Wednesday, February 20, 2013

The Colorado Law That Will Make It Difficult For Aurora Theater Shooting Victims To Win In Court

Picture of the theater shooter's car behind the movie theater. Will
his psychiatrist be protected from lawsuits by Colorado Law?
At this point, the criminal case against the Aurora Theater Shooter is solid. There appears to be ample evidence that the man accused of the shooting is the one who did it. Most legal experts seem to think he will plead Not Guilty By Reason of Insanity and take his case to trial. In Colorado, and nationally, very few defendants win those 'NGRI' cases.

That is the criminal case, though. There are a number of civil lawsuits also working their way through the courts now. In addition to lawsuits against the theater, family members of shooting victims are suing Dr. Lynne Fenton and the University of Colorado Hospital where she works, claiming she was negligent because she failed in her duty to warn and protect the public against her patient.

But does this claim have any legal merit in Colorado? Did Dr. Fenton actually have a duty to do anything, even if she thought her patient was at high risk of committing an act of violence?

The answer is, maybe. But, maybe not.

Any person in Colorado can be civilly committed to a mental hospital against his or her will if the person appears to have a mental illness and appears to be a danger to self or others (C.R.S. 27-65-105(1)(a)(I). Initially, this commitment can last up to 72 hours, at which point the treating hospital has the authority to ask a court to force the person to remain in treatment for a longer period of time.

The catch in this law, referred to as a "27-65 hold" or a "72-hour hold" is the existence of two importantly placed "mays." It reads, "Emergency procedure may be invoked," and a doctor "may take the person into custody." In legal terminology, the word "may" is often used to describe a situation where a particular action is allowable but not always necessary. By contrast, the word "shall" typically describes situations that are mandatory.

The 27-65 law allows for some wiggle room. There might be occasions where a person has a mental illness and is imminently dangerous, but taking the person into custody isn't necessary. The standard of practice is to do so, which is probably what plaintiff's attorneys will try to argue. But, Dr. Fenton's lawyers will most likely point to the wiggle room in the statute in defense of Dr. Fenton's decision to keep her client out of the hospital.

But, that 27-65 law isn't the statute that is going to be problematic for the victims who are suing Dr. Fenton. It might be a legal bump in the road, but it is another Colorado law that will make a lawsuit difficult to win.

Buried in Title 13 of the Colorado Revised Statutes (Title 13 deals with Courts and Court Procedure) is a law that specifically deals with civil liability for mental health workers in the state. C.R.S. 13-21-117 states that a mental health professional shall not (there is that mandatory "shall") be held liable "for failure to warn or protect any person against a mental health patient's violent behavior, and any such person shall not be held civilly liable for failure to predict such violent behavior."

The law is very clear: a psychiatrist cannot be held civilly liable for failure to protect the public against a patient's violent behavior. And, a psychiatrist cannot be held civilly liable for failure to predict a patient's future violence.

There is one exception to this protection for mental health workers. The same statute (C.R.S. 13-21-117) offers one specific scenario where a psychiatrist is not guaranteed protection from liability. A mental health worker can be held liable for damages when "the patient has communicated to the mental health care provider a serious threat of imminent physical violence against a specific person or persons."

Under a strict reading of Colorado law, if the theater shooter did not tell Dr. Fenton about his plan, she cannot be held liable for failing to warn or protect anyone because there was no communication regarding that plan. Even if she was terrified that he might act in a violent manner, she could not be held liable for failing to predict future violence if he didn't tell her about his plan, which needed to be imminent and contain the potential for physical violence against a specific person or group of people. Even if he told Dr. Fenton he was amassing an arsenal and wanted to go on a shooting rampage at an unspecified time and place, a literal reading of this Colorado law would protect her from lawsuits based on her failure to act.

This law, even though it seems clearly stated and open for little interpretation, does not guarantee Dr. Fenton's protection from liability. Attorneys are excellent at finding case law that contradicts or expands upon current statutory law, and judges are sometimes willing to hear arguments and interpret legal statutes in new ways. But, C.R.S. 13-21-117 will be a major sticking point for both the plaintiffs and the defense, and it is likely that, whatever the judge decides, the case will be appealed. It could be that one of these civil cases will make its way to the Supreme Court, which could then provide all states a federal standard for how mental health workers are to proceed when they have dangerous patients.

Thanks for reading-- Max Wachtel, Ph.D.


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