I. UNNECESSARY HOSPITALIZATION/FALSE IMPRISONMENT

Anderson v. Village of Forest Park, 606 N.E.2d 205 (Ill.App.Ct. 1992)(seizure and involuntary hospitalization by police officers and paramedics may give rise to constitutional claims under 4th Amendment which is not subject to state immunity provisions of mental health code or tort claims act; assault and battery claims are precluded by immunity provisions of mental health code, but not tort claims act since they are intentional acts; removal of plaintiff from house for evaluation at local clinic is discretionary decision protected by state immunity)

Arthur v. Lutheran Gen. Hosp., Inc., 692 N.E.2d 1238 (Ill.App.Ct.1998)(false imprisonment cause of action exists for an individual involuntarily committed in violation of the statutory time limit)

Bass v. Parkwood Hosp., 180 F.3d 234 (5th Cir. 1999)(a private hospital, its hospital counselor and the county in which it is sited were not state actors and could not be held liable in a civil rights action brought by a man who was involuntarily civilly committed to the hospital after he sought out-patient counseling; the hospital and the counselor could be held liable for false imprisonment and malicious prosecution under state (Mississippi) law)

Bodor v. Horsham Clinic, 1995 WL 472111 (E.D.Pa. 1995)(court dismisses a civil rights and false imprisonment suit by man who was involuntarily transported to a hospital emergency room and then committed to a mental health clinic, finding that hospital and doctors were not state actors and that they were acting pursuant to state statute)

Boston v. Lafayette County, 743 F.Supp. 462 (N.D.Miss. 1990)(detention of mentally ill detainee in jail itself did not violate due process; deviation from county's standard practice, rather than practice itself, significantly contributed to detainee's death)

Bowles v. New York, 617 N.Y.S.2d 712 (N.Y.App.Div. 1994)(man who claims state negligently diagnosed him as mentally retarded and subsequently confined him for five years filed timely claim for negligence and false imprisonment; state is estopped from claiming the man has no disability which would toll the statute of limitations since it committed him)

Brand v. University Hosp., 525 S.E.2d 374 (Ga. Ct. App. 1999)(factual dispute existed as to whether a hospital that detained a woman in psychiatric ward for nearly two days after she had a seizure acted intentionally to confine her)

Celestine v. United States, 841 F.2d 851 (8th Cir. 1988)(hospital staff was justified in placing patient under restraint and detaining him until he could be examined by staff psychiatrist, and that no false imprisonment or battery had occurred)

Clark v. Cohen, 794 F.2d 79 (3rd Cir. 1986)(damages awarded for unnecessary/excessive institutionalization)

Caminero v. Rand, 882 F.Supp. 1319 (S.D.N.Y. 1995)(person committed to state hospital for evaluation without any notice of the reason for his confinement or the opportunity to challenge the confinement, without a determination of whether the evaluation could be conducted in less restrictive setting, and without any independent finding of dangerousness stated a civil rights claim against the hospital)

Chadwick v. Al-Basha, 692 N.E.2d 390 (Ill.App.Ct. 1998)(because a mental patient's suit against a psychiatrist alleged violations of the Mental health and Development Disabilities Code rather than malpractice, patient did not have to produce affidavits and reports as required for a malpractice action)

Crain et al. v. Martinez, et al, 1994 WL 391672 (M.D.Fla. 1994)(court dismissed §1985 claims against private defendants and county school board for conspiring to detain minor in mental health facility but permitted §1983 claims to proceed; court also found that a social worker was neither a health care provider nor a professional under state laws governing the statute of limitations for malpractice actions)

Crawford v. Regents of the University of California, 13 Cal. Rptr. 2d 278 (Cal.Ct.App. 1992)(court affirms award of $52,000 for six day illegal detention and involuntary medication of psychiatric patient by university hospital and physicians; court rejects statutory immunity for good faith commitment because it was in violation of a court order)

Cunningham v. South Lake Center for Mental Health, 924 F.2d 106 (7th Cir. 1991)(where private medical contractor in state prison discharges employee for reporting resident abuse, discharge is not actionable under §1983, since contractor is not state actor; court rejects arguments that contractor was designee of warden, acted in concert with warden, or had delegated authority from warden)

Demarco v. Sadiker, 952 F.Supp. 134 (E.D.N.Y. 1996)(material dispute of fact precludes summary judgment on claim that psychiatrist's inadequate evaluation resulted in patient's unnecessary hospitalization)

Dick v. Watonwa, 562 F.Supp. 1083 (D.Minn. 1983)(illegal confinement creates liability)

Di Cola v. Fulmele, 1994 WL 171352 (E.D.Pa. 1993)(complaint sufficiently alleged joint action between private psychiatrist and police officers as to render the former's actions taken under color of state law; hospital is dismissed as not being liable for doctor's decisions)

Doby v. DeCrescenzo, 171 F.3d 858 (3d Cir. 1999)(individual's due process rights were not violated when she was involuntarily committed after writing a letter to her employer that contained suicidal references; she cannot bring a §1983 action against the employer because he was entitled to qualified immunity; she cannot bring a §1983 action against the evaluating physician because his conduct did not amount to gross negligence or willful misconduct)

Doby v. DeCrescenzo, 1995 WL 385100 (E.D.Pa. 1995)(court refuses to dismiss claim by woman whose boyfriend conspires with co-workers at mental health center to involuntarily admit her to psychiatric hospital when she ends relationship with him)

Florida v. Lee, 655 So.2d 304 (Fla.Dist.Ct.App. 1995)(court reverses jury verdict holding state agency liable to female resident of DD facility who gave birth to child; agency was entitled to immunity for discretionary act of allowing woman with mental retardation access to normal opportunities and risks of pregnancy)

Foshee v. Health Management Associates, 675 So.2d 957 (Fla.Dist.Ct.App. 1996)(woman who was coerced and deceived into signing a voluntary application had claim for false imprisonment against psychiatric center, its doctor and nurse; since complaint did not involve allegations of medical malpractice, pre-suit notice is not required; court rejected a constitutional claim since private doctors and clinic were not state actors)

Gooden v. Howard County, Md., 954 F.2d 960 (4th Cir. 1992)(police officers are immune for detaining citizen and transporting her to hospital for psychological evaluation, based upon mistaken belief that sounds of male and female voices in apartment was product of multiple personality)

Glass v. Mayas, 794 F.Supp. 470 (E.D.N.Y. 1992)(physicians entitled to qualified immunity for decision to involuntarily hospital based upon reasonable belief of danger to others)

Halvorsen v. Baird, 146 F.3d 680 (9th Cir. 1998)(the confinement of a detainee for six hours overnight in a private detoxification facility was not too short to trigger a due process right to an opportunity to communicate with someone outside the facility, for purposes of the detainee's §1983 claim against the facility for being held incommunicado)

Higgins v. City of Oneonta, 617 N.Y.S.2d 566 (N.Y.App.Div. 1994)(pursuant to state statute, police lawfully took into custody man with mental illness who did not present immediate danger to self or others; statute made officer's detention privileged, precluding claims of false arrest and false imprisonment)

In re J.M., 556 Pa. 63 (Pa.Sup.Ct.1999) (state high court reversed appeals court and found woman's due process rights were not violated when she was served with a warrant for an emergency mental health evaluation; high court ruled appeals court erroneously applied probable cause inquiry required for criminal warrants and not less stringent reasonable grounds requirement applicable to warrants for emergency mental health evaluations; high court found reasonable grounds to believe JM was mentally disabled and in need of immediate treatment)

James H. v. Ohio D.M.H., 439 N.E.2d 437 (OhioCt.App. 1982)(inappropriate institutionalization results in finding of liability)

Kennedy v. Shafer, 71 F.3d 292 (8th Cir. 1995)(voluntary patient in state psychiatric facility may have been effectively deprived of ability to act on her own and leave the hospital, thereby becoming a de facto involuntary patient who is entitled to constitutional protection from harm)

Kulak v. City of New York, 88 F.3d 63 (2d Cir. 1996)(physicians exercised reasonable professional judgment in evaluating and committing and medicating person with mental illness; confinement claims are barred by issue preclusion since these claims had been unsuccessfully raised in habeas action)

Lee v. Alexander, 607 So.2d 30 (Miss.S.Ct. 1992)("voluntary admission" to private hospital, signed by adult person's mother, is invalid circumvention of state commitment law; court reverses dismissal of false imprisonment action against private hospital, mental health center, and private physician)

Liles v. P.I.A. Medfield, 681 So.2d 711 (Fla.Dist.Ct.Ap. 1996)(malpractice pre-screening requirements do not apply to false imprisonment case based upon failure to comply with statutory commitment requirements)

Lubera v. Jewish Association for Services for the Aged, 1996 W.L. 426375 (S.D.N.Y. 1996)(inadequate evaluation and inappropriate determination that person is dangerous present a triable claim of false imprisonment and malpractice; claims against hospital and social service agency are dismissed for lack of evidence of any policy of committing non-dangerous persons)

Manley v. Manley, 353 S.E.2d 312 (S.C.Ct. App. 1987)(court affirms dismissal of suit by mother against two children and husband for involuntarily committing her to hospital)

McKinney v. George, 726 F.2d 1183 (7th Cir. 1984)(no liability for good faith commitment)

Moore v. Wyoming Medical Center, 825 F.Supp. 1531 (D.Wyo. 1993)(seizure by police and paramedics and involuntary transportation to mental health clinic may give rise to constitutional and state law causes of action; the private defendants not entitled to immunity under Wyatt v. Cole and the municipality is not entitled to immunity under Monell)

Murphy v. Lynn, 903 F.Supp. 629 (S.D.N.Y. 1995)(in malicious prosecution action, plaintiff must prove a post-confinement deprivation which rises to the level of a constitutional violation)

M.V. v. Charter Terre Haute Behavioral Health Sys.,Inc., 706 N.E.2d 1083 (Ind.Ct.App. 1999) (voluntarily-admitted patient's claim that he had been detained at a mental health facility after he filed a written request for release constituted a claim for false imprisonment, not medical malpractice)

Orwick v. Fox, 828 P.2d 12 (Wash.Ct.App. 1992)(summary judgment was properly entered in favor of state employees on arrestee's claims for deprivation of federally protected rights and for assault, false imprisonment and outrage arising from medical treatment given while defendant was under police hold)

Petty v. Texas Department of Mental Health & Retardation, 848 S.W.2d 680 (Tex.S.Ct. 1992)($550,000 for excessive and unnecessary institutionalization; award reduced to $250,000 because of state tort claims cap; no finding of constitutional violations)

Pino v. Higgs, 75 F.3d 1461 (10th. Cir. 1996)(police officers were entitled to qualified immunity since they acted reasonably and in conformity with New Mexico's civil commitment statute when they detained and transported an individual alleged to be suicidal to a psychiatric facility)

Plumadore v. New York 427 N.Y.S.2d (N.Y.App.Div. 1980)(liability for improper admission)

Reese v. Nelson, 598 F.2d 822 (3rd Cir. 1983)(qualified, good faith immunity for improper hospitalization)

Reida v. Cape Cod Hospital, 634 N.E.2d 122 (Mass.App.Ct. 1994)(emergency detention provision of the Massachusetts civil commitment statute did not require a hands-on physical or psychiatric examination before seeking the involuntary detention of a person on the basis of mental illness; the physician who applies for an involuntary admission has a different role and lesser responsibility than the doctor who actually admits)

Reiser v. Prunty, 727 P.2d 538 (Mont.Sup.Ct. 1986)(three-day involuntary hospitalization, undertaken without compliance with certain procedures and which promptly results in release, does not entitle resident to damages for violation of emergency detention statute)

Riffe v. Armstrong, 477 S.E.2d 535 (W.Va.Sup.Ct. 1996)(where hospital psychiatrist falsely asserts that he examined person before filing commitment papers, there is valid claim for false imprisonment, unnecessary restraint, malpractice, and intentional infliction of emotional distress)

Ringuette v. City of Fall River, 146 F.3d 1 (1st Cir.1998)(police officers had qualified immunity in detaining an individual in protective custody beyond 12 hours even though Massachusetts statute's 12-hour limitation on protective custody was intended as a fundamental limitation on state authority to hold an apparently intoxicated person; although further confinement could be an unreasonable seizure, the unreasonableness was mitigated by officers' offers to release the person, which were refused, the belief he remained incapacitated and the implicit willingness to release him when he said he was ready)

Rodriguez v. City of New York, 72 F.3d 1051 (2d Cir. 1995)(doctors who committed person with mental illness may be liable in damages for wrongful confinement if decision violated accepted standards of professional judgment in evaluating and treating persons petitioned for emergency detention; assessment of proper professional standards is jury question and cannot be resolved on summary judgment)

Rzayeva v. Foster, 134 F.Supp.2d 239 (D.Conn. 2001)(police officer's actions in having an individual removed from her apartment and subjected to a mental examination at a hospital did not violate the due process clause because the officer had reasonable cause, under the Connecticut statute governing civil confinement, to believe the individuals was a danger to self or others)

Sassali v. DeFauw, 696 N.E.2d 1217 (Ill.App.Ct. 1998)(initially authorized detention under the mental health code can become a false imprisonment when there is failure to comply with filing requirement for commitment procedure)

Sutkiewicz by Sutkiewicz v. Carlson, 850 F.Supp. 579 (E.D.Mich. 1994)(plaintiff committed to psychiatric institution after he was charged with murder sued detectives who charged him. It was jury question whether plaintiff would have been subject to continued commitment in absence of murder charge, since evaluating psychiatrist said he was very much influenced by belief that probable cause existed to believe plaintiff had committed murder)

Tracz v. Charter Centennial Peaks Behavioral Health Sys., Inc., 9 P.3d 1168 (Colo. Ct. App. 2000)(court upheld dismissal of false imprisonment suit brought by an involuntarily committed patient because due process does not require an in-person evaluation by a physician prior to a 72-hour commitment; court upheld dismissal of patient's medical negligence claim because she failed to present expert testimony that the psychiatrist failed to meet required health care professional's standard of care)

Turner v. Texas Dept. of Mental Health and Mental Retardation, No. 03-95-00277-CV (Tex.Ct.App.March 6, 1997) (summary judgment affirmed for state mental health and mental retardation department and its employees who were sued for false imprisonment in both state and federal courts under a §1983 claim by an individual brought to the state hospital by police and detained on an emergency basis, examined and found to have mental illness)

Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987)(court affirms verdict of $315,000 in compensatory and punitive damages for false arrest and detention of disabled person in state hospital)

Williams v. Lopes, 64 F.Supp.2d 37 (D.Conn.1999)(police officers who seized and transported an individual to a hospital psychiatric ward for involuntary commitment were entitled to qualified immunity as to §1983 claims of unlawful seizure of plaintiff's person, use of excessive force and unlawful re-entry of residence because they had reasonable belief that she was dangerous to herself and others and in need of immediate treatment; examination at the hospital revealed superficial abrasions, and the officers re-entered the residence to collect items for temporary care of her child and seek information to enable them to contact family members)

Yeager v. City of Claflin, 1998 WL 160997 (D.Kan. Mar. 4, 1998)(man's threats to kill himself and/or his children gave police probable cause to arrest him and take him to a hospital for a mental health evaluation)

Young v. City of Philadelphia, C.A. 95-2948 (E.D.Pa. May 31,1996)(police counselor who threatens officer into voluntary committing herself is not entitled to qualified immunity in case alleging false imprisonment, even though psychiatrist ultimately determined that officer needed mental health treatment)

II. FAILURE TO HOSPITALIZE

Brown v. Carolina Emergency Physicians, 560 S.E.624 (S.C.App. 2001)(psychologist was qualified to testify as an expert in the diagnosis and treatment of mental illness; his affidavit could be a causal link to show that an emergency physician's failure to diagnose and treat a patient's acute delusional psychosis proximately caused the patient to kill her 16-month-old son; however, patient's need for involuntary hospitalization not supported because there was no evidence that she posed a danger to herself or others)

Clark v. N.Y., 472 N.Y.S.2d 170 (N.Y.App.Div. 1984)(liability for failure to institutionalize person with disability)

Gilchrist v. City of Linonia, 599 F.Supp. 260 (E.D.Mich. 1984)(liability for failure to institutionalize person with disability)

Gilmore v. Buckley, 608 F.Supp. 554 (D.Mass. 1985), aff'd. 787 F.2d 714 (1st Cir. 1986)(no duty to hospitalize; no claim under §1983)

Hamman v. Co. of Maricopa, 775 P.2d 1122 (Ariz.Sup.Ct. 1989)(psychiatrist has duty to protect public, at least where victim is identifiable or in zone of danger, even in absence of specific threats)

