Northeast Kingdom Human Services, where the patient was a client prior to the attack is named as a codefendant.
Attorneys for the Retreat filed a motion in May to have the case dismissed. Windham County Superior Court Judge John Wesley did not rule on the motion at a hearing Tuesday, instead taking it under advisement.
Rich Cassidy, the family’s attorney, said he expects a ruling soon, possibly as early as Friday.
“From the public’s perspective (this case) presents one overarching interest: do Vermont mental health providers have a legal duty to act reasonably to protect the public from patients who present a risk of harm to third parties,” Cassidy said Wednesday.
But the Retreat’s attorneys argue that Cassidy is trying to make mental health providers liable for patients harming “anyone in the world,” even if its “days, weeks or even years after discharge,” court filings show.
The patient, Evan Rapoza, attacked Michael Kuligoski in March 2011, when Kuligoski, a furnace technician, was working at a property owned by the Rapoza family.
Rapoza, then 21, beat Kuligoski with a wrench, choked him with a belt and then attempted to drown him with no established motive.
Kuligoski’s injuries mean he will need constant medical attention for the rest of his life, according to the complaint.
Rapoza is diagnosed with schizophrenia. In 2010 he spent close to two months as an inpatient at the Brattleboro Retreat. Prior to his admission, Rapoza demonstrated threatening behavior and was hearing voices.
The civil complaint states Rapoza expressed homicidal and suicidal thoughts and exhibited violent behavior while an inpatient. He was placed on antipsychotic and anti-anxiety medications and spent much of his inpatient stay in seclusion with heavy staff supervision.
The day Rapoza was discharged from the Retreat, the treating psychiatrist noted, “his refusal of medications is very worrisome,” and that “he actually seems to have experienced an increase in his voices with only missing one night’s medications.”
His discharge plan from the Retreat involved being seen regularly at Northeast Kingdom Human Services, and he was prescribed daily medication.
Rapoza’s mother told Northeast Kingdom Human Services staff that her son stopped taking his medication again in December 2010. Nobody from the organization reached out to Rapoza between then and March when the attack on Kuligoski took place, according to the complaint.
Doctors found Rapoza to be insane at the time of the attack, and criminal charges were dropped.
Rapoza was placed in state custody and sent back to the Retreat, where he remained until December 2012 when he was improperly transferred without a judge’s order by Department of Mental Health officials to an outpatient mental health facility.
Seven months later, when the transfer garnered media attention, a judge ordered Rapoza transferred to the secure psychiatric facility in Middlesex. Department officials would not confirm if Rapoza is still being treated there.
The complaint alleges that, not only was it negligent to release the patient, but the Retreat also had a duty to warn the patient’s parents that their son was a danger and help them understand his mental illness, which the hospital failed to do.
It also alleges that Northeast Kingdom Human Services was negligent for not warning patient’s parents that their son was a danger, and the social services nonprofit failed to adequately treat his condition.
The Retreat’s motion to dismiss states that the civil complaint “distorts the facts” of the case, specifically about the sequence of events noted by the treating psychiatrist in the medical record immediately prior to discharge.
It also states the complaint doesn’t make a valid legal argument.
Its motion argues that Vermont case law requires treatment providers to be aware of a “foreseeable victim(s)” in order to be liable for a subsequent injury.
Central Vermont Medical Center, where Rapoza initially arrived in the emergency department, filed paperwork to have Rapoza involuntarily treated, but that order was never granted by a judge. He was later released voluntarily from the Retreat to his parents, according to the motion to dismiss.
Involuntary patients go into state custody and can have court ordered discharge plans, including requiring them to take medication, that will result in recommitment if they don’t comply. Rapoza was under no such order.
But the Retreat states in its motion that even if Rapoza was an involuntary patient in state custody state law doesn’t “establish a legal duty of care owed from the Retreat to the public at large.”
In such an instance, the state would presumably have the legal duty to ensure an involuntary patient was in compliance with the discharge order.
A ruling in the family’s favor will force mental health workers to practice “defensive medicine” such that patients will be held long after they believe discharge is appropriate, the Retreat’s motion says.
If the motion to dismiss is granted, Cassidy said, the family will appeal, and an appeal is likely from the other side if it isn’t.
“We know the Kuligoski family went through a terrible experience, and they have our deepest sympathy,” said Retreat spokesman Jeff Kelliher in a statement in response for a request for comment. “Since the matter is in litigation, we are not able to comment further.”
The case is ripe to go before the Vermont Supreme Court, Cassidy said, because it hasn’t ruled definitively on mental health providers’ obligation to third parties.
Brattleboro Retreat’s response was added at 9:26 a.m., Thursday, Aug. 28, 2014.