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27 Mental & Physical Disability L. Rep. 157 (2003)
Liability/Professional Issues

handle is hein.journals/menphydis27 and id is 159 raw text is: LiabllltylProfesslonal Issues used to support his opinion that plaintiff's complaints of pain were greater than that documented clinically. Also, no objective basis existed for the functional capacity examination's conclusion that her complaints of pain prevented her from showing her full potential, and her file contained several medical notations that she endures times of more severe pain than others. Further, the plan administrator failed to meet its burden of showing that it did not have more of a financial interest in denying plaintiff's claims than it did in granting benefits. Migliaro v. IBM Long-Term Disability Plan, 231 F Supp. 2d 758 (M.D. Fla. 2002). Liability/Professional Issues Residential Facility; Third-Party Liability; Duty to Control; Special Relationship; Foreseeable Harm; Public Policy The Texas supreme court ruled that a residential home for persons with mental disabilities could be held liable to the family of a woman who was murdered by a patient with mild mental retardation who was on weekend release. The home and the patient shared a special relationship, there was a reasonable foreseeability of harm to the decedent, and public policy considerations weighed in favor of imposing liability. Texas Home Mgmt., Inc. v. Peavy, 89 S. W.3d 30 (Tex. Sup. Ct. 2002). Anthony Dixon was committed to the custody of the Department of Mental Health and Mental Retardation (MHMR) for an indefinite period after he was taken into custody for criminal mischief, evading arrest, theft, and burglary. He was later admitted to Lakewood House, a facility providing residential services to persons with mental disabilities. Texas Home Management (TMH) owned and managed Lakewood. Although Dixon had committed several violent acts during his stay at Lakewood, he was allowed weekend leave to visit his mother. While on leave, he shot and killed Elizabeth Peavy. Her survivors sued TMH, alleging negligence in failing to control Dixon. The district court granted TMH summary judgment, finding it did not have a duty to the Peaveys under Texas law. The appeals court reversed, holding that a special relationship existed between TMH and Dixon sufficient to impose a duty on TMH to control Dixon's behavior. See 7 S.W.3d 795 (Tex. Ct. App. 1999), 24 MPDLR 308. The state high court affirmed. The question of legal duty is a multi-faceted issue requiring the balance of three factors: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations. See Graffv. Beard, 858 S.W.2d 918 (Tex. Sup. Ct. 1993). Generally, there is no duty to control the conduct of others, but this rule does not apply when a special relationship exists between an actor and another that imposes upon the actor a duty to control the other's conduct. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523 (Tex. Sup. Ct. 1990). Here, TMH had sufficient control over Dixon to create a special relationship. The court rejected TMH's reliance on Van Horn v. Chambers, 970 S.W.2d 542 (Tex. Sup. Ct. 1998), 22 MPDLR 656, in which the court found no special relationship existed between a doctor and his patient. TMH's control over Dixon was greater than the control ordinarily exercised by a doctor over a patient. TMH provided Dixon not only with room and board, but also with a plan for his training and treatment. Professionals employed by TMH continually monitored and reported on Dixon's progress to the state. This is in contrast to the limited and specific treatment provided by the defendant doctor in Van Horn. Dixon's unsupervised visit to his mother's home presented an unreasonable and foreseeable risk of harm to others. He was involved in 19 assaults, seven other incidents of criminal conduct, and nine incidents of verbal threats while he resided at Lakewood Home. Dixon engaged in more serious criminal conduct during his brief visits to his mother's home. These incidents-including burglarizing an apartment and threatening its occupant, trespassing on private property, committing assault with a handgun, and stealing two cars-suggest that Dixon was prone to theft and violence, especially during trips to his mother's home where he lacked supervision, and that TMH should have foreseen the danger inherent in these trips. Finally, there is an important interest in protecting the public from dangerous individuals who are already subject to the state's supervision and control. See Perreira v. Colorado, 768 P.2d 1198 (Colo. Sup. Ct. 1989),13 MPDLR 381. TMH argued that requiring it to control its residents imposes an unreasonable burden that may adversely affect the availability of services for those with mental retardation. However, it is not unreasonable to expect a facility that takes charge of persons likely to harm others to exercise reasonable care in its operation to avoid foreseeable attacks by its charges upon third persons. See Nova Univ., Inc. v. Wagner, 491 So. 2d 1116, 1118 (Fla. Sup. Ct. 1986), 10 MPDLR 566. The concurring judges thought the majority adopted a duty too broad to adequately protect the rights of those with mental retardation, resulting in unnecessary restriction of their rights in cases where facilities fear civil liability for their treatment decisions. The concurrence would impose a duty on facilities, such as TMH, to notify MHMR and appropriate law enforcement officials of patients' criminal or violent behavior, rather than a duty to control all persons with mental retardation who have exhibited some criminal or violent behavior. Because TMH had not established that it discharged its duty to report to MHMR and to report non-confidential information about Dixon's violent behavior to law enforcement officials, the concurrence agreed with the majority that the case must be remanded to the trial court. The dissent disagreed that TMH had the requisite control over Dixon. Nothing in the standard form contract between January February 2003 27:1 MPDLR

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