                                                                       FILED 

                                                                   NOVEMBER 13, 2014 

                                                                In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


BEVERLYR. VOLK as Guardian for                )
Jack Alan Schiering, a minor; and as          )        No. 31814-1-111
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,                  )        PUBLISHED OPINION
                                              )
                      Appellants,             )
                                              )
       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 healthcare     )
provider; and DOES 1 through 5,               )
                                              )
                      Respondents.            )
                                              )
      FEARING, J. -    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
t

i

     No.31814-1-III
     Volk v. DeMeerleer


     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 violent behavior of patient

     Jan DeMeerleer.

            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.

            Brian Winkler, individually, and Beverly Yolk, 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

     that he worked, Spokane Psychiatric Clinic, P.S., 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.




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iI
     No. 31814-1-111
f    Volk v. DeMeerleer


            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 Clinic, P.S. 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,

     P.S. for vicarious liability and remand for further proceedings. 


                                                FACTS 


            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.

            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.

                                                  3
No. 31814-1-III
Volk v. DeMeerleer


       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.

       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.

       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 ofthe daughter, exchanging her

every four days.

       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] NIP Intake

             By August of 1998 after sporatic [sic] use [ofDepakote] 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


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No.31814-I-III
Volk v. DeMeerleer


      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 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 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, ifhe feels suicidal, it's to drive high speeds and
      hurt himse1fthat 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.

                                            5

I



     No. 31814-I-III
     Volk v. DeMeerleer


                  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.
i                  Plan: Reinstitute Depakote, get blood level and baseline labs after he
J
i          is on 500 mg twice a day for 4 or 5 days. Getting the medication at trough
I          level were all described so he can get the level done appropriately .... I feel
II         that having a fairly aggressive dose would be appropriate due to the
           description and seriousness of his symptoms and the possibility that he was
i	         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.

           Dr. James Knoll, the Schierings' expert, averred in a declaration that he reviewed

     the clinical records from Spokane Psychiatric Clinic, P.S. In tum, 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 :

                  •      Despises lesser creatures; no remorse for my actions/thoughts
           on other living creatures.
                  •      Delusional and psychotic beliefs argued to the point of verbal
           abusive and fighting.
                  •      No need for socialization; in fact, prefers to psychotically
           depopulate the world (Le. "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.

                                                 6
No. 31814-1-II1
Volk v. DeMeerleer


             •      Reckless driving; no fear of danger in any circumstance, even
       "near misses."
             •      Acts out fantasies of sex with anyone available.

CP at 85 (alteration in original).

       On September 13,2001, Amy DeMeerleer described her husband's mental states,

according to James Knoll, as follows:


               •      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.

       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.




                                             7

No. 31814-1-III
Volk v. DeMeerleer


       Jan DeMeerleer visited Dr. Howard Ashby on December 2,2002. Dr. Ashby's

notes for that visit read:

               Jan indicate 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 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.

       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

                                             8

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No. 31814-I-II1
Volk v. DeMeerleer


       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 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 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.

       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

                                              9

    No. 31814-I-III 

    Volk v. DeMeerleer 



           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 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.

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

           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.


                                                 10 

No. 31814-1-111
Volk v. DeMeerleer

                                                                                        I
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.

       On September 24,2005, Gena Leonard, Jan DeMeerleer's mother, wrote to Dr.

Howard Ashby expressing concerns about DeMeerleer's depression and homicidal

thoughts. The letter read:

              Dr. Ashby:
              I am Jan's mother. And ... I am very concerned about my son. 1
      was in Spokane this past week, responding to a phone call from Jan's
      "significant other," Rebecca, a young woman who we all greatly admire. 

                                                                                        I
      Rebecca's "Jan alarm" had gone off per his behavior and she wisely called 

      in the troops ... i.e., Jan's family. From what I understood of the
      Wednesday (Sept 21) visit, Jan gave his version of the recent events that
                                                                                        I
      prompted his parents and siblings to respond to Rebecca's appeal for help.
      I am certain you see through Jan's unrealistic reasoning but 1 am anxious to
      give you the "side" that we (his family) have experienced and observed.
              First of all, we are all concerned over Jan's obsessive occupation
      with money .... The latest events per the "beater" truck Jan was
      attempting to sell was strictly due to his driving need to get a high price for
      the vehicle. I believe this helped plunge Jan into a depressive mood. His
      recent statement of never wanting to see his daughter again, suggesting his
      companion, Rebecca, move out of his house, and announcing he was going
      to quit his job screamed depression to me.
              We were all extremely concerned that Jan's reaction to vandalism.to
      his "beater" pickup truck was dangerous and unrealistic. Jan placed two
      powerful guns (a .357 pistol and a shotgun, both with lots of ammunition)
      into his car and then drove himself to the area where this theft had been
      perpetrated in order to "wait" for the thieves to return. Jan's two fathers
      (biological, and step-) and 1 do have a huge issue with Jan hauling loaded
      guns around in case he finds the guys who ripped into his truck! Jan
      assured us that he no longer has visions of suicide but that he has now
                                                                                        !
      progressed into a homicidal mode. Believe me, Dr. Ashby, we are NOT
      comforted by this information! Jan's several guns were removed from his
      home (by his two fathers) and taken to Moscow.


                                            11 

No. 31814-1-II1
Volk v. DeMeerleer


               The recent events that prompted us to travel to Spokane are difficult
       to pinpoint since Jan has the ability to cover up his actions via his "stories."
       He is known in this family for his-to put it bluntly-"bullshit" and we all
       find it difficult to cut to the real truth. . .. He spends a lot of unhealthy
       time dwelling on his anger, hurt, and hatred towards his ex-wife and her
       boyfriend. I am not convinced he truly loved her but I think Jan's sense of
       absolute possession causes this outrage.

CP at 243.

       On July 21, 2006, Dr. Howard Ashby visited with Jan DeMeerleer. Ashby's

office notes read:

             Jan indicates that he is having a little bit of a period of time with being
       down and negative, needing increased sleep, even had some suicidal
       ideation. He used some extra Risperdal during this period of time and it
       knocked it right out, so he feels comfortable about keeping things under
       control. Actually, because of stresses at work, he would like to have a little
       bit of a manic episode if anything (tongue in cheek). Mood, affect,
       psychomotor activity; content, insight, etc. are all normal and he is doing
       well. We don't need to make any medication changes and he is doing a
       goodjob of managing things. I indicate to him, however, that ifit's not just
       a minor change, he really should keep in touch with me so we can process it
       together. He was open to this but reassured me that this episode was not
       anything that needed to be concerned about.

CP at 235.

       We are given no information about Jan DeMeerleer from summer 2006 to summer

2009. According to Dr. James Knoll, Jan DeMeerleer appeared distressed at the Spokane

Psychiatric Clinic, P.S., in June 2009. We do not know ifDeMeerleer then spoke with

Howard Ashby or some other professional at the clinic. The clinic then changed his




                                              12 

No. 31814-1-III
Volk v. DeMeerleer


medication types and dosages. But, according to Knoll, the clinic did not adequately plan

follow-up care.

      Rebecca Schiering became pregnant with Jan DeMeerleer's child in the fall of

2009. Both Schiering and DeMeerleer became excited at the prospect of a child together.

In December, however, DeMeerleer slapped Schiering's autistic son, Jack, an event that

caused estrangement between DeMeerleer and Schiering. Rebecca Schiering, with her

children, moved out of DeMeerleer's home. Rebecca Schiering terminated the

pregnancy.

      In December 2009, Jan DeMeerleer telephoned Spokane Psychiatric Clinic, P.S. in

distress over losing his employment and separating from Rebecca. DeMeerleer asked to

return to counseling and medication management. The clinic referred him to local

community based mental health clinics and told him to call back if the referrals did not

succeed.

      In January 2010, as the result of Jan DeMeerleer writing to his mother about

difficulties with Rebecca Schiering, the mother, Gena Leonard, wrote an e-mail critical of

Schiering to DeMeerleer. Schiering read the e-mail and her reading of the message

sealed a temporary ending of the relationship between DeMeerleer and Schiering.

Schiering concluded that Jan's family unfairly judged her and her sons. Schiering, in

tum, did not wish to be part of Jan DeMeerleer's family.




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No.31814-I-III
Volk v. DeMeerleer


       Gene DeMeerleer is the brother of Jan. In January 20 I 0, Gene visited with Jan at

their sister's Spokane house. Jan appeared distressed and spoke of Rebecca Schiering's

reading of the e-mail written by the brothers' mother. During the talk between the

brothers, Jan expressed distress over the apparent ending of his relationship with Rebecca

Schiering. Jan expressed no homicidal or suicidal thoughts.

       Jan DeMeerleer's last appointment at the Spokane Psychiatric Clinic, P.S.

occurred on April 16, 2010, when he again met with Dr. Howard Ashby. DeMeerleer

told Ashby that he was mending his relationship with Rebecca Schiering. Dr. Ashby

noted he had an unstable mood and intrusive suicidal ideas. But DeMeerleer assured

Ashby he would not act on those thoughts. The Spokane Psychiatric Clinic, P.S. notes

from April 16 read:

              Jan indicates that his life is stable, he is reconstituting gradually with
      his fiance. They are taking marriage classes, he can still cycle many weeks
      at a time. Right now he is in an expansive, hypomanic mood, but sleep is
      preserved. He has a bit more energy and on mental status, this shows
      through as he is a bit loquacious but logical, goal oriented and insight and
      judgment are intact. He states when depressed he can get intrusive suicidal
      ideation, not that he would act on it but it bothers him. At this point it's not
      a real clinical problem but we will keep an eye on it.
              Plan: We will continue Risperdal, Depakote and Buproprion [sic].

CP at 234. Risperdal treats symptoms of bipolar disorder. Bupropion is an

antidepressant.

