Carole Kuligoski, Individually and On Behalf of Michael J. Kuligoski, and Mark Kuligoski and James Kuligoski v. Brattleboro Retreat and Northeast Kingdom Human Services
This text of 2016 VT 54A (Carole Kuligoski, Individually and On Behalf of Michael J. Kuligoski, and Mark Kuligoski and James Kuligoski v. Brattleboro Retreat and Northeast Kingdom Human Services) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
[335]*335Dooley, J.
¶ 1. This case arises out of the assault of Michael Kuligoski by a former Brattleboro Retreat patient, E.R., after the patient was discharged from the Retreat, a mental health treatment facility, and while he was undergoing outpatient treatment with Northeast Kingdom Human Services (NKHS). Plaintiff Carole Kuligoski, individually and on behalf of Michael, Mark Kuligoski, and James Kuligoski (collectively plaintiffs), filed suit in Windham Superior Court against defendants Brattleboro Retreat and NKHS, raising claims of failure to warn of E.R.’s danger to others, failure to train E.R.’s parents in handling E.R., failure to treat, improper release, and negligent undertaking. The superior court granted defendants’ motions to dismiss for failure to state a claim, and plaintiffs appealed. We reverse on the failure to warn claim, and affirm on the failure to treat, improper release, failure to train, and negligent undertaking claims.
[336]*336¶ 2. Plaintiffs’ complaint alleges the following facts,1 as relevant to this appeal. On October 9, 2010, E.R. was voluntarily admitted to the Psychiatric Department at Central Vermont Medical Center (CVMC) with a “psychotic disorder” after having threatened young children in his home. During his first few days at CVMC, E.R. was easily agitated, made threatening remarks, reported auditory hallucinations, and had fair-to-poor judgment. The examining physician tentatively diagnosed E.R. with a schizophreniform disorder.
¶ 3. On October 15, 2010, the medical professionals at CVMC completed the necessary documents to have E.R. involuntarily committed. The documents stated that he was mentally ill, posed a danger to himself and others, and was in need of involuntary hospitalization. The following day, E.R. was placed in restraints and transferred from CVMC to the Vermont State Hospital where a physician examined him and determined that he was a danger to others and, if released, would pose a danger to his family. There is no indication that either the documents prepared at CVMC or the determination of the physician at the Vermont State Hospital were ever used to start a formal involuntary commitment proceeding. Nor is there an explanation of the basis on which E.R. continued to be held at the Vermont State Hospital. We can conclude only that E.R. must have been held as a voluntary patient.2
[337]*337¶ 4. While at the Vermont State Hospital, E.R. was administered anti-psychotic and anxiety medication. He repeatedly asked to leave the hospital, once tried to escape, threatened to punch out a window, and, although he denied having auditory hallucinations, was observed reacting to unseen stimuli. After E.R. reported feeling unsafe at the hospital, a social worker made a referral for his transfer to the Retreat, a nonprofit psychiatric hospital in Windham County, Vermont. Upon his discharge from the state hospital, he was diagnosed with schizophreniform disorder.
¶ 5. On October 22, 2010, E.R. was examined by a physician at the Retreat who confirmed the state hospital’s diagnosis. The physician reported that E.R. “had verbalized homicidal ideation toward staff.” E.R. was thereafter placed on a staff-intensive treatment plan but continued to exhibit “grossly psychotic” behavior, lack of insight, and severely impaired judgment. His physician noted that he “required an in-patient level of care to prevent further decompensation.”3 Further reports indicate auditory and visual hallucinations, menacing behavior, and homicidal and suicidal ideation.
¶ 6. On November 1, 2010, E.R.’s physician noted that “E.R. continued to be floridly psychotic, probably paranoid, guarded and gradually improving but that he remained sufficiently ill that he totally lacked insight into his illness and that E.R. would be non-compliant with treatment outside of the hospital.” He further noted that E.R. would remain on the treatment plan and be allowed out only for brief intervals.
¶ 7. During his time at the Retreat, E.R.’s behavior did not improve. In his November 10, 2010 assessment, E.R.’s physician stated that, if discharged, E.R. would be a high risk for decompensation, might stop his medication, and might not participate in aftercare treatment. Nevertheless, he stated that E.R. would be discharged on November 12.
[338]*338¶ 8. On November 12, 2010, E.R.’s physician noted that he stopped taking his medication and had been hearing voices commanding him to kill himself. E.R. said of the commands, “I feel like I should do it.” His physician wrote in his assessment, “Obviously [E.R.’s] refusal of medications is very worrisome and exactly what this writer was concerned about. Not only abstractly is it a bad idea, but he actually seems to have experienced an increase in his voices with only missing one night’s medications.” E.R. was, however, discharged that same day.
¶ 9. Throughout the period of his treatment at both the Vermont State Hospital and the Retreat, E.R. was closely monitored by his parents, with whom he had been living. Exactly what the parents were told at the time of discharge is disputed, although it appears they were told that E.R. “might have schizophrenia.” They understood that E.R. was “going through a phase and would recover.”
¶ 10. In the discharge summary, E.R.’s physician again stated that E.R. was a high risk for poor compliance with post-discharge treatment; E.R. had been diagnosed as having a “psychotic disorder, not otherwise specified”; and that E.R.’s parents believed his mental health was related to his breakup with a girlfriend in 2009 or possibly a sequela resulting from mononucleosis. He stated that E.R. met the criteria for schizophrenia or, at the very least, schizophreniform disorder.
¶ 11. Prior to E.R.’s discharge, the Retreat developed an aftercare treatment plan with E.R.’s parents that involved regular visits to NKHS. E.R. was also prescribed daily medication, which his mother was told to administer to him. E.R.’s mother believed that E.R.’s condition had considerably improved at the time of his release.
¶ 12. On December 1, 2010, E.R. met with a treatment team at NKHS and signed a cognitive remediation therapy plan. A week later, a member of the treatment team completed a Substance Abuse Addendum, in which he stated “that E.R. was a high risk for Dimension 3 of the Client Placement Criteria (emotional, behavioral or cognitive conditions/complications) because E.R. had recently been diagnosed with a psychotic disorder and had minimal insight surrounding the diagnosis.”
¶ 13. In mid-December, E.R. told his mother that he had stopped taking his medication. She called NKHS and spoke with one of the physicians on E.R.’s treatment team. The physician told [339]*339E.R.’s mother that this was a cause for concern but that E.R. had to decide to take care of himself. E.R. did not meet with anyone at NKHS between mid-December 2010 and March 2011, and no one at NKHS reached out to E.R. during that time or took any action with respect to E.R.’s medication regime.
¶ 14. On February 26, 2011, E.R. accompanied his father to an apartment building in St. Johnsbury owned by E.R.’s grandparents. Plaintiff Michael Kuligoski was also at the apartment building, working on the furnace. E.R. went down to the basement where Mr. Kuligoski was working and assaulted him, causing serious injuries. The forensic psychiatrist who evaluated E.R.
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[335]*335Dooley, J.
¶ 1. This case arises out of the assault of Michael Kuligoski by a former Brattleboro Retreat patient, E.R., after the patient was discharged from the Retreat, a mental health treatment facility, and while he was undergoing outpatient treatment with Northeast Kingdom Human Services (NKHS). Plaintiff Carole Kuligoski, individually and on behalf of Michael, Mark Kuligoski, and James Kuligoski (collectively plaintiffs), filed suit in Windham Superior Court against defendants Brattleboro Retreat and NKHS, raising claims of failure to warn of E.R.’s danger to others, failure to train E.R.’s parents in handling E.R., failure to treat, improper release, and negligent undertaking. The superior court granted defendants’ motions to dismiss for failure to state a claim, and plaintiffs appealed. We reverse on the failure to warn claim, and affirm on the failure to treat, improper release, failure to train, and negligent undertaking claims.
[336]*336¶ 2. Plaintiffs’ complaint alleges the following facts,1 as relevant to this appeal. On October 9, 2010, E.R. was voluntarily admitted to the Psychiatric Department at Central Vermont Medical Center (CVMC) with a “psychotic disorder” after having threatened young children in his home. During his first few days at CVMC, E.R. was easily agitated, made threatening remarks, reported auditory hallucinations, and had fair-to-poor judgment. The examining physician tentatively diagnosed E.R. with a schizophreniform disorder.
¶ 3. On October 15, 2010, the medical professionals at CVMC completed the necessary documents to have E.R. involuntarily committed. The documents stated that he was mentally ill, posed a danger to himself and others, and was in need of involuntary hospitalization. The following day, E.R. was placed in restraints and transferred from CVMC to the Vermont State Hospital where a physician examined him and determined that he was a danger to others and, if released, would pose a danger to his family. There is no indication that either the documents prepared at CVMC or the determination of the physician at the Vermont State Hospital were ever used to start a formal involuntary commitment proceeding. Nor is there an explanation of the basis on which E.R. continued to be held at the Vermont State Hospital. We can conclude only that E.R. must have been held as a voluntary patient.2
[337]*337¶ 4. While at the Vermont State Hospital, E.R. was administered anti-psychotic and anxiety medication. He repeatedly asked to leave the hospital, once tried to escape, threatened to punch out a window, and, although he denied having auditory hallucinations, was observed reacting to unseen stimuli. After E.R. reported feeling unsafe at the hospital, a social worker made a referral for his transfer to the Retreat, a nonprofit psychiatric hospital in Windham County, Vermont. Upon his discharge from the state hospital, he was diagnosed with schizophreniform disorder.
