___________________________

Hillsborough-northern judicial district

No. 97-860

CHERYL L. POWELL

v.

CATHOLIC MEDICAL CENTER & a.

March 21, 2000

Brennan, Caron, Lenehan & Iacopino, of Manchester (Ronald J. Caron on the brief and orally), for the plaintiff.

Wadleigh, Starr, Peters, Dunn & Chiesa, of Manchester (Robert E. Murphy, Jr. and Todd Hathaway on the brief, and Mr. Murphy orally), for defendant Catholic Medical Center.

Nelson, Kinder, Mosseau & Gordon, P.C., of Manchester (Peter W. Mosseau and Elaine M. Michaud on the brief, and Mr. Mosseau orally), for defendant Dr. Lynn Curtis.

BROCK, C.J. The defendants, Catholic Medical Center (CMC) and Lynn Curtis, M.D. (Dr. Curtis), appeal from a judgment of the Superior Court (Sullivan, J.) entered on a jury verdict for the plaintiff, Cheryl L. Powell. The defendants contend that the trial court erroneously: (1) ruled that RSA 329:31 (1995) did not preempt the plaintiff's common law claim of duty to warn; (2) instructed the jury regarding that common law duty; (3) failed to require expert testimony on the physician's duty to warn; and (4) admitted into evidence medical reports that post-dated the underlying assault involved in this action. We affirm.

On June 8, 1993, a seventy-six-year-old patient was admitted into the rehabilitation medicine unit (RMU) at CMC after suffering a stroke. At the time of his admission, the patient suffered from memory problems, confusion, fluctuating mental status, multiple skin lesions, and partial paralysis on his left side. Dr. Curtis, medical director of the RMU, was the patient's treating physician and examined him daily. Progress reports for the period prior to the assault show that the patient was "lunging forward and pushing away" and becoming agitated. Other reports prior to the assault state that the patient was "very restless requiring 1:1 supervision for safety," reported to be banging into people with his wheelchair, threatening to kick and/or hit, and pushing nurses and therapists aside.

The plaintiff, a phlebotomist employed by New Hampshire Medical Laboratories (NHML), was under contract to draw blood samples from patients throughout CMC. The plaintiff drew blood from the patient on June 11 and 17 without incident. On June 19, the plaintiff attempted a routine blood draw from the patient. The patient assaulted her, causing injury to her left arm. The plaintiff received no warning regarding the patient's violent propensities prior to the assault.

The plaintiff brought suit, alleging that both CMC and Dr. Curtis breached their duty to warn her of the patient's potentially assaultive behavior about which the defendants knew or should have known. The jury returned a verdict for the plaintiff and apportioned liability between CMC and Dr. Curtis. Both defendants moved for judgment notwithstanding the verdict. The trial court denied these motions, and this appeal followed.

The defendants first argue that the plaintiff's common law duty to warn claim was preempted by RSA 329:31. The trial court found that the statute did not apply because the patient did not communicate an intent to harm a reasonably identifiable victim.

"The interpretation of a statute is to be decided ultimately by this court." Petition of Walker, 138 N.H. 471, 474, 641 A.2d 1021, 1024 (1994). We begin "by examining the plain language of the statute using the ordinary meanings of the words to determine legislative intent." Id.

RSA 329:31 states:

I. A physician licensed under this chapter has a duty to warn of, or to take reasonable precautions to provide protection from, a client's violent behavior when the client has communicated to such physician a serious threat of physical violence against a clearly identified or reasonably identifiable victim or victims, or a serious threat of substantial damage to real property.

II. The duty may be discharged by, and no monetary liability or cause of action may arise against, a physician licensed under this chapter if the physician makes reasonable efforts to communicate the threat to the victim or victims, notifies the police department closest to the client's or potential victim's residence, or obtains civil commitment of the client to the state mental health system.

III. No monetary liability and no cause of action may arise concerning client privacy or confidentiality against a physician licensed under this chapter for information disclosed to third parties in an effort to discharge a duty under paragraph II.

IV. For purposes of this section, "physician" shall include persons providing treatment under the supervision of a physician licensed under this chapter.

The defendants argue that because the statute dictates when a physician may be held liable for failing to warn a third party of the violent potential of his patient, the statute preempts the common law duty to warn claim. The defendants base their argument on Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976), and its progeny.

In Tarasoff, the California Supreme Court held that a psychotherapist, having determined under professional standards that a patient posed a threat of serious danger of violence, had a duty to use reasonable care to protect the identified victim. See id. at 345. Tarasoff is distinguishable from this case. The facts in Tarasoff involve a patient who confided in his psychotherapist his intent to kill an identified female friend. See id. at 339. The patient murdered the friend, and the victim's family brought suit against the psychotherapist for failing to take steps to protect the victim. See id. at 340. Thus, the patient vocalized an intent to harm an identified victim, a situation that may be governed by RSA 329:31. In this case, the patient did not communicate an intent to harm an identified or identifiable victim. In fact, CMC concedes that at no time did the patient communicate a threat of physical violence regarding any specific staff member. The patient may have been a threat, but he did not communicate that threat. As such, neither RSA 329:31 nor Tarasoff applies.

A plaintiff may not raise a claim under the common law if "the legislature intended to replace it with a statutory cause of action." Wenners v. Great State Beverages, 140 N.H. 100, 103, 663 A.2d 623, 625 (1995). The statute, however, applies only where the patient has communicated a serious threat of physical violence against a clearly identified or reasonably identifiable victim. Therefore, the statute does not explicitly preempt all common law claims for a physician's failure to warn. It merely preempts the common law claims addressed by its language. See RSA 329:31. The statutory language does not evidence an "intent to replace" the common law claim in this case. See Wenners, 140 N.H. at 103, 663 A.2d at 625.

The defendants contend that our decision in Boston Ice Co. v. Boston & Maine Railroad, 77 N.H. 6, 86 A. 356 (1913), requires that we hold that RSA 329:31 implicitly repeals the common law. In Boston Ice Co., we stated that "[w]hen a statute revises the whole subject of a former one and is clearly designed as a substitute, the former law is repealed although no express terms to that effect are used." Id. at 17, 86 A. at 359. However, we further explained:

The rule does not rest strictly upon the ground of repeal by implication, but upon the principle that when the legislature . . . frames a new statute upon the subject-matter, and from the framework of the act it is apparent that the legislature designed a complete scheme for this matter, it is a legislative declaration that whatever is embraced in the new law shall prevail, and whatever is excluded is discarded.

Id. The subject matter embraced by RSA 329:31 is limited to a physician's duty to warn of a client's violent behavior when the client has communicated a serious threat of physical violence against a clearly identified or reasonably identifiable victim. The statute governs only those circumstances. The statute does not implicitly repeal the common law duty to warn of a potentially violent patient who may pose a danger to others.

The defendants next challenge the trial court's jury instructions regarding the common law duty to warn claim. "We review jury instructions in context and will not reverse unless the charge, taken in its entirety, fails to adequately explain the law applicable to the case so that the jury could have been misled." Chellman v. Saab-Scania AB, 138 N.H. 73, 79, 637 A.2d 148, 151 (1993).

Relying on Restatement (Second) of Torts