Tort "reformers" write opinion that is self-described as "unjust" and lacking common sense
Richard Whitbeck, one of Governor Engler's hand-selected insurance industry apologists, wrote an opinion for the Court of Appeals protecting medical malpractice insurers from liability. The case is DawesReuvan v. Bar-Levav. In a 2-1 decision, Whitbeck ruled that a patient shot by a schizophrenic former patient could not sue the treating psychiatrist for his negligence
After a six-day trial (which by all accounts was carefully and thoughtfully conducted), an Oakland County jury determined that Dawes' psychiatrist had been negligent by including the allegedly violent and hostile shooter in a group therapy session. The jury returned a verdict for Dawes and against the psychiatrist, holding him responsible, in part, for the death and injuries caused by the shooter.
Judge Whitbeck reversed the jury, however, and ruled that a statute codifying the common law duties of health professionals had the effect of eliminating the psychiatrist's duty to protect identifiable potential victims from foreseeable violence. Historically, the common law has held mental health professionals responsible for injuries caused by patients, if there was a direct risk to a particular, identifiable third-party and the risk was reasonably foreseeable.. Judge Whitbeck's confused opinion stumbles its way through a biased analysis that rationalizes eliminating the latter historical duty, but places the blame on the Legislature.
In its conclusion, Whitbeck's own opinion "acknowledge[s] that the evidence presented at trial was compelling proof that defendants knew or should have know that [the patient] posed a danger to the other patients in his therapy group and, therefore, should not have been placed in group therapy. Therefore it is an unfair result to shield defendants from liability in this case. Common sense ...would seem to justify holding defendants accountable." (Emph. supp.)
Nevertheless, Whitbeck did not hold the Defendants accountable because he could not trace the threat to Plaintiff to the lips of the shooter, as he believes the law requires. This is tort reform at its finest. An opinion parsing statutory language to achieve an unjust result that is admittedly at odds with common sense. Welcome to Michigan jurisprudence, where victims and consumers receive as much justice as the Chamber of Commerce will tolerate. Increasingly, we are embarrassed at what passes for "justice" in this state.