¶ 5. On October 22, 2010, E.R. was examined by a physician at the Retreat who confirmed the state hospital’s diagnosis. The physician reported that E.R. “had verbalized homicidal ideation toward staff.” E.R. was thereafter placed on a staff-intensive treatment plan but continued to exhibit “grossly psychotic” behavior, lack of insight, and severely impaired judgment. His physician noted that he “required an in-patient level of care to prevent further decompensation.”3 Further reports indicate auditory and visual hallucinations, menacing behavior, and homicidal and suicidal ideation.
¶ 6. On November 1, 2010, E.R.’s physician noted that “E.R. continued to be floridly psychotic, probably paranoid, guarded and gradually improving but that he remained sufficiently ill that he totally lacked insight into his illness and that E.R. would be non-compliant with treatment outside of the hospital.” He further noted that E.R. would remain on the treatment plan and be allowed out only for brief intervals.
¶ 7. During his time at the Retreat, E.R.’s behavior did not improve. In his November 10, 2010 assessment, E.R.’s physician stated that, if discharged, E.R. would be a high risk for decompensation, might stop his medication, and might not participate in aftercare treatment. Nevertheless, he stated that E.R. would be discharged on November 12.
[338]*338¶ 8. On November 12, 2010, E.R.’s physician noted that he stopped taking his medication and had been hearing voices commanding him to kill himself. E.R. said of the commands, “I feel like I should do it.” His physician wrote in his assessment, “Obviously [E.R.’s] refusal of medications is very worrisome and exactly what this writer was concerned about. Not only abstractly is it a bad idea, but he actually seems to have experienced an increase in his voices with only missing one night’s medications.” E.R. was, however, discharged that same day.
¶ 9. Throughout the period of his treatment at both the Vermont State Hospital and the Retreat, E.R. was closely monitored by his parents, with whom he had been living. Exactly what the parents were told at the time of discharge is disputed, although it appears they were told that E.R. “might have schizophrenia.” They understood that E.R. was “going through a phase and would recover.”
¶ 10. In the discharge summary, E.R.’s physician again stated that E.R. was a high risk for poor compliance with post-discharge treatment; E.R. had been diagnosed as having a “psychotic disorder, not otherwise specified”; and that E.R.’s parents believed his mental health was related to his breakup with a girlfriend in 2009 or possibly a sequela resulting from mononucleosis. He stated that E.R. met the criteria for schizophrenia or, at the very least, schizophreniform disorder.
¶ 11. Prior to E.R.’s discharge, the Retreat developed an aftercare treatment plan with E.R.’s parents that involved regular visits to NKHS. E.R. was also prescribed daily medication, which his mother was told to administer to him. E.R.’s mother believed that E.R.’s condition had considerably improved at the time of his release.
¶ 12. On December 1, 2010, E.R. met with a treatment team at NKHS and signed a cognitive remediation therapy plan. A week later, a member of the treatment team completed a Substance Abuse Addendum, in which he stated “that E.R. was a high risk for Dimension 3 of the Client Placement Criteria (emotional, behavioral or cognitive conditions/complications) because E.R. had recently been diagnosed with a psychotic disorder and had minimal insight surrounding the diagnosis.”
¶ 13. In mid-December, E.R. told his mother that he had stopped taking his medication. She called NKHS and spoke with one of the physicians on E.R.’s treatment team. The physician told [339]*339E.R.’s mother that this was a cause for concern but that E.R. had to decide to take care of himself. E.R. did not meet with anyone at NKHS between mid-December 2010 and March 2011, and no one at NKHS reached out to E.R. during that time or took any action with respect to E.R.’s medication regime.
¶ 14. On February 26, 2011, E.R. accompanied his father to an apartment building in St. Johnsbury owned by E.R.’s grandparents. Plaintiff Michael Kuligoski was also at the apartment building, working on the furnace. E.R. went down to the basement where Mr. Kuligoski was working and assaulted him, causing serious injuries. The forensic psychiatrist who evaluated E.R. at the request of the criminal court stated that the night before the offense E.R. had not slept well, awoke early that morning, was just “sitting and staring,” and was paranoid that people were staring at him en route to the apartment. The psychiatrist believed that E.R. likely was in a “psychotic haze” at the time of the offense, having been “overcome by the symptoms of his condition to the degree where he acted while in a psychotic storm.”
¶ 15. Plaintiffs filed a complaint in superior court, alleging seven counts: (1) the Retreat was negligent in discharging E.R. knowing of his dangerous tendencies and that he was a high risk for decompensation; (2) the Retreat was negligent in failing to warn E.R.’s parents that he posed a risk to the general public; (3) the Retreat was negligent in failing to train E.R.’s parents how to supervise him, monitor and manage his medications, and take necessary and appropriate measures to protect potential victims; (4) the Retreat was negligent in its undertaking “to render a service that it recognized or should have recognized as necessary for the protection of third persons”; (5) NKHS was negligent in failing to warn E.R.’s parents that he posed a risk to the general public; (6) NKHS was negligent in failing to take “immediate and affirmative steps” to treat E.R.; and (7) NKHS was negligent in undertaking its duty to render services to E.R. Although the complaint itemized separate counts, plaintiffs emphasized in the superior court, as well as in this Court, that the counts were based on a common “duty of reasonable care to act to avoid needless risk to the safety of third parties” based on the “special relationship” that existed between the Retreat and NKHS and their patient, E.R.
¶ 16. Defendants moved to dismiss the respective claims against them, pursuant to Vermont Rule of Civil Procedure 12(b)(6). They [340]*340both argued that they owed no duty to protect plaintiffs from attack by E.R. and that their alleged negligence was not the proximate cause of plaintiffs’ injuries. The superior court granted both motions. Relying largely on our decision in Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422 (1985), the superior court concluded that defendants owed no duty to plaintiffs because Michael Kuligoski was not an identifiable victim and defendants were under no duty to control E.R. With respect to the third-party duty, the court explained that plaintiffs’ claims “would push the ruling by the Peck majority far beyond the bounds of the holding as limited by the facts there, and the recognition of those claims would stake out expansive new territory not warranted by proper respect for the separation of powers.” As to the duty of defendants to control E.R., the court emphasized Vermont’s “policy of keeping mentally-ill persons in the least restrictive environment possible.” This appeal followed.
¶ 17. On appeal, plaintiffs generally argue that the superior court erred in holding that Peck barred its claims. They contend that, while Peck involved an identifiable victim, its holding should not be read as limiting its reach only to identifiable victims. They argue that this reading is supported by public policy protecting the public from dangerous individuals and is consistent with modern tort scholarship, such as the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41 (2012). Plaintiffs argue that the trial court erred in concluding at this stage of the case that there was no proximate cause. As we explain in our discussion below, we hold that Peck and other precedents bar plaintiffs’ duty-to-treat and negligent-undertaking claims. However, we also hold that Peck extends to identifiable and foreseeable victims, and that plaintiffs’ duty-to-warn claims should not be dismissed at this stage in the litigation.
¶ 18. We review the superior court’s decision “on a motion to dismiss de novo under the same standard as the trial court and will uphold a motion to dismiss for failure to state a claim only if it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.” Birchwood Land Co. v. Krizan, 2015 VT 37, ¶ 6, 198 Vt. 420, 115 A.3d 1009 (quotation omitted). ‘We assume as true all facts as pleaded in the complaint, accept as true all reasonable inferences derived therefrom, and assume as false all contravening assertions in the defendant’s pleadings.” Id. We are “limited to determining whether the bare [341]*341allegations of the complaint are sufficient to state a claim.” Id. (quotation omitted).
I. The Duty of Care
¶ 19. “The existence of a duty is a question of law to be decided by the court.” Sorge v. State, 171 Vt. 171, 174, 762 A.2d 816, 819 (2000). Once a legal duty is established, as well as breach of that duty, there must be factual causation for the defendant to be subject to liability for the harm caused to the plaintiff. See id. (requiring duty before determining causation). “Ordinarily, proximate cause is a jury issue unless the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way.” Estate of Sumner v. Dep’t of Soc. & Rehab. Servs., 162 Vt. 628, 629, 649 A.2d 1034, 1036 (1994) (mem.) (quotation omitted). On this motion to dismiss, some factual development is necessary to reach the causation issue and determine whether, in light of any possible duty and breach of that duty, there could be proximate cause sufficient for liability.
¶ 20. Before addressing the specific issues, we start with a discussion of the duty to third parties generally, as well as the specific duty of mental health professionals to their patients and nonpatient third parties. In doing so, we note that the main issues in this case do not arise from a dispute as to whether defendants had a general duty of care, or even whether that duty extends to nonpatients in appropriate circumstances, but rather to the specific elements of that duty. Thus, we are starting at the most general level where there is only limited disagreement between the parties, and moving to more specific levels where the sharp disagreement emerges. As we have repeatedly stated, background principles of negligence provide that “duty is not sacrosanct in itself, but only ‘an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.’ ” Sorge, 171 Vt. at 177, 762 A.2d at 820 (quoting W. Prosser & W. Keeton, The Law of Torts § 53, at 358 (5th ed. 1984)). The existence of a duty is “a question of fairness” and “involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.” Id. (quotation omitted).
