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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bryson v. Banner Health System (04/23/2004) sp-5799

Bryson v. Banner Health System (04/23/2004) sp-5799

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

DIANA BRYSON,                                )
                                )      Supreme   Court   No.   S-
10653/10673
     Petitioner/Cross-Respondent,  )
                              )    Superior Court No.
          v.                  )    4FA-00-2611 CI
                              )
BANNER HEALTH SYSTEM d/b/a    )
FAIRBANKS MEMORIAL       )    O P I N I O N
HOSPITAL d/b/a FAMILY         )
RECOVERY CENTER and GUY  )    [No. 5799 - April 23, 2004]
PATTERSON,                    )
                              )
     Respondents/Cross-Petitioners.     )
                                                                )


          Petition  for Review from the Superior  Court
          of  the  State  of  Alaska,  Fourth  Judicial
          District,   Fairbanks,  Ralph  R.  Beistline,
          Judge, and Jane F. Kauvar, Judge pro tem.

          Appearances:   Kenneth P. Ringstad,  Paskvan,
          Ringstad,   Parrish,  P.C.,  Fairbanks,   for
          Petitioner/Cross-Respondent.  Howard A. Lazar
          and  Ann  B.  Black, Delaney,  Wiles,  Hayes,
          Gerety,  Ellis & Young, Inc., Anchorage,  for
          Respondents/ Cross-Petitioners.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Fabe,  and  Carpeneti, Justices.   [Eastaugh,
          Justice, not participating.]

          PER CURIAM.



I.   INTRODUCTION

           The  Family  Recovery Center placed Diana  Bryson  and

Laurence  Kompkoff  in the same continuing care  substance  abuse

treatment  group.  According to Bryson, as part of the treatment,

the  Center  encouraged all members of the group to  contact  and

assist each other outside of the group setting.  The Center  knew

that  Kompkoff  had  an extensive criminal  history  of  alcohol-

related  crimes of violence, including sexual assaults.  Kompkoff

relapsed into drinking while being treated.  He called Bryson for

a  ride,  attempted  to rape her, and shot  her  in  the  ensuing

struggle.   Bryson sued the Center, alleging that it  negligently

failed  to warn and protect her against harm from Kompkoff.   The

superior  court  ruled on summary judgment that the  Center  owed

Bryson an actionable duty of due care to protect her from harm in

the course of her treatment - including foreseeable harm by other

patients.   Both  parties petitioned for review,  contesting  the

superior  court's  ruling  on  the existence  and  scope  of  the

Center's  duty.  We granted review, and now affirm  the  superior

court's decision.

II.  FACTS AND PROCEEDINGS1

            The   Family  Recovery  Center  provides  out-patient

substance abuse treatment in Fairbanks.2  The Center placed  both

Diana  Bryson and Laurence Kompkoff in its continuing care  self-

help  group  after each had independently completed an  intensive

substance  abuse  program.  As part of  their  admission  to  the

Center,  each  signed documents acknowledging that their  records

were  confidential and that unauthorized disclosure was  a  crime

under federal law.

           When Kompkoff enrolled in the Center's program, he had

an  extensive criminal history involving alcohol abuse and sexual

violence:

C          He  was  first  convicted of  felony  assault  with  a

dangerous  weapon  in 1973 for stabbing another  person  multiple

times.   Kompkoff was incarcerated for the offense until February

1976.

C          In  July  1976, about five months after  his  release,

Kompkoff  slashed his step-father's neck with a  knife.   He  was

again  convicted of felony assault with a dangerous  weapon,  but

received  only five years of probation on the condition  that  he

abstain from alcohol and complete substance abuse treatment.

C          In  April  1978  Kompkoff violated  his  probation  by

drinking and possessing a butcher knife.

C          In  July 1979 Kompkoff  broke into the home of a woman

he  had  met  at an Alcoholics Anonymous meeting and  raped  her.

Upon  conviction,  Kompkoff was sentenced  to  fifteen  years  in

prison.3   He remained incarcerated until August 1989,  and  then

resided  at  halfway houses until August of  1990,  when  he  was

released on parole.

C          Three  months later, in December 1990, Kompkoff  broke

into  a neighboring woman's home, put a knife to her throat,  and

threatened  to kill her.  Kompkoff was convicted of  first-degree

burglary for this offense and was sentenced to serve ten years in

prison,  with two-and-a-half years suspended.  After serving  the

unsuspended portion of his sentence, he was released on probation

in December 1995.