Laird v. Naidu, 539 A.2d 1064 (Del.Sup.Ct. 1988)(psychiatrist is liable for $1.4 million for releasing hospital resident who subsequently kills decedent, based upon violation of duty to protect public and to commit dangerous persons)

Miltz v. Ohel, 627 N.Y.S.2d 891 (N.Y.Sup.Ct. 1995)(parents are under no duty to commit their son, who lived in a community group home, to a more secure institution; since group home had custody of the resident, any duty would be on the home)

Paul v. Plymouth General Hospital, 408 N.W.2d 492 (Mich.Ct.App. 1987)(emergency room doctor who was not a psychiatrist had no special duty to mentally disabled woman to commit her or to refer her to psychiatric treatment, since she was admitted only for medical care)

Peterson v. Washington, 671 P.2d 230 (Wash.Sup.Ct. 1983)(liability for failure to petition for involuntary commitment)

Tolton v. American Biodyne, Inc., 854 F.Supp. 505 (N.D.Ohio 1993)(estate of man who committed suicide sued employee benefits plan and hospital and emergency room physicians for failure to provide proper treatment and violations of Emergency Medical Treatment and Active Labor Act. The court found that ERISA supercedes all state law claims against employee benefit plans and that the man was not in imminent danger when he went to hospital emergency rooms, nor was he denied treatment for lack of insurance coverage. Therefore, summary judgment was granted to all defendants)

Wilson v Formigioni, 42 F.3d 1060 (7th Cir. 1994)(voluntary patient had no entitlement to be involuntarily committed and therefore could not sue for injuries after leaving facility without authorization or supervision)

III. INADEQUATE EVALUATION

Bell v. NYC Health and Hospitals, 456 N.Y.S. 2d. 787 (N.Y.App.Div. 1982)(liability for inadequate evaluation)

Clark v. New York, 472 N.Y.S.2d 170 (N.Y.App.Div. 1984)(liability for inadequate evaluation)

Doe v. McNulty, 630 So.2d 825 (La.Ct.App. 1993)(court affirms jury award of $700,000 against doctor for failure to make timely diagnosis of HIV infection)

Fleming v. HCA Health Services of Louisiana, 676 So.2d 839 (La.Ct.App. 1996)(hospital has duty to adequately evaluate indigent patient in a suicidal emergency)

Hamilton v. Reynolds, 341 N.W.2d 152 (Mich.Ct.App. 1983)(court dismisses suit against doctor for granting pass to resident who subsequently left hospital and killed third party)

Jablonski v. U.S., 712 F.2d 391 (9th Cir. 1983)(failure to obtain records)

Jackson v. East Bay Hosp., 246 F.3d. 1248 (9th Cir. 2001)(court affirms dismissal of mental patient's medical negligence case under the Emergency Medical Treatment and Active Labor Act because ER staff provided medically adequate screening even though they misdiagnosed patient's cardiac condition as a psychological problem)

Klassette v. Mecklenburg Co. Area MH/MR and SA Auth., 364 S.E.2d 179 (N.C.Ct.App. 1988)(when friend brought disabled person to MH center for emergency care, center had duty to either admit or refer client; duty to care is not limited to persons admitted for treatment -- extends to prospective clients as well)

Kokensparger v. Athens Mental Health Center, 578 N.E.2d 916 (OhioCt.Cl. 1989)(mental health center's failure to conduct tests that would have revealed a patient's brain tumor made the center liable for his death)

Laird v. Naidu, 539 A.2d 1076 (Del.Sup.Ct. 1988)(medical director is not liable for transferring patient to open treatment ward)

Lubera v. Jewish Association for Services for the Aged, 1996 W.L. 426375 (S.D.N.Y. 1996) (inadequate evaluation and inappropriate determination that person is dangerous present a triable claim of false imprisonment and malpractice; claims against hospital and social service agency are dismissed for lack of evidence of any policy of committing non-dangerous persons)

Martin v. Smith, 438 S.E.2d 318 (W.Va.Sup.Ct. 1993)(psychiatrist's negligent evaluation, excessive medication, and inappropriate treatment of involuntarily committed resident resulted in individual's suicide; damages to mother, who had mental retardation, includes costs of her support, under liberal reading of "dependent" in wrongful death statute)

Medley v. Davis, 529 N.W.2d 58 (Neb.Sup.Ct. 1995)(court reverses summary judgment in favor of defendant psychiatrist, finding that a patient who submitted an affidavit from his treating physician challenging the appropriateness of the defendant's prescription of Stelazine raised a genuine issue of fact sufficient to defeat summary judgment)

O'Sullivan v. Presbyterian Hospital, 634 N.Y.S.2d 101 (N.Y.App.Div. 1995)(hospital and doctor negligently diagnosed and treated severely depressed man who subsequently committed suicide; although mere errors in judgment do not give rise to liability, failure to conform to professional standards of conduct would support malpractice claim)

Paul v. Plymouth General Hospital, 408 N.W.2d 492 (Mich.Ct.App. 1987)(emergency room doctor who was not a psychiatrist had no special duty to mentally disabled woman to commit her or refer her to psychiatric treatment, since she was admitted only for medical care)

Reida v. Cape Cod Hospital, 634 N.E.2d 122 (Mass.App.Ct.1994)(emergency detention provision of the Massachusetts civil commitment statute did not require a hands-on physical or psychiatric examination before seeking the involuntary detention of a person on the basis of mental illness; the physician who applies for an involuntary admission has a different role and lesser responsibility than the doctor who actually admits)

IV. INADEQUATE TREATMENT/MEDICAL CARE

Anderson v. St. Francis - St. George Hospital, 671 N.E.2d 225 (OhioSup.Ct. 1996)(hospital's decision to treat in emergency situation, despite no-code order approved by family, is negligent; however, since state does not recognize tort of wrongful life, no damages can be awarded)

Arnold ex.rel. H.B. v. Lewis, 803 F.Supp. 246 (D.Ariz. 1992)(prison officials deliberately indifferent to mental health needs of inmate who was frequently secluded without the provision of necessary psychiatric care)

Bellard v. Willis Knighton Med. Ctr., 786 So. 2d 218 (La. Ct. App. 2001)(court affirms jury verdict that ER nurse did not breach applicable standard of care in having security remove a paranoid and psychotic patient instead of notifying the ER doctor and detaining patient for treatment)

Boles v. McKinney, 443 N.W.2d 679 (Wisc.Ct.App. 1989)(hospital was negligent in care given psychiatric patient in emergency room; county was not relieved of liability on basis of public policy argument that recovery would place unreasonable burden on public hospital emergency rooms)

Bremenkamp v. Beverly Enterprises , 762 F.Supp. 884 (D.Kan. 1991)(court refuses to dismiss suit by nursing home resident who fell and broke leg due to inadequate staffing and monitoring)

Clark v. Donahue, 885 F.Supp. 1159 (N.D.Ind. 1995)(court denies summary judgment as to whether patient who was voluntarily admitted twenty-five years ago was still voluntary and therefore not entitled to constitutionally adequate care; hold harmless clause in initial admission form may be void as against public policy, because of unequal bargaining power of the parties)

Clark v. Donahue, 885 F.Supp. 1164 (N.D.Ind. 1995)(nonprofessional state hospital workers are not entitled to summary judgment on immunity grounds, since it was clearly unsafe for a patient to be housed for extended periods of time in a cold room; standard for deliberate indifference was clearly established)

Cobb v. Nizami, 851 F.2d 730 (4th Cir. 1988)(S/L bans recovery, where resident unnecessarily restrained, detained, and harmed)

Critchfield v. McNamara, 532 N.W.2d 287 (Neb.Sup.Ct. 1995)(hospital nurses have duty to report deterioration of child born with serious disabilities to doctor, in order that additional treatment could be instituted. The duty to report changes in a patient's condition is basic to appropriate medical care)

Diaz-Ferrante v. Ridell, C.A. 95-CV-5430 (E.D.Pa. Aug. 5, 1996)(psychiatrist and prison hospital which allowed suicidal inmate to refuse care without any further diagnosis or treatment were deliberately indifferent; court rejects federal and state statutory immunity defenses)

Dolihite v. Maughon, 74 F.3d 1027 (11th Cir. 1996)(adolescent who attempted suicide in state mental health facility, who is then taken off close off close observation by private psychiatrist under contract with state, and who subsequently hangs himself in room does not state claim for violation of his constitutional rights; fact that adolescent received only eight hours of treatment during seventy days of hospitalization, was restrained for fourteen hours, was held in dorm restriction for ten days, and remained in time-out for sixty-four hours did not constitute inadequate treatment and unnecessary restraint; plaintiffs' expert affidavits concerning medication, restraint, abuse, neglect, and inhumane conditions of confinement do not support finding that hospital doctors and administrator failed to exercise professional judgment, since affidavits lacked requisite specificity in describing reasons for conclusions; affidavits stating that supervising psychologist and administrator knew of client beatings and staff abuse were not sufficient to support claim of violation of clearly-established constitutional rights; even though administrator knew of danger from bar in closet which plaintiff used to hang himself, failure to remove bar did not constitute violation of clearly-established right; allegations of excessive restraint and seclusion indicated poor clinical practices but not constitutional violations; although private psychiatrists are state actors, their actions in failing to prescribe medication, provide treatment, and remove close observation did not violate professional judgment, despite plaintiff's expert affidavit stating actions were substantial departure from professional standards; social worker who was aware of adolescent's suicidal threats was not entitled to qualified immunity, but staff psychologist and private psychiatrists were, since they did not violate clearly-established rights; commissioner and associate commissioner also entitled to qualified immunity)

Drogin v. Campbell, 928 S.W.2d 205 (Tex.Ct.App. 1996) (medical treatment team at state psychiatric hospital are not immune from personal liability for discretionary medical decisions which led to person's suicide)

Ehlinger v. Sipes, 454 N.W.2d 754 (Wis.Sup.Ct. 1990)(court finds that where causal relationship between negligence and harm can only be inferred, it is sufficient for the plaintiff to prove that the omitted treatment was intended to prevent harm which occurred, and that treatment could have lessened or avoided resultant injury)

Erbstoeszer v. American Casualty Co, 486 N.W.2d 549 (Wis.Ct.App. 1992)(lack of supervision by nurse while accompanying hospital resident on grounds, who is injured from fall, does not violate state statutory right to treatment, since there was no failure to provide specific treatment)

Jess v. Wagner, 1996 W.L. 689066 (E.D.Pa. 1996)(county prison officials not liable for inmate's suicide, since there was no evidence that at time of admission inmate posed a clear risk of suicide although he had attempted suicide several times previously; absence of special training on suicide prevention, non-compliance with national standards, acknowledged understaffing, and the failure to obtain resources available to improve prison program do not prove unconstitutional custom or policy sufficient to establish municipal liability)

Kirsch v. Thompson, 717 F.Supp. 1077 (E.D.Pa. 1988)(treatment program was unacceptable and violated involuntary committee's due process rights)

Lawson v. Dallas County, 286 F.3d 257 (5th Cir.2002)(jail medical personnel treating a paraplegic inmate exhibited deliberate indifference to his serious medical needs in violation of the Eighth Amendment and did not follow instructions requiring dressing changes three times a day and regular medication)

Leshore v. County of Worcester, 945 F.2d 471 (1st Cir. 1991)(the provision of psychiatric care by a prison social worker rather than a psychiatrist did not constitute deliberate indifference under 42 U.S.C. §1983)

Lombardo v. Stone, 2001 WL 940559 (S.D.N.Y. Aug. 20, 2001)(forensic psychiatric center patient may proceed with §1983 claims that staff violated his rights when they assaulted him and denied his requests for a bedpan when he was in restraints; but defendants were entitled to summary judgment on claims alleging improper staff supervision, failure to provide requested videotape, improper involuntary medication, failure to periodically release from restraints while sleeping, and denial of food and water)

Melville v. Washington, 793 P.2d 952 (Wash.Sup.Ct. 1990)(no duty to provide mental health services to inmates of correctional facility)

Patten v. Nichols, 272 F.3d 829 (4th Cir. 2001)(claims by involuntarily committed psychiatric patients that they have been denied medical care must be measured under the professional judgment, rather than deliberate indifference, standard; even though patient died of coronary artery disease, a doctor and a social worker satisfied this standard)

Rehm v. Lenz, 547 N.W.2d 560 (S.D.Sup.Ct. 1996)(psychologist's negligent marital counseling is not a medical malpractice claim but instead should be analyzed under breach of contract and fraud principles; continuing tort exception to statute of limitations does not apply to mental health center which no longer supervises psychologist)

Rosen v. Chang, 758 F.Supp. 799 (D.RI. 1991)(prison doctor's improper diagnosis of repeated complaints that ultimately led to inmate's death from appendicitis constituted deliberate difference)

Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999)(vacated lower court's grant of summary judgment for prison officials based on qualified immunity and remanded for consideration as to whether officials violated Eighth Amendment rights of a class of inmates with varying kinds of insulin-dependent diabetes; conduct that violates the rights of insulin-dependent diabetics who require intensive medical treatment may not violate the rights of more stable insulin-dependent diabetics)

Sharpe v. South Carolina DMH, 354 S.E.2d 778 (S.C.Sup.Ct. 1984)(court finds state immune for discretionary decision to release patient of state hospital who subsequently harms third person, but not as to obligation to provide treatment or notify police)

Tabor v. Doctors Memorial Hospital, 563 So.2d 233 (La.Sup.Ct. 1990)(failure to admit drug overdose patient who later committed suicide; refusal to treat is substantial factor in causing death)

Truman v. Genesis Associates, 894 F.Supp. 183 (E.D.Pa. 1995)(family which contracts with counselling center for treatment of daughter's bulimia can sue under contract and in tort for implanting false memories which caused deterioration in daughter's condition)

Tuman v. Genesis Associates, 935 F.Supp. 1375 (E.D.Pa. 1996)(court denies summary judgment to therapist in suit by parents of woman with bulimia whose condition deteriorates and who escapes from hospital, based upon claim that therapist committed malpractice in encouraging woman to detach from parents)

Wackwitz v. Roy, 418 S.E.2d 861 (Va.Sup.Ct. 1992)(suicide does not bar wrongful death action against hospital doctors for inadequate treatment and negligent release)

Williams v. Hartman, 587 N.E.2d 1024 (Mass.Sup.Jud.Ct. 1992)(voluntary resident of state hospital has no constitutional right to freedom from harm or minimally adequate treatment, even if individual has been institutionalized for years and is no longer able to understand meaning of voluntary status)

V. FAILURE TO PROTECT FROM HARM

Ahn v. Kim, 678 A.2d 1073 (N.J.Sup.Ct. 1996)(court reverses judgment for hospital and doctor whose actions contributed to the escape and eventual, unexplained death of person, finding that trial court should not have given an instruction on a presumption of suicide)

Andrea N. v. Laurelwood Convalescent Home, 16 Cal. Rptr. 2d 894 (Cal.Ct.App. 1993)(court of appeals reinstates jury award of $7.5 million to woman with profound disabilities who was raped by nursing home attendant; rejects trial judge's conclusion that severity and complexity of her disability prevented her from experiencing pain and suffering; since attendants' actions were not those of medical professional, award is not subject to malpractice cap on noneconomic damages)

Armijo v. Wagon Mound Public Schools, 159 F.3d 1253 (10th Cir.1998)(public high school principal and counselor were potentially liable for the death of special education student who committed suicide after being suspended and driven home without parental notification; triable fact questions precluded summary judgment for the principal and counselor on a due process claim brought by student's parents on the "creation of danger" theory; but no school district officials could be held liable for a due process violation based on a special relationship because although the student was confined in the counselor's car en route to his house, the relationship ended once the student left the car)

Associated Health Systems v. Jones, 366 S.E.2d 147 (Ga.Ct.App. 1988)(statute restricting nursing home in taking actions to restrain residents applied to physical restraint or isolation of particular resident and did not prevent nursing home from restricting resident from access to specified areas of facility; nursing home owes contractual and statutory duty of care and protection to its residents to prevent harm to them and duty of supervision over any resident whose propensity to cause harm to others is known or should have been known to management; award of punitive damages was improper)

Baumgardner v. S.W. Va. Mental Health Institute, 442 S.E.2d 400 (Va.Sup.Ct. 1994)(state's sovereign immunity precludes suit involving the restraint and death of a resident of a state hospital; treatment provided pursuant to a court order is considered within the discretionary act exception to Virginia's Tort Claims Act)