[342]*342¶ 21. The modern law on duty comes from the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41, which provides:
(a) An actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship.
(b) Special relationships giving rise to the duty provided in Subsection (a) include:
(4) a mental-health professional with patients.
This Restatement section replaces three sections of the Restatement (Second) of Torts (1965), which have been used extensively in defining the duty owed by a mental health professional or institution to third parties injured by a patient. See id. §§ 315(a), 819, 324A.
¶ 22. Comment g to § 41 of the Third Restatement addresses the duty of mental health professionals to third parties. The duty begins with the physician using “customary care” to determine whether a patient poses a risk of harm to others. “Once such a patient is identified, the duty imposed by reasonable care depends on the circumstances” and “may require providing appropriate treatment, warning others of the risks posed by the patient, seeking the patient’s agreement to a voluntary commitment, making efforts to commit the patient involuntarily, or taking other steps to ameliorate the risk posed by the patient.” Id. Although courts have been hesitant to embrace duties any broader than those to “reasonably identified” victims, § 41 sets no express limit on individuals to whom the duty is owed. Because “[reasonable care itself does not require warning individuals who cannot be identified,” the proper inquiry is “a question of reasonable care, not a question of the existence of a duty.” Id. “However, when reasonable care requires confining a patient who poses a real risk of harm to the community, the duty of the mental-health professional ordinarily extends to those members of the community who are put at risk by the patient.” Id. Because patients who are not in custody cannot be controlled in the traditional understanding of the term, the duty imposed on mental-health professionals “is only one of reasonable care.” Id. Despite this duty, a “health-care [343]*343professional can pursue, and may have a statutory obligation to seek, involuntary commitment of patients who are dangerous to themselves or others.” Id.
¶ 23. We have not had the occasion to address § 41(b)(4), and no other court has explicitly adopted it. Nonetheless, we note that the principles enunciated in § 41 build upon those of § 315 et seq. of the Second Restatement, and are an evolution of the duties articulated in decades of case law.
¶ 24. The history of this duty of care of mental health professionals or institutions with respect to nonpatient third parties begins with the California Supreme Court’s decision in Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976). This landmark case established that mental health professionals have a duty to warn “would-be” victims of a patient’s dangerous conduct. Id. at 346. In Tarasoff, a patient at the University of California’s Cowell Memorial Hospital informed his therapist that he was planning to kill an unnamed girl — readily identifiable to the therapist as the victim Tatiana Tarasoff — after she returned from her summer in Brazil. Id. at 341. Although the mental health staff sought the authority to petition for the patient’s commitment, the university police took the patient into custody briefly and released him after he promised to stay away from the victim. Id. Shortly after Tarasoffs return, the patient went to her residence and killed her. Id.
¶ 25. Tarasoffs parents filed a negligence suit against the university, the psychotherapists employed by the university hospital, and the campus police claiming that the defendants owed a duty to protect their daughter from the patient and breached that duty by failing to warn the plaintiffs of the patient’s threats and failing to confine the patient under a California statute that governs the involuntary commitment of individuals with mental health disorders. The California Supreme Court concluded that the defendants were shielded by governmental immunity from liability under the statute for failing to confine the patient, and addressed only the merits of the duty-to-warn claim. Id. at 341-42.
¶ 26. In conducting its analysis into the defendants’ duty to warn, the California court balanced a number of considerations, including
the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness [344]*344of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.
Id. at 342 (quotation omitted). Although foreseeability is a significant factor, the court noted that, in avoiding foreseeable harm, a defendant will not be required to control the conduct of another person or warn of such conduct unless “the defendant bears some special relationship to the dangerous person or to the potential victim.” Id. at 343. The court then concluded that a special relationship existed between a therapist and patient, and that “[s]uch a relationship may support affirmative duties for the benefit of third persons.” Id. The court found that the interest in protecting a potential victim who has been threatened by a patient outweighs the countervailing policy considerations, such as doctor-patient confidentiality, the difficulty of predicting a patient’s future violent acts, and the risk of unnecessary warnings. Id. at 345-46.
¶ 27. Importantly, while the court observed that its prior decisions recognizing such a duty involved situations where the defendant maintained a special relationship with both the victim and the person whose conduct created the danger, see, e.g., Johnson v. State, 447 P.2d 352, 355 (Cal. 1968) (upholding suit against state for failure to warn foster parents of dangerous tendencies of child), it concluded the duty should not “logically be constricted to such situations.” Id. at 344. As guidance, the court cited cases from other jurisdictions recognizing such a duty in the context of doctors failing to warn their patients not to drive when taking certain medications for the safety of the general public, or failing to warn the family members of patients with contagious diseases. Id.
¶ 28. As the California Supreme Court summarized:
[The] defendant therapists cannot escape liability merely because [the victim] herself was not their patient. When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the [345]*345intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.
Id. at 340. In summary, Tarasoff held that a therapist has a duty to warn either “the endangered party or those who can reasonably be expected to notify him.” Id. at 347.
¶ 29. On the heels of Tarasoff came the California Supreme Court’s decision in Thompson v. County of Alameda, 614 P.2d 728 (Cal. 1980), which further articulated the duty to warn when a potentially dangerous individual makes a generalized threat to the general public or a segment of the population — i.e., an unidentifiable victim. In Thompson, a juvenile offender had been in the custody of a county institution under a court order. Id. at 730. After he was released on temporary leave into his mother’s custody, he murdered a neighboring child in the garage of his mother’s home. Id. The complaint alleged that the county knew of the juvenile’s “latent, extremely dangerous and violent propensities regarding young children and that sexual assaults upon young children and violence connected therewith were a likely result of releasing (him) into the community.” Id. The complaint also alleged that the county knew the juvenile offender “had indicated that he would, if released, take the life of a young child residing in the neighborhood,” although he gave no indication of any specific child he intended to harm. Id.
¶ 30. The plaintiffs, the parents of the victim, claimed that the county was negligent in releasing the juvenile into the community and failing to warn the juvenile’s mother, the local police, or “parents of young children within the immediate vicinity” of his mother’s residence. Id. In deciding the extent of the duty, the court turned to Tarasoff, emphasizing that the holding extended to “specifically foreseeable and identifiable victim[s] of the patient’s threats.” Id. at 734. The court also reiterated Tarasoff s words of caution — that “ ‘the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed’ ” and that “‘a therapist should not be encouraged routinely to reveal [346]*346such threats’ ” because “ ‘such disclosures could seriously disrupt the patient’s relationship with his therapist and with the persons threatened.’ ” Id. (quoting Tarasoff, 551 P.2d at 347). The court also cautioned that a therapist should not disclose confidential information unless necessary to avert danger and that “ ‘even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent’ ” possible. Id. (quoting Tarasoff, 551 P.2d at 347). The Thompson, court interpreted Tarasoff to require as a precondition of liability that the victim be “readily identifiable,” if not “specifically named.” Id. The court thus rejected the plaintiffs’ attempt to impose “blanket liability” on the county for failing to warn the parents of the victim or other neighborhood children, the police, or the juvenile’s mother. Id. The court based its decision on policy considerations, as well as “foreseeability” within the context of the case. Notably, the court considered the “practical obstacles” to imposing a broad duty:
In our view, the generalized warnings sought to be required here would do little to increase the precautions of any particular members of the public who already may have become conditioned to locking their doors, avoiding dark and deserted streets, instructing their children to beware of strangers and taking other precautions. By their very numbers the force of the multiple warnings required to accompany the release of all probationers with a potential for violence would be diluted as to each member of the public who by such release thereby becomes a potential victim. Such a warning may also negate the rehabilitative purposes of the parole and probation system by stigmatizing the released offender in the public’s eye.
Id. at 736.
¶ 31. Thus, the court found that warnings to both the police and the parents of neighborhood children would be of little beneficial effect. Id. As specifically relevant to this case, the California high court considered the effect of warnings to the juvenile offender’s mother, into whose custody he was released. Id. at 737. The court concluded that such a warning would not have the desired effect of warning the potential victims because the mother would not be likely to volunteer information to neighborhood parents that her [347]*347son posed a threat to their welfare, “thereby perhaps thwarting any rehabilitative effort, and also effectively stigmatizing both the mother and son in the community.” Id. The court did not find persuasive the dissent’s reasoning “that the mother ‘might’ have taken special care to control her son had she been warned of [his] threats,” concluding that such “attenuated conjecture” cannot alone support the imposition of liability. Id. The court distinguished Johnson, 447 P.2d at 355, which held that the state had a duty to warn the foster family of a child’s dangerous tendencies, because it was the family in Johnson that was endangered, whereas the mother in Thompson was not herself endangered and would be expected to supervise her son “for the remote benefit of a third party.” Thompson, 614 P.2d at 737.
