NURSE SUBJECT TO 'FIREMAN'S RULE' IN SUIT AGAINST ALZHEIMER'S PATIENT

May 28, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

Carving out an exception to the general rule on tort claims against "a mentally deficient person," the New Jersey Supreme Court ruled that a health care worker may not sue a mentally incompetent patient for personal injuries. Berberian v. Lynn, 2004 WL 726176, 2004 WL 726176 (N.J., April 6).

Providing useful history on an increasingly important question, Justice John E. Wallace Jr. recounted:

"Generally, the reasonable person standard applies to a mentally deficient person.

"Restatement (Second) of Torts, section 283B (1965) provides that, 'Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.' "

Comment b of section 283B states, "The rule that a mentally deficient adult is liable for his torts is an old one, dating back at least to 1616, at a time when the action for trespass rested upon the older basis of strict liability, without regard to any fault of the individual."

Quoting comment b, Wallace noted that the rule's "persistence in modern law" has been justified based on the following:

"1. The difficulty of drawing any satisfactory line between mental deficiency and those variations of temperament, intellect and emotional balance which cannot, as a practical matter, be taken into account in imposing liability for damage done.

"2. The unsatisfactory character of the evidence of mental deficiency in many cases, together with the ease with which it can be feigned, the difficulties which the triers of fact must encounter in determining its existence, nature, degree and effect; and some fear of introducing into the law of torts the confusion which has surrounded such a defense in the criminal law. Although this factor may be of decreasing importance with the continued development of medical and psychiatric science, it remains at the present time a major obstacle to any allowance for mental deficiency.

"3. The feeling that if mental defectives are to live in the world they should pay for the damage they do, and that it is better that their wealth, if any, should be used to compensate innocent victims than that it should remain in their hands.

"4. The belief that their liability will mean that those who have charge of them or their estates will be stimulated to look after them, keep them in order, and see that they do not do harm."

Under the Restatement, Wallace continued, a "reasonable person" is "a person exercising those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others." Section 283, comment b.

The Restatement also "recognizes that 'allowances must be made for some of the differences between individuals, the risk apparent to the actor, his capacity to meet it and the circumstances under which he must act.' Section 283, comment c.

"However, the Restatement limits the distinction with respect to the standards of care governing the tort liability of children and physically disabled persons, but not mentally disabled persons. See section 283A (providing that a child must conform his or her conduct to that of 'a reasonable person of like age, intelligence and experience under like circumstances'); see also section 283C (providing that a physically disabled individual must conform his or her conduct to 'that of a reasonable man under like disability').

"An early case creating an exception to the Restatement's rule governing tort liability for the mentally incompetent was Anicet v. Gant, 580 So.2d 273 (Fla. Dist. Ct. App.). In Anicet, the defendant, a violently insane patient, injured the plaintiff, a hospital attendant responsible for treating and restraining the defendant. The plaintiff was aware of the defendant's propensity for violence. The court held that 'no duty to refrain from violent conduct arises on the part of a person who has no capacity to control it to one who is specifically employed to do just that.'

"The court's decision was based largely on an analysis of the parties' relationship. First, the court indicated that the plaintiff was not wholly innocent because 'he was employed to encounter, and knowingly did encounter, just the dangers which injured him.'
"The court found the 'fireman's rule' analogous, and quoted one of [the New Jersey] court's rulings: 'Stated affirmatively, what is meant is that it is the fireman's business to deal with that very hazard, and hence ... he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid.'

"Second, the Florida court noted the existence of workers' compensation for the injured plaintiff. Third, while analyzing the defendant's condition, the court opined that it would be unjust to impose liability on a defendant, 'who has no control over his actions and is thus innocent in any wrongdoing in the most basic sense of the term.' Finally, the court recognized that the defendant, his relatives, and society did as much as they could to protect others from the defendant's violence by confining him in the most restricted area of a restricted institution.