      As a result of Rebecca Schiering's comments about his family, Jan DeMeerleer

had no contact with his mother, Gena Leonard, from January 25 to May 9, 2010, when

                                              14 

No. 31814-1-II1
Volk v. DeMeerleer


Jan gave his mother flowers for Mother's Day. During communications thereafter, Jan

expressed to his mother love for Rebecca Schiering and her family. Leonard and

DeMeerleer exchanged occasional e-mails after Mother's Day.

      During May through July 2010, Jan DeMeerleer and Rebecca Schiering spoke of

mending their relationship. DeMeerleer attended a family gathering at his father's cabin

during a weekend in late June 2010. DeMeerleer was relaxed and spirited. His humor

entertained family members.

      On July 11,2010, Jan DeMeerleer took his daughter to Amy DeMeerleer's home,

and he left for New Orleans the following day. According to Amy, Jan appeared normal,

other than seeming tired. He spoke positively about Rebecca Schiering and her children.

During his trip to New Orleans, Jan sent Amy a number of texts. The texts were "light

hearted" and caused Amy no concerns. CP at 156. Amy DeMeerleer saw Jan again on

the morning of July 16,2010, and Jan appeared neither despondent nor manic.

      On July 16,2010, Jan DeMeerleer called his sister, Jennifer Schweitzer, and

reported that Rebecca Schiering broke up with him and the relationship was over for

good. Schweitzer invited DeMeerleer to dinner that evening. DeMeerleer was depressed

when he arrived for dinner. During dinner, he expressed sadness over the termination of

the relationship. After dinner, Jan DeMeerleer walked with Jennifer Schweitzer's

husband and his mood improved. By the time of leaving Schweitzer's home, DeMeerleer

was laughing and normal.

                                           15 

     No. 31814-1-III 

     Volk v. DeMeerleer 



            On the morning of Saturday, July 17,2010, Jan DeMeerleer, at the request of his

     neighbor, Brent Tibbits, cut down two trees in DeMeerleer's yard. The trees spread roots

     into the neighbor's yard. DeMeerleer's actions followed a 15 minute conversation with

     Tibbits. According to Tibbits, DeMeerleer was cooperative, coherent, and logical, and

     neither angry nor ecstatic.

            During his trip to New Orleans in July, Jan DeMeerleer texted Darien Boedcher, a

     close friend he met at work in 2003. In the text, he told Boedcher how much he was

     enjoying his time in New Orleans. On the evening of July 17, 2010, DeMeerleer called

     Boedcher to ask about visiting one another, but Boedcher was out of town. According to

     Boedcher, DeMeerleer sounded normal during the call.

            At 5:00 p.m., July 17, Jan DeMeerleer called his mother, Gena Leonard, and left a


j    message on her phone answering machine. DeMeerleer's tone sounded normal. In the

     phone message, Jan stated, '" Hello. Long lost son Jan here, trying to get ahold of you.

     Seeing what's up on a sunny weekend. Hope you guys are out driving your Corvette.

     That's what you need to be doing. Anyhow, I'll be hanging out here at home. Feel free

1i   to give me a call when you get back. Thanks. Bye.'" CP at 172 (emphasis omitted).

            Late July 17 or early July 18,2010, Jan DeMeerleer entered the home of Rebecca


I
i

1
i
     Schiering. Present in the home was Rebecca and her three sons. Shortly before 3 :00 a.m.

     on July 18, DeMeerleer entered the room where Brian Winkler, age 17, slept, and

I!   DeMeerleer slashed Brian's throat with a knife. Brian struggled with the bigger and
j




I
j

i
.\
                                                 16
No. 31814-1-111
Volk v. DeMeerleer


stronger DeMeerleer as DeMeerleer continued the attack on Brian. Brian received

additional knife wounds. During the struggle, Brian screamed, awakening the family,

which caused DeMeerleer, with a gun in hand, to leave the room and to proceed to

Rebecca's room. Brian called for help with his cell phone and fled the home.

       Jan DeMeerleer shot Rebecca Schiering as she entered the home hallway.

DeMeerleer entered the bedroom of Jack and Phillip and shot Phillip who slept in the top

bunk bed. Jack slept in the other bed but was physically unharmed. DeMeerleer left the

home and drove away in his car. After observing DeMeerleer leave, Brian returned

inside the home and discovered his mother lying in a pool of blood in the hallway. Brian

desperately tried to help his wounded mother. He exited the home when police arrived.

As he waited outside, Brian observed his mother removed from the house in a body bag.

Brian was transported by ambulance to Sacred Heart Hospital. Phillip was also

transported by ambulance and died later that day. Police later found DeMeerleer, in his

home's garage, dead from a self-inflicted gunshot wound.

       Family members, friends, and acquaintances who visited Jan DeMeerleer shortly

before the incident gleaned no indication of any plan to kill someone or to commit

suicide. Many expressed shock at the deaths. Toxicology reports showed DeMeerleer

was not taking his medication at the time of the killings.




                                             17 

No. 31814-1-111
Volk v. DeMeerleer


                                       PROCEDURE

       Brian Winkler, Jack Schiering through his guardian, and the Estates of Rebecca

Schiering and Phillip Schiering (collectively the Schierings) sue Jan DeMeerleer's estate

for wrongful death, personal injuries, loss of family members, and emotional harm

resulting from the killings of Rebecca and Phillip and the attack on Brian. The claims

against Jan DeMeerleer are not the subject of this appeal.

       The Schierings also sue Howard Ashby and Spokane Psychiatric Clinic, P.S. for

professional malpractice. They allege Dr. Ashby did not adequately assess DeMeerleer's

suicidal or homicidal risk and provide treatment. The Schierings claim an adequate

assessment and better care might have exposed DeMeerleer's homicidal thoughts about

Rebecca, Phillip, and Brian. In turn, the Schierings allege Howard Ashby might have

prevented the attacks by either mitigating DeMeerleer's dangerousness or warning

Rebecca, Phillip, and Brian with enough time for them to protect themselves. The

Schierings include an allegation of lost chance of survival.

       The Schierings allege Howard Ashby was an employee of Spokane Psychiatric

Clinic, P .S. The clinic agrees that Howard Ashby works for it, but denies an employer-

employee relationship between the two. The Schierings further allege that Spokane

Psychiatric Clinic, P.S. failed to establish or implement "practices, policies, procedures,

training, supervision and directives reasonably necessary to provide appropriate medical




                                             18 

No. 31814-1-III
Volk v. DeMeerleer


care to patients such as Mr. DeMeerleer when presenting with suicidal and/or homicidal

ideation." CP at 31.

       Howard Ashby and Spokane Psychiatric Clinic, P.S. moved for summary

judgment, partly arguing they owed no third-party duty to anyone in general or the

Schierings in particular. Ashby filed affidavits of friends and family of Jan DeMeerleer

to establish the surprise nature of the assault, homicides, and suicide to argue the lack of

foreseeability of the attacks. Howard Ashby wisely filed no affidavit from him or any

professional to discuss the standard of care of a psychiatrist, since a battle between

experts does not lend itself to winning a summary judgment motion. Instead, Dr. Ashby

relied on the undisputed fact that Jan DeMeerleer did not threaten, in the presence of

Ashby, Rebecca Schiering or her children.

       In opposition to the summary judgment motion, the Schierings filed a declaration

of expert, James 1. Knoll, IV, M.D. Knoll is a board certified psychiatrist, professor of

psychiatry at the State University of New York (SUNY) Upstate Medical University, and

editor of Psychiatric Times. He specializes in forensic psychiatry. In his declaration,

Knoll relates that he reviewed the clinical records of Jan DeMeerleer from Spokane

Psychiatric Clinic, P .S., the investigation file of law enforcement, and the autopsy and

toxicology reports regarding DeMeerleer. Knoll claims to be familiar with the standard

of care of a psychiatrist in the State of Washington based on education, training,




                                             19 

No.31814-1-III
Volk v. DeMeerleer


experience, and consultation with a colleague in the State of Washington. According to

Knoll, the standard of care in Washington equates to the standard of care nationally.

       Dr. James Knoll faults Dr. Howard Ashby, because, despite Jan DeMeerleer's

frequent mental instability, Ashby failed to conduct a systematic and focused assessment

of DeMeerleer's condition or prepare a treatment plan with periodic follow-up care.

Because of his previous homicidal and suicidal ideas, DeMeerleer required extended in­

patient psychiatric therapy and treatment.

       In his declaration, James Knoll averred:

               During treatment by SPC [Spokane Psychiatric Clinic], DeMeerleer,
       after the failure of his first marriage, expressed homicidal ideas toward his
       former spouse and her then-current boyfriend. Subsequently, while in a
       relationship with Ms. Schiering, it was known that DeMeerleer's family,
       including his father and mother, were substantially concerned about his
       access to firearms, and his acting out homicidal ideas.

CP at 86.

       According to Dr. Knoll, Dr. Ashby knew of Jan DeMeerleer's penchant for

refusing to take prescribed medications and should have taken steps to encourage and

monitor use of medications. Knoll criticizes Ashby for failing to provide care, when

DeMeerleer called in distress on December 1,2009, because of loss of employment and

separation from'Rebecca Schiering. Instead, Spokane Psychiatric Clinic, P.S. referred

DeMeerleer to a community-based mental health clinic. Knoll criticizes Ashby for

failing to adequately assess Jan DeMeerleer's suicide risk, during the last visit on April


                                             20 

No. 31814-1-III
Volk v. DeMeerleer


16,2010, and Ashby's reliance on DeMeerleer's self-report that he would not commit

suicide. Ashby should have, at the least, scheduled a follow-up appointment to monitor

DeMeerleer's condition.

