parking lot. His estate filed a wrongful death action against the employer and its parent company, which was dismissed by the trial court. On appeal, the Supreme Court held that an employer does not have a general duty to protect its employees from criminal attack, but such a duty may arise when the employer has unreasonably created a condition of employment that foreseeably enhances the risk of criminal attack.60

The next relevant case is Remsburg v. Docusearch, Inc.,61> in which the court held that a private investigator has a duty to exercise reasonable care in disclosing a third person=s personal information to a client.62

The Remsburg court began by noting the general rule that a private citizen has no general duty to protect others from the criminal attacks of third parties.63 However, the court explained that one exception to the general rule arises where there is an especial temptation and opportunity for criminal misconduct brought about by the defendant. 64

This exception follows from the rule that a party who realizes or should realize that his conduct has created a condition which involves an unreasonable risk of harm to another has a duty to exercise reasonable care to prevent the risk from occurring. The exact occurrence or precise injuries need not have been foreseeable. Rather, where the defendant’s conduct has created an unreasonable risk of criminal misconduct, a duty is owed to those foreseeably endangered. 65

Applying these rules to the case at hand, the court concluded that, if a private investigator’s disclosure of information to a client creates a foreseeable risk of criminal misconduct against the third person whose information was disclosed, the investigator owes a duty to exercise reasonable care not to subject the third person to an unreasonable risk of harm. 66

The court then turned to the question whether the risk of criminal misconduct is sufficiently foreseeable to an investigator under these circumstances. The court examined law review articles on stalking and identity theft and concluded as follows:
The threats posed by stalking and identity theft lead us to conclude that the risk of criminal misconduct is sufficiently foreseeable so that an investigator has a duty to exercise reasonable care in disclosing a third person’s personal information to a client. And we so hold.67
Berry v. Watchtower Bible and Tract Society of New York, Inc.68 posed the question whether the Jehovah’s Witnesses owed a duty of care to children of a parishioner who was sexually abusing them. In that case, the children’s mother had notified the church elders of her husband’s conduct and they did not report him to authorities. The court rejected the argument that the Jehovah’s Witnesses had created an especial temptation and opportunity for the father’s abuse.

The court distinguished previous decisions like Iannelli and Remsburg in which a duty was recognized based on the control exercised by the defendants. Speaking of the defendants in such cases, the court said [t]heir activities and conduct created a condition or enhanced a foreseeable risk of criminal conduct which they could independently and affirmatively control.69 In the case at hand, however, [t]he elders did not create the risk of harm to the children nor control its cessation or continuation.70 And, [w]ithout sufficient control that would give rise to a duty, a private citizen should be immune from civil liability for failure to prevent criminal acts of another.71

Justice Dalianis dissented. Citing Remsburg, which she wrote, Justice Dalianis felt that the Jehovah=s Witnesses had reason to anticipate the husband’s criminal conduct and created a situation facilitating that conduct. In support of this conclusion, she pointed out that the elders responded to the wife’s disclosure of her husband’s sexual abuse by telling her to be silent and to be a better wife.72

The court again had a chance to distinguish Iannelli in Vandemark v. McDonald’s Corp.73 In Vandemark, an employee of a local McDonald’s sued the national franchisor after he was attacked and beaten while working alone after the restaurant closed. Among a number of arguments rejected by the court was the plaintiff’s assertion that the franchisor could be held liable under Iannelli for creating a special opportunity for the criminal attack.

Iannelli did not apply, according to the court, because Vandemark had presented no evidence that the franchisor knew or should have known that the outside of the restaurant was inadequately illuminated at night or that the franchisor Aknew, or should have known, of the impending actions of those who assaulted him.74

Most recently, the court reversed a jury verdict holding a residential landlord liable for damages sustained by a tenant who was criminally attacked by another tenant. In Ward v. Inishmaan Associates Limited Partnership 75the court reaffirmed prior case law limiting a landlord=s responsibility for protecting tenants to situations where the landlord either affirmatively undertook to provide tenant security or created a known defective condition on the premises that foreseeably enhanced the risk of criminal attack.76 Since neither situation was present, the trial court should have entered a directed verdict for the landlord.77

Perreira fits comfortably in this line of cases. Like Iannelli and Remsburg the psychiatrist’s duty to protect those likely to be harmed by the premature discharge of a dangerous patient was recognized based on the elements of control and foreseeability undeniably present in the involuntary admission setting. This sets Perreira apart from Berry, Vandemark, and Ward.