"In Gould v. American Family Mutual Insurance Co., 198 Wis.2d 450, 543 N.W.2d 282, 283 (Wis. 1996), the Supreme Court of Wisconsin addressed whether an institutionalized individual who has a mental disability and who does not have the capacity to control or appreciate his or her conduct can be liable for injuries caused to his or her paid caretaker. There, the plaintiff was the head nurse at a health center's dementia unit and took care of the defendant, an Alzheimer's patient.

"The center's records indicated that the defendant was often disoriented, resistant to care and occasionally combative. On one occasion, the plaintiff attempted to redirect the defendant to his own room by touching him on the elbow. In response, he knocked her to the floor, causing the plaintiff to suffer personal injuries.

"The plaintiff sued the defendant's insurer. At trial, the court instructed the jury to disregard any evidence related to the defendant's mental condition and to determine his negligence under the objective, reasonable person standard. On interlocutory appeal, the appellate court reversed the judgment, holding that 'a person may not be held civilly liable where a mental condition deprives that person of the ability to control his or her conduct.'

"The Supreme Court of Wisconsin affirmed and held that 'an individual institutionalized ... with a mental disability, and who does not have the capacity to control or appreciate his or her conduct cannot be liable for injuries caused to caretakers who are employed for financial compensation.'

"First, the court reasoned that '[the plaintiff], as head nurse of the secured dementia unit and [the defendant's] caretaker, had express knowledge of the potential danger inherent in dealing with Alzheimer's patients in general and [the defendant] in particular.'

"Second, the court declared that it would be unfair to find the defendant negligent under those circumstances because his disorientation and potential for violence were the very reasons he was institutionalized.

"Third, the court noted that the defendant's relatives should not be held responsible because they did everything they could to restrain him when they placed him in a secured dementia unit of a restricted health care center.

"Lastly, the court rejected the argument that the Restatement's objective standard of care should be applied to prevent tortfeasors from 'simulat[ing] or pretend[ing] insanity to defend their wrongful acts.' The court explained that the notion of a person simulating the symptoms of Alzheimer's disease over a period of years in order to avoid future liability was simply not believable.

"Recently, the Supreme Court of Indiana held that no duty of care exists between a mentally disabled individual residing in a nursing home and a professional health care worker employed by the nursing home. Creasy v. Rusk, 730 N.E.2d 659 (Ind. 2000). There, the plaintiff, a certified nursing assistant, sued the defendant, a patient with Alzheimer's disease, for personal injuries that resulted when he kicked her while she was trying to put him to bed. The plaintiff knew the defendant had Alzheimer's disease and was aware of his combative and resistant behavior resulting from the disease. The court held that, due to the relationship between the parties and public policy concerns, the defendant owed no duty of care to the plaintiff. The court further found the fireman's rule to be an analogous situation."

"Several legal commentators favor the use of a no-duty rule in the relationship between the mentally disabled patient and his or her caregiver. See Edward P. Richards, 'Public Policy Implications of Liability Regimes for Injuries Caused by Persons with Alzheimer's Disease,' 35 Ga. L.Rev. 621, 639- 47 (2001); Sarah Light, 'Rejecting the Logic of Confinement: Care Relationships and the Mentally Disabled Under Tort Law,' 109 Yale L.J. 381, 400 (1999).

"Professor Richards argues in favor of the no-duty rule and, like the decisions analyzed above, recognizes some commonalities between the caregiver's situation and that of a fireman, who is subject to the fireman's rule. He notes that taxpayers who contract for fire services are similar to nursing home residents who contract for care with nursing homes. However, he points out the nursing home then enters into a contract with the caregivers to perform the hands on care the residents need.

"Noting there is no direct contract between the residents and the caregivers, he states that 'caregivers accept that their compensation [for any injuries caused by a patient's aggression] will be limited to that available through workers' compensation.' Thus, the burden of compensating health care workers injured by mentally disabled patients shifts to the employer through the patients' contract for care. Professor Richards favors that approach because it focuses on 'the contractual reallocation of the method and form of compensation ... obviates the need to assess the competence of the patient and ... removes the patient as a party to the litigation.'

"We are persuaded by the reasoning of ... the out-of-state authorities. We hold that a mentally disabled patient, who does not have the capacity to control his conduct, does not owe his or her caregiver a duty of care."

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