      According to expert witness James Knoll:

              Timely, appropriate, and focused psychiatric inquiry of DeMeerleer
      during clinical sessions most likely would likely have resulted in him
      having incurred more appropriate and intensive clinical or institutional
      psychiatric treatment. This until such time as treatment was demonstrably
      effective and/or risk of harm to himself had been appropriately mitigated.
      An adequate suicide risk assessment does not rely solely on the patient's
      denial of suicidal ideas, but involves an assessment of both the aggravating
      and mitigating factors in the context of the individual circumstances and
      patient's clinical status. A psychiatrist simply asking about suicide ideas
      does not ensure accurate or complete information will be received. It is
      considered the standard of care for the mental health professional to
      perform an adequate suicide risk assessment. A systematic assessment of
      suicide risk is a basic, essential practice that informs the mental health
      professional about proper treatment and management. It is pertinent that in
      clinical practice, it is observed that some patients, who first express suicidal
      ideas in clinical session, are found also to have homicidal ideas during risk
      assessment for suicide. Also, it is with unfortunate observed frequency that
      some who are known or believed to be suicidal, commit homicide,
      concurrent with suicide.

CP at 88-89.

      In his declaration, Dr. James Knoll opined:

              ... Given DeMeerleer's unstable BP, life stressors, past suicide
      attempts, past actions to realize homicide, noncompliance and "intrusive"
      suicidal ideas, it was below the standard of care to fail to monitor him in a
      timely manner. Had SPC met the standard of care, it is patent that
      DeMeerleer would have been in regularly scheduled clinical follow-up over
      the summer of 20 1O. During that period, and prior to the incident, an
      exchange of e-mails between DeMeerleer and Ms. Schiering reveal the

                                            21 

No.31814-I-III
Volk v. DeMeerleer


      relationship had crumbled, and that DeMeerleer was emotionally crushed
      and mentally desperate and unstable. DeMeerleer's SPC records clearly
      demonstrate that he routinely raised and addressed issues pertaining to his
      current relationship during clinical sessions. This is evident in his early
      SPC records, first in his and his then-current spouses' attempts to remain
      together, and then on to his dark, intrusive homicidal thoughts toward her,
      and her new interest. DeMeerleer's following relationship with Ms.
      Schiering was then substituted as a clinical topic. Had DeMeerleer been in
      clinical session during the summer of 20 10, SPC would have been able to
      inquire about his thoughts and emotions about his current relationship with
      Ms. Schiering and her children, and any ideas of suicide and/or homicide.
      Recall that DeMeerleer had disclosed suicidal and homicidal ideas during
      several prior clinical sessions. Had SPC properly monitored DeMeerleer,
      resulting in an adequate risk assessment for suicide and/or homicide,
      intensive clinical or institutional psychiatric treatment, the risk and
      occurrence of the incident would have been mitigated, and probably would
      not have occurred, as DeMeerleer's mental distress probably would not
      have digressed to the level of allowing for an act of suicide and/or
      homicide.
              10.     To the extent that DeMeerleer's potential for harm to self or
      others could not be reasonably mitigated by psychiatric treatment, including
      institutional treatment, proper inquiry and assessment may have
      substantiated that Ms. Schiering and her children were foreseeably at risk of
      harm from DeMeerleer. Had this occurred, given proper caution or
      warning by SPC directly, through an appropriate intermediary or an
      subsequent psychiatric services provider to DeMeerleer, Ms. Schiering and
      her family most likely would have had the opportunity to have: taken
      reasonable effort to avoid contact with DeMeerleer; seek protection from
      him; and/or make themselves unavailable to access by DeMeerleer. Failure
      by SPC to follow-up and treat DeMeerleer appropriately precluded any
      such opportunity.
              11.     Considering my review of the referenced materials, and the
      forgoing, SPC breached the applicable standard of care by failing to
      exercise the degree of care, skill and learning expected of a reasonably
      prudent healthcare provider of psychiatric medical services, in the State of
      Washington, acting in the same or similar circumstances, with respect to
      the delivery of such psychiatric medical services to DeMeerleer, in various
      degrees, and at various times during the course of clinical treatment of
      DeMeerleer (collectively "Breaches"). These Breaches include, but are not

                                           22 

No. 31814-1~III
Volk v. DeMeerleer


       limited to: failing to perfonn adequate assessments of DeMeerleer's risk of
       harming himself, and others when clinically indicated to do so; and failing
       to adequately monitor DeMeerleer's psychiatric condition, and provide
       appropriate treatment.
              12.     But for the referenced Breaches by SPC, it is unlikely the
       Incident would have occurred.
              13.     The referenced Breaches were, collectively and individually,
       most likely a causal and substantial factor contributing to and in bringing
       about the Incident and the resulting harm of loss of life, and other physical
       and psychological injuries.
              14.     The referenced Breaches were, collectively and individually,
       a causal and substantial factor in contributing to and in bringing about loss
       of chance of a better outcome of the psychiatric care and treatment of
       DeMeerleer, and thus a loss of chance that the Incident and the resulting
       harm wouldn't have occurred.

CP at 89-91. Dr. Knoll does not opine that Spokane Psychiatric Clinic, P.S., independent

of Dr. Howard Ashby, violated any standard of care held by a clinic.

       The trial court granted Howard Ashby's and Spokane Psychiatric Clinic, P.S.'s

summary judgment motion, concluding that they could not have reasonably identified

Rebecca, Phillip, or Brian as Jan DeMeerleer's target because he communicated no

"actual threats of harm" toward them. CP at 262.

                                 LA W AND ANALYSIS

                            Mental Health Professional's Duty

       The broad issue on appeal is what duty is owed by a mental health professional to

protect a third party from the violent behavior of the professional's patient or client. A

narrower issue is whether a mental health professional holds a duty to protect a third

person, when an outpatient, who occasionally expresses homicidal ideas, does not

                                             23 

No. 31814-1-III
Volk v. DeMeerleer


identify a target. RCW 71.05.120 provides immunity to the mental health professional in

the context of an involuntary commitment of the patient, unless the patient identifies a

target of violence or unless the professional is grossly negligent or acts in bad faith. A

difficult question for us is whether the language ofRCW 71.05.120(2) should be applied

by analogy outside the context of an involuntary commitment. Stated differently, a

difficult question is whether a mental health professional's duty of care, when treating a

voluntary outpatient, is limited to warning someone identified by the patient as the target

of an act of violence.

       There is no general duty to protect others from the criminal acts of a third party.

Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 196, 15 PJd 1283 (2001). An

exception to this rule exists, however, if there is a special relationship between the

defendant and the victim or the defendant and the criminal. Petersen v. State, 100 Wn.2d

at 426. Such a duty is imposed only ifthere is a definite, established, and continuing

relationship between the defendant and the third-party criminal actor. Estate ofJones v.

State, 107 Wn. App. 510, 518, 15 P.3d 180 (2000).

       The "special relationship" rule in Washington and other states arises from

Restatement (Second) ofTorts § 315 (1965). This section reads:

             There is no duty so to control the conduct of a third person as to
       prevent him from causing physical harm to another unless
             (a)     a special relation exists between the actor and the third person
       which imposes a duty upon the actor to control the third person's conduct,
       or

                                             24 

No. 31814-1-II1
Volk v. DeMeerleer


              (b)     a special relation exists between the actor and the other which
       gives to the other a right to protection.

       Jan DeMeerleer did not see Dr. Howard Ashby on a regular basis, but rather a hit­

and-miss basis. We could question whether Ashby and DeMeerleer had a "definite,

established, and continuing relationship." But, we accept that there is a question of fact

as to whether this relationship existed. Dr. Ashby impliedly argues that the infrequent

visits lessens his obligations, but he does not argue a special relationship is absent.

       The leading case in Washington concerning the duty of a mental health

professional is Petersen v. State, 100 Wn.2d 421. Plaintiff Cynthia Petersen was injured

in an automobile accident in Tacoma. Petersen's car was struck by a vehicle driven by

Larry Knox. Knox ran a red light while traveling approximately 50 to 60 miles per hour.

Knox was under the influence of drugs. Two years earlier, Knox was released on parole

for a burglary conviction on the condition he not use illicit drugs. A month before the

accident, Knox was involuntarily committed to Western State Hospital after he removed

one of his testicles while high on phencyclidine (PCP). Dr. Alva Miller, of Western State

Hospital, released Knox early from the commitment because, in Dr. Miller's opinion,

Knox had recovered from the drug reaction, was in full contact with reality, and was back

to his usual type of personality and behavior. Five days later the car collision occurred.

       Cynthia Petersen brought suit against the State of Washington, who operated

Western State Hospital, alleging it negligently treated Knox by failing to protect her from


                                             25 

No.31814-I-II1
Volk v. DeMeerleer


his dangerous propensities. Petersen argued that the failure of Dr. Miller, an employee of

the State, to seek either additional confinement or to disclose information about Knox's

parole violation was the proximate cause of her injuries. The jury agreed and rendered a

verdict in her favor. The jury even ruled that Dr. Miller was grossly negligent. Petersen

needed to prove gross negligence because she lacked any expert testimony to show that

Miller violated a standard of care. Expert testimony is not needed in a medical

negligence action when the plaintiff proves a gross deviation from the standard.

Petersen, 100 Wn.2d at 437.

       On appeal, the State of Washington, in Petersen v. State, argued it held no duty to

protect Cynthia Petersen from Larry Knox. The high court disagreed. The court ruled

that Dr. Miller, the State's employee, incurred a duty to take reasonable precautions to

protect anyone who might foreseeably be endangered by Larry Knox's drug-related

mental problems. At trial, Dr. Miller testified that Knox was a potentially dangerous

person and that his behavior would be unpredictable. He also testified that if Knox used

angel dust again he was likely to continue having delusions and hallucinations, especially

ifhe quit taking a prescribed drug. Dr. Miller testified he knew of Knox's reluctance to

take the drug, and he thought it quite likely Knox would revert to using angel dust again.

Nevertheless, Dr. Miller failed to petition the court for a 90-day commitment, as he could

have done under RCW 71.05.280, or to take other reasonable precautions to protect those

who might foreseeably be endangered by Knox's drug-related mental problems.