Berlak v. Villa Scalabrini Home for the Aged, 671 N.E.2d 768 (Ill.App.Ct. 1996)(nursing home can be liable for treble damages and attorney's fees for resident who falls in wheelchair in which she was restrained)

Brown v. Kennedy Krieger Inst., Inc., 997 F.Supp. 661 (D.Md.1998)(genuine issues of material fact existed as to whether a community residential center acted unreasonably in caring for an adult resident with mental retardation who was injured on several occasions, and as to whether the center was acting under the color of state law at the time of the injuries)

Brown v. New York, 444 N.Y.S.2d 304 (N.Y.App.Div. 1981)(duty to protect suicide victim)

Bushey v. Derboven, 946 F.Supp. 96 (D.Me. 1996)(complaint by estate of person who dies as a result of a hospital employee's dispensing the wrong medication states a claim against a state hospital doctor of a violation of the resident's substantive due process right to minimally-adequate treatment)

Carroll v. Sisters of Saint Francis, 868 S.W.2d 585 (Tenn.Sup.Ct. 1993)(hospital visitor who was pricked by needle cannot recover for emotional distress arising from fear of contracting HIV; any consequential damages are limited to the period between the discovery of exposure and a diagnosis of no infection)

Castillo v. U.S., 552 F.2d 1385 (10th Cir. 1982)(injury not foreseeable and not proximately caused by any failure of staff)

Champagne v. United States, 513 N.W.2d 75 (N.D. 1994)(in damage action for inadequate care of individual who committed suicide, comparative fault of individual in committing suicide could be assessed although suicide was not a superseding cause of death that would absolve provider of any responsibility)

Charleston v. Larson, 696 N.E.2d 793 (Ill.App.Ct.1998) (psychiatrist not liable for injuries sustained by a nurse after one of his patients attacked her)

Childness v. Madison County, 777 S.W.2d 1 (Tenn.Ct.App. 1989)(failure to properly supervise disabled student while swimming; family's release of liability precluded suit by parents but not by student, since guardian cannot waive rights of ward)

Clausing v. San Francisco Unified School District, 271 Cal. Rptr. 72 (Cal. Ct. App. 1990)(no duty on school to prevent abuse under either state constitution or corporal punishment statute)

Clift v. Fincannon, 657 F.Supp. 1535 (E.D.Tex. 1987)(liability for drowning of state school resident in whirlpool in state school)

Cobb v. Nizami, 851 F.2d 730 (4th Cir. 1988)(S/L bars recovery, where resident unnecessarily restrained, detained, and harmed)

Cole v. Fromm, 94 F.3d 254 (7th Cir. 1996)(psychiatric aides who allowed suicidal person, who was on lowest level of suicide precautions, to have access to plastic bag which he used to commit suicide were not deliberately indifferent)

Coley v. Castillo, 115 F.Supp. 2d 1383 (M.D. Ga. 2000)(physician at state mental hospital did not act with deliberate indifference when she failed to restrain a patient who later strangled another patient; physician was entitled to qualified immunity under §1983 because she had not violated the decedent's constitutional rights)

Comiskey v. N.Y., 418 N.Y.S.2d 223 (N.Y.App.Div. 1979)(duty to suicide victim)

Comstock v. McCrary, 273 F.3d 693 (6th Cir. 2001)( prison psychologist who took a prisoner off suicide watch violated his Eighth Amendment right to continuing medical care by disregarding a known suicide risk; because this right was firmly established at the time, the psychologist was not entitled to qualified immunity)

Cowan v. Doering, 545 A.2d 159 (N.J.Sup.Ct. 1988)(court affirms $600,000 award to patient who jumped from second-story window of hospital; issue of contributory negligence should not be submitted to jury)

Creasy v. Rusk, 696 N.E.2d 442 (Ind.Ct.App.1998)(reversed summary judgment granted to the defendant because there were material issues of fact as to whether a person who is institutionalized with a mental disability owes a duty of care to refrain from conduct that results in injury to a caregiver)

Cunningham v. Vincent, 650 N.Y.S.2d 850 (N.Y.App.Div. 1996)(van company is liable for $2.5 when person's wheelchair falls over from defective lift; court rejects jury finding of contributory negligence due to a lack of a proper cushion and belt on chair, holding that van company had duty to provide new cushion and ensure that a seat belt is secured prior to transporting person)

Davis v. Holly, 835 F.2d 1175 (6th Cir. 1987)(failure to prevent client rape and self injury did not violate clearly established rights)

Davis v. Rennie, 997 F.Supp. 137 (D.Mass.1998)(involuntarily-admitted state hospital patient had a constitutional right to protection against violence while in state custody; subsequent retractions of notifications of intent to leave the hospital, which stated he agreed to stay on a voluntary basis, did not establish voluntary admission because they did not comply with state law)

Davis v. Rennie, 264 F.3d 86 (1st Cir. 2001)(mental health care personnel not entitled to qualified immunity against a claim of excessive force brought by an involuntarily committed patient who was thrown to the floor and beaten about the head by a co-worker in an alleged restraint attempt; personnel who witnessed the incident had a legal duty to intervene but did not)

Dolihite v. Videon, 847 F.Supp. 918 (M.D.Ala. 1994)(rejecting qualified immunity when adolescent was severely injured in suicide attempt)

Durham v. Nu'Man, 97 F.3d 862 (6th Cir. 1996)(state hospital security officer who witnessed beating of patient but took no action could be liable under §1983 even though he did not participate in assault, since officer had duty to protect resident; nurse who witnessed event but failed to intervene is also responsible for constitutional violation)

Duvall v. Cabinet for Human Resources, 920 F.Supp. 111 (E.D.Ky.1996)(federal court dismissed civil rights damage action for breach of duty to care filed by guardian of injured voluntary resident of a state-operated facility for individuals with mental retardation because the ward was a voluntary resident, and thus, the state assumed no constitutional duty for his safety or welfare; court summarily dismissed plaintiff's negligence actions based on deliberate indifference or failure to use professional judgment)

Estate of Conners by Meredith v. O'Conner, 846 F.2d 1205 (9th Cir. 1988)(involuntarily committed patient killed in hospital by penal patient)

Feagley v. Waddill, 868 F.2d 1437 (5th Cir. 1989)(summary judgment not proper where experts conflict over facts of death of resident of retardation facility)

Ferrari v. Woodside Receiving Hospital, 624 F.Supp. 899 (N.D.Ohio 1985)(liability for death of patient with mental illness due to substandard medical care)

Fialkowski v. Greenwich Home for Children, 683 F.Supp. 203 (E.D.Pa. 1987), aff'd 921 F.2d 459 (3rd Cir. 1990)(community residence is liable, even though client is voluntary resident, when client dies from eating sandwich, since he was not properly monitored)

Fields v. Senior Citizens Center, 528 So.2d 573 (La.Ct.App. 1988)(where elderly nursing home resident wanders away from home and is killed, court awards $200,000 to widow and $92,500 to daughter; rejects contributory negligence defense, holding that actions of disabled person cannot be said to relieve defendant of duty to care)

Freman v. St. Clare's Hospital, 548 N.Y.S.2d 686 (N.Y.Sup. Ct. 1989)(hospital violated its duty to protect its patients from injury and could be held liable for injury sustained while patient was raped by another patient while she was in multiple restraints and unsupervised in emergency room)

Gann v. Delaware State Hospital, 543 F.Supp. 268 (D.Del. 1982)(duty to suicide victim)

Gann v. Schramm, 606 F.Supp. 1442 (D.Del 1985)(suicide in mental health institution)

Garrett v. Rader, 831 F.2d 202 (10th Cir. 1987)(liability for death of adolescent resident in institution while in restraints)

Gilbert v. Texas Mental Health and Mental Retardation, 919 F.Supp. 1031 (E.D. Tex. 1996)(defendants denied summary judgment due to questions of fact as to the cause of an involuntary patient's fatal injury and the degree to which defendants were aware of his ambulatory problems; court unable to rule on defendants' qualified immunity because court could not determine if defendants had failed to properly exercise or rely on professional judgment; factual issues remained regarding defendants' alleged failure to accommodate patient's ambulatory problem, which directly related to exercise of proper care determination)

Goss v. Sullivan, 839 F.Supp. 1532 (D.Wyo. 1993)(prisoner attacked by another inmate with HIV cannot sue state officials for failure to protect him from harm or inadequate medical care, because officials are immune under 11th Am. and are not persons under §1983; lack of intentional harm precludes 8th Am. claim)

Greffey v. Alabama Dept. of Corrections, 996 F.Supp. 1368 (N.D.Ala.1998)(in a §1983 claim alleging the state and its employees violated Eighth Amendment rights of a prisoner who committed suicide, prison officials were not deliberately indifferent to his suicidal tendencies; prison psychologist who evaluated him had qualified immunity)

Gunnerson v. N.Y., 463 N.Y.S.2d 853 (N.Y.App.Div. 1983)(negligent supervision)

Hare v. City of Corinth, Miss., CA 91CV248-D (N.D.Miss. Nov. 22, 1996)(state's duty to protect an inmate from suicide does not require that person had a known mental illness, where jail officials knew of pre-trial inmate's suicidal threats)

Henrickson v. Rottman Psychiatric Institute, 573 N.E.2d 1238 (OhioCt.Claims 1989)(court dismisses suit by resident of mental health facility for injuries sustained when attacked by other resident; facility does not have duty to prevent all attacks, particularly when not clearly foreseeable or when cost of monitoring other residents would be prohibitive)

Herer v. Burns, 577 F.Supp. 762 (W.D.Va. 1984)(death of involuntarily committed person in hospital, following seizure results in finding of liability)

Hofflander v. St. Catherine’s Hosp., Inc., 635 N.W.2d 13 (Wis. Ct. App. 2001)(involuntary psychiatric patient may sue a psychiatric hospital and its management company for injuries sustained when she climbed out a third-floor window because defendants had a special relationship with the patient and should have foreseen that she would try to escape; patient may pursue claim that a loose air conditioner unit in her room that caused the injuries constituted an unsafe condition)

Hothem v. Fallsview Psychiatric Hospital, 573 N.E.2d 803 (OhioCt.Cl. 1989)(hospital was not negligent in its supervision of newly admitted patient and its care of other patient, as it was not foreseeable that newly admitted patient would attack other patient)

Humana of Kentucky, Inc. v. Akers, 1990 WL 186449 (Ky.Ct.App. 1990)(appeals court reverses a $942,744 judgment for a psychiatric patient who sustained injuries when she jumped out of her hospital window; jury should have judged the defendants' actions based on an ordinary negligence standard, not on a statutory standard based on the administrative regulation, since the regulation was neither specific nor precise)

Jankee v. Clark County, 585 N.W.2d 913 (Wis.Ct.App. 1998)(contributory negligence will not bar a patient's action against a county for failing to provide him proper supervision and a safe place at its psychiatric facility where the patient lacks the capacity to control or appreciate his conduct due to mental illness)

Jones v. State of Rhode Island, 724 F.Supp. 25 (D.R.I. 1989)(during restraint at state mental hospital, patient was subjected to strangle hold causing death; defendants in official capacities dismissed; claims including those against administrators for inadequate training of staff sustained on motion to dismiss; right to continued family association under First Amendment rejected; pendent state constitutional claims considered)

Kennedy v. Schafer, 71 F.3d 292 (8th Cir. 1995)(there was a genuine issue of material fact as to whether a minor who was admitted voluntarily to a state hospital was an involuntary resident with a protected liberty interest in safety and treatment, thereby precluding summary judgment; minor had been restrained and could not be released at her request or that of her parents)

Keyworth v. Southern Baptist Hospitals, 524 So.2d 56 (La.Ct.App. 1988)(hospital owed duty to patient to take extra precautions to prevent patient from getting out of bed without assistance based on prior incidents in which patient was able to get out of bed despite doctor-ordered precautions; $225,000 damage award for hip injury suffered by patient in fall was supported by evidence)

Kolpak v. Bell, 619 F.Supp. 359 (D.C.Ill. 1985)(client beaten to death in retardation institution)

Kyle K. v. Chapman, 208 F.3d 940 (11th Cir. 2000)(court ruled that even though health services technicians at a state hospital are not professionals, they were entitled to qualified immunity from a §1983 claim that they failed to protect an autistic child from self abuse, but court refused to grant health services technicians qualified immunity on separate count of physical abuse because the parents' allegations were specific enough to support their claims that the technicians violated the child's right to a safe environment)

Larson v. Miller, 55 F.3d 1343 (8th Cir. 1995)(even though jury finds that school bus driver sexually abused disabled student, court finds no evidence of a pattern of unconstitutional behavior on part of school district to justify liability under §1983; but actions of school superintendent hiding facts concerning bus driver can give rise to liability under §1985(3), since under ADA persons with disabilities are a class protected against discriminatory animus)

Lor v. Pennsylvania, 2000 WL 186839 (E.D.Pa. Feb. 4, 2000)(the estate of an involuntary patient who was killed by another patient may sue hospital employees under §1983 because the decedent had a substantive right to safe conditions under the Fourteenth Amendment, and under the professional judgment standard, the plaintiffs established a sufficient causal link between the hospital employees' actions and the patient's death)

Marroquin v. Life Management Center for Mental Health and Mental Retardation Services, 927 S.W.2d 228 (Tex.Ct.Ap. 1996)(state-funded day program is not responsible for allowing a client to leave the program and engage in sexual activity, since the program's decision not to lock the doors nor closely monitor when clients left and returned from the site was not negligent or unreasonable)

Martin v. City of League City, 23 F.Supp.2d 720 (S.D.Tex. 1998)(allegations that city police failed to protect mentally disturbed individual from committing suicide by leaving him by himself did not state a substantive due process claim; police did not restrain liberties of individuals, who was not taken into custody, institutionalized or imprisoned)

McAdams v. Salem Children's Home, 701 F.Supp. 630 (N.D.Ill. 1988)(death by gastric asphyxiation, staff member used "basket hold" physical restraint technique on child)

Mercer v. HCA Health Servs. of Texas, Inc., 2002 WL 192570 (Tenn.Ct. App. Feb. 7, 2002)(psychiatrist who discharged a suicidal patient prior to the expiration of the involuntary commitment period was not entitled to quasi-judicial immunity for the patient's suicide; operator of the hospital could be held liable for failing to inform the psychiatrist of the patient's mental health history)

Meyer v. Walls, 471 S.E.2d 422 (N.C.Ct.App. 1996)(state agency liable up to state tort claim cap for negligent actions which resulted in person's suicide; state employees and physician only liable for willful and malicious acts)

Millhoff v. Ohio Department of Mental Health, 594 N.E.2d 170 (OhioCt.Cl. 1991)(hospital personnel were not negligent in relation to patient's rape by fellow patient)

Monahan v. Dorchester Counseling Center, Inc., 961 F.2d 987 (1st Cir. 1992)(state psychiatric facilities did not have to take affirmative steps to protect a voluntary resident of a community program who sought but was denied admission to an inpatient setting; no constitutional liability when client sustains severe injuries while being transported between residence and facility)

Nelson v. Department of Mental Health, 629 N.E.2d 1099 (OhioCt.Cl. 1992)(county mental health center not negligent in bathtub drowning of client with organic brain syndrome who had

seizure, when his treatment plan did not call for one-on-one supervision while bathing and did call for the least restrictive environment possible)

Niece v. Enview Group Home, 904 P.2d 784 (Wash.Ct.App. 1995)(group home has duty to safeguard residents from foreseeable consequences of their disabilities; employer is also liable for failure to properly supervise an employee's conduct which goes beyond the scope of his employment where employer had prior knowledge of employee's dangerous tendencies; court rejects common carrier strict liability standard for group homes)

Northwest Ga. Regional Hosp. v. Wilkins, 469 S.E.2d 786 (Ga. Ct. App. 1996)(appeals court reversed summary judgment for the estate of a patient with mental illness and developmental disabilities who died after leaving state facility for a personal care home because the state and its employees had sovereign immunity for discretionary acts related to that placement; whether the patient should have been released to a private care home was a matter of discretion involving competing economic and social considerations specifically exempted from the sovereign immunity exception)

Overall v. Indiana, 525 N.E.2d 1275 (Ind.App.Ct. 1988)(released patient who was killed just after leaving hospital could bring wrongful death action against state)

Owens v. City of Fort Lauderdale, 174 F.Supp.2d 1282 (S.D.Fla. 2001); 174 F.Supp.2d 1298 (S.D.Fla. 2001)(city's failure to either prohibit the use of neck restraints by police officers or to train police officers in their safe application did not constitute deliberate indifference to detainees' Fourth Amendment rights; city was not on notice of the need for neck-restraint policy because reports of two similar previous incidents had not been substantiated; county hospital where off-duty police officers were employed was not liable under §1983 for detainee's death because survivors failed to show that hospital's policy or lack of policy with respect to officers' training regarding neck restraints was per se unconstitutional; only one unsubstantiated report of a previous alleged choking was presented)