¶ 32. In Vermont, our most significant decision on the duty of mental health professionals to third parties is Peck, 146 Vt. 61, 499 A.2d 422, a duty to warn case.4 Like Tarasoff, Peck deals with the failure to warn an identified victim and expressed a broad general duty of the mental health professional or institution to third parties affected by the conduct of the patient. Unlike Tarasoff, the patient threatened the property, rather than the person, of the plaintiff. Id. at 64, 499 A.2d at 424. In Peck, the plaintiffs sued a mental health agency for damages to their property after their son set fire to their barn. Id. At the time of the incident, the son was an outpatient of Counseling Service of Addison County and was living at home with his parents. Id. at 63, 499 A.2d at 424. After a fight with his father, the son left home and went to the Counseling Service to speak with his therapist. Id. He told his therapist about the fight and that “he didn’t think his father cared [348]*348about him or respected him.” Id. At a following session, the son stated that he was still angry with his father, and told his therapist that he “wanted to get back at his father” by “burning] down his barn.” Id. at 64, 499 A.2d at 424. After discussing the consequences of the act, the son promised his therapist that he would not burn down the barn. The therapist did not disclose these threats to the parents or any other staff members of Counseling Service. Several days later, the son set fire to his parents’ barn, which was completely destroyed. Id. at 63, 499 A.2d at 424. The parents claimed that the therapist had a duty to protect them from their son’s violent behavior, that the therapist knew or should have known that their son presented an unreasonable risk of harm to them, and that the therapist breached that duty by failing “to take steps that were reasonably necessary to protect” them. Id. at 64, 499 A.2d at 424.
¶ 33. The Peck Court began its analysis with the Restatement (Second) of Torts § 315, which provides that a duty arises if: “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.” The Court concluded that “the relationship between a clinical therapist and his or her patient ‘is sufficient to create a duty to exercise reasonable care to protect a potential victim of another’s conduct,’ ” id. at 65, 499 A.2d at 425 (quoting Tarasoff, 551 P.2d at 343), even though the level of control over an outpatient may be less than that exercised over institutionalized patients. Id. The Court noted that “Vermont already recognizes the existence of a special relationship between a physician and a patient that imposes certain legal duties on the physician for the benefit of third persons,” citing statutes requiring doctors to warn others of contagious diseases to protect the public health. Id. For example, 18 V.S.A. § 1004, which has not been amended since the time of the Peck decision, provides that: “A physician who knows or suspects that a person whom he or she has been called to attend is sick or has died of a communicable disease dangerous to the public health shall immediately quarantine and report to the health officer the place where such case exists.” Accordingly, the Court saw no reason why the same duty should not exist in a mental health setting. Id.
[349]*349¶ 34. In imposing a duty on the therapist, the Court rejected the defendant’s arguments that a mental health professional cannot predict future violent behavior and that physician-patient privilege protects against disclosure of confidential information. Id. at 66, 499 A.2d at 425; see also 12 V.S.A. § 1612(a). After quoting at length from Tarasoff, the Court noted that the trial court found sufficient facts to demonstrate that the therapist knew or should have known the defendant posed a threat to his parents and that the failure of the therapist to reveal that threat “was inconsistent with the standards of the mental health profession.” Id. at 66, 499 A.2d at 425-26. Ultimately, we held that “a mental health professional who knows or, based upon the standards of the mental health profession, should know that his or her patient poses a serious risk of danger to an identifiable victim has a duty to exercise reasonable care to protect him or her from that danger.” Id. at 68, 499 A.2d at 427.
II. The Duty to Warn
¶ 35. Having set out the nature of duties for tort actions and the important sources of law for defining the duties of mental health professionals to third parties injured by their patients, we look at the specific duties alleged in plaintiffs’ complaint in this case. As we stated above, the positions of the parties begin to differ when we look at the specific duties alleged. The decisions from around the country reflect these differences. Although the central holding of Tarasoff has been widely accepted around the country, the same is not true for extensions of the duty beyond providing warnings. Further, courts in other jurisdictions are divided on how far to extend the Tarasoff duty to warn, and the subsequent limitation on that duty expressed in Thompson,.
¶ 36. We first consider plaintiffs’ allegations that defendant, Brattleboro Retreat, breached its duties to warn E.R.’s parents of the risk of his dangerous behavior and to train them in how to handle him. In examining the duty of defendant, we put these claims together under the general description of duty to warn and consider later whether separate duties are involved. Courts differ when evaluating a claim of a duty to warn someone other than an identified victim. As discussed previously, several courts have limited the duty to identifiable victims, or a class of individuals whose injury is foreseeable because of their relationship or proximity to a specifically identifiable victim. See, e.g., Dawe v. Dr. [350]*350Reuven Bar-Levav & Assocs., P.C., 780 N.W.2d 272, 278 (Mich. 2010) (establishing duty to warn for mental health professionals when patient makes threat of violence against “reasonably identifiable third person” and has apparent intent and ability to carry out threat); Emerich v. Philadelphia Ctr. for Human Dev., Inc., 720 A.2d 1032, 1040-41 (Pa. 1998) (stating that psychotherapist has duty to warn only when specific and immediate threat of serious bodily injury has been made against “specifically identified or readily identifiable victim”). The reasoning is much the same in these decisions, as they reflect the policies set forth by the California Supreme Court in Thompson. See, e.g., Fraser v. United States, 674 A.2d 811, 816 (Conn. 1996) (stating that “the interests of the mental health profession in honoring the confidentiality of the patient-therapist relationship and in respecting the humanitarian and due process concerns that limit the involuntary hospitalization of the mentally ill” counsel against imposing “liability for harm to unidentifiable victims or unidentifiable classes of victims” (citations omitted)). Many of these courts also rely on their existing precedent in the area of negligence, citing the limitations on third-party liability already recognized in their common law. Id. at 815-16 (observing that scope of liability in negligence to injured third parties has not been enlarged by changes in tort law).
¶ 37. However, several other courts have held that a duty to warn is owed not only to specifically identified or identifiable victims, but to foreseeable victims or to those whose membership in a particular class — for example, those living with the patient — places them within a zone of danger. See, e.g., Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185, 194-95 (D. Neb. 1980) (applying Nebraska law) (holding that if psychiatrist can reasonably foresee risk of harm to plaintiffs or “class of persons” of which plaintiffs were members, he or she has duty to warn, even if victims are not specifically identified); Naidu v. Laird, 539 A.2d 1064, 1073 (Del. 1988) (stating psychiatrist has duty to warn “potential victims or a class of potential victims” when “in accordance with the standards of the profession,” psychiatrist knows or should know that patient’s “dangerous propensities present an unreasonable risk of harm to others”); Schuster v. Altenberg, 424 N.W.2d 159, 165 (Wis. 1988) (noting that psychotherapist’s duty to warn “is not limited by requirement that threats made be directed to an identifiable target” as it must simply be foreseeable that omission “may cause harm to someone”).
[351]*351¶ 38. Plaintiffs ask that we construe Peck broadly to find that E.R.’s parents should have been warned of his propensities in order to protect third parties. Defendants, on the other hand, focus on the language in our holding that specifies an “identifiable victim,” a factor absent here. They argue that Peck is specifically limited to the circumstance where there is an identifiable victim and should be interpreted to hold that there is no duty to warn in the absence of such a victim. We note that none of our more recent cases have expanded the duty articulated in Peck to unforeseeable victims. Nevertheless, we agree with plaintiffs that the specific liability holding of Peck is based on the facts and circumstances that were before the Court. Thus, while Peck finds a duty to warn an identifiable victim, it does not hold that liability is limited to those circumstances and in fact draws on public health cases where there is no identified victim.5 In saying this, we are also cognizant of the fact that Peck was decided thirty years ago, before modern trends in this area, such as the Restatement (Third) of Torts § 41.
¶ 39. The dissent cites a number of cases that it argues show that the majority rule is that there is no duty to warn anyone [352]*352other than an identified victim. Post, ¶¶ 87-90. In fact, most of these cases, including Tarasoff, do not contain such a limitation. As we set out above, Tarasoff contains this explanation of the duty: “Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.” Tarasoff, 551 P.2d at 340.
¶ 40. Other cases, including Fraser, 674 A.2d at 817 — a duty to treat and not a duty to warn case — acknowledge that the duty can extend to persons in the zone of danger, one of the bases for this decision. The court in Estates of Morgan v. Fairfield Family Counseling Center, 1997-Ohio-194, 673 N.E.2d 1311, 1331, explicitly reserves the issue: “We need not determine at this time whether and to what extent the readily identifiable victim rule should attach in a failure-to-warn case. The case sub judi.ce does not involve any allegation that [the defendants were] negligent in failing to warn [the plaintiffs] family.” In Emerich, 720 A.2d at 1040 n.8, the court stated: “[W]e are not required to address the related issue of whether this duty to warn may be discharged by notifying relatives of the victim, other individuals close to the victim, or the police.” In fact, the only case cited by the dissent that recognizes the Tarasoff duty but limits the required warning to an identified victim is Eckhardt v. Kirts, 534 N.E.2d 1339 (Ill. App. Ct. 1989), a twenty-seven year old intermediate appellate court decision. The dissent asserts here that a holding that the duty to warn extends beyond the identified victim represents an unacknowledged minority position. We reject that assertion because it is not true.