                                            26
No. 31814-1-111
Volk v. DeMeerleer


       Petersen v. State relied in part on Kaiser v. Suburban Transp. Sys., 65 Wn.2d 461,

398 P.2d 14,401 P.2d 350 (1965), wherein our state high court allowed a third party to

sue a doctor for injuries caused by the doctor's patient. The doctor failed to warn his

patient, who he knew was a bus driver, of the side effects of a drug he prescribed. The

plaintiff, a bus passenger, was injured when the driver lost consciousness and struck a

telephone pole. The court held that, since the doctor knew of the drug's side effects and

that his patient was a bus driver, he could reasonably have foreseen the harm. Kaiser, 65

Wn.2d at 464. Accordingly, the bus passenger was entitled to present evidence that the

doctor's negligence was the proximate cause of her injuries.

       All specialties of medicine are both art and science, but psychiatry may be more

art than science. The physician in Kaiser v. Suburban Transportation System, likely

easily diagnosed the nasal condition, readily prescribed the one drug, and should have

without much thought warned his patient of the side effect of the drug. Psychiatry is not

as routine. Diagnosing whether a patient is a danger to others, particularly when the

patient has no history of violence, is problematic. Applying the Kaiser rule to a mental

health professional is a stretch.

       Jan DeMeerleer suffered from bipolar disorder. He had expressed to Dr. Howard

Ashby and others both suicidal and homicidal ideas. He attempted suicide once. He

never attempted homicide and had a sparse history of violence toward others. The only

history of violence is a punch in the mouth to Rebecca Schiering's nine-year-old autistic

                                            27 

No.31814-I-III
Volk v. DeMeerleer


son. DeMeerleer admitted homicidal thoughts about his ex-wife Amy and her boyfriend.

He never expressed to Dr. Ashby or anyone else any homicidal ideation toward his girl

friend, Rebecca Schiering, or her family.

       The Schierings claim that, if Dr. Ashby had examined Jan DeMeerleer in

compliance with the standard of care, the psychiatrist would have unearthed a homicidal

desire toward Rebecca Schiering and thereby would have been able to warn her or others

of the oncoming murders. If Howard Ashby treated DeMeerleer in compliance with the

standard of care, it would have prevented the murders. The Schierings' expert, Dr. James

Knoll supports these claims. Despite any personal views to the contrary, we must assume

the veracity of Knoll's testimony. An appellate court does not weigh credibility in

deciding a motion for summary judgment. Jones v. Dep't ofHealth, 170 Wn.2d 338,

354,242 PJd 825 (2010).

       Petersen relied on the seminal case regarding the duty of a psychiatrist to protect

against the conduct of a patient, Tarasoffv. Regents ofUniv. ofCal. , 17 Cal. 3d 425,551

P.2d 334, 131 Cal. Rptr. 14 (1976). In Tarasoff, the parents ofTatiana Tarasoff alleged

the defendant therapists had a duty to warn their daughter of the danger posed to her by

one of the therapists' patients. The patient killed Tatiana. Two months prior to the

killing, the patient informed his therapist that he intended to kill a young woman.

Although the patient did not name Tatiana as his intended victim, the parents alleged, and




                                            28 

     No. 31814-1-II1
     Volk v. DeMeerleer


     the trial court agreed, that the therapists could have readily identified the endangered

     person as T atiana.

            The Tarasoff court ruled that when a psychotherapist determines, or, pursuant to

     the standards of the profession, should determine, that a patient presents a serious danger

     of violence to another, the therapist incurs an obligation to use reasonable care to protect

     the intended victim against such danger. Tarasoff, 17 Cal. 3d at 435. According to the

     Tarasoff court, discharge of the duty may require the therapist to take whatever steps are


i    necessary under the circumstances, including possibly warning the intended victim or

     notifYing law enforcement officials. Tarasoff, 17 Cal. 3d at 445.
I           Tarasoffcould be read to limit the duty of the mental health professional to protect


1    others to circumstances where the patient identifies his intended victim or provides

     enough information about the victim so that the psychiatrist can identifY him or her.

1    Nevertheless, the Tarasoffdecision did not emphasize the identifiability of the victim.
i
     Subsequent California decisions limited the scope of the therapist's duty to readily



I
1
'I
!
1
     identifiable victims. See Thompson v. County ofAlameda, 27 Cal. 3d 741, 752-54, 614

     P.2d 728, 167 Cal. Rptr. 70 (1980); Mavroudis v. Superior Court, 102 Cal. App. 3d 594,

     600-01, 162 Cal. Rptr. 724 (1980).
I
            Under Tarasoffand its offspring, Dr. Howard Ashby would be granted summary
1
~    judgment. Jan DeMeerleer never identified Rebecca Schiering or her family members as
1
Ii                                                29
 I
No. 31814-1-III
Volk v. DeMeerleer


a target of violence. The Schierings do not directly argue that the punch to Jack should

have alerted Spokane Psychiatric Clinic, P.S. to a homicidal danger toward the family.

       The final decision that the Petersen court relied on is Lipari v. Sears, Roebuck &

Co., 497 F. Supp. 185 (D. Neb. 1980). In Lipari, the court emphasized the importance of

foreseeability in defining the scope of a person's duty to exercise due care. In that case, a

psychiatric patient entered a night club and fired a shotgun into a crowded dining room

causing injuries to plaintiff and killing her husband. The Lipari court found that the

defendant's therapist had a duty to any person foreseeably endangered by the negligent

treatment of the psychiatric patient.

       Petersen presents the extreme version of the duty imposed on a mental health

professional to protect others. The decision is criticized by commentators and rejected by

most other states, including California. Commentators protest that the decision places an

impossible burden on mental health professionals and unduly interferes in the physician-

patient privilege. Patients will withhold thoughts of violence for fear the professional

will disclose those thoughts to others. The bond of trust between patient and doctor will

dissolve. According to critics of Petersen, mental health professionals will be quick to

seek involuntary commitment of a patient in order to avoid liability, thereby impinging

on the freedom and civil rights of the mentally ill.




                                             30 

                                                                                       -----------




No.31814-I-III
Volk v. DeMeerleer


       Petersen promotes the view that those with special powers, skills, and knowledge

gained through the doctor-patient relationship must protect society at large from

dangerous persons.

             With their superior knowledge, psychiatrists are expected to identify
      individuals who are dangerous to themselves or others and to recommend
      preventive action. This occurs both in the mental health context and within
      the judicial system where psychiatrists are called upon to assist in making
      decisions about culpability, competence, incarceration, or rehabilitation.

Fay Anne Freedman, The Psychiatrist's Dilemma: Protect the Public or Safeguard

Individual Liberty?, 11 U. PUGET SOUND L. REv. 255, 260 (1987-1988) (footnotes

omitted). In Washington, we expect psychiatrists to predict whether a sexually violent

offender will relapse after treatment. RCW 71.09.055; In re Det. ofCampbell, 139

Wn.2d 341, 357-58, 986 P.2d 771 (1999); In re Pers. Restraint ofYoung, 122 Wn.2d 1,

56-58,857 P.2d 989 (1993); In re Det. ofAguilar, 77 Wn. App. 596, 601-02, 892 P.2d

1091 (1995). Still, empirical evidence establishes that psychiatry is an ill predictor of

violent behavior. Michael A. Norko and Madelon V. Baranoski, The Prediction of

Violence; Detection ofDangerousness, 8 BRIEF TREATMENT & CRISIS INTERVENTION 73,

77-78 (2008); Mairead Dolan & Michael Doyle, Violence Risk Prediction: Clinical and

Actuarial Measures and the Role ofthe Psychopathy Checklist, 177 THE BRIT. J.

PSYCHIATRY 303 (2000).

      Petersen v. State's duty of care only extends to those "foreseeably endangered" by

the patients' mental problems. Nevertheless, Washington decisions place no limitations

                                            31 

1
]
I   No. 31814-1-III
    Volk v. DeMeerleer


    as to who is foreseeably endangered. The jury's function is to decide the foreseeability of

    the danger. Bernethy v. Walt Failor's, Inc., 97 Wn.2d 929,933, 653 P.2d 280 (1982).

    Ordinarily, foreseeability is a question of fact for the jury unless the circumstances of the

    injury'" are so highly extraordinary or improbable as to be wholly beyond the range of

    expectability.'" Seeberger v. Burlington NR.R., 138 Wn.2d 815, 823,982 P.2d 1149

    (1999) (quoting McLeod v. Grant County Sch. Dist. No. 128,42 Wn.2d 316, 323, 255

    P.2d 360 (1953»; see also Schooley v. Pinch's Deli MIa., Inc., 134 Wn.2d 468,478,951

    P.2d 749 (1998).

           In Bader v. State, 43 Wn. App. 223, 716 P.2d 925 (1986), this division followed

    the teachings of Petersen v. State, 100 Wn.2d 421. Morris Roseberry was arrested for

    assaulting his mother with a board. He was sent to Eastern State Hospital (ESH) for

    observation to determine whether he was competent to stand trial. The staff diagnosed

    him as a paranoid schizophrenic and manic depressive, stating, "Mr. Roseberry is a

    substantial danger to other persons and presents a likelihood of committing felonious acts

    jeopardizing public safety or security unless kept under further control by the court or

    other persons or institutions." Bader, 43 Wn. App. at 224. ESH concluded he was

    competent to stand trial, however. A jury acquitted Roseberry on the ground of insanity

    and the court released him conditioned upon his taking his prescribed medication,

    receiving treatment at the Chelan-Douglas Mental Health Center, and not returning to the

    family home.

                                                 32 

No. 31814-1-111
Volk v. DeMeerleer


       Morris Roseberry's sister later informed the mental health center that he was not

taking his medication and was talking of seeing the devil in people and how he must kill

the devil. His family members felt threatened by his behavior. Roseberry missed several

appointments at the center. Eventually, Roseberry showed for an appointment without

evidencing any impairment.

       Morris Roseberry lived across the street from Hazel Massey. Massey made

several complaints to the Wenatchee Police Department about Roseberry's violent

behavior toward her, including threats on her life. Four days after his last visit to the

mental health clinic, Roseberry purchased a rifle, then shot and killed Massey. He was

charged with first degree murder, but found not guilty by reason of insanity and

committed to ESH.