Palliol v. Sura, 652 F.Supp. 1517 (D.Conn. 1987)(suicide after release to outpatient program for mentally ill)

Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584 (10th Cir. 1994)(officials of Oklahoma Dept. of Mental Health were not entitled to qualified imunity for civil rights claims by psychiatrist and nurse that they were disciplined for reporting that a mental health aide who was allegedly infected with the HIV virus had abused a patient)

Randolph v. Cervantes, 950 F.Supp. 771 (S.D.Miss. 1996)(woman who receives outpatient treatment at a government mental health center but who is not confined in state custody could not recover under § 1983 for self-inflicted injuries caused by her gaining access to dangerous instruments; at most defendants' actions were negligent and not deliberately indifferent)

Robey v. Chester County, 946 F.Supp. 333 (E.D.Pa. 1996)(psychologist liable for prison inmate's suicide when he orders removal of close observation based upon inmate's denial of suicidal intent; severity of inmate's psychiatric condition justifies finding of deliberate indifference)

Rodebush v. Oklahoma Nursing Homes, 867 P.2d 1241 (Okla. 1993)(upholding 1.2 million dollar punitive damage award against nursing home whose employee, hired without a check of his criminal background, slapped patient)

Rodgers v. Horsley, 39 F.3d 308 (11th Cir. 1994)(hospital administrators are entitled to qualified immunity in suit by patient who was raped while involunatrily committed, since obligation to adequately supervise resident who was on medical observation was not clearly established, despite Romeo)

Rodriguez v. City of New York, 72 F.3d 1051 (2nd Cir. 1995)(involuntary commitment may violate patient's due process rights if the responsible physician did not conform to applicable community standards for ordering confinement in a psychiatric facility)

Sabo v. O'Bannon, 586 F.Supp. 1132 (E.D.Pa. 1984)(duty to protect resident with mental retardation who choked on food allegedly due to excessive sedation by medication in state hospital)

Seiner v. Michigan D.M.H., 323 N.W.2d 642 (Mich.Ct.App. 1982)(no duty to resident to prevent harm under state law)

Shapiro v. Chapman, 520 A.2d 1330 (Md.Ct.App. 1987)(award of $2 for compensatory and punitive damages for serious abuse is upheld, despite challenge that nondisabled person would have been awarded much more)

Shively v. Ken Crest Ctrs. for Exceptional Persons, 2001 WL 209910 (Del. Super. Ct. Jan. 26, 2001)(entity that provides residential facilities and support services to residents with mental impairments may be held liable to a boy who was sexually assaulted by another resident because the entity and the other resident shared a special relationship which imposes a duty to control that resident's conduct)

Siklas v. Ecker Center for Mental Health, 617 N.E.2d 507 (Ill.App.Ct. 1993)(mental health center could be held liable for breaching a duty to exercise reasonable care in the independing living services it voluntarily provided to a client)

Skan v. City of Lincoln, 599 F.2d 253 (8th Cir. 1979)(no duty to prevent harm to resident of state institution)

Smith v. U.S., 437 F.Supp. 1004 (E.D.Pa. 1978)(liability for foreseeable suicide)

Spivey v. Elliott, 41 F.3d 1497 (11th Cir. 1995)(appeals court reaffirms earlier decision that although the state's special relationship with a student at a residential school for the deaf created a duty to protect him from sexual assault by classmate, officials entitled to qualified immunity because the duty was not clearly established at the time the assault occurred)

Viero v. Bufano, 925 F.Supp. 1374 (N.D.Ill. 1996)(Court denies summary judgment in suit by mother of juvenile inmate who committed suicide while in custody of Illinois Dept. of Corrections; defendants were not entitled to qualified immunity; and probation officer was not entitled to quasi-judicial immunity)

Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1995)(en banc)(superintendent of Mississippi School for the Deaf had no constitutional duty to protect student as school from sexual assault by classmate; such duty arises from involuntary confinement or restraint purusant to a governmental order or by an affirmative exercise of state power)

Williams v. Jabe, 947 F.Supp. 1130 (E.D.Mich. 1996)(psychiatrist cahttp://www.topozone.com/map.asp?lat=55.06167&lon=-131.54167n be liable for prison inmate's suicide, despite inmate's statements denying suicidal intent, given his severe depression and refusal to take medications)

Williams v. Lee County, Ala., 78 F.3d 491 (11th Cir. 1996)(court affirms summary judgment in §1983 and wrongful deaths actions against Alabama county for the suicide of a man, known to police as having mental illness, who was held at the county jail pending a substance abuse commitment hearing; estate did not prove police acted with deliberate indifference, cell did not create a substantial likelihood of suicide, and foreseeability was not proven because the man had no history of suicidal proclivities)

VI. RESTRAINT/SECLUSION

Alotta v. City Hospital Center at Elmhurst, 520 N.Y.S.2d 867 (N.Y.Sup.Ct. 1987)(material issue of fact as to whether hospital's conduct fell below permissible standard of due care precluded summary judgment, where doctor ordered patient to go immediately to seclusion room with ankle and wrist restraints, and patient slashed his wrist after being in room unsupervised for three minutes)

Andrews v. Neer, 253 F.3d 1052 (8th Cir. 2001)(court held trial court erred in using the deliberate indifference, and not objective reasonableness, standard to determine whether state hospital aides were liable under sec. 1983 for using excessive force during a takedown and restraint of an involuntarily committed patient, which caused his death; a schizophrenic patient who witnessed the incident was competent to testify)

Brookover v. Mary Hitchcock Memorial Hospital, 893 F.2d 411 (1st Cir. 1990)(testimony of patient's father relating what nurses told him about advisability of bed restraints for patient was properly admitted)

Cobb v. Nizami, 851 F.2d 730 (4th Cir. 1988)(S/L bans recovery, where resident unnecessarily restrained, detained, and harmed)

Estate of Cassara v. Illinois, 853 F.Supp. 273 (N.D.Ill. 1994)(suit challenging the failure to properly supervise a voluntary patient in restraint who hangs himself raises sufficient civil rights claims; state has a duty to protect a voluntary resident; state statutory guidelines on restraint impose restriction on liberty give rise to due process protection; staff members are not immune from liability under discretionary exception to tort claims act)

Ferola v. Moran, 622 F.Supp. 814 (D.R.I. 1985)(shackling of defendant violated Eighth Amendment; inmate was entitled to damages of $1,000 for physical and psychological injury suffered; shackling of inmate also warranted equitable relief)

Garrett v. Rader, 831 F.2d 202 (10th Cir. 1987)(defendants were not entitled to qualified immunity, as, at time of daughter's death while being unreasonably restrained, since law requiring protection of personal security of patients at state institutions was clearly established)

Gray v. Jefferson Geriatric and Rehabilitation Center, 602 N.E.2d 396 (OhioCt.App. 1991)(expert nurse raised issue as to nonintrusive methods of restraint that could have been used to prevent resident from getting up from chair unassisted, precluding summary judgment for nursing home)

Hopper v. Callahan, 562 N.E.2d 822 (Mass.Sup.Jud.Ct. 1990)(evidence raised fact issues as to whether defendants violated patient's due process right to essential medical care and not to be physically restrained, precluding summary judgment in action brought against physicians and supervisors at mental hospital after involuntarily committed psychiatric patient died while she was in seclusion)

Kizer v. Waterman Convalescent Hospital, Inc., 13 Cal.Rptr.2d 239 (Super.Ct. 1992)(evidence supported finding that hospital violated administrative regulations on restraint and seclusion)

Kujawski v. Arbor View Health Care Center, 389 N.W.2d 831 (Wis.Ct.App. 1986)(under Wisconsin regulation granting nursing residents right to be free of physical restraints except as authorized in writing by physician, whether restraint could be imposed on nursing home resident who fell from wheelchair, lacerating her head and fracturing her thigh, or whether an easily removable safety device, for which no medical opinion was necessary, would have sufficed were medical decisions on which expert testimony was required, and thus, in the absence of such testimony, administrator could not recover on negligence claim)

Millhoff v. Ohio Department of Mental Health, 594 N.E.2d 170 (OhioCt.Cl. 1991)(hospital not liable for patient self injury in seclusion, since clinicians followed treatment plan which was reasonable)

Neimes v. Ta, 985 S.W.2d 132 (Tex. Ct. App. 1998) (supervisor and physician at a state hospital are entitled to qualified immunity, based on the exercise of professional judgment, in a civil rights action filed by two involuntarily quarantined tuberculosis patients who alleged violations of their constitutional rights; the state may restrain those who are committed when, based on professional judgment, it is deemed necessary to ensure residents and staff are reasonably safe, and professional judgment is presumed to exist when there is no substantial departure from accepted professional standards)

O'Sullivan v. Secretary of Human Services, 521 N.E.2d 997 (Mass.Sup.Jud.Ct. 1988)(statute requiring that trained staff person be "in attendance" immediately outside room of secluded patient requires constant observation of secluded patient, not merely nearby presence)

Peacock v. Samaritan Health Service, 765 P.2d 525 (Ariz.Ct.App. 1989)(genuine issue of material fact existed as to degree of restraint or seclusion which was appropriate for patient and whether care provided by hospital met appropriate standard, precluding summary judgment)

Pisel v. Stamford Hospital, 430 A.2d 1 (Conn.Sup.Ct. 1979)(verdict of $3.6 million was not excessive in action against hospital and physician where psychiatric patient, who was locked in seclusion room in highly agitated and psychotic condition, was found with her head wedged between mattress and side railing of steel bed, unconscious and with no pulse)

Porter v. State Of Illinois, 36 F.3d 684 (7th Cir. 1994)(estate sued hospital when a client recently released from restraints killed other client; hospital not negligent in permitting aides to release client from restraints, and this release not sufficiently proximate in time to death to have causal relationship)

Rockwell v. Cape Cod Hospital, 26 F.3d 254 (1st Cir. 1994)(private physicians and hospitals who admit patients involuntarily are not acting under color of state law and thus are not subject to liability for violating the patient's federal civil rights)

Scott v. Plante, 641 F.2d 117 (3rd Cir. 1981)(patient was entitled to further consideration of claimed violation of his civil rights in light of his right to be given adequate treatment and to have his confinement to other less restrictive settings within hospital carefully considered and was also entitled to a new trial on issue of liability of individual defendants for compensatory and punitive damages for violation of his constitutional rights)

Shaw v. Strackhouse, 920 F.2d 1135 (3rd Cir. 1990)(degree of restraint imposed by defendants' occasional use of seat belt around profoundly retarded resident's legs was not great enough to trigger due process protection; professional judgment standard rather than one founded on deliberate indifference governed conduct of healthcare professionals in failing to protect resident from subsequent sexual assault)

Smith v. Louisiana Health and Human Resources Administration, 637 So.2d 1177 (La.App. 1994)( death of client who stole and crashed ambulance was proximately caused by hospital's breach of duty to keep disoriented client under observation or in restraints)

Snyder v. Albany Medical Center Hospital, 615 N.Y.S.2d 139 (N.Y.App.Div. 1994)(private hospital can be sued for mistreatment during seclusion and restraint)

Starling v. New York, N.Y.S.2d (N.Y.Ct.Cl. 1990)(hospital liable for using excessive force in restraining patients, in administering excessive medication as a restraint, and in failing to provide a safe environment)

Waechter v. School Dist. No. 14-030 of Cassopolis, Mich., 773 F. Supp. 1005 (W.D.Mich. 1991)(parents of student with a heart condition who died after a recess supervisor told him to do a "gut run" stated a substantive due process claim against the school district because of custodial relationship with the supervisor, who also was the student's teacher; physical punishment which is not disciplinary in nature or which is so disproportionate to the need presented as to amount to "a brutal and inhumane abuse of official power literally shocking to the conscience" violates an individual's substantive due process rights)

Walters v. Western State Hospital, 864 F.2d 695 (10th Cir. 1988)(genuine issue of material fact as to whether doctors were exercising reasonable professional judgment in an emergency situation as defined by Oklahoma law precluded summary judgment on claim arising from involuntary administration of drugs and patient's seclusion)

Werner v. Commonwealth of Pennsylvania, 530 A.2d 1004 (Pa.Ct.Comm. Pleas 1987)(statutory immunity from simple negligence for decision to remove restraints was applicable; evidence that patient was placed in full restraints immediately after incident was inadmissible to prove antecedent negligence)

Williams v. Anderson, 959 F.2d 1411 (7th Cir. 1992)(prison physician is immune for involuntary administration of medication in 1985, since there was no clearly established right to be free from unwanted anti-psychotic drugs until Washington v. Harper)

Woodbridge v. Worcester State Hospital, 423 N.E.2d 782 (Mass.Sup.Jud.Ct. 1981)(enactment of statute enunciating certain rights of patients in care of the Department of Mental Health did not create enforceable rights nor constitute waiver of state's sovereign immunity)

VII. MEDICATION

Buckner v. United States, * F.Supp. * (D.D.C. 1989)(no liability for side-effects of Prolixin, since professional judgment convincingly demonstrated appropriateness of medication and consent by client)

Clites v. State of Iowa, 322 N.W.2d 917 (IowaCt.App. 1982)(evidence supported trial court's finding that hospital violated industry standards by using major tranquilizers and by not obtaining informed consent of mentally retarded patient or his parents before administering the tranquilizers; award of $385,165 for future medical expenses and $375,000 for past and future pain and suffering was not excessive)

Clark v. Ohio Department of Mental Health, 573 N.E.2d 794 (OhioCt.Cl. 1989)(center was not negligent in providing psychotropic drugs but patient was entitled to nominal damages for improper use of restraints and seclusion by defendant's staff)

Clites v. Iowa, 322 N.W.2d 917 (IowaCt.App. 1982)(extensive liability, in excess of $760,000, for excessive medication with anti-psychotic drugs of institutionalized person with mental retardation)

Faijerabaum v. Oakland, 373 N.W.2d 161 (Mich.Ct.App. 1985)(court reverses, on immunity grounds, jury award amount of $1 million to woman suffering from tardive dyskinesia; all governmental agencies and their employees are immune from liability whenever they are discharging public function; rejects distinction that hospital is proprietary function)

Georgia Osteopathatic Hospital v. O'Neal, 403 S.E.2d 235 (Ga.Ct.App. 1991)(hospital pharmacy was not negligent in failing to monitor decedent's medication for possible adverse interactions, but jury was authorized to return verdict against hospital based on nurse's deposition testimony that she had given discontinued central nervous system depressant drug to decedent approximately one-half hour before he "went berserk")

Hogan v. Carter, 85 F.3d 1113 (4th Cir. 1996)(en banc)(prison psychiatrist who orders emergency involuntary medication without a prior hearing is entitled to qualified immunity; neither Washington v. Harper nor unpublished opinions of the court of appeals mandates a hearing in all circumstances, including emergencies)

Leal v. Simon, 542 N.Y.S.2d 328 (N.Y.App.Div. 1989)(court upholds award of $2.5 million against doctor and community agency who excessively drugged resident with retardation, resulting in severe side effects)

Lojuk v. Quandt, 706 F.2d 1456 (7th Cir. 1983)(in suit against the Veterans Administration, psychiatrist, and medical center director alleging that the psychiatrist subjected patient to electroconvulsive therapy without the patient's consent, court of appeals hold that (1) the suit alleged a battery under Illinois law for which the United States was immune from liability under the Federal Tort Claims Act; (2) the psychiatrist was not immune from the suit; and (3) the medical center director could not be held liable on theory that she was directly responsible for issuing an allegedly unconstitutional policy requiring next-of-kin consent or on inadequate supervision theory)

Marzolf v. Gilgore, 933 F.Supp. 1021 (D.Kan. 1996)(physician's liability for prescription of anti-psychotic medication to person with mental illness who subsequently develops tardive dyskinesia cannot be resolved on summary judgment)

Noble v. Schmitt, 87 F.3d 157 (6th Cir. 1996)(state hospital staff were not entitled to qualified immunity for violating the free speech and due process rights of resident by forcibly drugging and retaliating against him for filing grievances; punitive actions which have no rehabilitative purpose are prohibited where resident tries to petition state officials for redress of grievances)

Orlikow v. United States, 682 F.Supp. 77 (D.D.C. 1988)(settlement of $750,000 for illegal drugging)

