Family sues Brattleboro Retreat, Northeast Kingdom Human Services for negligence

The family of a St. Johnsbury man who was severely beaten by a former Brattleboro Retreat patient in 2011 is suing the psychiatric hospital for negligence in the patient’s release, court documents show.
Brattleboro Retreat Psychiatric Hospital. Creative Commons photo/Flickr user pag2525

Brattleboro Retreat Psychiatric Hospital. Creative Commons photo/Flickr user pag2525

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.

Morgan True

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  • Dave Bellini

    Save lives — close the Brattleboro Retreat.

  • Curtis Sinclair

    “Since [Tarasoff,] courts and state legislatures have increasingly held psychiatrists to a fictional standard of having to predict the future behavior. Research has consistently demonstrated that psychiatrists cannot predict future violence with any dependable accuracy.”
    from Danger to Self: On the Front Line with an ER Psychiatrist by Paul Linde

    Tarasoff v. Regents of the University of California was a case in which the Supreme Court of California held that mental health professionals have a duty to protect individuals who are specifically being threatened with bodily harm by a patient. I think it is because of this that people have come to falsely believe that mental health professionals are able to predict future violence. I have seen some recent studies that claim that the multiple iterative classification tree (ICT) model showed considerable accuracy in predicting violence, but from a large study published in the British Medical Journal in 2012 called: Use of risk assessment instruments to predict violence and antisocial behaviour in 73 samples involving 24 827 people: systematic review and meta-analysis
    (BMJ 2012; 345 doi: -Published 24 July 2012)

    “Violence risk assessment potentially leads to detention of individuals for longer than necessary, with its related economic, social, and civil rights consequences….. One implication of these findings is that, even after 30 years of development, the view that violence, sexual, or criminal risk can be predicted in most cases is not evidence based. This message is important for the general public, media, and some administrations who may have unrealistic expectations of risk prediction for clinicians.”

  • Kathy Nelson

    Curtis, the Digger will not print what I think about this situation. I find your summary of the legal situation to be so much drivel. There was a clear understanding of the propensity toward violence by Rapoza before he was foolishly released and allowed to ignore his medication. Rapoza is a criminal, not a “victim” of mental illness. He belongs in prison for attempted murder and inflicting brutal life threatening injury. If Michael Kurligoski dies as a result of what Rapoza did to him then Rapoza should be charged with murder, just like John Hinckley, the “disturbed” murderer of James Brady:

    Just because Michael Kurligoski is not a national celebrity doesn’t mean he is not entitled to the same type of justice afforded to Ronald Reagan’s deceased Press Secretary.

    • Curtis Sinclair

      It seems like you didn’t even read the article. Rapoza was initially committed to the Retreat with no criminal charge: “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.” “Threatening behavior” could be almost anything. 99% of schizophrenics who exhibit some kind of “threatening behavior” never commit any violent crime. And there is no way to accurately predict who will.

      • Kathy Nelson

        I read the article, Curtis, and I remember the attempted murder incident all too well. Here is another line from the article:

        “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.”

        And another quote:

        “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.”

        Rapoza is a dangerous person and the mental health staff knew it. He was callously, and indifferently, released from custody, and his family/guardians did not care enough to keep a close watch on him. Rapoza then tried to commit the murder he so dreamed of doing and now a whole family suffers for the negligence of a few negligent mental health workers. I hope the Kurligoskis succeed with their lawsuit and that Rapoza is sentenced to prison for the rest of his unnatural life.

        • Curtis Sinclair

          The term ‘Violent behavior’ is far too non-specific. At the Vermont State Hospital simply shoving another patient was considered ‘violent behavior’. I saw one man get his commitment extended for months after an incident like that. Christina Schumacher was accused of exhibiting violent behavior before she was locked up at Fletcher Allen unnecessarily. Did you read about her story last winter? That kind of thing will become common if the mental health thought police have to predict and prevent all violent behavior.

          In order to make sure everyone is absolutely perfectly “safe” you would have to detain and force drug virtually half of the population of VT. That is because with the expansion of mental illness half of us will develop a mental illness.

          And up to 91% of people surveyed on university grounds in various places in the USA admit to having had a homicidal fantasy.
          ( Duntley, Joshua D (August 2005). HOMICIDAL IDEATIONS . PhD Dissertation.)

          Here is a story from February about a
          ‘homicidal’ woman who is suing for being falsely locked up:

          “Employee sues hospital after being locked up for 6 days for claimed ‘homicidal ideation’

          A Huggins Hospital employee who told coworkers she could “strangle” a relative was declared mentally dangerous and held in a locked hospital emergency-room area for six days last year, she alleges in a lawsuit against the small Wolfeboro hospital.”

          Hindsight is always 20/20.