       In Bader, we reversed a summary judgment dismissal in favor of the Chelan-

Douglas Mental Health Center. The center's records contained a copy of the court's

order of acquittal on the ground of insanity and conditional release. The order stated

Roseberry was a substantial danger to others and likely to commit felonious acts

jeopardizing public safety. It also listed the conditions of his release, which included

taking his medication, contacting the center and following its staffs instructions

regarding treatment. The center's records showed it was aware Roseberry missed several

of his appointments, was not taking his medication, and was talking of seeing the devil in

people and how he must kill the devil. Thus, questions of fact existed as to the

                                             33
No. 31814-1-III
Volk v. DeMeerleer


foreseeability of Roseberry doing what he did and what action the center should have

taken once it became aware Roseberry was violating the conditions of his court-ordered

release. Massey's estate presented an affidavit of an expert, who opined that the center

did not act within the standard of care and their actions were grossly negligent and in bad

faith.

         The Washington Legislature has narrowed the duty created by Petersen v. State.

In 1987, the legislature enacted a new involuntary treatment act that provides limited

immunity to mental health professionals in the context of the involuntary commitment

process. This immunity already applied to public and law enforcement officers under a

version of the law adopted in 1973. See Spencer v. King County, 39 Wn. App. 201, 692

P.2d 874 (1984), overruled on other grounds, Frost v. City o/Walla Walla, 106 Wn.2d

669,724 P.2d 1017 (1986).

         The involuntary treatment act allows commitment of people who are either

"gravely disabled" or present a "likelihood of serious harm." RCW 71.05.150. The
                                                                                               I
                                                                                               I
                                                                                               I
involuntary commitment process is initiated when a mental health professional receives
                                                                                               i
information alleging that a person presents an imminent likelihood of serious danger to
                                                                                               I
himself or others, or is in imminent danger because of being gravely disabled. RCW

71.05.150. The mental health professional must thoroughly evaluate information                 I
received and assess the reliability and credibility of the person providing the information.
                                                                                               f

                                             34
                                                                                               Ii
No. 31814-1-111
Volk v. DeMeerleer


The initial detention of an individual may not exceed a 72-hour evaluation period. RCW

71.05.150(2)(a).

       For our purposes, the relevant portion of the involuntary treatment act, RCW

71.05.120 reads:

               (1)    No officer of a public or private agency, nor the
       superintendent, professional person in charge, his or her professional
       designee, or attending staff of any such agency, nor any public official
       performing functions necessary to the administration of this chapter, nor
       peace officer responsible for detaining a person pursuant to this chapter, nor
       any county designated mental health professional, nor the state, a unit of
       local government, or an evaluation and treatment facility shall be civilly or
       criminally liable for performing duties pursuant to this chapter with regard
       to the decision of whether to admit, discharge, release, administer
       antipsychotic medications, or detain a person for evaluation and treatment:
       PROVIDED, That such duties were performed in good faith and without
       gross negligence.
               (2)    This section does not relieve a person from giving the
       required notices under RCW 71.05.330(2) or 71.05.340(1)(b), or the duty to
       warn or to take reasonable precautions to provide protection from violent
       behavior where the patient has communicated an actual threat ofphysical
       violence against a reasonably identifiable victim or victims. The duty to
       warn or to take reasonable precautions to provide protection from violent
       behavior is discharged if reasonable efforts are made to communicate the
       threat to the victim or victims and to law enforcement personnel.

(Emphasis added.) The immunity granted by RCW 71.05.120 extends only to third

parties and not to the patient. Spencer, 39 Wn. App. 201.

       We read the two sections ofRCW 71.05.120 together to grant immunity to mental

health professionals except with five exceptions: (1) the professional performs duties in

bad faith; (2) the professional performs duties with gross negligence; (3) the professional


                                            35 

No. 31814-1-II1
Volk v. DeMeerleer


releases a patient before the expiration of an involuntary commitment without notifYing

the county prosecuting attorney at least thirty days before release pursuant to RCW

71.05.330(2); (4) the professional conditionally releases, for purposes of outpatient

treatment, the patient before the expiration of an involuntary commitment without

notifYing the county prosecuting attorney at least 30 days before release under RCW

71.05 .340(b); and (5) the professional fails to warn or take reasonable precautions to

provide protection from violent behavior when the patient has communicated an actual

threat of physical violence against a reasonably identifiable victim or victims.

       We must decide whether we apply the duty enunciated in Petersen v. State or the

duty implied by the withholding of immunity under RCW 71.05.120(2). Stated

differently, we must decide if a mental health professional has a duty to protect all

foreseeable victims or a duty to protect only victims identified by the outpatient.

       RCW 71.05.120 by its terms applies only to the performance of "functions

necessary to the administration of' chapter 71.05 RCW. The chapter concerns

involuntary commitment to a mental health facility. Courts refer to the chapter as the

involuntary treatment act. Polettiv. Over lake Hosp. Med. etr., 175 Wn. App. 828, 831,

303 P.3d 1079 (2013). The involuntary treatment act is primarily concerned with the

procedures for involuntary mental health treatment of individuals who are at risk of

harming themselves or others, or who are gravely disabled. Poletti, 175 Wn. App. at 832.




                                             36 

No. 31814-1-III
Volk v. DeMeerleer


       The allegations of the Schierings can be read to assert a claim that Spokane

Psychiatric Clinic, P.S. was negligent for failing to take steps to involuntarily commit Jan

DeMeerleer. Such a claim is ripe for summary judgment and we affirm the trial court to

the extent it dismissed this claim.

       Dr. James Knoll contends a thorough evaluation and treatment of Jan DeMeerleer

may have led to a conclusion that DeMeerleer should receive "institutional treatment."

We assume institutional treatment entails involuntary commitment. When the plaintiff

claims the mental health professional should have detained the patient, the plaintiff is

claiming the professional should have involuntarily committed the patient. Estate of

Davisv. Dep'tofCorr., 127 Wn. App. 833, 840-41,113 P.3d487 (2005). Under such

circumstances, RCW 71.05.120 controls and the mental health professional is entitled to

immunity under the statute. Poletti, 175 Wn. App. at 831; Estate ofDavis, 127 Wn. App.

at 840-41. In Poletti, the trial court ruled that plaintiff need only satisfy a negligence

standard when presenting evidence that a mental health hospital should have detained a

patient. The Court of Appeals reversed, ruling that RCW 71.05.120's immunity applied.

The only authority under that the hospital could have detained the patient was under the

involuntary treatment act.

       Subsection 2 ofRCW 71.05.120 imposes an obligation on a mental health

professional. It does not provide immunity, but withholds the immunity afforded in

subsection 1 in a narrow circumstance. RCW 71.05.120(2) identifies an instance in

                                              37 

No. 31814-1-III
Volk v. DeMeerleer


which the mental health professional can be found liable-when the patient threatens an

identifiable person. It imposes a duty, rather than limiting a duty. But remember the

statute applies only within the context of the involuntary commitment process.

Subsection 2 does not preclude a broader duty outside the context of involuntary

commitment. Should we read the standard as applying outside the involuntary

commitment setting? Would the standard make as much sense outside the involuntary

commitment background?

      One commentator concludes the immunity afforded by RCW 71.05.120 will not

be applied outside the context of involuntary commitment. Nevertheless, the

commentator does not distinguish between portions or subsections of the statute. 16

DAVID DEWOLF AND KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAWAND

PRACTICE 707-08 (4 ed. 2013) discusses RCW 71.05.120 as follows:

              Similarly, a Washington statute grants limited immunity to mental
      health professionals and their employers who are responsible for decisions
      regarding the detention of a mental health patient, so long as they act in
      good faith and without gross negligence. The limited immunity applies not
      only to decisions regarding an actual detention, but also to the
      determination of whether to detain a patient involuntarily. Thus, where a
      patient voluntarily presented herself for treatment at a hospital, and was
      later admitted to the psychiatric ward, the statutory standard applied to a
      claim that the hospital negligently failed to refer the patient for a mental
      health evaluation. On the other hand, the ordinary negligence standard
      would apply to claims for negligent treatment that are not based on a
      decision regarding involuntary detention, such as the evaluation of the
      patient prior to the time that such a decision is made.

 (F ootnotes omitted.)

                                           38
No. 31814-1-III
Volk v. DeMeerleer


       For the purpose of demarcating to whom a duty is owed we discern no reason to

differentiate between treating a mental health patient in the context of involuntary

commitment and treating a patient outside that context. Under either circumstance,

predicting violent behavior and the target of the violent behavior is difficult.

Nevertheless, we also discern no purpose in differentiating between applying a

negligence or gross negligence standard in these two contexts. But RCW 71.05.120

distinguishes between the two contexts.

       In short, the state legislature saw a need to protect mental health professionals

within the context of involuntary commitment proceedings. The legislature has not

extended those same protections outside that context. So we conclude that the Petersen

duty applies in our case. There is a question of fact as to whether the clinic violated a

duty owed to Rebecca Schiering and her family, except to the extent the Schierings argue

that Howard Ashby should have involuntarily institutionalized Jan DeMeerleer.

       We now address specific contentions raised by Dr. Ashby and Spokane Psychiatric

Clinic, P.S. Howard Ashby focuses on former Justice Phillip Talmadge's concurring

opinion in Hertog v. City ofSeattle, 138 Wn.2d 265,293 n.7, 979 P.2d 400 (1999)              I
(Talmadge, J., concurring), in which he writes, "the Legislature statutorily abrogated our

holding in Petersen in LAWS OF 1987, ch. 212, § 301 (1 ) (codified at RCW 71.05 .120( 1)),

with respect to liability of the State." We do not consider a concurring opinion

controlling. Also, this appeal does not concern the liability of the State of Washington.

                                             39 



                                                                                             I
No. 31814-1-111
Volk v. DeMeerleer


Hertog involved the duty owed by a parole officer, not the duty imposed on a mental

health professional with regard to an outpatient.