Perreira also fits comfortably within New Hampshire’s medical injury statute, RSA 507-E. The statute defines Amedical injury to include Aany adverse, untoward or undesired consequences arising out of or sustained in the course of professional services rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services . . . 78 It does not suggest that the injury must have been sustained by the provider’s patient.

In describing the element of causation, the statute says the plaintiff must prove that, as a proximate result of the provider’s breach of the standard of care, the injured person suffered injuries which would not have otherwise occurred.79 By referring to Athe injured person instead of Athe patient, the statute is not limited in scope to harm experienced by the provider’s patient.

D. Physician’s Duty To Warn:
The duty recognized by the court in Perreira is distinct from the medical care provider=s statutory duty to warn. In New Hampshire, RSA 329:31 and RSA 330-A:35 state that a physician, psychologist, or person licensed as a pastoral psychotherapist, clinical social worker, clinical mental health counselor, or marriage and family therapist, has a duty to warn of, or take reasonable precautions to provide protection from, a client=s violent behavior when the client has communicated to such practitioner a serious threat of physical violence against a clearly identified or reasonably identifiable victim. The duty may be discharged if the practitioner: 1) makes reasonable efforts to communicate the threat to the victim; 2) notifies the police department closest to the victim=s residence, or 3) obtains civil commitment of the client to the state mental health system.

There is no reason to believe that the statutory failure to warn claim would not apply in the involuntary admission context. The elements of such a claim are: a) a serious threat of physical violence, b) against a clearly identified or reasonably identifiable victim, c) communicated by the patient to the practitioner, and d) failure of the practitioner to either make reasonable efforts to communicate the threat to the victim, notify the police department closest to the victim=s residence, or obtain civil commitment of the patient.
The existence of the statutory cause of action does not prevent an injured person from making a common law failure to warn claim where the circumstances do not fit squarely within the statute.

In Powell v. Catholic Medical Center80, a phlebotomist sued Catholic Medical Center and the medical director of its rehabilitation unit after she was injured when an elderly patient attacked her while she was trying to draw his blood. The phlebotomist claimed that the defendants had a common law duty to warn her of the patient’s potentially assaultive behavior. The defendants argued that RSA 329:31 preempted the common law failure to warn claim because the statute dictates when a doctor can be held liable for failure to warn a third party of the violent potential of his patient. The Supreme Court rejected this argument because the statute does not apply since the patient had not made a threat against a clearly identified victim. The court explained that Athe statute does not preempt all common law claims for a physician’s failure to warn. It merely preempts the common law claims addressed by its language.81

Interestingly, the Powell court held that the phlebotomist’s claim against the patient’s doctor for failure to warn was not a medical malpractice case but an ordinary duty to warn case.82 Specifically, the court said it is only fortuitous that one of the defendants is a physician. Specialized training and experience do not excuse a physician from exercising the reasonable care of an ordinary person.83
After pointing out that the patient’s medical record detailed numerous prior events that served to put the doctor and hospital on notice that he may have been a threat, the court explained that [t]he defendants had fair warning that this patient may pose a threat to a phlebotomist who came in contact with him. Specialized training and experience were not required to make that determination. 84 Nevertheless, the court held that the judge did not err when he responded to a jury question by instructing the jurors that they can consider the education, experience, and training of the doctors, nurses, and phlebotomists in the case.85

The court rejected the defendants’ argument that expert testimony was necessary to establish the contours of the duty to warn. The court concluded that the evidence in this case presented ample examples of the patient’s conduct for a layperson to determine whether a warning was necessary.86 Thus, Adetermining whether the patient posed a risk and whether a warning was necessary were within the purview of the average juror.