Shackleford v. Louisiana Dept. of Health and Human Services, 534 S.2d 38 (La.Ct.App. 1988)(abused resident awarded damages for bodily harm)

Storch v. Syracuse University, 629 N.Y.S.2d 958 (N.Y.Sup.Ct. 1995)(father's suit against leading advocate of facilitated communication, based upon claim that it led daughter to falsely accuse him of sexual abuse, is dismissed as frivolous)

Threlkeld v. White Castle Sys., Inc., 127 F.Supp. 2d 986 (N.D.Ill. 2001)(woman may bring a medical malpractice action against a hospital and ER doctor under the Illinois Mental Health Code for medicating her against her will when she posed no danger to herself or others)

Washington v. Silber, 805 F.Supp. 379 (W.D.Va. 1992)(involuntary administration of antipsychotic drugs to an involuntarily committed prisoner did not violate substantive or procedural due process)

VIII. SEXUAL ABUSE

Alphonso v. Charity Hospital, 413 So.2d 982 (La.App. 1982)(affirming liability in case where patient was assaulted twice by fellow patient but lowering damages because patient's pain and suffering may have been caused by pre-existing schizophrenia)

Andrea N. v. Laurelwood Convalescent Home, 16 Cal.Rptr. 2d 894 (Cal.App. 1993)(reinstating jury award of 7.5 million for rape of women with profound disabilities in nursing home; award not subject to cap on malpractice damages)

Bucher v. Richardson Hospital, 1994 WL 728845 (N.D.Tex. 1994)(special deposition procedures allowed for adolescent who was sexually abused by instructor of educational courses while institutionalized, but her deposition would not be quashed)

Burns v. South Carolina Commission for the Blind, 448 S.E.2d 589 (S.C.App. 1994)( reversing jury verdict for woman sexually assaulted by other resident when Commission, like business owner, was not liable for acts of third persons, and did not have duty to protect its clients)

Corbett v. Morgenstern, 934 F.Supp. 680 (E.D.Pa. 1996)(psychiatrist who has sexual relations with patient during and after therapy may be liable for intentional infliction of emotional distress and punitive damages)

Davis v. Holly, 835 F.2d 1175 (6th Cir. 1987)(failure to prevent client rape and self injury did not violate clearly established rights)

Gier v. Educational Serv. Unit No. 16, 845 F.Supp. 1342 (D.Neb. 1994)(expert witnesses precluded from testifying that two mentally retarded children had been sexually abused, finding their conclusions unreliable because testing and judgments related to behaviors exhibited by sexually abused children were not generally accepted in the field)

Komlosi v. New York State Office of Mental Retardation and Developmental Disabilities et al, 1994 WL 465993 (S.D.N.Y. 1994)(psychologist could sue defendants for violating his substantive and procedural due process rights in actions taken against him after he was charged with sexual misconduct against persons with mental retardation)

Milhoff v. Ohio Department of Mental Health, 594 N.E.2d 170 (OhioCt.Cl. 1991)(hospital personnel not negligent in relation to patient's rape by other patient)

Neely v. Feinstein, 50 F.3d 1502 (9th Cir. 1995)(rejecting qualified immunity for superintendent of psychiatric center where client was repeatedly molested, but granting immunity to director of nursing, building supervisor, and chair of investigating committee)

IX. NEGLIGENT SUPERVISION

Astorino v. Lensink, 1993 WL 366513 (D.Conn. 1993)(inadequate supervision of staff and administrative changes by program director may have contributed to assault of resident of state school by other residents and therefore provided valid claim for liability)

Brooks v. Augusta Mental Health Institute, 606 A.2d 789 (Me.Sup.Jud.Ct. 1992)(court finds clinicians and hospital director immune from liability under discretionary function exception to Maine Tort Claims Act for negligent supervision of state hospital resident and negligent training and supervision of hospital staff; exception applies to all exercises of professional judgment)

Brown v. Devereux Found., 1998 WL 125548 (E.D.Pa. Mar. 20, 1998)(a facility for individuals with developmental disabilities did not commit gross negligence when it allowed a resident to remain unattended during an off-grounds shopping trip during which he sexually assaulted a teenaged girl)

Doe v. Madison Center Hospital, 652 N.E.2d 101 (Ind.Ct.App. 1995)(psychiatric aide's sexual assault on adolescent patient did not constitute malpractice because there was no therapist-patient relationship between aide and resident)

Genao v. New York, 679 N.Y.S.2d 539 (N.Y.Ct.Claims 1998)(patient at psychiatric hospital was awarded $250,000 in damages for the state's failure to supervise other patients, which resulted in her rape; court granted state $100,000 against the patient for the cost of her in-patient care)

Gipthorne v. Framingham Union Hospital, 401 Mass. 860 (1988)(hospital has duty to discipline staff doctor; harm from same act is foreseeable and creates liability)

Houghton v. South, 965 F.2d 1532 (9th Cir. 1992)(director of state hospital is not a qualified professional for purposes of approving discharge or transfer of residents to less restrictive settings and therefore is not entitled to qualified immunity for wrongful decision)

Leach v. Shelby County, 891 F.2d 1241 (6th Cir. 1989)(sheriff's failure to supervise care of paraplegic prisoners, after numerous similar injuries, constitutes custom of deliberate indifference)

Litchfield Terrace v. Illinois Dep't of Public Health, 624 N.E.2d 1301 (Ill. App. Ct. 1993)(court upholds administrative decision finding staff neglect of resident in allowing him to remain outside in hot and humid weather)

Rogers v. Alabama Dep't of Mental Health and Mental Retardation, 825 F.Supp. 986 (M.D.Ala. 1993)(court dismisses claims against specific staffperson who was personally observing individual who was raped by another state hospital patient, but allows action to proceed against facility administrator responsible for monitoring observation system; dismisses claims for constitutionally inadequate supervision and training, because there was no showing of deliberate indifference or pattern of deficient training)

Timmins v. Toto, 174 F.Supp.2d 56 (S.D.N.Y. 2001)(§1983 claim for monetary damages against a state-run psychiatric facility's chief executive officer in his individual capacity was supported by allegations he was personally involved in the alleged unconstitutional acts against a motorist by the facility's safety officer due to his failure to supervise that officer, and the failure to supervise was intended to violate the motorist's constitutional rights)

Wilson v. Formigoni, 42 F.3d 1060 (7th Cir. 1994)(voluntary patient has no civil rights claim for injuries sustained when she left the facility without authorization, since she had no constitutional right to civil commitment)

X. NEGLIGENT RELEASE

Baker v. Adventist Health, Inc., 260 F.3d 987 (9th Cir. 2001)(hospital did not violate the Emergency Medical Treatment Act when it discharged an emergency room patient with depression who later committed suicide)

Bates v. Denny, 563 So.2d 298 (La.Ct.App. 1990)(no liability for release from emergency room since there was insufficient evidence of negligence)

Boles v. Milwaukee Co., 443 N.W.2d 679 (Wis.Ct.App. 1989)(hospital liable for premature release of person from emergency room who was killed on highway minutes later; facility had duty to restrain/detain her)

Cooke v. Berlin, 735 P.2d 830 (Ariz.Ct.App. 1987)(psychiatrist and state were not liable to surviving spouse of decedent who was killed by outpatient who had been released from hospital; victim was not foreseeable and patient exhibited no signs of danger)

Davis v. Lhim, 335 N.W.2d 487 (Mich.Ct.App. 1983)(liability for failure to warn and subsequent release)

Diedrich v. Minnesota, 393 N.W.2d 677 (Minn.Ct.App. 1986)(state tort claims exceptions for discretionary duty do not render state immune for negligent release of resident from hospital)

Durapau v. Jenkins, 656 So.2d 1067 (La.Ct.App. 1995)(psychiatric hospital had no duty to protect unknown victim who was attacked by former patient four months after his discharge)

Ford v. Norton, 107 Cal. Rptr. 2d 776 (Cal. Ct. App. 2001)(psychologist who released an involuntarily hospitalized mental patient before the end of the 72-hour treatment and evaluation hold under the Lanterman-Petris-Short Act was not exempt from civil liability where the patient subsequently injured another person)

Galuski v. New York, 592 N.Y.S. 2d 158 (N.Y.App.Div. 1992)(court affirms judgment for defendant state psychiatric center which released patient who then beat several citizens because there was insufficient connection between the release and the assault)

Gilmore v. Buckley, 608 F.Supp. 554 (D.Mass. 1985), aff'd. 787 F.2d 714 (1st Cir. 1986)(no duty to commit and therefore no claim under §1983)

Hamman v. Co. of Maricopa, 775 P.2d 1122 (Ariz.Sup.Ct. 1989)(psychiatrist has duty to protect public, at least where victim is identifiable or in zone of danger, even in absence of specific threats)

Hanseni v. U.S., 541 F.Supp. 999 (D.Md. 1982)(no duty to warn, no liability)

Harris v. State, 358 N.E.2d 539 (OhioCt.Cl. 1976)(no liability since harm was not foreseeable)

Helton v. Phelps County Regional Medical Center, 794 F.Supp. 332 (E.D.Mo. 1992)(person who commits suicide after release from hospital states claim under federal Anti-Dumping Act, even though discharge was not from hospital's emergency room)

Hembree v. Tennessee, 925 S.W.2d 513 (Tenn.Sup.Ct. 1996)(state is responsible for death of four persons killed by person who was criminally committed to psychiatric facility and then released three years later, even though victims were not known and deaths did not occur until sometime after release)

Higgins v. Salt Lake County, 855 P.2d 231 (UtahCt.App. 1993)(although mental health providers have a duty to protect identifiable third parties, governmental immunity statute precludes liability against county crisis program)

Hokansen v. U.S., 868 F.2d 372 (10th Cir. 1989)(no liability for negligent release of voluntary patient)

Kell v. Raemisch, 528 N.W.2d 13 (Wis.Ct.App.1994)(statutory immunity claim of mental health center and therapist who released patient that subsequently assaulted the plaintiff is rejected, since immunity only applies to emergency detention of patient)

Lowry v. Bisbee, 623 So.2d 1047 (Ala.Sup.Ct. 1993)(court affirms judgment not withstanding the verdict for defendants, entered after jury award of $2.5 million to the plaintiff, since there was no causal connection between release of patient and his attack on his sister)

Muse v. Charter Hospital of Winston-Salem,455 S.E.2d 663 (N.C.App. 1995)(psychiatric hospital liable for negligent release of suicidal patient under institutional policy of discharging patients whose insurance coverage has expired. Duty of care includes duty not to require patients to be discharged when their insurance expired if it interfered with treating professional's medical judgment. Patient's suicide is not superceding cause of death)

Perriera v. Colorado, 768 P.2d 1198 (Colo.Sup.Ct. 1989)(psychiatrist owes duty of reasonable care in release decision of man who kills police officer; owes duty to protect public from danger, even when there is no identifiable victim)

Sellers v. U.S., 870 F.2d 1098 (6th Cir. 1989)(no duty to commit voluntary patients who subsequently harms wife's friend; no duty to warn general public, although there is narrow duty to warn clearly identified person at risk of harm)

Sharpe v. South Carolina DMH, 318 S.E.2d 112 (S.C.Sup.Ct. 1984)(court finds state immune for discretionary decision to release patient of state hospital who subsequently harms third person, but not as to obligation to provide treatment or notify police)

Sherk v. County of Dauphin, 614 A.2d 226 (Pa.Sup.Ct. 1992)(court denies state sovereign immunity defense of state hospital which negligently releases patient who then injures police officer)

Sherrill v. Wilson, 653 S.W.2d 661 (Mo.Sup.Ct. 1983)(no duty to general public)

Tabor v. Doctors Memorial Hospital, 500 So.2d 243 (La.Ct.App. 1987)(court reverses directed verdict for doctor entered in wrongful death action by parents on behalf of son who committed suicide after being discharged from emergency room)

Vera v. Beth Israel Medical Hospital, 625 N.Y.S.2d 499 (N.Y.App.Div. 1995)(psychiatrist's decision to release patient was a professional judgment and therefore he was not liable when patient jumped from window and sustained serious injuries)

XI. FAILURE TO WARN

Beck v. Kansas Univ. Psychiatry Foundation, 580 F.Supp. 527 (D.Kan.1984)(duty to warn known victim)

Davis v. Lhim, 335 N.W.2d 487 (Mich.Ct.App. 1983)(duty to warn identifiable victim)

Dutcher v. United States, 736 F.Supp. 1142 (D.D.C. 1990)(hospital did not breach duty of care by not informing police of escape of voluntary patient who had not exhibited dangerous tendencies prior to discharge)

Ellis v. Peter, 627 N.Y.S.2d 707 (N.Y.App.Div. 1995)(physician who failed to diagnose TB condition owed no duty to patient's wife, who eventually developed the condition, since she was not within the class of persons who doctor would believe was relying on him for appropriate care)

Gastonski v. U.S., 712 F.2d 391 (9th Cir. 1983)(duty to warn identifiable victim)

Hansen v. U.S., 541 F.Supp. 999 (D.Md. 1982)(no duty to warn)

Hedlund v. Superior Court of Orange County, 669 P.2d 41 (Cal.Sup.Ct. 1983)(duty to family of victim)

Jablonski v. U.S., 712 F.2d 391 (9th Cir. 1983)(duty to warn identifiable victim)

Katona v. Co. of LA, 218 Cal. Rptr. 19 (Cal.Ct.App. 1985)(county mental health center did not have obligation to warn gun dealer or state law enforcement personnel of likelihood of person purchasing a weapon in order to hurt herself)

Kehler v. Eudaly, 933 S.W.2d 321 (Tex.Ct.App. 1996)(hospital and doctors are not liable for failure to warn unidentified victims who are murdered by person released from hospital; no duty to protect third persons from individual who is not in the custody of the state)

Lee v. Corregedore, 925 P.2d 324 (Haw.Sup.Ct. 1996)(no duty for social worker to warn about person's suicidal threats, since person was not in custody)

Sanchez v. Louisiana DHHR, 506 So.2d 777 (La.Ct.App. 1987)(court affirmed dismissal of suit against inpatient and outpatient facilities whose former patient killed two persons who were not identified victims)

Thapar v. Zezulka, 994 S.W.2d 635 (Tex.Sup.Ct. 1999)(state's supreme court declined to impose a common law duty on mental health professionals to warn third parties of their patients' threats of violence because that duty would violate the state's therapist-patient privilege; mental health professionals may use their discretion to breach the privilege)

XII. FAILURE TO PROTECT THIRD PARTIES

Aricet v. Gant, 580 So.2d 273 (Fla.Dist.Ct.App. 1991)(public policy precludes recovery by aides for injuries caused by resident, where aide assumes risk of danger and can recover through workman's compensation system)

Burcina v. City of Ketchikan, 902 P.2d 817 (Ala.Sup.Ct. 1995)(doctor is not responsible for criminal acts of a person receiving treatment at an outpatient clinic)

Bowess v. DeVito, 686 F.2d 616 (7th Cir. 1982)(no duty to protect general public)

Burns v. South Carolina Commission for the Blind. 448 S.E.2d 589 (S.C.App. 1994)( reversing jury verdict for woman sexually assaulted by other resident when Commission, like business owner, was not liable for acts of third persons, and did not have duty to protect its clients)

Davis v. Puryear, 673 So.2d 1298 (La.Ct.Ap. 1995)(state hospital's failure to obtain resident's prior psychiatric records and take precautions to prevent escape renders it liable for harm done to third party)

Durflinger v. Artiles, 673 P.2d 86 (Kan.Sup.Ct. 1983)(state hospital doctors are liable for negligent review and release of resident who subsequently kills mother; neither difficulties of predicting dangerousness nor likely restriction on release of institutionalized people warrant limiting ordinary rules of liability)

Harden v. Allstate Ins. Co., 1996 WL 190013 (D.Del. 1996)(doctor's failure to report patient with epilepsy to motor vehicles department renders him liable to victims of car accident with patient; state medical malpractice act does not apply to claim of failure to report)

King v. Smith, 539 So.2d 262 (Ala.Sup.Ct. 1989)(limited contacts by doctor and patient at outpatient mental health program are insufficient to create special relationship necessary to hold doctor responsible for subsequent criminal actions and harm)

Leonard v. Iowa, 491 N.W.2d 508 (IowaSup.Ct. 1992)(state hospital does not have duty to protect unforeseeable third party from released hospital patient)

Mujica v. Turner, 582 So.2d 24 (Fla.D.Ct.App. 1991)(institutionalized resident owes no duty of care to nursing home therapist; person with mental incompetency cannot be liable for injuring caretaker)