¶ 41. We agree that the Peck holding does not apply to a duty to warn the general public. The complaint here expresses a much narrower duty: to warn E.R.’s caretakers, here, his parents. It alleges that the warnings would have informed them such that they could have properly supervised E.R. Any warning to E.R.’s parents would not have been predicated on their membership in the public at large, however, and would have been predicated on their assumption of custody and caretaking responsibilities of E.R., even though an adult, from the Retreat. For two reasons, which circumscribe the scope of the duty we now recognize, we conclude that the Retreat had a duty to give such warnings.
¶ 42. The first reason involves the unique circumstances of this case. The complaint alleges that the parents had assumed the role [353]*353of E.R.’s caretakers even though he was an adult. The extended record shows that the parents were directly involved in E.R.’s care and treatment from the first time that he showed symptoms of mental illness and were involved in controlling his conduct. This meant that they had assumed responsibilities, the discharge of which could be affected by the information they received. For example, the limited facts indicate that in a discharge conference, Retreat staff told E.R.’s mother that she should give E.R. his medication, but also indicate that E.R. stopped taking medication on his own after discharge. A complete warning of the effect of E.R. discontinuing the medication may have affected the parents’ degree of involvement in ensuring E.R. took his medication.
¶ 43. Because the parents were monitoring E.R.’s needs and treatment, and were involved in his discharge, they were available to receive information on his continuing need for treatment and the actions that should have been taken based on his behavior. In fact, the complaint alleges that the Retreat’s mental health professional, who was aware of the risk that E.R. would suffer decompensation and stop his medications if discharged, had “discussed discharge with E.R.’s mother” before determining such a course was possible. Moreover, before the discharge, the Retreat made an aftercare treatment plan “with E.R. and his parents.” The complaint thus supports an inference that if E.R. had not had parents into whose care he could be released, parents who could monitor his symptoms and medication intake, Brattleboro Retreat would not have authorized his release.
¶ 44. Again, we emphasize that we are dealing with a case that was dismissed on the pleadings with no factual development.6 We conclude that by transferring custody of a patient with a psychotic disorder to caretakers whom they knew lacked psychiatric training and experience, the Retreat owed a duty of care to provide reasonable information to the parents to enable them to recognize [354]*354the dangers and fulfill the responsibilities envisioned for them in the treatment plan. In adopting this duty definition, we are relying upon Peck, as well as precedents from other jurisdictions and the Restatement (Second) of Torts §§ 315 and 319. Although we have discussed it above for background, we have not adopted and relied upon § 41(b)(4) of the Restatement (Third) of Torts. We recognize that there are contrary decisions from some of our sister states, but generally we find them distinguishable. For example, in In re Estate of Votteler, 327 N.W.2d 759, 760 (Iowa 1982), the plaintiff was injured when a patient suffering from a serious mental illness ran over her with a car. The plaintiff alleged that the patient’s psychiatrist was negligent in failing to warn the patient’s husband, a friend of the plaintiff, of the danger the patient presented to the public “so he could have protected [the] plaintiff.” Id. In its ruling, the Iowa Supreme Court held that the Tamsoff rule could not be “stretched” to support finding a cause of action against a psychiatrist in these circumstances, as such a theory would “attenuate[ ] the Tamsoff rule beyond the breaking point.” Id. at 761-62. However, the decision was based on the particular facts of the case. Unlike in Tamsoff, the record “lack[ed] any basis for finding the therapist knew of the danger” the patient presented, id. at 762, but instead, contained overwhelming evidence to suggest the plaintiff was herself well aware of the patient’s violent propensities; indeed, the patient had told the plaintiff on multiple occasions that “she would kill her.” Id. at 761.
¶ 45. By contrast, the complaint here is replete with allegations that staff members at the Retreat were well aware of E.R.’s capacity for violence. Upon his admission at the Retreat, E.R.’s records from the Vermont State Hospital were reviewed, including the findings by his intake physician that E.R. was “clearly a danger to others” and would be a “danger to his own family” if released. He verbalized “homicidal ideation” toward staff only nine days after his admission to the Retreat, and throughout his stay, continued to have auditory hallucinations which commanded him to kill himself or others. E.R.’s behavior was so aggressive that his psychiatrist adopted an Alternative Low Stimulation Area (ALSA) treatment plan, which involves “placing patients who are verbalizing or demonstrating they are unsafe in a special area” that is staff-intensive and free from any objects that can be used to harm the self or others. Indeed, it appears from the complaint [355]*355that E.R. was kept in ALSA for all but the first nine days of his stay at the Retreat.
¶ 46. Because the case never went beyond the complaint stage, there is no allegation that the parents were aware of E.R.’s risk of danger such that they could be charged with “knowledge of the danger as a matter of law” sufficient to nullify any duty to warn. Id. at 762. The expanded record shows that the state of the parents’ knowledge is strongly disputed.
¶ 47. A second reason for finding a duty to warn in this case is that E.R.’s parents fell within the “zone of danger” from E.R.’s conduct. While there is no allegation that E.R. ever threatened his parents, plaintiffs’ complaint alleged that by failing to warn the parents, the “Brattleboro Retreat needlessly endangered the safety of third parties, including, not limited to the Plaintiffs.” Moreover, it is alleged that E.R. specifically threatened his caretakers, and the parents were to become his caretakers after his discharge from the Retreat.
¶ 48. The duty to warn those in the zone of danger was addressed by the Arizona Supreme Court in a case very similar to this one. See Hammam v. Cty. of Maricopa, 775 P.2d 1122, 1123 (Ariz. 1989). In Hammam, the patient was brought to an emergency psychiatric center because of violent and other “abnormal behavior.” His parents expressed fear that he “would either be killed or kill somebody” and reported that they maintained constant supervision over him. Id. After speaking with a doctor, the doctor refused to admit the patient to the hospital, but prescribed medication and advised his mother to take him to follow-up care at a medical center. Id. at 1124. One morning, the patient refused to take his medicine. Later that day, he attacked his father with an electric drill.
¶ 49. The parents filed a claim against the hospital for negligence, claiming that the doctor owed them a duty to reasonably diagnose and treat their son’s condition and that they reasonably relied upon the doctor’s advice that their son was harmless. In assessing the scope of the duty, the court rejected the narrow approach of requiring an identifiable victim but also cautioned against adopting a rule that is “too inclusive, subjecting psychiatrists to an unreasonably wide range of potential liability.” Id. at 1127. The court concluded:
If indeed [the doctor] negligently diagnosed [the patient] as harmless, the most likely affected victims would be [356]*356[his parents]. Their constant physical proximity to [the patient] placed them, in an obvious zone of danger. [His parents] were readily identifiable persons who might suffer harm if the psychiatrist was negligent in the diagnosis or treatment of the patient. The fact that [the patient] never verbalized any specific threats against [his parents] does not change the circumstances that, even without such threats, the most likely victims of the patient’s violent reaction would be [his parents].
Id. at 1128 (emphasis added); see also Div. of Corr. v. Neakok, 721 P.2d 1121 (Alaska 1986), overruled on other grounds by State v. Cowles, 151 P.3d 353 (Alaska 2006) (finding that state agencies had duty to warn residents of small community of parolee’s dangerous propensities, particularly victims, as one was foreseeable and others were in zone of danger). We find Hamman persuasive and follow its reasoning.
¶ 50. In recognizing a duty to warn, we distinguish this case from Thompson, where the mother of the juvenile offender was not foreseeably endangered, as the offender’s threats were to children. By contrast, E.R.’s parents were in the zone of danger, as E.R.’s dangerous propensities were not targeted towards any one class of individuals. If E.R. had harmed his parents, we may have easily concluded that the Retreat owed them a duty to warn of his violent tendencies; if he directed violence towards a member of the general public, the question becomes harder. If defendant owed a duty to the parents and breached that duty, resulting in harm to an unidentifiable third party, is defendant liable?
¶ 51. To answer this question, we look to cases involving a physician’s duty to warn a patient, the breach of which results in injury to a third party. Most courts have recognized that physicians owe a duty to their patients to warn them about the hazards of driving on certain medications and that, when the physician breaches that duty, causing harm to a third party, he or she is liable for that failure to warn. See, e.g., Taylor v. Smith, 892 So. 2d 887, 893-94, 897 (Ala. 2004) (holding that duty of care owed by physician to his patient “extends to third-party motorists who are injured in a foreseeable automobile accident with the patient that results from the [physician’s] administration of methadone” and citing cases from Maine, Michigan, New Mexico, Oregon, Texas, and Wisconsin that have imposed similar duty to warn); see also [357]*357Restatement (Third) of Torts § 41 cmt. h. But see Jarmie v. Troncale, 50 A.3d 802, 810 (Conn. 2012) (holding that physicians owe no duty to warn patients not to drive for benefit of third parties because “Connecticut precedent does not support it, the plaintiff was an unidentifiable victim, public policy considerations counsel against it, and there is no consensus among courts in other jurisdictions, which have considered the issue only rarely”). We conclude, based on existing precedent and modern trends in negligence law, that the Retreat had a duty to warn E.R.’s parents as individuals in the “zone of danger” of E.R.’s dangerous propensities.7
¶ 52. This duty on which we base this decision is a narrow one, and applies only when a caregiver is actively engaging with the patient’s provider in connection with the patient’s care or the patient’s treatment plan (or in this case discharge plan), the provider substantially relies on that caregiver’s ongoing participation, and the caregiver is himself or herself within the zone of danger of the patient’s violent propensities.8 It does not require health care providers to seek out a caretaker for the patient to whom they can impart this information; nor does it require physicians to make disclosures to family members or others who may live with the patient but are not engaged with the patient’s treatment and are not factored into the patient’s treatment plan.
