Can Kelly Blake's civil attorney really expect a jury to blame psychiatrist Bill Sbilris for not foreseeing what she would do to her children and herself?
After all, even though the mother of three did something to make a nurse at Southwest Behavioral jot down "Danger to children" on Blake's chart, Blake apparently uttered no specific threats.
Yet Arizona case law seems to favor attorney Art Gorman's theory of the case -- and bodes well for Blake and her surviving child (and co-plaintiff), John Fausto Jr.
In part, Gorman has claimed in court papers that those agencies responsible for the welfare and safety of Blake and her children committed medical malpractice by:
Failing to properly diagnose her mental condition.
Failing to check her documented history of serious mental illness.
Failing to properly medicate and treat her.
Failing to hospitalize her for inpatient treatment.
Failing to warn that she was a danger to herself and her children.
Those failures, Gorman contends, constituted "neglect and abuse of [an] incapacitated and/or vulnerable adult" as defined by Arizona law.
The "failure to warn" component may prove to be particularly problematic for the civil defendants. Surely, Dr. Sbilris -- the man in charge of Blake's case at Southwest Behavioral -- should have learned that other mental-health professionals had deemed her a possible threat to her kids. And he should have known about nurse Melanie Henraty's "Danger to children" notation made minutes before he'd met Blake.
The legal terms "foreseeability" -- how prescient should we expect a mental-health professional to be -- and "zone of danger" come into play in this case.
Legislatures around the nation, including Arizona's, have attempted to clarify the issue of foreseeability and to limit a psychotherapist's civil liability for a "mere error of judgment" about a patient.
The reasoning for limiting liability is sound: It's often a crapshoot to determine who needs protection and, in the words of Ohio doctor Todd Waller (commenting on an analogous case in that state), "how best to provide those interests inherent in the successful treatment of the patient as against the safety interests of the public."
In recent years, most courts -- including Arizona's -- have followed the lead of the California Supreme Court, which ruled in a foreseeability case that psychotherapists have the duty to protect "intended victims," and to "take whatever steps are reasonably necessary under the circumstances."
Was it reasonable under the circumstances to expect Dr. Sbilris to check out Kelly Blake's mental-health history, to take note of "Danger to children" warnings in 1991 and again in 1998, and then, at the very least, to proactively track her?
In a pivotal 1989 decision, the Arizona Supreme Court ruled for the mother and stepfather of a seriously mentally ill Phoenix man in a case against Maricopa Medical Center and a psychiatrist employed there. The shrink had conducted a five-minute evaluation of the stepson, John Carter, but wouldn't admit the young man into the psych ward for treatment. (Like Bill Sbilris with Kelly Blake, the doctor previously had seen Carter for an equally short evaluation. Also like Sbilris, the county shrink never did review Carter's telling medical records -- an absolute no-no in his line of work, where the best predictor of future behavior is the past.)
Released to his parents, Carter attacked his father, Robert Hamman, two days later, with a wooden dowel, injuring him seriously. Hamman also suffered a heart attack during the attack, but survived. Carter later was found not guilty by reason of insanity, under an Arizona law no longer in effect.
"The rule which we adopt," Arizona's high court concluded, "does not impose upon a psychiatrist a duty to protect the public from all harm caused by their patients. We do not, however, limit the duty of the psychiatrist to third-parties only in those instances in which a specific threat is made against them. We hold that the duty extends to third persons whose circumstances place them within the reasonably foreseeable area of danger where the violent conduct of the patient is a threat."
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It seems likely that the definition that applied to Robert Hamman also would apply to Kelly Blake's children.
Southwest Behavioral's records indicate that Blake met twice with Dr. Sbilris for a maximum of 30 minutes total, then returned home with a few prescriptions for insomnia.
Not exactly what Ohio's Dr. Waller had in mind when he wrote, "... Successful treatment of the patient may depend on trust and confidentiality to an even greater extent in the mental-health setting, partly due to the reliance by the psychotherapist on the patient's inner thoughts and feelings."
Several people familiar with Blake's saga agree that she well may be convicted of first-degree murder, yet she and Johnny Fausto still may win a huge civil judgment.