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03/20/87 David M. Novak, Indiv. and v. A. Rathnam Et Al.

March 20, 1987

DAVID M. NOVAK, INDI

v.

AND AS ADM'R OF THE ESTATE OF BEVERLY ANN NOVAK, DECEASED, PLAINTIFF-APPELLANT,

v.

A. RATHNAM ET AL., DEFENDANTS-APPELLEES (ROBERT LEE



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

Endicott, Defendant)

505 N.E.2d 773, 153 Ill. App. 3d 408, 106 Ill. Dec. 226 1987.IL.349

Appeal from the Circuit Court of Peoria County; the Hon. Donald C. Courson, Judge, presiding.

APPELLATE Judges:

Justice Stouder delivered the opinion of the court. Scott, P.J., and Wombacher, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

In this wrongful-death action, plaintiff, David M. Novak, appeals from the judgment of the circuit court of Peoria County in favor of the defendants, Dr. A. Rathnam and David Girmscheid. Novak, individually and as special administrator of the estate of Beverly Ann Novak, filed a four-count complaint alleging that the defendants' negligent or wilful and wanton misconduct was the proximate cause of the decedent's death. The trial court originally dismissed counts I, III, and IV of the complaint which named Rathnam and Girmscheid and left standing count II against Robert Lee Endicott, the defendant who shot and killed the decedent.

Because this case was decided on the sufficiency of the complaint, the following facts are those alleged in the complaint. On July 8, 1976, Endicott was admitted as an in-patient to the Zeller Mental Health Center (Zeller) in Peoria. On July 21, he was found to be a person subject to involuntary admission pursuant to the Mental Health and Developmental Disabilities Code (the Code) (Ill. Rev. Stat. 1985, ch. 91 1/2, par. 1-101 et seq). Endicott was treated with antipsychotic medication during the period of his hospitalization and was prescribed additional medication upon his release. Girmscheid was responsible for Endicott's care and treatment during this time. Endicott was discharged on August 13, 1976, and was diagnosed as suffering from acute schizophrenic episodes.

Endicott was again involuntarily admitted to Zeller on February 2, 1978. He was placed under the care of Rathnam and Girmscheid, who had learned that Endicott had refused to maintain the antipsychotic medications prescribed upon his release in 1976. They also learned that Endicott had become hostile and threatening after his release. During this second term of hospitalization, Endicott refused to participate in group therapy and formal activities and had refused to take the medications prescribed.

Rathnam and Girmscheid allegedly diagnosed Endicott as a paranoid schizophrenic but failed to treat him for that condition. The complaint alleged that despite their knowledge of Endicott's behavior and violent tendencies, Rathnam and Girmscheid recommended his release. The complaint further alleged in count IV, based on a claim of wilful and wanton misconduct, that neither defendant reported his observations to their superiors and that they falsely reported that Endicott had been treated.

Endicott was released on March 24, 1978, and allegedly failed to maintain his prescribed medication. On May 4, 1979, while in Fort Lauderdale, Florida, and during the course of an attempted armed robbery, Endicott shot and severely injured Beverly Ann Novak, who later died of those injuries.

On appeal, Novak contends that Rathnam and Girmscheid had a duty to treat and confine Endicott, knowing that he possessed violent tendencies and that he posed a great danger to the public. He further contends that Rathnam and Girmscheid are not immune from suit as State employees by virtue of their employment with Zeller.

In reviewing the sufficiency of a complaint in the context of a motion to dismiss, all well-pleaded facts and all reasonable inferences therefrom must be regarded as true. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 485 N.E.2d 372.) A cause of action should not be dismissed unless it is clear that no set of facts could be proved which would entitle plaintiff to recover. Willard v. Northwest National Bank (1985), 137 Ill. App. 3d 255, 484 N.E.2d 823.

We must first consider whether Novak has alleged facts giving rise to a duty on the part of Rathnam and Girmscheid toward the decedent. The gist of this action is not based on professional malpractice, which would involve a duty extending to the psychotherapist's patient. Rather, this case deals with the negligence of the professional in releasing a patient in violation of a duty owed to the public at large. There are no Illinois cases directly confronting the question of a professional's liability for the negligent release of his patient. It must be remembered, however, that the decision to release an ...


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