Nasser v. Parker, 455 S.E.2d 502 (Va.Sup.St. 1995)(psychiatrist and psychiatric hospital do not have duty to warn or protect victim of former patient since there never was any special relationship with the patient)

Perriera v. Colorado, 738 P.2d 4 (Colo.Ct.App. 1987)(court dismissed wrongful death suit by widow of policeman who was shot by released patient; no evidence of specific threats against officer)

Rivera v. New York City Health & Hospitals Corp., 191 F.Supp.2d 412 (S.D.N.Y. 2002) (allegations raised in complaint may give rise to a duty of care on the part of mental health providers to protect the general public from a mentally ill outpatient who pushed a bystander in front of a subway train, causing him to lose his legs)

Spence v. U.S., 132 F.Supp.2d 1061 (M.D.Ga. 2001)(under Georgia law, the actions of a treating physician gave rise to liability to daughters whose parent was killed by an involuntarily committed mental patient who was given an unsupervised weekend pass even though it was foreseeable that some injury would result from his release from the hospital)

Tamsen v. Weber, 802 P.2d 1063 (Ariz.Ct.App. 1990)(state hospital psychiatrist owes a duty to protect a third party from his patient's violent acts)

White v. United States, 780 F.2d 97 (D.C.Cir. 1986)(hospital liable for specific threat by patient, even if hospital is unaware of threat although therapist is)

Wozniak v. New Britian General Hospital, 1996 WL 518072 (Conn.Super.Ct. 1996)(doctor does not have mandatory duty to report epileptic patient to motor vehicle department, since duty to protect only extends to known victims)

XIII. DISCRIMINATION

Arnold v. United Artists Theatre Circuit, Inc., No. C93-0079, 5 NDLR ¶438 (N.D.Ca. April 26, 1994)(plaintiffs claiming theatres violated Title III of the ADA and state law in failing to provide wheelchair access to their facilities successfully moved for class certification and bifurcation of trial)

Baumgardner v. County of Cook, 108 F.Supp.2d 1041 (N.D.Ill.2000)(disabled employee who brings a claim alleging ADA violations against his county government employer can bring a claim alleging violations under §1983 of the Equal Protection Clause against his individual supervisor, and rely on the same facts and circumstances as the basis for both claims; purpose of the ADA was to provide remedies to disabled individuals in addition to those guaranteed under the Equal Protection Clause)

Blake v. Southcoast Health Sys., Inc., 145 F.Supp.2d 126 (D. Mass.2001)(federal court dismissed for lack of standing an estate's malpractice claim seeking injunctive relief against the hospital under the Americans with Disabilities Act, Title III, because the decedent cannot be further harmed; estate cannot derive standing by alleging other persons with disabilities may suffer discrimination from the hospital in the future)

Bravin v. Mount Sinai Medical Center, 58 F.Supp.2d 269 (S.D.N.Y. 1999)(finding of intentional discrimination was required to impose liability under the Rehabilitation Act; intentional discrimination did not require personal animosity against the disabled, but rather, could be inferred when a policymaker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights would result from implementation of the challenged policy or custom)

Buko v. American Medical Laboratories, 830 F.Supp. 899 (E.D.Va. 1993)(failure to perform one particular job as a result of a disability or perceived disability did not constitute a substantial impairment or render the individual an otherwise qualified person with a disability)

Doe v. County of Centre, 242 F.3d 437 (3d Cir. 2001)(punitive damages are not available against county entities under Title II of the Americans with Disabilities Act or the Rehabilitation Act as the statutes lack any indicia of Congressional intent to override settled common law immunity of municipalities and such damages might threaten the financial integrity of local governments)

Doe v. District of Columbia Commission on Human Rights, 624 A.2d 440 (D.C. Ct.App. 1993)(hospital did not discriminate on basis of disability or sexual orientation when it ordered blood and body fluid precautions)

Dorsey v. U.S. Department of Labor, 41 F.3d 1551 (D.C.Cir. 1994)(no private right of action for damages against federal government for violating Rehabilitation Act)

Ferguson v. City of Phoenix, 157 F.3d 668 (9th Cir. 1998)(compensatory damages are not available under Title II of the ADA or Rehabilitation Act absent a showing of discriminatory intent; city was not liable to deaf and hearing-impaired users of a 9-1-1 telephone service for compensatory damages because the city did not act with discriminatory animus or deliberate indifference even though the procedure to initiate a 9-1-1 call on the telecommunication devices (TDD) was prohibited by the Justice Dept.'s ADA technical assistance manual and operators did not always recognize the resulting audible signal as an indication of a TDD call)

Franklin v. Gwinnett County Public Schools, 112 U.S. 1028 (1992)(victim of sex discrimination is entitled to compensatory damages, in addition to equitable relief, under title IX of the Civil Rights Act, despite absence of clear monetary remedy in statute; by implication, damages also available under §504)

Frazier v. Fairhaven Sch. Comm., 276 F.3d 52 (1st Cir. 2002)(plaintiffs who alleged that school officials failed to provide a free appropriate public education to a high school student with a learning disability could not bring suit for money damages under 42 U.S.C. §1983 without first exhausting administrative remedies under IDEA)

Gorman v. Bartch, 925 F.Supp. 653 (W.D.Mo. 1996)(police officers who transported wheel-chair arrestee in non-accessible van by tying his body to wire mesh with a belt are not liable under ADA for injuries suffered, since ADA does not apply to arrest process)

Hallett v. New York State Dept. of Correctional Services, 109 F.Supp.2d 190 (S.D.N.Y. 2000)(state prison officials cannot be held liable in either their individual or officials capacities to a former inmate for alleged violations of Title II of the ADA and the Rehabilitation Act because both acts were directed at public entities and did not provide for individual liability)

In the Matter of Baby K, 16 F.3d 590 (4th Cir. 1994)(hospital has duty under Emergency Medical Treatment and Active Labor Act to provide treatment to baby with profound disability; failure to provide lifesaving treatment to disabled child, even when consistent with ethical guidelines of state medical association, is discriminatory when similar treatment would have been provided to nondisabled baby with similar medical condition)

Kedra v. Nazareth Hospital, 868 F.Supp. 733 (E.D.Pa. 1994)(plaintiffs may state claim under Rehabilitation Act to compensatory and punitive damages)

Kling v. County of Los Angeles, 769 F.2d 532 (9th Cir. 1984), rev'd on other grounds, 474

U.S. 936 (1985)(damages appropriate under §504)

L.C. v. Utah State Board of Educ., 57 F.Supp.2d 1214 (D.Utah 1999)(courts have the discretion to award monetary damages for denial of free and appropriate public education under IDEA and under §1983 for violations of IDEA's due process guarantees; enforcement powers granted under IDEA were broad)

Lintemuth v. Saturn Corp., 1994 WL 761231 (M.D.Tenn. 1994)(employees of car manufacturer alleged that it failed to make reasonable accommodations for their disabilities in violation of Title I of the ADA moved for class certification and were denied because of lack of typicality)

Margeson v. Springfield Terminal Railroad, 1993 WL 343676 (D.Mass. 1993)(where railroad, upon learning that employee has panic disorder, terminates worker from one, safety-sensitive position but offers alternative job at lower salary, employee is not perceived as having a disability; disqualification from one position, even on the basis of an actual disability, does not result in prohibited discrimination where alternative jobs with same employer are offered)

Meadowbriar Home for Children v. Gunn, 81 F.3d 521 (5th Cir. 1996)(city fire inspector enjoys qualified immunity from FHAA suit alleging conspiracy to prevent the operation of two group homes for persons with mental retardation; since federal regulations under the FHAA make no mention of state or local zoning decisions or land use laws, there is not violation of a clearly established right)

Modderno v. King, 871 F.Supp. 40 (D.D.C. 1994)(participant in Federal Employee Health Benefit Program failed to state a claim under the Rehabilitation Act when the program provided less coverage for mental illness than physical illness. Because all benefits under the plan were available to both mentally and physically handicapped persons, plaintiff could not show she was excluded from a benefit solely by reason of her mental handicap)

Monohan v. Nebraska, 687 F.2d 1164 (8th Cir. 1982)(private right of action for damages available under §504)

Moore v. Warwick Public School District No. 29, 794 F.2d 322 (8th Cir. 1986)(individual plaintiffs have implied cause of action for damages under §504)

Moyer v. Showboat Casino Hotel, Atlantic City 56 F.Supp.2d 498 (D.N.J.1999)(disabled patron of casino not obligated to seek relief from the state division of civil rights before filing civil suit because Title III of ADA, which prohibits places of public accommodation from discriminating against individuals on basis of their disability, does not require exhaustion of state administrative remedies)

New Jersey Coalition of Rooming & Boarding House Owners v. Mayor & Council of the City of Asbury Park, 152 F.3d 217 (3d Cir.1998) (concurred with district court that owners and residents of rooming house had standing to sue and were entitled to compensatory damages and attorneys' fees under the Fair Housing Amendments Act of 1988; remanded the case for further findings on plaintiffs' standing to challenge zoning statutes and ordinances governing spacing requirements and total population density)

Noland v. Wheatley, 835 F.Supp. 476 (N.D.Ind. 1993)(exhaustion not required in ADA claim brought by inmate against county commissioners; ADA and regulations established clear right to accommodation which precludes assertion of qualified immunity)

Paciorek v. Michigan Consol. Gas Co., 179 F.R.D. 216 (E.D.Mich.1998)(district court held imposition of punitive damages under the Americans with Disabilities Act is not conditioned on a award of compensatory or nominal damages)

Patterson v. Illinois Department of Corrections, 35 F.Supp.2d 1103 (C.D. Ill.1999)(Title II of the ADA does not create a cause of action for public employees for employment discrimination; Title II does not use the term "employment" and does not set forth defenses for an employer; allowing a claim would permit a public employee to bypass the requirement of exhausting administrative remedies, and deprive EEOC and employer the opportunity to settle through conference and conciliation)

Rivera v. Heyman, 157 F.3d 101 (2d Cir. 1998)(federal employee could not assert cause of action under section of the Rehabilitation Act alleging discrimination in programs and activities receiving federal financial assistance)

Susavage v. Bucks County Schs., 2002 WL 109615 (E.D. Pa. Jan. 22, 2002)(parents of a special education student who died after being strangled by a harness while being transported in a bus to school could seek compensatory, but not punitive damages under IDEA and the ADA)

Schmidt v. Odell, 64 F.Supp.2d 1014 (D.Kan.1999)(refusal to provide a wheelchair in the country jail for a double-amputee inmate did not violate his Eighth Amendment rights because the jail entrances, hallways and exits were too narrow to accommodate a wheelchair; court found legitimate security concerns about placing a wheelchair among the general population in jail)

Schollenberger v. Sears, Roebuck, and Co., 925 F.Supp. 1239 (E.D.Mich. 1996)(person with muscular dystrophy whose wheel chair tipped on steep ramp which was constructed before passage of ADA does not have damage claim against store; invitee assumes risk of improperly constructed ramp)

Scott v. Estes, 60 F.Supp.2d 1260 (M.D.Ala.1999)(employee's claim of discrimination based on her disability was not actionable under §1983 because the right to be free from discrimination was created solely by statute)

Sellers v. School Bd. of City of Manassas, Va., 141 F.3d 524 (4th Cir. 1998)(high school student and his parents could not sue, under §1983, for alleged statutory violations of the Individuals with Disabilities Education Act; plaintiffs could not recover compensatory or punitive damages under the IDEA)

Smith v. State of Indiana, 904 F.Supp. 877 (N.D.Ind. 1995)(malpractice statute's presentment requirement did not apply to ADA claim against physician in correctional setting)

Trautz v. Weisman, 819 F.Supp. 282 (E.D.N.Y. 1993)(court upholds conspiracy claim under 42 U.S.C. §1985 on behalf of class of mentally retarded residents of group home who were allegedly abused and subjected to dangerous conditions)

Tyler v. City of Manhattan, 849 F.Supp. 1442 (D.Kan. 1994)(plaintiff claiming discrimination under the ADA because city failed to permit him to participate in recreational programs, city council meetings and advisory board activities, was not entitled to jury trial or compensatory damages for emotional distress, mental anguish, and humiliation)

Wagner v. Regent Investments, Inc., 903 F.Supp 966 (E.D.Va. 1995)(federal court does not have jurisdiction under the ADA over personal injuries sustained by person in wheelchair who fell off curb at a convenience store that did not comply with the accessibility requirements of the statute)

Worthington v. City of New Haven, 994 F.Supp. 111 (D.Conn.1997)(former city employee could seek damages under the Americans with Disabilities Act, §504 of the Rehabilitation Act and the Connecticut Constitution for becoming totally disabled due to the city's alleged refusal to accommodate her disability while she was an employee)

Wyatt v. United States, 939 F.Supp. 1402 (E.D.Mo. 1996)(VA doctors' failure to properly treat and monitor person's ulcers, which then develops into a life-threatening situation requiring a double amputation, justifies $3 million damage award)

Zimmerman v. Oregon Dept. of Justice, 170 F.3d 1169 (9th Cir. 1999)(Title II of ADA relating to public services unambiguously does not apply to employment, nor does it incorporate the Rehabilitation Act's prohibition on employment discrimination)

XIV. ASSESSMENT OF DAMAGES

Adams v. Murakami, 268 Cal. Rptr. 467 (Cal.Ct.App. 1990)(award of $1,025,266, including $750,000 in punitive damages, upheld to handicapped woman in convalescent home who gave birth to severely handicapped child after becoming pregnant in state hospital; doctor liable for not protecting woman's safety, for not preventing pregnancy, for not performing abortion, for not providing basic medical care, and for not providing information concerning risks of psychotropic medication during pregnancy)

Andrea N. v. Laurelwood Convalescent Home, 16 Cal. Rptr. 2d 894 (Cal.Ct.App. 1993)(court of appeals reinstates jury award of $7.5 million to women with profound disabilities who was raped by nursing home attendant; rejects trial judge's conclusion that severity and complexity of her disability prevented her from experiencing pain and suffering; since attendants' actions were not professional, award is not subject to malpractice cap on noneconomic damages)

Bayh v. Sonnenburg, 573 N.E.2d 398 (1991)(state supreme court reverses award of $2.1 million in damages to patients of state hospital for work performed at facility, based upon claims under state and federal constitutional provisions on involuntary labor)

Butler v. South Glen Falls Central School Dist., 106 F.Supp.2d 414 (N.D.N.Y., 2000)(prevailing IDEA suit plaintiff may recover tuition reimbursement as damages, but not compensatory or punitive damages; a plaintiff who seeks a Rehabilitation Act claim based on violations of IDEA may recover compensatory and punitive damages only upon a showing that the school district acted in bad faith or gross misjudgment; money damages are available under §1983 for IDEA violations)

Cappillino v. Hyde Park Cent. School Dist., 40 F.Supp.2d 513 (S.D.N.Y.1999)(the Individuals with Disabilities Education Act does not preclude a claim for damages under §1983 in a matter of apparent first impression in Second Circuit; court declined to follow holdings of four other federal circuit courts of appeal)

Caulfield v. Kitsap County, 29 P.3d 738 (Wash.Ct.App.2001)(court affirmed $1.58 million award against a county and a caregiver because defendants failed to properly manage the in-home care of man with multiple sclerosis; court found the special relationship exception to the public duty doctrine applied)

College Hospital v. Superior Court, 16 Cal.Rptr. 2d 833 (Cal.Ct.App. 1993)(failure to investigate misconduct may give rise to punitive damages claim)

Cowan v. Doering, 545 A.2d 159 (N.J.Sup.Ct. 1988)(court affirms $600,000 award to patient who jumped from second-story window of hospital. Issue of contributory negligence should not be submitted to jury)

Dadian v. Village of Wilmette, 1999 WL 299887 (N.D.Ill. May 4, 1999)(homeowners with physical disabilities may sue individual village defendants in their officials capacities under the Fair Housing Act Amendments and the ADA, Title II, for refusing to allow them to construct a front driveway on their property; punitive damages are available under FHAA and ADA)

Deasy v. United States, 99 F.3d 354 (10th Cir. 1996)(resident of VA hospital who successfully sued for psychological harm from hospital's failure to treat medical condition in a timely way wins $4.6 million in second suit for aggravation of his PTSD condition occasioned from medical mistreatment)

Doe v. McNulty, 630 So.2d 825 (La.Ct.App. 1993)(court affirms jury award of $700,000 against doctor for failure to make timely diagnosis of HIV infection)

Dorsey v. U.S. Department of Labor, 41 F.3d 1551 (D.C.Cir. 1994)(no private right of action for damages against federal government for violating Rehabilitation Act)