E. Conclusion:
Under existing New Hampshire law, the administrator of a mental health facility may discharge an involuntarily admitted patient if he or she determines that there is no longer a threat of or a likelihood of serious bodily injury to the patient himself or to another. However, that decision is subject to scrutiny and must be based on recognized medical standards. When the negligent discharge of an involuntarily admitted patient results in harm to a foreseeable victim, a civil action for damages is available.

Endnotes
See AMedical Malpractice Liability in the Information Age,@ 30 TBN 117 (Summer, 2008) and AMedical Provider Liability to Non-Patient Third Parties for Negligent Medical Care and Prescribing Practices,@ 31 TBN 9 (Winter, 2009).
RSA 135-C:27.
RSA 135-C:27, I(a) and (b).
RSA 135-C:27, II.
In the Matter of B.T., 153 N.H. 255, 260 (2006).
RSA 135-C:31, I.
RSA 135-C:33, I.
Id.
119 N.H. 93 (1979).
119 N.H. at 96 (citing RSA 135-B:1).
Id. (citing RSA 135-B:43).
Id.
Id., 119 N.H. at 96-97.
Id., 119 N.H. at 97.
Id.
Id.
Id.
Id.
124 N.H. 184 (1983).
122 N.H. 280 (1982).
Id., 122 N.H. at 282 (emphasis in original).
Id.
RSA 135-C:13. See also RSA 135-C:1, II (AIt is the policy of this state to provide to persons who are severely mentally disabled adequate and humane care . . .@).
RSA 135-C:1, I(c) (emphasis added).
768 P.2d 1198 (Colo. 1989).
Id., 768 P.2d at 1208-09 (citing Restatement (Second) of Torts ‘315 (1965)).
Id., 768 P.2d at 1209 (citing Restatement (Second) of Torts ‘319).v
Id., 768 P.2d at 1210.
Id., 768 P.2d at 1211-12.
Id., 768 P.2d at 1212.
Id.
Id., 768 P.2d at 1213.
Id., 768 P.2d at 1214.
Id.
Id., 768 P.2d at 1214-15.
Id., 768 P.2d at 1216.
Id., 768 P.2d at 1217.
Id., 768 P.2d at 1216-17.
Id., 768 P.2d at 1218.
Id., 768 P.2d at 1219.
Id., 768 P.2d at 1218.
Id., 768 P.2d at 1219.
Id. (quoting Lipari v. Sears, Roebuck & Co., 497 F.Supp. 185, 192-93 (D.Neb. 1980)).
Id., 768 P.2d at 1219-20.
Id., 768 P.2d at 1220.
143 N.H. 208 (1998).
Id., 143 N.H. at 211.
Id. (quoting Thibeault v. Campbell, 136 N.H. 698, 701 (1993)).
Id.
Id.
Id., 143 N.H. at 212.
Id., 143 N.H. at 212-13.
Id., 143 N.H. at 214 (quoting Althaus v. Cohen, 710 A.2d 1147, 1157 (Pa.Super.Ct. 1998)).
Id., 143 N.H. at 215 (quoting Althaus, 710 A.2d at 1157)).
Id., 143 N.H. at 214 (quotations omitted).
145 N.H. 190 (2000).
Id., 145 N.H. at 194.
Id.
147 N.H. 706 (2002).
Id., 147 N.H. at 712.
149 N.H. 148 (2003).
Id., 149 N.H. at 155.
Id., 149 N.H. at 153.
Id., 149 N.H. at 154 (quoting Walls v. Oxford Management Co., 137 N.H. 653, 658 (1993)).
Id., 149 N.H. at 154 (citations omitted).
Id.
Id., 149 N.H. at 155.
152 N.H. 407 (2005).
Id., 152 N.H. at 414.
Id., 152 N.H. at 415.
Id.
Id., 152 N.H. at 418.
153 N.H. 753 (2006).
Id., 153 N.H. at 760.
156 N.H. 22 (2007).
Id., 156 N.H. at 25.
Id., 156 N.H. at 26.
RSA 507-E:1, III.
RSA 507-E:2, I(c).
145 N.H. 7 (2000).
Id., 145 N.H. at 304.
Id., 145 N.H. at 14.
Id., 145 N.H. at 12.
Id.
Id.
Id., 145 N.H. at 14.