¶ 53. As we noted above, plaintiffs’ complaint alleges two separate duties — a duty to warn and a duty to train. The complaint described the duty to warn as a duty to inform E.R.’s parents that “he posed a risk to the public including themselves.” It described the duty to train as the duty to instruct the parents “to supervise him, how to monitor and manage his medications intake, to effectively recognize when medications were being avoided and to effectively respond so that measures necessary and appropriate to protect potential victims could be implemented.” The duty to warn as we have described it above contemplates more than simply advising the parents that their son posed a risk; [358]*358it may also entail a duty to provide reasonable information to enable the parents to fulfill the role envisioned for them in the treatment plan to help keep their son safe. The specific nature and content of that information is case-specific, and a question of fact. In that sense, the duty to “warn” may be better described as a duty to “inform” that incorporates some elements of what plaintiffs describe as a distinct duty to “train.”
¶ 54. However, we find the amorphous concept of a “duty to train” as a distinct cause of action unworkable, and note that such a duty, in contrast to the duty to warn as we have described it, lacks grounding in existing caselaw. For these reasons, we decline to recognize a distinct cause of action for failure to “train” E.R.’s parents.
¶ 55. We have initially analyzed the duty to inform with respect to the Retreat. Plaintiffs’ complaint alleges a similar duty to warn with respect to NKHS. Although the two entities had different responsibilities, we see no reason to differentiate between them in defining the duty that each owed. Thus, we hold that NKHS had the same duty to warn, recast above as including a duty to provide particular information, as the Retreat did.
¶ 56. As we discussed briefly above, defendants also allege that plaintiffs’ duty-to-inform counts should be dismissed because plaintiffs cannot show the element of causation. Duty is a legal question, and is therefore appropriate for our consideration on an appeal from a motion to dismiss. We cannot say the same about the element of causation. Until there is factual development on the extent to which defendants may have fallen short of their duty, if any, and were negligent in doing so, we cannot determine whether plaintiffs can meet their burden of showing that defendants’ negligence was a proximate cause of plaintiffs’ damages. We cannot dismiss the complaint based on the absence of causation.
¶ 57. Finally, as to the duty to warn or inform, we must address the confidentiality arguments raised in the briefs of defendant NKHS and amici curiae Vermont Council of Developmental and Mental Health Services, Inc., Disability Rights of Vermont, Inc., and the Vermont Association of Hospitals and Health Systems. Defendant NKHS and amici curiae argue that expansion of the standards under which psychotherapists must disclose protected health information without consent beyond those imposed in Peck violates state and federal law and contrary to policy goals of [359]*359encouraging individuals to seek mental health treatment. In particular, defendant and amici curiae note that Vermont has codified the physician-patient privilege in 12 V.S.A. § 1612(a), which precludes the disclosure of confidential information absent patient permission or authorization from an express provision of law. Amici curiae argue that while Peck modified § 1612 to require disclosure when a mental patient has threatened “serious harm to an identified victim,” 146 Vt. at 67, 499 A.2d at 426, no express provision of Vermont or federal law permits disclosure under the broad terms of Restatement (Third) of Torts § 41(a) — also urged by plaintiffs — when a patient poses “risks” to the safety of the public at large.
¶ 58. Amici curiae also note that other Vermont statutes, particularly 18 V.S.A. § 1852(a)(7) and § 7103, protect from disclosure clinical information identifying current or former hospital patients. See id. § 7103(a) (“All certificates, applications, records, and reports . . . directly or indirectly identifying ... an individual whose hospitalization or care has been sought or provided under this part, together with clinical information relating to such persons shall be kept confidential and shall not be disclosed by any person”); id. § 1852(a)(7) (“The patient has the right to expect that all communications and records pertaining to his or her care shall be treated as confidential. Only medical personnel, or individuals under the supervision of medical personnel, directly treating the patient, or those persons monitoring the quality of that treatment . . . shall have access to the patient’s medical records.”). Finally, amici curiae suggest that an expansion of the duty to warn would violate the confidentiality provisions established in the Privacy Rule adopted pursuant to the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d et seq., which applies to the information acquired by community mental health agencies across the United States and which is exempt from any public policy exception created by this Court.9
[360]*360¶ 59. We recognize that although defendants and amici have accepted Peck’s disclosure requirements as a baseline beyond which we cannot go, that decision gave very limited consideration to binding confidentiality requirements. The Peck Court noted that the Legislature had created certain exceptions to the statutory patient’s privilege and that an exception similar to that sought for mental health professionals to warn identified potential victims existed for lawyers and, consequently, created by judicial decision an exemption for mental health professionals. 146 Vt. at 67-68, 499 A.2d at 426. To ensure that the disclosure requirements we have adopted fully comply with confidentiality requirements, we are reexamining the issue here rather than relying upon Peck.
¶ 60. Our conclusion is that the aforementioned statutes and regulations do not bar plaintiffs’ failure-to-inform cause of action in this case for three reasons. First, while it is true that 12 V.S.A. § 1612 and the more comprehensive Vermont Rule of Evidence 503 prevent physicians from disclosing health information or history, the statute codifies an evidentiary privilege, thus limiting its application to judicial proceedings. See Steinberg v. Jensen, 534 N.W.2d 361, 370 (Wis. 1995) (“The physician-patient privilege is a testimonial rule of evidence, not a substantive rule of law regulating the conduct of physicians.”). As such, the privilege does not preclude the Retreat from warning E.R.’s parents of E.R.’s likelihood of violent actions.10 See 1 McCormick on Evid. § 72.1 (7th ed.) (“[T]rue rules of privilege operate generally to prevent revelation of confidential matter within the context of a judicial proceeding. . . . [They] do not speak directly to the question of unauthorized revelations of confidential matter [361]*361outside the judicial setting, and redress . . . must be sought in the law of tort or professional responsibility.” (footnotes omitted)).11
¶ 61. Second, the confidentiality statutes cited by amici curiae are not inconsistent with the disclosures required by the duty described here. One statute sets forth a “bill of rights” for patients who are admitted to a hospital on an inpatient basis. Among other things, it states that “[t]he patient has the right to expect that all communications and records pertaining to his or her care shall be treated as confidential” except when authorization is provided. 18 V.S.A. § 1852(a)(7). Further, it recognizes a patient’s right to privacy and provides that case discussions are confidential and “[t]hose not directly involved in the patient’s care must have the permission of the patient to be present.” Id. § 1852(a)(6). The duty recognized in this decision — to provide certain information to a caregiver actively engaged in the patient’s care and treatment plan — is not at odds with these protections, which prevent disclosures to those not directly involved in the patient’s care without the patient’s permission. Likewise, the mental health statute, 18 V.S.A. § 7108(b), explicitly states that “[njothing in this section shall preclude disclosure ... of information concerning medical condition” to certain individuals including the person’s family, clergy, health care agent, or “an interested party.” Again, if the duty applies, it will be to provide information to an interested individual whose ongoing participation in the patient’s care is part and parcel of the patient’s treatment plan.
¶ 62. Finally, the federal regulations governing HIPAA’s Privacy Rule, relied upon by amici, also carve out two exceptions relevant to the disclosure obligation imposed in this decision. The first is a [362]*362dangerous patient exception to the confidentiality requirement intended to “avert a serious threat to health or safety”:
(1) Permitted disclosures. A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose protected health information, if the covered entity, in good faith, believes the use or disclosure:
(i)(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and
(B) Is to a person or persons reasonably able to prevent or lessen the threat.
45 C.F.R. § 164.512(j) (emphasis added). In this case, the disclosure requirement is imposed to avert a serious threat to health or safety and under circumstances that meet the specific language of § (i)(A) and (B). The second exception is for emergency circumstances, allowing limited use and disclosures:
If the individual is not present, or the opportunity to agree or object to the use or disclosure cannot practicably be provided because of the individual’s incapacity oí-an emergency circumstance, the covered entity may, in the exercise of professional judgment, determine whether the disclosure is in the best interests of the individual and, if so, disclose only the protected health information that is directly relevant to the [family member, other relative, or close personal friend’s] involvement with the individual’s care or payment related to the individual’s health care.
Id. § 164.510(b)(3); see also Office for Civil Rights, A Health Care Provider’s Guide to the HIPAA Privacy Rule: Communicating with a Patient’s Family, Friends, or Others Involved in the Patient’s Care 2, https://perma.cc/9596-MXWK.