Glass v. Mayas, 794 F.Supp. 470 (E.D.N.Y. 1992)(physicians entitled to qualified immunity for decision to involuntarily hospital based upon reasonable belief in danger to others)

Gorman v. Easley, 257 F.3d 738 (8th Cir. 2001)(court found punitive damages are available under the Americans with Disabilities Act, Title II, and the Rehabilitation Act; court remanded for a determination of whether evidence supports a punitive damage award to a paraplegic injured while being transported in a police car that was not equipped for persons in wheelchairs, and whether $1.2 million award was excessive)

Gray v. Spillman, 925 F.2d 90 (4th Cir. 1991)(serious injury is not essential element of §1983 action for beating of inmate)

Griffin v. Tri-County Metro. Transp. Dist. of Oregon, 870 P.2d. 808 (Or.Sup.Ct. 1994)($100,00 tort claim cap includes damages as well as attorney's fees and costs)

Hartford Insurance Company v. Manor Inn of Bethesda, 642 A.2d 219 (Md.Ct.App. 1994)(no duty to protect unforeseen victim of a car accident caused by an escapee of a mental hospital, who stole a car which had been left unattended with the keys inside, drove the car negligently and struck the driver of another car)

Heath v. Emory University Hospital, 431 S.E.2d 427 (Ga.Ct.App. 1993)(woman who is transferred to eating disorder clinic without notice of the facility's right to retain her involuntarily was awarded $25,000 for false imprisonment, but no damages on battery claim)

Hoffer v. Commissioner of Correction, 412 Mass. 450 (Mass.Sup.Jud.Ct. 1992)(prisoner confined to segregation unit for two years without being provided regulatory review process is entitled to $110,600, based upon an assessment of $100/day in confinement, $100/social visit missed, plus lost earnings)

Hogan v. Bangoor & Aroostock R.R. Co., 61 F. 3d 1034 (1st Cir. 1995)($200,000 limit for compensatory and punitive damages, set forth in the 1991 Civil Rights Restoration Act, applied to the ADA)

Kedra v. Nazareth Hospital, 868 F.Supp. 733 (E.D.Pa. 1994)(plaintiffs may state claim under Rehabilitation Act to compensatory and punitive damages)

Kotler v. Alma Lodge, 74 Cal.Rptr.2d 721 (Cal.Ct.App. 1998)(appeals court affirmed jury verdict of negligence and $600,000 award for each of two deaths in wrongful death action brought by survivors of two residents who died in a residential care facility for individuals with mental illness; held facility was not covered by $250,000 cap on non-economic damages under the Medical Injury Compensation Reform Act)

Merchant v. Kring, 50 F.Supp.2d 433 (W.D.Pa.1999)(individual with a disability under the ADA produced sufficient evidence to support a claim that his dentist violated the ADA, Title III, and the Rehabilitation Act by requiring him to take an HIV test and then denying him treatment; punitive damages are available under the Rehabilitation Act)

Miley v. Landry, 582 So.2d 833 (La.Sup.Ct. 1991)(woman with preexisting mental illness is entitled to $300,000 in emotional damages for car accident that exacerbates her disability and causes substantial deterioration in her psychological condition)

Moreno v. Consolidated Rail Corp., 63 F.3d 1404 (6th. Cir. 1995)(punitive damages for violation of §504 are available under Franklin v. Gwinnett; employee who was terminated from position is awarded $62,000 in back pay, $125,000 in compensatory damages, and $1,300,000 in punitive damages; although there was sufficient evidence of malice or reckless disregard of employee's rights, appeals court remands punitive damages for reconsideration)

Morris v. Dearborne, 181 F.3d 657 (5th Cir. 1999)(teacher's fabrication of a sexual abuse charge against a student's father would so shock the contemporary conscience so as to violate substantive due process; teacher allegedly guided the hand of a four-year-old child using a facilitated communication device; teacher not entitled to qualified immunity; contention that officials evaluated allegations did not preclude a finding of causation where plaintiffs claimed teacher created false evidence)

Muller v. Hotsy Corp., 1996 WL 96928 (N.D.Iowa 1996)(to make prima facie case of discrimination, plaintiff needs to show he was treated less favorably than a nondisabled person or a person with a lesser disability or a person whose disability is more easily accommodated, but does not need to demonstrate that he was terminated because of his disability)

Orlikow v. United States, 682 F.Supp. 77 (D.D.C. 1988)(settlement of $750,000 for illegal drugging)

Padilla ex rel. Padilla v. School Dist. No. 1 in City and County of Denver, Colo., 35 F.Supp.2d 1260 (D.Colo.1999)(general damages are available under §1983 when suing for violations of the Individuals with Disabilities Education Act; court may order any appropriate relief, including money damages because the plain language of IDEA specifically leaves remedies available to courts' discretion)

Petty v. Texas Department of Mental Health and Retardation, 848 S.W.2d 680 (Tex.S.Ct. 1992)($550,000 for excessive and unnecessary institutionalization; award reduced to $250,000 because of state tort claims cap; no finding of constitutional violations)

Rhodam v. United States, 754 F.Supp. 76 (D.S.C. 1991)(court upholds award of $25,000 in compensatory and $100,000 in future damages for psychiatric malpractice in VA hospital)

Simenson v. Hoffman, 1995 WL 631804 (N.D.Ill. 1995)(in suit brought under ADA, §504, and state tort law against physician and medical center for failure to treat infant with genetic skin disorder, court found that (1) a physician cannot be subjected to individual liability under Title III of the ADA; (2) the parents' claim to associational discrimination should be dismissed since they did not suffer any separate injury; and (3) the parents' emotional distress claim survived, entitling them to compensatory and punitive damages)

W.B. v. Matula, 67 F.3d 484 (3rd Cir. 1995)(federal civil rights claim for money damages can be brought under IDEA and §504; since money damages are not available in an administrative proceeding under IDEA, exhaustion is not required)

Wagenman v. Adams, 829 F.2d 196 (1st Cir. 1987)(court affirms verdict of $315,000 in compensatory and punitive damages for false arrest and detention of disabled person in state hospital)

Washington v. Barnes Hospital, 897 S.W.2d 611 (Mo.Sup.Ct. 1995)(in a malpractice action for negligent treatment of an infant which results in severe birth defects, the trial court impermissibly precluded the defendants from introducing evidence of the availability of a free, appropriate education that reduces the amount of damages which may be awarded)

West Oaks Hosp., Inc. v. Jones, 2001 WL 83528 (Tex. Ct. App. Feb. 1, 2001)(appeals court upheld $1.29-million jury award against a hospital for negligence in allowing a patient who was admitted to the psychiatric intensive care unit to escape, and in not trying to find him before he committed suicide; $5-million award for decedent's pain and suffering was properly reduced by a damages cap as the suit was a health care liability claim)

Whipple ex rel. Whipple v. Warren County School Dist., 133 F.Supp.2d 381 (W.D.Pa. 2000)(no independent cause of action for money damages exists for violating Pennsylvania's regulations pertaining to a student's rights and responsibilities regarding exclusion from school, disciplinary hearings and special education services)

Whitehead v. School Board for Hillsborough County, 918 F.Supp. 1515 (M.D.Fla. 1996)(compensatory and punitive damages are not available to parents suing school department for violation of IDEA; damages are available under §504 for retaliatory conduct)

Williams v. United States, 747 F.Supp 767 (S.D.N.Y. 1990)(court awards $500,000 for pain and suffering for leg amputation resulting from prison doctor's failure to properly treat gangrenous foot)

Woods v. New Jersey Dep't of Educ., 796 F.Supp. 767 (D.N.J. 1992)(IDEA allows punitive damages)

XV. IMMUNITY

Allen v. Montgomery Hospital, 668 A.2d 565 (Pa.Sup.Ct. 1995)(immunity provisions of Pennsylvania mental health code do not apply to health care providers who are not trained in mental health treatment and who only treated the person's physical condition)

Barichello v. McDonald, 98 F.3d 948 (7th Cir. 1996)(criminally committed resident of state hospital did not have a clearly established right, under the equal protection clause, to a grounds pass because civilly committed persons had access to such passes; therefore, DMH officials had qualified immunity to discrimination suit for damages)

Bartell v. Lohiser, No.96-CV-60416-AA (E.D. Mich. July 1, 1998) (individual employees of state and private social service agencies were entitled to qualified immunity against the ADA discrimination claims of a woman alleging her parental rights were terminated because of her mental disabilities)

Brookhouser v. California, 13 Cal.Rptr. 2d 658 (Cal.Ct.App. 1992)(court dismisses $2.7 million verdict in favor of patient who was hit by car when she wandered away from board and care home, because state social worker's failure to provide information to facility was not sufficiently related to cause of the injuries; social worker also immune under state law)

Bunting v. Huckstep, 853 S.W.2d 448 (Mo.Ct.App. 1993)(state mental health immunity statute which protects good-faith decisions about detaining or releasing hospital patients also applies to supervision of residents in institutions)

Charpentier v. Godsil, 937 F.2d 859 (3rd Cir. 1991)(jail physician is immune for failing to prescribe appropriate treatment under N.J. Tort Claims Act)

Chasse v. Banas, 399 A.2d 608 (N.H.Sup.Ct. 1979)(enactment of statutory right to care waives immunity)

Clark v. Maine Memorial Medical Center, 559 A.2d 358 (Me.Sup.Ct. 1989)(doctor in private hospital which screened admissions to state facility is considered state employee for immunity purposes; discretionary exception to state tort claims act precludes liability when person who is denied admission commits suicide)

Clift v. Fincannon, 657 F.Supp. 1535 (E.D.Tex. 1987)(court dismisses wrongful death action against school officials on 11th Amendment grounds, since state school was under the exclusive control of the state; individual defendants had qualified immunity defense)

Coley v. Castillo, 115 F.Supp. 2d 1383 (M.D.Ga. 2000)(physician at state mental hospital did not act with deliberate indifference when she failed to restrain a patient who later strangled another patient; physician was entitled to qualified immunity under §1983 because she had not violated the decedent's constitutional rights)

Covell v. Smith, 1996 WL 750033 (E.D.Pa. 1996)(even assuming they are state actors, private mental health professionals who participate in emergency detention and civil commitment proceedings are entitled to qualified immunity; no respondeat superior liability against mental health center and hospital and no municipal liability for failure to train mental health counselor)

Crawford v. Regents of the University of California, 13 Cal. Rptr. 2d 278 (Cal. Ct. App. 1992)(court affirms award of $52,000 for six day illegal detention and involuntary medication of psychiatric patient by university hospital and physicians; court rejects statutory immunity for good faith commitment because it was in violation of a court order)

Davis v. Rennie, 264 F.3d 86 (1st Cir. 2001)(Mental health care personnel not entitled to qualified immunity against a claim of excessive force brought by an involuntarily committed patient who was thrown to the floor and beaten about the head by a co-worker in an alleged restraint attempt; personnel who witnessed the incident had a legal duty to intervene but did not)

DeVargas v. Mason, 844 F.2d 714 (10th Cir. 1988)(private corporation under contract with federal government to provide security inspectors at governmental facility can raise qualified immunity defense)

District of Columbia v. Evans, 644 A.2d 1008 (D.C.App. 1994)(police officers who killed a man with epilepsy entitled to qualified immunity)

Drogin v. Campbell, 928 S.W.2d 205 (Tex.Ct.App. 1996)(medical treatment team at state psychiatric hospital are not immune from personal liability for discretionary medical decisions which led to person's suicide)

Dunn v. Denk, 54 F.3d 248 (8th Cir. 1995)(unwarranted arrest of resident of mental health facility while she was on weekend pass was a significant injury that overcomes officer's qualified immunity)

Edwards v. Gilbert, 867 F.2d 1271 (11th Cir. 1989)(placement of juvenile in adult cell and failure to adequately staff county jail, which results in juvenile's suicide, does not amount to deliberate indifference; defendants are immune from constitutional claims)

Estate of Cassara v. Illinois, 853 F.Supp. 273 (N.D.Ill. 1994)(suit challenging the failure to properly supervise a voluntary patient in restraint who hangs himself raises sufficient civil rights claims; state has a duty to protect a voluntary resident, state statutory guidelines on restraint impose restriction on liberty give rise to due process protection; staff members are not immune from liability under discretionary exception to tort claims act)

Farago v. Sacred Heart General Hospital, 562 A.2d 300 (Pa.Sup.Ct. 1989)(state statutory immunity under mental health statute not limited to admission, discharge, and restraint; extends to all treatment decisions)

Felce v. Fiedler, 974 F.2d 1484 (7th Cir. 1992)(failure to provide procedural protections to inmate before involuntarily medicating him with antipsychotic medications did not violate clearly established rights and therefore state officials are entitled to qualified immunity)

Garrett v. Rader, 831 F.2d 202 (10th Cir. 1987)(court rejects qualified immunity defense of state school superintendent and director of Dept. of Human Services for negligent death of mentally retarded child who died while restrained)

Glass v. Mayas, 984 F.2d 55 (2d Cir. 1993)(physician who involuntarily committed patient is entitled to qualified immunity based upon reasonable belief that person was dangerous)

Gordon v. Sadavisar, 373 N.W.2d 258 (Mich.Ct.App. 1985)(superintendent is not immune in his individual capacity)

Guess v. California, 157 Cal. Rptr. 618 (Cal.Ct.App. 1979)(state sovereign immunity extends to county mental health center)

Guzman v. County of Los Angeles, 286 Cal.Rptr. 317 (Cal.Ct.App. 1991)(county hospital is a mental institution under state law and is therefore immune from liability for an involuntarily detained person's injuries)

Hedges v. Poletis, 177 F.3d 1071 (8th Cir. 1999)(police chief was entitled to qualified immunity in a §1983 case after filing an affidavit supporting the civil commitment of a man who participated in neighborhood feuds, had anxiety, major depression and obsessive compulsive personality disorder, and owned a firearm)

Herer v. Burnes, 577 F.Supp. 762 (W.D.Va. 1984)(11th Am. immunity precludes damage award)

Jacobi v. Mich. Dept. of Mental Health, 276 N.W.2d 627 (Mich.Ct.App. 1979)(operating and maintaining hospital constitutes a governmental function; therefore, state agency and its executive staff are immune from all liability for activities at the facility)

Karchefske v. Michigan DMH, 371 N.W.2d 876 (Mich.Ct.App. 1985)(court affirms dismissal on immunity grounds of wrongful death suit brought under §1983 by resident who was strangled while restrained)

Kerman v. City of N.Y., 261 F.3d 229 (2d Cir. 2001)(factual issues remained as to whether police officer violated the Fourth Amendment when the officer transported a man with depression to a mental hospital, and whether the police officer was entitled to qualified immunity)

Key v. Grayson, 179 F.3d 996 (6th Cir.1999)(prison officials entitled to qualified immunity on a hearing-impaired prisoner's claims under the Americans with Disabilities Act and the Rehabilitation Act because, as a matter of first impression in the Sixth Circuit, the applications of these acts to state prisoners was not firmly established prior to 1996; federal courts also in conflict regarding applicability)

Kulas v. CSO Valdez, 159 F.3d 453 (9th Cir. 1998)(a treating physician's interpretation of court order to permit the involuntary administration of antipsychotic drugs to an individual who was found incompetent to stand trial but was institutionalized pending a determination if he could be restored to competency was reasonable; thus, physician was entitled to qualified immunity in the individual's resulting §1983 action challenging forced medication)

Lopes v. Rogers, 909 F.Supp. 737 (D.Hawaii 1995)(superintendent and nurse at state hospital are entitled to qualified immunity for use of excessive force by aide who was escorting patient to "time-out;" force used to apply restraint does not violate clearly established norms, since there was no malicious intent by aide, no bad faith by superintendent or nurse, and force used was reasonable and necessary under the circumstances)

Mawhirt v. Ahmed, 86 F.Supp.2d 81 (E.D.N.Y.2000)(doctors at state psychiatric hospital were entitled to qualified immunity from patient's §1983 claim for violation of substantive due process rights and false imprisonment claim because their conclusions that he suffered from extreme paranoia and was a danger to himself and others were objectively reasonable)

McArdle v. Tronetti, 961 F.2d 1083 (3rd Cir. 1992)(doctor appointed by state court to evaluate patient was entitled to absolute immunity, even though his evaluation was falsified and his testimony perjured)

Moats v. Preston County Comm'n., 521 S.E.2d 180 (W.Va.Sup.Ct.1999)(county was immune from suit for an involuntarily-committed detainee's suicide because it was enforcing a lawful court order when the incident occurred; however, a community health care center was not entitled to quasi-judicial immunity because it was not performing an essential act of the commitment process; defense of quasi-judicial immunity not intended to apply to employees of private mental health centers who are transporting individuals in their custody)

