Bryson v. Banner Health System
Supreme Court No. S-10653/10673, (Alaska April 23, 2004)

By Karmyn Olmstead, Parry Grover and Joseph Reece
[April 2004]

A recent decision of the Alaska Supreme Court holds that a health care provider’s special relationship with its patient creates a duty to protect the patient from unreasonable risk of harm, including foreseeable dangers posed by other patients.

The plaintiff in this case, a female member of a substance abuse treatment group operated by Fairbanks Memorial Hospital's Family Recovery Center ("Hospital"), sued the Hospital after being sexually assaulted and shot by another member of the same treatment group. The plaintiff claimed that the Hospital had a duty to warn her of the other patient’s violent criminal history. The Hospital had placed the plaintiff and the male group member who had an extensive alcohol-related violent criminal history, of which the Hospital was aware, in the same treatment group. The Hospital encouraged group members to contact and assist one another outside of group meeting times, and distributed a list of group members’ names and telephone numbers to the group. The Hospital had received a warning from the male patient’s parole officer that he believed the patient was drinking again. The Hospital did not warn the plaintiff or any other members of the treatment group, however. Shortly thereafter, the male patient called the plaintiff for a ride, lured her to his apartment, and then attempted to rape her there. She was shot in the hand while struggling to resist the assault.

The Hospital argued on appeal that it had no duty to warn the plaintiff of the other member's criminal history because federal and state confidentiality laws governing substance abuse treatment records prohibited it from divulging such information. It is worth noting that the court did not rule on whether the privacy regulations issued under the Health Insurance Portability and Accountability Act (HIPAA) forbid the disclosure. The Court agreed that the Hospital could not be required to violate governing confidentiality laws in discharging its duty to the plaintiff, but the Hospital did have a duty to take other legally permissible measures to protect the plaintiff from harm. The Court held that the plaintiff’s status as a patient of the Hospital created a special relationship between the Hospital and the plaintiff that required the Hospital to exercise due care to avoid exposing the plaintiff to an unreasonable risk of harm in the treatment setting – including foreseeable harm from other patients.

The Court did not prescribe exactly how the Hospital should have satisfied the duty owed to the plaintiff in this particular circumstance. The Court did note, however, that whether the Hospital breached this duty by taking, or failing to take, particular action, is a question of fact that must be determined by reference to the skill and knowledge normally used by treatment providers under similar circumstances.

Analysis

This decision raises serious legal and practical difficulties for hospitals and other health care providers that provide substance abuse treatment services and potentially mental health treatment services. Such providers are prohibited by federal and state laws from disclosing information about their patients to third parties, including other patients. However, they may be required by this decision to warn those third parties of unreasonable risk of harm, as they learn of such risks, without violating these laws. Such hospitals and other providers should, as a first line of defense, ensure that their professional staff is aware of their duty to warn patients and other staff of foreseeable harm in addition to their duty to maintain patient confidential information. With knowledge of both duties, professional staff will be in a much better position to recognize circumstances that require action and to recommend steps that satisfy both duties.

The full text of the opinion can be found at:
http://www.state.ak.us/courts/ops/sp-5799.pdf.

For further information, contact:

Parry Grover, Anchorage, (907) 257-5341, parrygrover@dwt.com
Joan M. Wilson, Anchorage, (907) 257-5337, joanwilson@dwt.com

This Advisory is a publication of the Health Law Department of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent developments in health law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

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