       Dr. Howard Ashby contends that RCW 70.02.050 precluded him from warning

Rebecca Schiering of any violent tendency of Jan DeMeerleer, since DeMeerleer never

identified Schiering as a potential target of violence. Ashby contends the statute limits

any warning to a third party who is a named target of violence. We do not read the

statute that narrowly. The statute allows disclosure of health care information:

               (d)    To any person if the health care provider or health care
       facility reasonably believes that disclosure will avoid or minimize an
       imminent danger to the health or safety of the patient or any other
       individual, however there is no obligation under this chapter on the part of
       the provider or facility to so disclose.

RCW 70.02.050(d). The statute also does not expressly preclude disclosure in

circumstances where there is no identified victim.

       Howard Ashby emphasizes that RCW 70.02.050, enacted in 1991, did not exist

when our Supreme Court decided Petersen v. State. Nonetheless, the patient-physician

privilege existed under another statute at the time of the 1983 Petersen decision. RCW

5.60.060(4), that recognizes the privilege, is based on legislation adopted in pre-territorial

days. Petersen recognized a psychologist-client privilege, RCW 18.83.110, and a

privilege in involuntary commitment proceedings, RCW 71.05.390, but ruled that neither

privilege overcame the duty to protect third parties.




                                             40 

No. 31814~I~III
Volk v. DeMeerleer


       Dr. Howard Ashby wishes us to hold that he lacked notice that Jan DeMeerleer

was an "imminent danger to the health and    safety'~   of others~   and~   therefore, based on

RCW 70.02.050( d), he garnered no duty to protect others. Since we conclude that the

statute does not limit the psychiatrist's tort duty, we need not address this argument.

Anyway, the Schierings argue and their expert testifies that, if Howard Ashby had met

the standard of care and engaged in intensive treatment, Jan DeMeerleer would have

disclosed information leading a mental health professional to reasonably believe

DeMeerleer was an imminent danger to others.

       Howard Ashby contends that the duty to warn third parties arises only if the

mental health professional "takes control" of the patient. Washington decisional law

does not limit the duty to such circumstances. Petersen involved release from

involuntary commitment, but did not limit its holding to such circumstances or declare

that the duty to protect others applied only when the mental health professional had

authority to control the patient. In Bader, we reversed summary judgment in favor of the

Chelan-Douglas Mental Health Center despite the center never having "control" over the

patient. 43 Wn. App. at 227-28.

       Amicus contends that three decisions limit the Petersen duty to instances of

institutional confinement: Taggart v. State, 118 Wn.2d 195, 218, 822 P.2d 243 (1992);

Couch v. Dep 't o/Corr., 113 Wn. App. 556, 571, 54 P.3d 197 (2002); and Osborn v.

Mason County, 157 Wn.2d 18,24, 134 P.3d 197 (2006). Taggart, is two consolidated

                                             41 

No. 31814-1-111
Volk v. DeMeerleer


cases that plaintiffs claimed the Indeterminate Sentence Review Board and individual

parole officers were negligent for releasing and supervising parolees. Taggart affirmed

Petersen v. State. The State sought to limit the Petersen duty to instances when the

criminal actor is released from a mental hospital and argued that a parole officer lacks

control over the parolee since the parolee is already in the community. The court

declined to make such a distinction. The court declared, "Whether the patient is a

hospital patient or an outpatient is not important." Taggart, 118 Wn.2d at 223. Thus,

Taggart supports our ruling not amicus' argument.

       In Osborn v. Mason County, parents sued because a registered sex offender raped

and murdered their daughter. They claimed Mason County failed to warn them of the

offender's presence. The Supreme Court held that Mason County had no duty to warn

the Osborns because they did not rely on a promise to warn and the daughter was not a

foreseeable victim. Although the court mentioned the county's lack of control over the

offender, it did not limit the Petersen duty.

       Couch v. Department ofCorrections, addressed the question of whether the

department owes a duty of care to prevent future crimes while supervising an offender

only for the purpose of collecting money. The court answered no, but made no statement

limiting the force of Petersen.




                                                42
                                                                                           t

                                                                                           [
No.31814-1-III
Volk v. DeMeerleer


                                      Lost Chance

      The Schierings also allege that Dr. Howard Ashby's violation of the standard of

care reduced Phillip and Rebecca Schiering's chance of survival. Thus, they assert a

claim for lost chance, but Dr. Knoll provides no percentage for the lost chance. We

dismiss any lost chance claim based on an allegation that Dr. Ashby should have

involuntarily committed Jan DeMeerleer, on the basis of immunity under RCW

71.05.120. We further dismiss the lost chance claim in its entirety because the Schierings

presented no expert testimony of percentage of lost chance. Rash v. Providence Health &

Serv., No. 31277-1-II1 (Wash. Ct. App. Sept. 16,2014).

      Every Washington decision that permits recovery for a lost chance contains

testimony from an expert health care provider that includes an opinion as to the

percentage or range of percentage reduction in the chance of survival. Herskovits v. Grp.

Health Coop o/Puget Sound, 99 Wn.2d 609,611,664 P.2d 474(1983) (14 percent

reduction in chance of survival); Mohr v. Grantham, 172 Wn.2d 844, 849,262 P.3d 490

(2011) (50 to 60 percent chance of loss of better outcome); Shellenbarger v. Brigman,

101 Wn. App. 339, 348, 3 P.3d 211 (2000) (20 percent chance that the disease's progress

would have been slowed). Without that percentage, the court would not be able to

determine the amount of damages to award the plaintiff, since the award is based on the

percentage ofloss. See Smith v. Dep't o/Health & Hosps., 95-0038 (La. 6/25/96); 676

So. 2d 543, 548. Discounting damages by that percentage responds to a concern of

                                           43 

No. 31814-1-III
Volk v. DeMeerleer


awarding damages when the negligence was not the proximate cause or likely cause of

the death. Mohr, 172 Wn.2d at 858; Matsuyama v. Birnbaum, 452 Mass. 1, 17,890

N.E.2d 819 (2008). Otherwise the defendant would be held responsible for harm beyond

that which it caused. The leading author on the subject of lost chance declares:

              Despite the sound conceptual underpinnings of the doctrine, its
       successful application depends on the quality of the appraisal of the
       decreased likelihood of a more favorable outcome by the defendant's
       tortious conduct.

Joseph H. King, Jr., "Reduction ofLikelihood" Reformulation and Other Retrofitting of

the Loss-of-a-Chance Doctrine, 28 U. MEM. L. REv. 491,546-47 (1998). This quote

promotes accurate calculations and use of percentages.

                                James Knoll's Testimony

       Dr. Howard Ashby contends that the Schierings offered a declaration from an

expert witness containing generalities, factually unsupported conclusions and speculation,

advocating for a boundless and expansive duty to warn. If we were the trier of fact, we

might agree with Dr. Ashby, but our role is not to weigh the credibility of the witness or

the validity of expert opinions. Courts do not weigh the evidence or assess witness

credibility on a motion for summary judgment. Am. Express Centurion Bank v.

Stratman, 172 Wn. App. 667, 677, 292 P.3d 128 (2012). Dr. James Knoll is a qualified

mental health professional and Ashby does not challenge Knoll's credentials.




                                            44 

No. 31814-1-III
Volk v. DeMeerleer


       Dr. Ashby questions Dr. James Knoll's qualifications to opine about the standard

of care imposed on a mental health professional in Washington State. Ashby's

questioning fails to recognize that Washington allows a medical professional from

another state to testify to the standard of care in Washington. In a medical malpractice

suit, a plaintiff must prove the relevant standard of care through the presentation of expert

testimony, unless a limited exception applies. Harris v. Robert C. Groth, MD., Inc. PS,

99 Wn.2d 438, 449, 663 P.2d 113 (1983); Douglas v. Bussabarger, 73 Wn.2d 476, 479,

438 P.2d 829 (1968); and Grove v. PeaceHealth St. Joseph Hosp., 177 Wn. App. 370,

382,312 P.3d 66 (2013), review granted, 180 Wn.2d 1008,325 P.3d 913 (2014). The

standard of care is the degree of care, skill, and learning expected of a reasonably prudent

health care provider at that time in the profession or class to which he belongs, in the

state of Washington. Hill v. Sacred Heart Med. Ctr., 143 Wn. App. 438, 446, 177 P.3d

1152 (2008). A physician licensed in another state may provide admissible testimony
                                                                                                I
that a national standard of care exists and that the defendant physician violated that

standard. Elber v. Larson, 142 Wn. App. 243, 248, 173 P.3d 990 (2007); Pon Kwock Eng
                                                                                                I
v. Klein, 127 Wn. App. 171, 110 P.3d 844 (2005).

       Dr. Ashby's criticism also fails to note that Dr. Knoll contacted a Washington

mental health professional to consult on the standard of care. One expert may rely on the

opinions of another expert when formulating opinions. State v. Russell, 125 Wn.2d 24,

74-75,882 P.2d 747 (1994); Deep Water Brewing, LLCv. Fairway Res. Ltd., 152 Wn.
                                                                                                II
                                                                                                I
                                             45 

No. 31814-I-III
Volk v. DeMeerleer


App. 229, 275, 215 P.3d 990 (2009). Dr. Ashby criticizes Dr. Knoll for failing to identify

the Washington State practitioner, but we know of no rule that requires one expert

witness to voluntarily identify another expert that he relies in forming opinions. Dr.

Ashby could have conducted a deposition of Dr. Knoll to discover the name.

       Howard Ashby does not identify the "factually unsupported conclusions" he

believes are contained in Dr. Knoll's declaration. Dr. Knoll testifies to the facts, that he

based his opinions, and states that he discovered those facts by reviewing Dr. Ashby's

records. Dr. Ashby does not isolate any facts declared by Knoll missing from the

records.