Moore v. Wyoming Medical Center, 825 F.Supp. 1531 (D.Wyo. 1993)(seizure by police and paramedics and involuntary transportation to mental health clinic may give rise to constitutional and state law causes of action; the private defendants are not entitled to immunity under Wyatt v. Cole and the municipality is not entitled to immunity under Monell)

Moses v. Parwatikar, 813 F.2d 891 (8th Cir. 1987)(psychiatrist appointed to evaluate defendant's competency and responsibility is absolutely immune; allegation that psychiatrist conspired with state officials to deprive defendant of fair hearing did not deprive doctor of immunity)

Muzingo v. St.Luke's Hospital, 518 N.W.2d 776 (Iowa 1994)(court-appointed psychiatrists and hospitals asked to evaluate patients' mental health are entitled to absolute quasi-judicial immunity from suit arising out of such evaluations)

Navado v. Maloney, 172 F.Supp.2d 276 (D.Mass. 2001)(a state's corrections commission sued by a disabled inmate under §1983 was not entitled to qualified immunity because the commissioner's actions were contrary to the ban against acting in deliberate indifference to the inmate's serious medical needs)

Parillo v. Suna, 652 F.Supp. 1517 (D.Conn. 1987)(physicians and psychologists enjoy qualified immunity in a civil rights action for death of patient who hanged himself after release, since clearly established constitutional right to treatment did not exist before 1982)

P.C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990)(employees of mental health facility are immune from damages for allegedly depriving resident of appropriate residential and educational services, since there was no clearly established right to such services nor deliberate indifference to his needs)

Perri v. Coughlin, 1999 WL 395374 (N.D.N.Y. June 11, 1999) (commissioner of correctional services and the commissioner of mental health services were personally liable under the Eighth Amendment and could not claim qualified immunity for their failure to establish appropriate programs for the treatment of mentally ill inmates, which led to the confinement of an inmate in inhumane conditions; actions of state officials in delaying or ignoring their statutory obligations to mentally ill inmates constitute deliberate indifference to serious medical needs)

Perry v. Kalamazoo State Hospital, 273 N.W.2d 421 (Mich.Sup.Ct. 1978)(maintaining hospital constitutes a governmental function; sovereign is immune)

Predoti v. Bergen Pines County Hospital, 463 A.2d 400 (N.J.App.Div. 1983)(immunity for transfer to less restrictive alternative)

Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584 (10th Cir. 1994)(Officials of Oklahoma Dept. of Mental Health were not entitled to qualified imunity for civil rights claims by psychiatrist and nurse that they were disciplined for reporting that a mental health aide who was allegedly infected with the HIV virus had abused a patient)

Reese v. Nelson, 598 F.2d 822 (3rd Cir. 1983)(qualified immunity applies to medical director)

Rodgers v. Horsley, 39 F.3d 308 (11th Cir. 1994)(hospital administrators are entitled to qualified immunity in suit by patient who was raped while involuntarily committed, since obligation to adequately supervise resident who was on medical observation was not clearly established, despite Romeo)

Ruffer v. Phelps Memorial Hospital, 453 F.Supp. 1062 (S.D.N.Y. 1978)(private hospital is state actor when person in community is injured and therefore enjoys same immunity as state facility)

Sanville v. McCaughtry, 266 F.3d 724 (7th Cir. 2001)(prison guards sued in their individual capacities under §1983 after a mentally ill inmate committed suicide were not entitled to qualified immunity because they were aware that inmate was a substantial suicide risk but took no reasonable steps to prevent it; however, prison wardens who were not personally responsible for any deprivation were entitled to immunity, as were prison doctors whose alleged failure to correctly diagnose and treat inmate was nothing more than medical malpractice)

Sawyer v. County of Creek, 908 F.2d 663 (10th Cir. 1990)(state hospital doctor is immune from liability for resident's death because he did not act with deliberate indifference or violate a clearly established right)

Sherk v. County of Dauphin, 614 A.2d 226 (Pa.Sup.Ct. 1992)(court denies state sovereign immunity defense of state hospital which negligently releases patient who then injures police officer)

Sherman v. Four County Counseling Center, 987 F.2d 397 (7th Cir. 1993)(police officer who filed emergency detention application was entitled to qualified immunity, as was private inpatient facility, despite Supreme Court's decision in Wyatt v. Cole)

Smith v. Arnold, 564 So.2d 873 (Ala.Sup.Ct. 1990)(consulting psychiatrist who recommends drug withdrawal is immune because he is not involved in day to day care and because he exercises professional judgment)

Steinbig v. Hammel, 714 F.2d 292 (3rd Cir. 1983)(good faith immunity bars liability)

Stropes v. Heritage House Children's Center, 547 N.E.2d 244 (Ind.Sup.Ct. 1989)(facility can be held liable for intentional abuse of employee under respondeat superior theory; relationship depends on context of actions, not employees motivation)

Uhlrig v. Harder, 64 F.3d 567 (10th Cir. 1995)(state hospital administrators who closed a behavior unit due to budget constraints were entitled to qualified immunity in suit by therapist who was killed by forensic patient transferred to general population; state officials' actions were not malicious, reckless, or outrageous but were a reasonable response to fiscal realities)

Viero v. Bufano, 925 F.Supp. 1374 (N.D.Ill. 1996)(court denies summary judgment in suit by mother of juvenile inmate who committed suicide while in custody of Illinois Dept. of Corrections; defendants were not entitled to qualified immunity; and probation officer was not entitled to quasi-judicial immunity)

Walters v. Western State Hospital, 864 F.2d 695 (10th Cir. 1988)(unconsented to treatment with antipsychotic drugs and denial of communication with family violates clearly established rights)

Werner v. Commonwealth of Pennsylvania, 530 A.2d 1004 (Pa.Ct.Comm.Pleas 1987)(statutory immunity from simple negligence for decision to remove restraints was applicable; evidence that patient was placed in full restraints immediately after incident was inadmissible to prove antecedent negligence)

Wichita Falls State Hosp. v. Taylor, 48 S.W.3d 782 (Tex. Ct. App. 2001)(state hospital that allegedly discharged a suicidal patient was not immune from suit because Texas Health & Safety Code Ann. §321.003 provided clear and unambiguous waiver of immunity; court followed Central Counties Ctr. for Mental Health & Mental Retardation Servs. v. Rodriguez, 2001 Tex. App. LEXIS 1993, at *7, (Tex. Ct. App. March 29, 2001) which held a person harmed by violation of the patient's bill of rights while under the care of a mental health facility may sue that facility for damages and other relief)

Willacy v. Lewis, 598 F.Supp. 346 (D.D.C. 1984)(commitment by private doctor is not state action)

Williams v. Mehra, 186 F.3d 685 (6th Cir.1999)(three prison psychiatrists had qualified immunity in a suicide case because they were not indifferent to the serious medical needs of an inmate with depression)

Young v. City of Philadelphia, C.A. 95-2948 (E.D.Pa. May 31, 1996)(police counselor who threatens officer into voluntary committing herself is not entitled to qualified immunity in case alleging false imprisonment, even though psychiatrist ultimately determined that officer needed mental health treatment)

XVI. MISCELLANEOUS/PROCEDURE

Aubin v. Fudala, 821 F.2d 45 (1st Cir. 1987)(attorney's fees because of substantial success on state tort claim and interconnection of state tort and federal constitutional claims)

Berel v. HCA Health Services, 881 S.W.2d 21 (Tex.Ct.App. 1994)(questions of fact existed as to whether hospital was vicariously liable for psychiatrist's negligence)

Bhola v. Ohio, 758 N.E.2d 774 (Ohio Ct. App. 2001)(where the essence of the plaintiff's claim was a duty to protect and not medical malpractice, a retired psychiatrist was qualified to testify as to a state mental hospital's standard of care and the reasonableness of placing the patient in a room with another patient who subsequently killed him)

Biester v. Midwest Health Services, 1996 WL 8269 (10th Cir. 1996)(employee's mental illness did not equitably toll the 90 day period to file a lawsuit after receiving a right to sue letter from the EEOC, since the employee was not incompetent or institutionalized)

Borushchewitz v. Katz, 554 N.E.2d 1112 (Ill.App.Ct. 1990)(suit for negligent treatment against outpatient center by former patient who killed two persons allowed to proceed, despite public policy against damage actions by persons who violate criminal law)

Bubala v. Boyd, 389 S.E.2d 670 (Va.S.Ct. 1990)(state tort cap applies separately to mother and child's damage award, entitling each to recover $750,000 for wrongful birth)

Cobb v. Nizami, 851 F.2d 730 (4th Cir. 1988)(S/L bans recovery, where resident unnecessarily restrained, detained, and harmed)

Cochran v. St. Paul Fire and Marine Ins. Co., 909 F.Supp. 641 (W.D.Ark. 1995)(hospital's medication incidents reports, generated to document variations between medications ordered and administered, were not privileged since they were not prepared in anticipation of litigation)

Feagley v. Waddill, 868 F.2d 1437 (5th Cir. 1989)(summary judgment not proper where experts conflict over facts or death of resident of mental retardation facility)

Flick v. Alba, 932 F.2d 728 (8th Cir. 1991)(federal prison regulations creating an administrative remedy procedure do not by themselves create a due process liberty interest in access to that procedure)

Gould v. American Family Mutual Insurance Co., 543 N.E.2d 282 (Wis.Sup.Ct. 1996)(institutionalized person with disability (Alzheimer's disease) who cannot control or appreciate his conduct cannot be held liable to caretakers for injuries, since attendant had knowingly assumed risk of injury in nursing home from residents)

Griffin v. Tri-County Metro. Transp. Dist. of Oregon, 870 P.2d. 808 (Or.Sup.Ct. 1994)($100,00 tort claim cap includes damages as well as attorney's fees and costs)

Humana of Kentucky v. Akers, 1990 WL 186449 (Ky.Ct.App. 1990)(appeals court reverses a $942,744 judgment for a psychiatric patient who sustained injuries when she jumped out of her hospital window; jury should have judged the defendants' actions based on an ordinary negligence standard, not on a statutory standard based on the administrative regulation, since the regulation was neither specific nor precise)

Hutchinson v. Patel, 637 So.2d 415 (La.Sup.Ct. 1994)(suit by victim of released patient is not subject to medical malpractice review procedure, since failure to warn claim is not traditional maltpractice action involving a breach of a duty between doctor and his/her patient)

Krenning v. Hunter Health Clinic, 166 F.R.D. 33 (D.Kan. 1996)(plaintiff who alleges sexual harassment by employee of health clinic can discovery employee's and clinic director's personnel files)

Lake v. Arnold, 232 F.3d 360 (3d Cir. 2000)(a mentally retarded woman's federal civil rights claims against her father and stepmother, alleging they approved her involuntary sterilization, were subject to federal tolling principles and not Pennsylvania's tolling principles, which do not include tolling for mental health incompetence)

Langner v. Simpson, 533 N.W.2d 511 (Iowa Sup.Ct. 1995)(statute of limitations bars medical malpractice claim, where woman knew of her injuries when she left hospital and her mental illness was not disabling enough to prevent her from filing suit)

Lett v. Indiana, 519 N.E.2d 749 (Ind.Ct.App. 1988)(evidence of ability to care for oneself, to manage affairs, to use telephone, and to make decisions concerning Social Security funds indicate that person is not so disabled as to toll the statute of limitations under a notice of claim requirement)

Levey v. North Dakota Developmental Center, 533 N.W.2d 707 (N.D.Sup.Ct. 1995)(state had not waived sovereign immunity in wrongful death suit on behalf of resident of state school)

Lindsay v. North Virginia Mental health Institute, 736 F.Supp. 1392 (E.D.Va. 1990)(state mental health director is not person under §1983)

Lucas v. California, 807 F.2d 414 (5th Cir. 1986)(Texas medical malpractice limit of $500,000 is applicable to FTCA suit) [Note: Three state appellate courts and one federal district court (647 F.Supp. 1102) hold limit unconstitutional.]

Lupo v. Human Affairs International Inc., 28 F.3d 269 (2nd Cir. 1994)(ERISA does not preempt state claims of malpractice, breach of fiduciary duty and intentional infliction of emotional distress against a psychotherapist who was accused of seducing the wife of a client receiving services through employer-sponsored health care plan)

Marty v. Bachik, 770 F.Supp. 1414 (D.Or. 1991)(treatment plan that prevented an involuntarily committed patient from sending non-threatening letters to government officials violated his first amendment rights)

Miller v. Runyon, 77 F.3d 189 (7th Cir. 1996)(worker's mental illness did not toll statute of limitations for bringing an administrative complaint, where worker was able to attend college for most of the time between the incident and the filing of the complaint and where illness is controlled by medication during this period)

Monahan v. Dorchester Counselling Center, 961 F.2d 987 (1st Cir. 1992)(even assuming that privately-operated community program under contract with the state mental health authority is engaged in state action, resident has no constitutional right to be free from harm or to minimally adequate treatment, since he is not a committed person in the custody of the state; court dismisses all constitutional claims)

Moody v. United Nat'l Ins. Co., 657 So.2d 236 (La.Ct.App. 1995)(malpractice statute's limits on recovery do not violate state or federal constitution)

Mujica v. Turner, 582 So.2d 24 (Fla.D.Ct.App. 1991)(institutionalized resident owes no duty of care to nursing home therapist; person with mental incompetency cannot be liable for injuring caretaker)

Murphy v. Montana, 748 P.2d 907 (Mont. Sup. Ct. 1987)(as long as person continued to be seriously mentally ill, S/L is tolled for injuries sustained while a minor in a mental hospital)

Myer v. Dyer, 643 A.2d 1382 (Del.Sup. 1993)(although parents' malpractice claim was time-barred, child could seek recovery of expenses in separate action)

Nelson v. Murphy, 44 F.3d 497 (7th Cir. 1995)(district court properly invoked Younger abstention in §1983 damage action challenging blanket prohibition on grounds passes by insanity acquitees when state criminal courts have continued oversight over the terms and conditions of plaintiffs' release)

Ott ex rel. Ott v. Little Co. of Mary Hospital, 652 N.E.2d 1051 (Ill.App.Ct. 1995)(trial court did not abuse discretion in appointing guardian ad litem for minor in a medical malpractice action )

Outman v. United States, 890 F.2d 1050 (9th Cir. 1990)(S/L bars malpractice action for improper drugging resulting in tardive dyskinesia; statute begins running when veteran learned he had side-effects, even though he did not know until six years later that he was given drugs unnecessarily and improperly)

Palla v. McDonald, 877 S.W.2d 472 (Tex.Ct.App. 1994)(S/L in malpractice action tolled because of plaintiff's mental disability which was caused by negligence of the defendant doctor, even though general malpractice statute precludes tolling on the basis of disability)

Schenck v. Living Centers-East, Inc., 917 F.Supp. 432 (E.D.La. 1996)(breach of contract claim against nursing home on behalf of resident who died is governed by ten year statute of limitations which governs contract rather than shorter period for tort actions)

Schulz v. Long, 44 F.3d 643 (8th Cir. 1995)(evidence of actions of police officers leading up to shooting of person who refused to be taken to mental hospital and of possible alternative courses of action was properly excluded when the proper inquiry under the Fourth Amendment was the reasonableness of the action taken by officers in shooting)

Snyder v. Albany Medical Center Hospital, 615 N.Y.S.2d 139 (N.Y.App.Div. 1994)(private hospital can be sued for mistreatment during seclusion and restraint)

Utah v. Mickelson, 848 P.2d 677 (UtahCt.App. 1992)(statements of woman with severe disabilities who was abused were properly admitted as excited utterance)

Veal v. Memorial Hospital of Washington County, 894 F.Supp. 448 (M.D.Ga. 1995)(employee cannot bring discrimination claim under §1983 when §504 claim is untimely)

Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987)(attorney's fees awarded for all time spent in successfully litigating false imprisonment case, where state tort and federal civil rights claims are intertwined and time spent on each claim is not easily segregable)

Waterman v. Marquette-Alger Intermediate School District, 739 F.Supp. 361 (W.D. Mich. 1990)(dismissal of excessive discipline, abuse, and denial of food and medicine claim by student, for failure to exhaust administrative remedies)

^{^[1]} This section does not attempt to include all discrimination damage cases on behalf of persons with disabilities. Instead, it includes only selected cases involving major substantive or procedural issues. For a comprehensive list of decisions under the Americans with Disabilities Act, and the Rehabilitation Act, see the National Disability Law Reporter.