Psychiatrist Not Liable to Patient's Victims, Rules Calif. Appeals Court—(Law.com)

To view original article click here.

Law.com

Mike McKee
The Recorder
April 13, 2009

After a 19-year-old Orange County, Calif., man killed two neighbors in 2005, the victim’s survivors sued the murderer’s psychiatrist, accusing him of causing the rampage by giving his client an unstable mix of antidepressants. A trial court judge said the case could proceed.

But on Thursday, Santa Ana, Calif.’s 4th District Court of Appeal ordered summary judgment for the doctor, saying that the patient had a pre-existing mental disorder that “necessitated” treatment.

“As early as 2001, [William] Freund had exhibited violent tendencies toward his parents,” Justice Raymond Ikola wrote. “And when he later became [the doctor’s] patient, he already suffered from Asperger’s syndrome and the consequent frustration about his extreme social problems.

“[The doctor] did not create Freund’s painful mental disorder and his traumatizing social isolation,”

Justices David Sills and Richard Fybel concurred.

The ruling in Greenberg v. Superior Court (Smith) , G040605 (pdf), is based on an event widely discussed in psychiatric and online mental-health circles. Freund, a lonely teenager whose affliction was a form of autism that impairs one’s social skills, had posted messages in 2005 at WrongPlanet.net — a Web site for the Asperger’s and autism communities — saying he wanted to kill himself and had bought a shotgun with which he intended to cause a lot of damage.

On Oct. 25, 2005 — four days after he got his weapon — Freund went to his only friend’s house, in Aliso Viejo, Calif., a town of about 40,000 people in Orange County, and killed his friend’s 22-year-old sister, Christina Smith, and her father, Vernon, 45. Wearing a cape and paint-ball mask, Freund went back to his house and took his own life.

Denise Smith, the mother and wife of the victims, and her son, Brandon, Freund’s only friend, sued Freund’s Irvine, Calif.-based psychiatrist, Laurence Greenberg, for wrongful death due to medical negligence. Brandon also sued for emotional distress for having to watch his father and sister die and for having been inside the house — “the danger zone” — when they were murdered.

The two claimed that Greenberg had put Freund on a volatile mix of antidepressants, including Geodon, Effexor and Celexa, that had driven him to shoot his neighbors and that the doctor hadn’t warned them that the drugs could have caused dangers. Greenberg responded by saying he had no duty of care to third-party strangers to his doctor-patient relationship and that state Civil Code §43.92 immunized psychotherapists from liability for failing to predict a patient’s violent behavior.

Orange County Superior Court Judge Geoffrey Glass denied Greenberg’s summary judgment motion, however, and ruled there were “triable issues of fact” as to whether the doctor had violated the applicable standard of care.

In reversing, the 4th District on Thursday distinguished the current case from Calderon v. Glick , 131 Cal.App.4th 224 (pdf), a 2005 ruling by Los Angeles’ 2nd District that involved a deranged man who murdered three members of his former girlfriend’s family.

“The Calderon patient targeted his anger at his former girlfriend,” Ikola wrote. “Thus, the former girlfriend and her family were identifiable potential victims. Here, in contrast, Freund exhibited no violent tendencies or motives against the Smith family.”

Joel Douglas, a partner with Los Angeles’ Bonne, Bridges, Mueller, O’Keefe & Nichols who represented Greenberg, said the ruling shows that the court understood the statutes that immunize psychotherapists from liability.

“It does reflect public policy and gives you a chance in dealing with these people to do what’s right,” he said. “Psychiatrists are not soothsayers.”

Douglas also said that Freund wasn’t complying with his doctor’s treatments.

“He was on medications he wasn’t supposed to be on and wasn’t on medications he was supposed to be on,” he said. “It was a soup.”

Beverly Hills, Calif., lawyer Barry Novack, who represented the Smith family, was out of town and not available for comment. His co-counsel on the case, Jonathan Parrott of Novack’s office, didn’t want to make a statement.