¶ 63. As discussed above, plaintiffs’ complaint alleges sufficient facts to indicate that the Retreat was well aware of E.R.’s propensity for violence, particularly when off his medication, and that E.R.’s parents likely underestimated the degree of danger E.R. posed to his caretakers and to the public. Similarly, it is evident from the facts that E.R. was sufficiently incapacitated [363]*363such that disclosure could not be practicably authorized and that information about his condition and violent behavior would have been “directly relevant” to the care his parents provided him. We recognize that both of these subsections permit, rather than mandate, unauthorized disclosure in the aforementioned instances, as well as that both predicate the admissions in the medical entity’s good faith belief and professional judgment that disclosure was necessary. In essence, by this decision, we are imposing the mandate as a matter of tort law in circumstances where the mental health professionals and institution are authorized, but not obligated, to disclose under HIPAA.
¶ 64. In reaching our decision, we recognize the “interest in safeguarding the confidential character of psychotherapeutic communications” as argued by the dissent. Post, ¶ 90. We are bound by the direction of Peck: “In the same manner that due care must be exercised in the therapist’s determination of what steps may be necessary to protect the potential victim of a patient’s threat of harm, so too must due care be exercised in order to ensure that only that information which is necessary to protect the potential victim is revealed.” 146 Vt. at 68, 499 A.2d at 426-27. Based on the above analysis, we hold that both the Retreat and NKHS had a duty to provide information to E.R.’s parents, both to warn them of E.R.’s risk of violence to themselves and others and to provide them reasonable information to enable them to fulfill their role in keeping him safe. We stress that we are only defining the duty owed by the mental health services providers, and allowing this action to proceed to determine whether defendants breached their duties, and if so, were negligent in doing so. We reverse the dismissal of Counts II and V of plaintiffs’ complaint and remand for those counts to proceed.
III. Duty to Protect
¶ 65. We next consider plaintiffs’ other counts, starting with those against the Retreat. The complaint contains two additional counts with respect to this defendant: (1) that defendant negligently discharged E.R. and this discharge was the proximate cause of plaintiffs’ damages; and (2) defendant undertook to render a service to E.R. necessary to protect third parties, failed to exercise due care in the performance of its undertaking, and its negligence was a proximate cause of the damages to plaintiffs. [364]*364Plaintiffs allege these counts relying upon the general duty expressed in Tarasoff and Peck and the duty described in § 41(b)(4) of the Restatement (Third) of Torts. With respect to the second of these duties — that is, to exercise due care in the performance of an undertaking — plaintiffs also rely on § 324A of the Restatement (Second) of Torts.12
¶ 66. Relying principally on our decision in Sorge, the Retreat argues that these duties do not exist or do not apply here. We begin with the sources of law as argued by the parties.
¶ 67. We look first at Sorge, the most relevant of our precedents. In Sorge, one of the plaintiffs was injured after being assaulted by a juvenile offender who was in the custody of the Vermont Department of Social and Rehabilitation Services (SRS). The victim and his wife filed suit against the State, alleging that SRS was negligent in failing to adequately supervise and control the juvenile and that, as a result of the negligence, the victim sustained injuries. The plaintiffs claimed that SRS was aware of the juvenile’s “history of violent, assaultive and delinquent behavior,” but that SRS nonetheless placed him in the temporary custody of his mother for the weekend and she “was either unlikely or incapable of adequately supervising him.” Sorge, 171 Vt. at 173, 762 A.2d at 818.
¶ 68. We began by summarizing the factors to be considered in determining whether a governmental body has a duty of care to a specific person, beyond its duty to the public at large:
(1) whether an ordinance or statute sets forth mandatory acts clearly for the protection of a particular class of persons, rather than the public as a whole; (2) whether the government has actual knowledge of a condition dangerous to those persons; (3) whether there has been reliance by those persons on the government’s representations and conduct; and (4) whether failure by the government to use due care would increase the risk of harm beyond its present potential.
Id. at 174, 762 A.2d at 819. The plaintiffs conceded that there was no specific statutory provision mandating protection for the victim or any other particular class of persons, arguing instead that [365]*365because SRS’s failure to control the juvenile resulted in harm, liability should be imposed on the State. The plaintiffs further contended that § 319 of the Restatement (Second) of Torts creates an exception for “persons having dangerous propensities” that extends beyond the duty to warn and imposes an obligation to control an offender for the protection of the public. This section provides: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” Restatement (Second) of Torts § 319. Thus, the section creates an exception for cases where a “special relationship” exists between the State and the juvenile.
¶ 69. We rejected both arguments. We found the first theory at odds with the principle espoused in both Peck and Restatement (Second) of Torts § 315 that “[generally, there is no duty to control the conduct of another in order to protect a third person from harm.” Sorge, 171 Vt. at 175, 762 A.2d at 819. We also found the “special relationship” theory to be inconsistent with the goals of rehabilitation and reunification underlying both juvenile and adult detention programs. Id. at 177-78, 762 A.2d at 820-21; see also Rivers v. State, 133 Vt. 11, 14, 328 A.2d 398, 400 (1974) (emphasizing rehabilitative goals of release of inmates on probation or parole, and stating that liability premised on duty of State to third parties harmed during inmate’s release on weekend pass “runs dangerously parallel to the arguments for preventative detention that represent an overriding of constitutional limitations”); Finnegan v. State, 138 Vt. 603, 606, 420 A.2d 104, 105 (1980) (holding that escaped prisoner’s negligence cannot be transferred to State). We further observed that the § 319 exception had been rejected by a number of other states “that have recognized that most juvenile and adult programs dealing with persons committed to the custody of the State are intended to rehabilitate conduct rather than control it.” Sorge, 171 Vt. at 177, 762 A.2d at 820-21.
¶ 70. Importantly, we stated that for § 319 to apply, the State’s purpose in assuming custody of an individual “must explicitly be to control that person” and that “attempts to exercise that control must be consistent with the specific objective of insulating a person having dangerous propensities from uncon[366]*366trolled contact with others whom the State knows or has reason to know are likely to be harmed by the person the State intends to isolate.” Id. at 180, 762 A.2d at 822-23. This is true for both public entities, like those at issue in Peck and Sorge, as well as private institutions, like defendants here. See id. at 178, 762 A.2d at 821.
¶ 71. Returning to plaintiffs’ theory of duty and liability in this case, we can find no jurisdiction that has adopted Restatement (Third) of Torts § 41(b)(4). The Reporter’s Notes to § 41(b)(4) cite cases from seven jurisdictions that have adopted a duty commensurate with that in § 41(b)(4) and broad enough to support the counts included in plaintiffs’ complaint here. As defendant points out, many of these decisions have been superseded by statutes that narrow the duty.13 Two cases in particular are helpful to understanding arguments for a broad expression of duty.
¶ 72. The first is Perreira v. State, 768 P.2d 1198 (Colo. 1989), a 4-3 decision from the Colorado Supreme Court. In that case, a police officer was shot and killed by a former mental patient who had been recently released from involuntary commitment to a mental institution. The officer’s spouse brought a wrongful death action against the state, the psychiatric hospital, and the treating psychiatrist, alleging that the psychiatrist was negligent in releasing the patient. The court held that:
[W]hen, as here, a staff psychiatrist of a state mental health facility is considering whether to release an involuntarily committed mental patient, the psychiatrist has a legal duty to exercise due care, consistent with the knowledge and skill ordinarily possessed by psychiatric practitioners under similar circumstances, to determine whether the patient has a propensity for violence and would thereby present an unreasonable risk of serious bodily harm to others if released from the involuntary commitment, and, further, that in discharging this legal duty the psychiatrist may be required to take reasonable precautions to protect the public from the danger created by the release of the involuntarily committed patient, including the giving of due consideration to extending the [367]*367term of the patient’s commitment or to placing appropriate conditions and restrictions on the patient’s release.
Id. at 1200. The court reached that result primarily by relying upon §§ 315 and 319 of the Restatement (Second) of Torts. Id. at 1208-09, 1211. The court also concluded that given the psychiatrist’s knowledge of the patient’s condition and conduct, predictions of future dangerousness were within the professional’s expertise to a reasonable standard of accuracy. Id. at 1216-17. The court recognized the patient’s loss of liberty from commitment but did not conclude that the liberty loss should be elevated above the safety of others. Id. at 1217-18. It found the duty of care to third parties consistent with that otherwise imposed on a mental health professional. Id. at 1218-19. Finally, it rejected the claim that the duty is inconsistent with the requirement that institutionalization be used only when all lesser-restrictive alternatives are inadequate, as well as the argument that it would lead to overcommitment by mental health professionals to avoid tort liability. Id. at 1219-20^
¶ 73. In Estates of Morgan, the Ohio Supreme Court, also by a 4-3 decision, reached the same result in the context of a voluntary outpatient who had received therapy and medication from a community mental health center and thereafter shot and killed his parents and injured his sister. The plaintiffs alleged the mental health professionals were negligent in the treatment they provided. The court relied upon Restatement (Second) of Torts §§ 315 and 319 and Tasaroff in finding a broad duty. 673 N.E.2d at 1319-22. The court found that the defendants had sufficient control over the patient’s behavior in the outpatient setting — or could acquire that control — to support a broad duty of care. Id. at 1323-25. It found that although mental health professionals encounter difficulty in predicting dangerousness, the standard of care is based on their ability to do so with limitations. Id. at 1325. It also found, as the court did in Perreira, that the duty of care would not lead to excessive institutionalization of patients. Id.