       Summary judgment jurisprudence directs a court to reject "speculation" when

reviewing summary judgment motions. Seven Gables Corp. v. MGMlUA Entm 't Co.,

106 Wn.2d 1,13,721 P.2d 1 (1986); State v. Kaiser, 161 Wn. App. 705, 718, 254 P.3d

850 (20 11). But the law likely recognizes two levels of speculation, one for purposes of
                                                                                               I
summary judgment, and one for purposes of finding facts after an evidentiary hearing or

trial. We do not consider Dr. Knoll's testimony speculative for purposes of defending a

summary judgment motion. Dr. Knoll relied on facts found in the chart notes of Dr.

Ashby. He gives a reasoned explanation for his conclusions. He bases his opinions on

reasonable probability.

       Imposing a duty on Dr. Ashby, in the setting of our case, entails addressing

whether the Schiering family was a foreseeable victim. The family was more foreseeable
                                                                                               f
                                             46


                                                                                               I
No. 31814-1-III
Volk v. DeMeerleer


as a victim than Cynthia Petersen in Petersen v. State, since Larry Knox, the criminal

actor in Petersen, had no prior connection to Cynthia Petersen. Jan DeMeerleer had a

prior connection to Rebecca Schiering and her three sons. DeMeerleer had already

slugged one son. According to the evidence before the court on summary judgment, Dr.

Ashby knew that Jan DeMeerleer had already threatened to use violence against his

former wife and her boyfriend. Dr. Ashby knew DeMeerleer suffered from distress and

depression resulting from the breakup with Rebecca Schiering.

       Petersen v. State also answers the dissent's position that no liability should attach

to Dr. Ashby because there were no threats uttered about the Schierings. Cynthia

Petersen was not the subject of prior threats.

       Howard Ashby criticizes the declaration of Dr. James Knoll as suggesting that,

had Dr. Ashby not violated the standard of care, "it is possible that Mr. DeMeerleer may

have disclosed to Dr. Ashby homicidal thoughts Mr. DeMeerleer may have had about Ms.

Schiering and/or her children." Br. of Resp't Dr. Howard Ashby at 5. After criticizing

Knoll's affidavit, Ashby denounces the testimony as speculation on speculation. Dr.

Knoll's opinions are stronger, however, than characterized. James Knoll testified that
                                                                                               Ii
Spokane Psychiatric Clinic, P.S. should have properly monitored DeMeerleer, performed

a risk assessment, and provided intensive clinical or institutional psychiatric treatment.     I
Had Spokane Psychiatric Clinic, P.S.'s conduct conformed to the standard of care, the

risk and occurrence of the incident "would have been mitigated," and "probably would

                                             47
No.3l8l4-l-III
Volk v. DeMeerleer


not have occurred," as DeMeerleer's mental distress probably would not have digressed

to the level of allowing for an act of suicide or homicide. CP at 90. Knoll further

declared that but for the breaches in the standard of care, "it is unlikely the Incident [sic]

would have occurred." CP at 91. Dr. Knoll's declaration language meets the

requirement that the subject of an expert's affidavit or declaration must be of such a

nature that an expert expresses an opinion based on a reasonable probability rather than

mere conjecture of speculation. Davidson v. Mun. ofMetro. Seattle, 43 Wn. App. 569,

571, 719 P.2d 569 (1986).

       Dr. Ashby further faults the declaration of James Knoll as being speculative

because Knoll testifies that additional treatment "may" have led to Jan DeMeerleer

disclosing homicidal thoughts about Rebecca Schiering or her children. Ashby correctly

notes that this testimony assumes that Jan DeMeerleer entertained homicidal thoughts

about Schiering or her boys before the evening of July 18, 2010. But James Knoll's

testimony is not limited to an opinion that more extensive treatment would have allowed

Ashby to warn Rebecca Schiering of violent behavior. Dr. Knoll also testifies that
                                                                                                 I
                                                                                                 }
extensive treatment would itself have been "demonstrably effective." CP at 88. With

intensive treatment, Jan DeMeerleer's "mental distress probably would not have

digressed to the level of allowing for an act of suicide and/or homicide." CP at 89.
                                                                                                 I
                                                                                                 I
       Howard Ashby criticizes James Knoll for failing to attach to his declaration those
                                                                                                 I
clinical records that he reviewed. We are not aware of any rule requiring that the expert
                                                                                                 1
                                              48
                                                                                                 I
                                                                                                 I
                                                                                                  -_._--­




No. 31814-1-III
Volk v. DeMeerleer


witness attach to a declaration records on which he relies. To the contrary, ER 705

allows an expert to even testify to his opinions without disclosing the underlying basis

until asked or ordered by the court.

                        Liability of Spokane Psychiatric Clinic, P.S.

       The parties provide no evidence of the relationship between Spokane Psychiatric

Clinic, P.S. and Howard Ashby. We do not know if Ashby is an employee of the clinic,

such that the clinic is vicariously liable for the conduct of Howard Ashby. We do not

know if Ashby was an independent contractor. In response to Spokane Psychiatric

Clinic, P.S.'s summary judgment motion, the Schierings provided no evidence or opinion

that Spokane Psychiatric Clinic, P.S. violated a standard of care and was independently

negligent. On appeal, the Schierings assign no error to the dismissal of Spokane
                                                                                                            I
Psychiatric Clinic, P.S. except to the extent of it's vicarious liability for the conduct of                f
Howard Ashby.                                                                                               I,
       In its brief, Spokane Psychiatric Clinic, P .S. admits that it is vicariously liable for

any malpractice of Howard Ashby. In their reply brief, the Schierings admit they have no

evidence of direct negligence by the clinic. Based on these concessions, we affirm the
                                                                                                            !
trial court's dismissal of the claims asserted by the Schiering family that the clinic failed

to establish and implement policies and procedures to prevent the deaths and injuries to
                                                                                                            I
                                                                                                            J

the family members. In other words, we affirm the dismissal of any claim against the

clinic for independent negligence. Spokane Psychiatric Clinic, P .S. remains subject to                     ,
                                              49                                                            I
                                                                                                            f
                                                                                                            i
No. 31814-1-III
Volk v. DeMeerleer


liability to the extent that Howard Ashby is found negligent, and thus the summary

judgment ruling in favor of the clinic is reversed to the extent of vicarious liability.

                                       CONCLUSION

       We reverse in part, and affirm in part, the summary judgment order in favor of Dr.

Howard Ashby. To the extent that the Schierings contend Dr. Ashby should have

involuntarily committed Jan DeMeerleer, the dismissal is affirmed. We also affirm the

dismissal of the Schierings' claim oflost chance. Otherwise, the summary judgment

order for Dr. Howard Ashby is reversed. We reverse in part, and affirm in part, the

summary judgment order in favor of Spokane Psychiatric Clinic, P.S. To the extent that

the Schierings contend the clinic is independently negligent, the summary judgment order

is affirmed. The summary judgment order is reversed to the extent that Spokane

Psychiatric Clinic, P.S. is vicariously liable.
                                                                                            I
           We remand for further proceedings consistent with this opinion.




I CONCUR:                                                                                   r
                                                                                            I
                       ey, J.
                                                                                            I,
                                                                                            [

                                                                                            l
                                                  50
                                                                                            I
                                                                                            f
j
I



i
i
!
I!
!
l
l                                             No. 31814-1-111
J~ 

i~
I             BROWN, A.C.J. (concurring in part/dissenting in part) -    In my view, appellants fail 

!
!

!I     to show Mr. DeMeerleer ever communicated to respondents any actual threat of

       physical harm concerning these third-party appellants during his treatment. Thus, under


I
I
       current applicable law, I would hold respondents fail to show the necessary foreseeable

       risk of harm to raise a legal duty to protect appellants. I would affirm the trial court's
I      grant of summary judgment in all respects. 1

              Long before this tragic incident, Mr. DeMeerleer expressed isolated homicidal
I
       thoughts about an ex-wife and an unknown prowler. Mr. DeMeerleer never mentioned

       to respondents any homicidal or threatening thoughts toward appellants. Indeed, on

       April 16, 2010, Mr. DeMeerleer last saw respondents, telling them he was mending his

       relationship with Rebecca and would not act on his suicidal ideas. On July 18, 2010

       when off his medications, Mr. DeMeerleer shot and killed Rebecca and Phillip,

       attempted to kill Brian, then killed himself. Family members, friends, and acquaintances

       who visited Mr. DeMeerleer shortly before the incident gleaned no indication of any

       plan. Respondents moved successfully for summary judgment. partly arguing they

       owed no third-party duty. The trial court agreed, reasoning respondents could not have



              1   For clarity, I use given names.
No. 31814-1-111
Winkler v. DeMeerleer - Dissent

reasonably identified Rebecca, Phillip, or Brian as Mr. DeMeerleer's target because he

communicated no "actual threat of physical violence" toward them. RCW 71.05.120(2).

       To prevail in a professional malpractice suit against a mental health care

provider, the plaintiff must prove the defendant breached a duty owed to him or her and,

thereby, proximately caused damages. Petersen v. State, 100 Wn.2d 421, 435, 671

P.2d 230 (1983). At common law, a person owes no duty to control a dangerous

person's conduct or protect a foreseeable victim from it unless the person has a special

relationship with either the dangerous person or the foreseeable victim. In Kaiser v.

Suburban Transportation System, 65 Wn.2d 461,398 P.2d 14,401 P.2d 350 (1965),

our Supreme Court acknowledged a physician-patient relationship may trigger a duty for

the benefit of an injured third party.

       In 1973, our legislature immunized mental health professionals from civil and

criminal liability for performing certain statutory duties "in good faith and without

negligence." LAws OF 1973, 1st Ex. Sess., ch. 142, § 17; LAws OF 1973, 2d Ex. Sess.,

ch. 24, § 5. Our legislature increased this standard of care the next year, requiring

performance "in good faith and without gross negligence." LAws OF 1974, 1st Ex. Sess.,

ch. 145, § 7. Last amended in 2000, this immunity provision now reads,

              (1) No officer of a public or private agency, nor the superintendent,
       professional person in charge, his or her professional designee, or
       attending staff of any such agency, nor any public official performing
       functions necessary to the administration of this chapter, nor peace officer
       responsible for detaining a person pursuant to this chapter, nor any county
       designated mental health professional, nor the state, a unit of local
       government, or an evaluation and treatment facility shall be civilly or
       criminally liable for performing duties pursuant to this chapter with regard
       to the decision of whether to admit, discharge, release, administer


                                              2

No. 31814-1-111
Winkler v. DeMeerleer - Dissent

       antipsychotic medications, or detain a person for evaluation and
       treatment: PROVIDED, That such duties were performed in good faith and
       without gross negligence.