  • steve merrill

    I just don’t get it..If they can develop and insert long-lasting sub dermal birth control devices like Norplant then why not something similar for dangerous patients and the mental medications? If these “not guilty by reason of insanity” murderers cannot “function” without their meds then implant them so they can never choose to “not take them” or ever present a danger to the communities in which they are shipped off to. It’s a little tiring to see every “disorder” under the sun being blamed for the crimes committed by PEOPLE, who then get off lightly, sometimes on the word of psychologists who are not even medical doctors! A psychologist is NOT a doctor and a disorder not a disease, yet a crime IS still a crime and a death is still a death, final and irreversible for the families left behind. Implant their meds as a condition of “release” or never let them see the light of day or try them as you would the “sane” and make them do the time. Hopefully in a few years we will be leaving the “medieval medicine” behind and then they could be “treated” with meds/therapies as yet unknown to us today. Where’s the “deterrent” if the perps know now that with the right diagnosis they can get a cushy room in a “hospital setting” for a few years and then get out as they were/are “sick” instead of stone killers? Nobody in their “right mind” would kill another human being (excepting military of course) so all thats left is “hate crimes”, unless you love someone so much you have to kill them? Then isn’t every crime a “hate crime”? The whole insanity defense is getting VERY tiring and with no more large “institutions” left nor being built, and “housing in their communities” (“Hub & Spoke”) still just an idea as yet, what are our options? With diets of chem-laden GMO & processed foods, layers of “meds” from multiple MD’s, irradiation from cell phone towers/devices, topped off with alcohol, etc., I’m expecting more and worse behavior coming to every village and town, soon..Brace yourselves, SM, North Troy

  • Curtis Sinclair

    According to the American Psychiatric Association, studies show that defendants acquitted by reason of insanity are likely to spend as much or more time confined in a psychiatric institution as they would have if convicted and sentenced to jail or prison for the same crime. One study determined insanity defense acquittees frequently spend twice as much time institutionalized as defendants convicted of a similar offense spend in correctional facilities. Additionally, once released, they may be subject to long-term judicial oversight, unlike a convict who received a conventional guilty verdict.

    I knew people at the State Hospital who WANTED to be in prison rather than the hospital. One man I knew had to stab his public defender in the neck with a pencil to get the judge to assign him a lawyer who would help him get found competent. The patient wanted to be found competent so he could get out of the hospital and into prison.

  • Bill Blanchard

    The responses are worse than the article! Why can’t it be as simple as this: If you commit an act of violence upon another person without just cause then you get your day in court. If it is found that you have a mental health condition that caused you to act in such a way then you should be detained until there is a reasonable amount of evidence to show that it might not happen again. It is insane to think that only the mental health population are at risk for acting out behavior. ANYONE can become violent weather it be for money, love, jealousy or crime the fact is there is a victim who deserves justice in every situation, period! The worst part is that most cases don’t even make it in front of a judge because the States Attorney won’t even pick up the case even when the victim files a complaint which leaves all citizens victim’s of the crime and the people charged with protecting us.

  • Curtis Sinclair

    It’s never that simple -or that fair. What counts as an act of violence? A shove? Yelling? A verbal threat? What would count as just cause for violence? How does a mental health condition cause a person to commit a crime? What is the exact definition of a mental health condition? Like I wrote above half of all people can be diagnosed as having a mental health condition at some point.

    A legal insanity ruling is the way the law is supposed to work now:

    The Vermont Statutes Online
    Title 13: Crimes and Criminal Procedure
    Chapter 157: INSANITY AS A DEFENSE

    § 4801. Test of insanity in criminal cases

    (a) The test when used as a defense in criminal cases shall be as follows:

    (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he or she lacks adequate capacity either to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law.

    (2) The terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct. The terms “mental disease or defect” shall include congenital and traumatic mental conditions as well as disease.

    (b) The defendant shall have the burden of proof in establishing insanity as an affirmative defense by a preponderance of the evidence. (Amended 1983, No. 75.)

    How is this unfair? It deprives people of the right against self incrimination, due process and a finite sentence . Not everyone who is charged with a crime is guilty, but just labeling them mentally ill and finding them not guilty by insanity or not competent to stand trial can lead to long incarcerations – even for the innocent. And some of the crimes can be very small. If you look at first offense simple assaults they usually lead to a suspended sentence in criminal court, but in mental health court people get at least 6 months plus forced drugging with brain damaging chemicals. Then to regain freedom a patient has to somehow prove that he will never hurt anyone again. That is quite simply NOT POSSIBLE and it can lead to very long incarcerations. It also discourages people from seeking mental health treatment. Coercion will undermine any therapeutic relationship, because no one will admit to having symptoms if it will cause them to lose their freedom.

    There are many horrific cases. See “A Psychiatric Assault on Liberty: The Case of Carolyn Barnes”

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