¶ 74. The decisions contrary to Perreira. and Morgan tend to rely upon the possible adverse consequences of recognizing a duty. The opposing arguments are captured in a quote from Sherrill v. Wilson, 653 S.W.2d 661, 664 (Mo. 1983), a case in which a patient was given a two-day pass from a mental institution, during which he shot another person:
[368]*368The treating physicians, in their evaluation of the case, well might believe that [the patient] could be allowed to leave the institution for a prescribed period and that his release on pass might contribute to his treatment and recovery. We do not believe that they should have to function under the threat of civil liability to members of the general public when making decisions about passes and releases. The plaintiff could undoubtedly find qualified psychiatrists who would testily that the treating physicians exercised negligent judgment, especially when they are fortified by hindsight. The effect would be fairly predictable. The treating physicians would indulge every presumption in favor of further restraint, out of fear of being sued. Such a climate is not in the public interest.
See also Restatement (Third) of Torts § 41 cmt. g (quoting Sherrill). We look to two decisions that specifically reject the holdings of Perreira and Morgan to explain this rationale.
¶ 75. In Leonard v. State, 491 N.W.2d 508 (Iowa 1992), which specifically rejected the holding of Perreira, the court applied § 319 of the Restatement (Second) of Torts, but held that it created a duty to protect only “reasonably foreseeable victims” and not members of the public generally. Id. at 511. The Iowa Supreme Court quoted Sherrill and indicated concern about the “limitless liability” created if the mental health professional’s duty extended to the public generally, concluding that the victim’s interest is outweighed by the harm to the public if “physicians were subject to civil liability for discharge decisions.” Id. at 512. The Iowa high court also concluded that liability for discharge of a patient would chill the physician’s decision-making and threaten the integrity of the civil commitment system. Id.
¶ 76. In Adams v. Board of Sedgwick County Commissioners, 214 P.3d 1173 (Kan. 2009), which reinforced an earlier decision of the Kansas Supreme Court, Boulanger v. Pol, 900 P.2d 823 (Kan. 1995), the court specifically rejected the Ohio Supreme Court’s holding in Margan. In Boulanger, the Kansas high court had concluded that a mental health professional has no duty to third parties who are injured by an attack from a released voluntary patient, and no duty to initiate an involuntary commitment proceeding. Adams, 214 P.3d at 1184 (citing Boulanger, 900 P.2d at 823). The court in Adams reiterated this holding, particularly [369]*369differing with the Morgan analysis that the duty to the patient and the duty to third parties are the same. Id. It also expressed concern as to whether the policy of holding patients in the least restrictive environment would be consistent with a broad liability rule. Id.
¶ 77. Here, the parties’ arguments, joined by amicus curiae representing the mental health provider community, mirror the arguments in the cases described above. The briefs provide us with cites to, and excerpts from, articles and studies that support or oppose the claim that mental health provider liability of the type sought here will cause an increase in unjustified commitments and abandonment of treatment-in-the-least-restrictive-environment requirement, as well as the claim that mental health professionals cannot predict dangerousness with sufficient accuracy to act on their prediction. While these studies inform our decision, we do not find sufficient consensus to act primarily on them. They do suggest, however, that whatever decision we reach in this case, the liability issues are appropriate for legislative action, as has happened in many other states, to consider more thoroughly the policy arguments and evidence.
¶ 78. Returning to the parties’ arguments, both plaintiffs and defendants contend that we have essentially decided this case with respect to the duty not to release, with plaintiffs relying upon the broad statement of duty in Peck and defendants relying upon the limitations on duty imposed by Sorge. We conclude that defendants have the stronger support of this aspect of the arguments. It would be difficult for us to reconcile the holding in Sorge with a holding that the Retreat had a duty not to release E.R. as a matter of public protection. In saying this, we specifically reject reliance on the Restatement (Third) of Torts § 41(b)(4)’s special rule for mental health professionals. We conclude that if mental health professionals have a broad duty of public protection to institutionalize patients who may be dangerous, child protection workers would have a similar duty to institutionalize a juvenile who may be dangerous to the public. Our decision in Sorge rejects such a duty.
¶ 79. We are also reluctant to impose on mental health professionals a duty to third persons generally to seek to prevent the release of a voluntary patient. We are concerned by the broad scope of such a duty and its consequences on the mental health [370]*370system. See 18 V.S.A. § 7251(8); In re R.L., 163 Vt. 168, 173, 657 A.2d 180, 184 (1995) (stating that this Court requires consideration of voluntary alternatives first before resorting to involuntary order because involuntary treatment for mental illness is massive curtailment of liberty often resulting in social stigmatization). In Sorge, we recognized the conflict between the state’s obligation to rehabilitate the juvenile involved and the obligation to protect the public. 171 Vt. at 177, 762 A.2d at 820. We resolved that conflict decisively in favor of rehabilitation in a noninstitutional setting. Consistent with Sorge, we must resolve the conflict in the same way here. Thus, we elect not to impose a duty.
¶ 80. We also reject on narrower grounds plaintiffs’ claim that defendant Brattleboro Retreat can be liable for negligent performance of an undertaking under § 824A of the Restatement (Second) of Torts. That section requires plaintiffs to show one of three circumstances. The only one possibly applicable in this case is § 824A(a): that defendants’ “failure to exercise reasonable care increases the risk of such harm.” The standard of comparison for this subsection is not the risk of harm created if defendant exercised reasonable care, as under that standard the element would always be met. Instead, the standard is the risk of harm that would be present if defendant never undertook to render the services. Plaintiffs cannot show, and do not allege, that defendant’s care increased the risk to third persons. Murphy v. Sentry Ins., 2014 VT 25, ¶ 28, 196 Vt. 92, 95 A.3d 985.14 Therefore, § 324A does not apply.
¶ 81. Finally, our holding on these counts of the complaint against the Retreat apply equally against NKHS, the outpatient service provider. Indeed, courts have held that duties to control are lesser in outpatient programs because the ability to control the behavior of the patient is more limited. See Santana v. Rainbow Cleaners, Inc., 969 A.2d 653, 665-66 (R.I. 2009). Plaintiffs alleged in count VI that NKHS had a duty to treat E.R. such that the risk of harm to the public would be reduced. We decline to impose such a duty. For the reason expressed above with respect to the Retreat, we hold that Restatement (Second) of Torts § 824A does not impose a duty to the public on NKHS to [371]*371exercise reasonable care in its undertaking to provide services to E.R.
¶ 82. We emphasize the narrowness of our ruling today. The question before us in connection with this motion to dismiss is whether we can conclude beyond doubt that “there exist no facts or circumstances that would entitle the plaintiff to relief.” Bethel v. Mount Anthony Union High Sch. Dist., 173 Vt. 633, 634, 795 A.2d 1215, 1217 (2002) (mem.) (quotations omitted). Even applying this liberal standard, we have concluded that defendants had no duty enforceable by a third party to treat E.R., to seek involuntary commitment of E.R., or to adopt a particular discharge plan. The only potential duty we recognize in this case, as in Peck, involves a duty to provide certain information in a specific class of cases. That duty applies when a caregiver is actively engaging with the patient’s provider in connection with the patient’s care, the patient’s treatment plan (or in this case, discharge plan) substantially relies on that caregiver’s ongoing participation, and the caregiver is himself or herself within the zone of danger of the patient’s violent propensities.15 The information to be conveyed is reasonable information to notify the caregiver of the risks, and of steps he or she can take to mitigate the risks. This duty is, in turn, limited by HIPAA and any other applicable statute restricting such disclosures. A provider has no duty to convey any information in violation of HIPAA.16
¶ 88. We also note the significant obstacles this and similar claims face. In addition to proving the necessary facts to establish the limited duty recognized above, plaintiffs here will have to establish the content of the reasonable disclosure, and a failure to provide that information. Not only must plaintiffs prove duty and breach, they will have to prove causation — that any failure to [372]*372inform they can prove was more likely than not a but-for cause of their injuries.
¶ 84. In summary, we hold that counts II and V of plaintiffs’ complaint (the “failure to warn” counts), as construed to include elements of count III (the “failure to train” count that was otherwise properly dismissed) state causes of action that survive a motion to dismiss. In all other respects, the motion to dismiss was properly granted. As discussed in the foregoing paragraphs, we do not adopt § 41 of the Restatement (Third) of Torts.
Affirmed on, plaintiffs’ failure-to-treat, failure to train, and negligent-undertaking claims. Reversed and remanded, on, the failure-to-inform claims, 'which as set forth above, incorporate some elements of what plaintiffs described as a distinct “duty to train."
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Cite This Page — Counsel Stack
2016 VT 54A, 156 A.3d 436, 203 Vt. 328, 2016 Vt. LEXIS 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carole-kuligoski-individually-and-on-behalf-of-michael-j-kuligoski-and-vt-2016.