RCW 71.05.120(1).2

       Historically, the California Supreme Court decided the landmark case of Tarasoff

v. Regents of the University of California, 17 Cal. 3d 425, 551 P .2d 334, 131 Cal. Rptr.

14 (1976). There, a voluntary outpatient told his psychotherapist he planned to kill an

unnamed but readily identifiable woman when she returned home from summer travels.

Id. at 432. The therapist disclosed the plan to law enforcement, who arrested the

patient but released him. Id. The therapist did not warn the targeted woman or her

family. Id. at 433. The patient soon killed the targeted woman as planned. Id.

Applying Restatement (Second) of Torts § 315 (1965), the Tarasoff court held the

therapist-patient relationship triggered a duty for the benefit of the victim and her family.

Id. at 435-36. Thus, the therapist owed the victim and her family a duty to warn them of

the threat the patient posed. Id. at 435-36,438. The Tarasoff court ruled:

       When a therapist determines, or pursuant to the standards of his
       profession should determine, that his patient presents a serious danger of
       violence to another, he incurs an obligation to use reasonable care to
       protect the intended victim against such danger. The discharge of this
       duty may require the therapist to take one or more of various steps,
       depending upon the nature of the case. Thus it may call for him to warn
       the intended victim or others likely to apprise the victim of the danger, to
       notify the police, or to take whatever other steps are reasonably necessary
       under the circumstances.

Id. at 431.


       2 In their opening brief to us, appellants argue RCW 71.05.120(1) applies solely
to mental health professionals at public agencies. But in their reply brief to us,
appellants properly concede that argument is untenable.

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1      No. 31814-1-111



i
       Winkler v. DeMeerleer - Dissent

              Later California cases decided a psychotherapist owes a duty solely to a person

\l     he or she can readily identify as the patient's target. See Thompson v. County of
I
i
~      Alameda, 27 Cal. 3d 741, 752-54, 614 P.2d 728,167 Cal. Rptr. 70 (1980); Mavroudis v.
l. 



I      Superior Court, 102 Cal. App. 3d 594, 600,162 Cal. Rptr. 724 (1980); 4 STEWARTM. 


       SPEISER, CHARLES F. KRAUSE & ALFRED W. GANS, THE AMERICAN LAw OF TORTS § 15:41,
1
       at 772-73 (2009). Cases from other jurisdictions similarly hold a psychotherapist owes

       a duty to any person he or she should reasonably foresee is endangered by the

       patient's mental condition. See Semlerv. Psychiatric InSt., 538 F.2d 121,124 (4th Cir.

       1976); Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185, 194-95 (D. Neb. 1980);

       Williams v. United States, 450 F. Supp. 1040, 1046 (D.S.D. 1978); SPEISER, KRAUSE &

       GANS, supra, § 15:41, at 773-74.

              The Petersen court adopted the latter approach. Petersen, 100 Wn.2d at 427­

       28. Applying Tarasoff, Lipari, and Kaiser, the Peterson court held the therapist involved

       owed a duty to any person he should have reasonably foreseen was endangered by the

       patient's drug-related mental problems. Id. at 428. The therapist owed the victim a duty

       to take reasonable precautions protecting her from the threat the patient posed. Id.

              In 1985, the California Legislature enacted a measure "to limit the liability of

       psychotherapists under [TarasoffJ." Barry v. Turek, 218 Cal. App. 3d 1241, 1244,267

       Cal. Rptr. 553 (1990). Two years later, our legislature enacted a similar measure

       adding a subsection to the then-existing immunity provision that effectively limited the

       liability of mental health professionals under Petersen, Tarasoff, and Lipari. Under

       subsection (1), a mental health professional is immune from civil and criminal liability for


                                                    4

     No. 31814-1-111
     Winkler v. DeMeerleer - Dissent

     performing duties arising from chapter 71.05 RCW regarding a decision to "admit,

     discharge, release, administer antipsychotic medications, or detain a person for

1I   evaluation and treatment" so long as the professional performs the duties "in good faith
j
!
     and without gross negligence." Critical here is subsection (2):


I                  This section does not relieve a person from ... the duty to warn or
            take reasonable precautions to provide protection from violent behavior
            where the patient has communicated an actual threat of physical violence
            against a reasonably identifiable victim or victims. The duty to warn or to
            take reasonable precautions to provide protection from violent behavior is

I           discharged if reasonable efforts are made to communicate the threat to
            the victim or victims and to law enforcement personnel.


I    LAws OF 1987, ch. 212, § 301(2) (emphasis added) (codified at RCW71.05.120(2)).

            Under subsection (2), a mental health professional still has a duty to "warn or to

     take reasonable precautions to provide protection from violent behavior" where a patient

f    communicates to the professional an "actual threat of physical violence against a


I    reasonably identifiable victim or victims." In my view, this record fails to show Mr.

I    DeMeerleer communicated to respondents the necessary threat of physical violence

     toward appellants.

            Considering the historical development of RCW 71.05.120, two principles

     emerge. First, a mental health professional owes the duties specified in subsection (1)

     to any person he or she should reasonably foresee is endangered by the patient's

     mental condition. See Fay Anne Freedman, The Psychiatrist's Dilemma: Protect the

     Public or Safeguard Individual Uberty?, 11 PUGET SOUND L. REV. 255, 276-77 (1988).

     Second, a mental health professional owes the duties specified in subsection (2) solely

     to a person he or she can reasonably identify as the patient's target after the patient


                                                  5

1
~
i
I
I
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     No. 31814-1-111
     Winkler v. DeMeerJeer - Dissent
I    communicates an actual threat of physical violence. See id. Thus, RCW 71.0S.120(1} 



I    and (2) address different duties that should be separately analyzed. 


            Petersen would be decided the same under subsection (1) because, while the 

\
1    victim was reasonably foreseeable, the psychotherapist was grossly negligent in

1    performing duties arising from chapter 71.0S RCW regarding the decision to discharge
f
     the patient or petition for additional commitment. See 100 Wn.2d at 424, 428-29, 436­



I
     38; Freedman, supra, at 277. Contra Hertog v. City of Seattle, 138 Wn.2d 26S, 292,

     293 n.7, 979 P.2d 400 (1999) (Talmadge, J., concurring). But Petersen would be
I,
~
     decided differently under subsection (2) because, while the psychotherapist was grossly

     negligent in failing to take reasonable precautions protecting against the threat the

     patient posed, the patient did not communicate an actual threat of physical violence;

     thus, the victim was not reasonably identifiable and foreseeable. See 100 Wn.2d at

     424,428-29,436-38; Freedman, supra, at 277.

            Here, the sole focus is RCW 71.0S.120{2) because appellants alleged

     respondents did not adequately assess Mr. DeMeerleer's suicide risk or plan follow-up

     care. Appellants allege doing so would likely have resulted in better psychiatric care

     exposing Mr. DeMeerleer's homicidal thoughts about Rebecca, Phillip, and Brian that

     would, in turn, have prevented the incident by either mitigating Mr. DeMeerleer's

     dangerousness or serving as cause to warn and protect them. While these claims are

     broad enough to allege respondents breached the duties specified in either subsection

     (1) or (2), appellants reply brief clarified they did not intend to allege respondents

     breached any duties arising from chapter 71.0S RCW regarding a decision to "admit,


                                                   6

     No. 31814-1-111
     Winkler v. DeMeerleer - Dissent

     discharge, release, administer antipsychotic medications, or detain a person for

     evaluation and treatment." RCW 71.05.120(1).3 Therefore, appellants solely alleged

     respondents breached the duty to "warn or to take reasonable precautions to provide
I    protection from violent behavior." RCW 71.05.120(2).4
1
j           In sum, I would hold the trial court correctly reasoned that respondents could not

t    have reasonably identified Rebecca, Phillip, or Brian as Mr. DeMeerleer's targets

I,   because he communicated no "actual threat of physical violence" toward them. RCW

     71.05.120(2). Because I would affirm the trial court's summary judgment dismissal of
it
     appellants' third-party liability claims, I respectfully dissent to the majority decision to

     reverse the trial court's grant of summary judgment to respondents on the third-party

     claims. I concur with the majority decisions partly affirming the trial court's dismissal of

     the other claims.




             3 Even if the duties specified in RCW 71.05.120(1) applied, I would conclude
     appellants lack evidence showing respondents performed those duties in bad faith or
     with gross negligence.
             4 I would reject appellants' attempt to distinguish the duty specified in RCW
     71.05.120(2) from the case law. Subsection (2) clearly addresses the same case law
     duty. Compare RCW 71.05.120(2) ("This section does not relieve a person from ... the
     duty to warn or take reasonable precautions to provide protection from violent behavior
     ...."), with Peterson, 100 Wn.2d at 428 (holding the psychotherapist "incurred a duty to
     take reasonable precautions to protect"); Tarasoff, 17 Cal. 3d at 431 (stating the
     relevant duty requires the psychotherapist to "use reasonable care to protect" by, for
     example, "warn[ing]" or "tak[ing] whatever other steps are reasonably necessary under
     the circumstances"); Lipari, 497 F. Supp. at 193 (same). Therefore, subsection (2)
     logically applies in the same circumstances as case law.

                                                    7

No. 31814-1-111
Winkler v. DeMeerleer - Dissent



      Accordingly, I concur in part and dissent in part.




                                                  ~)At&
                                                  Brown, A.C.J.




                                             8