C          Over  the  next  four  years,  Kompkoff  violated  the

conditions of his probation on at least three separate occasions.

           Kompkoff decided to enroll in the Center's program  in

September  1999  at  the encouragement of his probation  officer,

after  he  was  arrested for consuming alcohol and driving  while

intoxicated  -  his third probation violation.   At  a  probation

revocation  hearing  in  November  1999,  his  probation  officer

reported  that Kompkoff was in the final stages of his  substance

abuse treatment at the Center and seemed to be doing well.  Based

on this report, the superior court revoked only a short period of

Kompkoff's  total  suspended  term  and  allowed  him  to  resume

probation  on  the  condition  that  he  complete  the   Center's

outpatient continuing care program.

           The Center knew of Kompkoff's criminal history when it

placed him together with Bryson in the same self-help group,  but

did  not  consider his history to rule out the placement  because

Kompkoff   had  successfully  completed  the  Center's  intensive

treatment  program.  In admitting Kompkoff to  the  program,  the

Center  failed to warn Bryson or any other group members that  he

might  be  dangerous if he resumed drinking; nor did  the  Center

take any other precautions to protect group members on account of

Kompkoff's history of relapse and violence.

           As  part  of its group treatment program,  the  Center

encouraged  all members of the group - including  Kompkoff  -  to

rely  on  other group members for help and support between  group

meetings.  To assist the group in maintaining contact outside  of

the group setting, the Center compiled and distributed a list  of

members and their telephone numbers.

           Bryson  and  Kompkoff participated in three  self-help

group sessions together: on December 28, 1999, December 30, 1999,

and  January 4, 2000.  On January 10 or 11, Kompkoff's  probation

officer  called  and warned the Center of reports  that  Kompkoff

might be drinking.  The Center made no attempt to alert its group

members concerning these reports.

           On January 11 Kompkoff called Bryson for a ride to the

bank  and the credit union.  Bryson agreed and arranged  to  pick

him up at a local grocery store; when she arrived, Kompkoff asked

if  she  would take him to his apartment first, so that he  could

make   some  phone  calls.   At  Kompkoff's  insistence,   Bryson

accompanied  him  into his apartment.  Kompkoff walked  into  his

bedroom;  Bryson  stayed behind.  She noticed a large  bottle  of

vodka  on  a table; just as she saw the bottle, Kompkoff  stepped

out  of the bedroom, armed with a gun.  He ordered Bryson to  get

in  the  bedroom and take her clothes off.  When  she  failed  to

comply,  Kompkoff grabbed her by the jacket, threw her  onto  the

bedroom  floor,  and struggled to remove her  pants.   As  Bryson

fought  Kompkoff  for control of the gun, it  fired;  the  bullet

struck  her  hand,  severing a finger.  Bryson  then  managed  to

escape.

           As a result of this incident, Bryson sued Kompkoff and

the  Center  for damages.  In her claim against the  Center,  she

alleged  negligence  in  failing to warn her  that  Kompkoff  was

dangerous  and  in  failing to protect her  from  his  assaultive

behavior.

           The Center moved for summary judgment, arguing that it

had   no   duty  to  protect  or  warn  Bryson  about   Kompkoff.

Specifically,  the  Center  maintained that  federal  regulations

governing  the confidentiality of its treatment records precluded

it  from divulging Kompkoff's criminal history, thus leaving  the

Center with no duty to warn other patients.

           In response to the Center's motion, Bryson cross-moved

for summary judgment on the issue of duty.  Advancing alternative

legal  theories, Bryson argued that, under the facts  alleged  in

her  complaint, the Center had an actionable duty to warn her  of

and protect her from Kompkoff.

          The superior court partly granted and partly denied the

parties'  cross-motions.   As  a  threshold  matter,  the   court

recognized  that  federal and Alaska law barred the  Center  from

disclosing   Kompkoff's  treatment  records.   The   court   also

recognized  that  neither  the Center's knowledge  of  Kompkoff's

background  nor  its relationship to Kompkoff  as  his  treatment

provider gave rise to a duty requiring the Center to control  his

conduct  or  protect  the general public  against  his  dangerous

propensities;  absent  evidence that Kompkoff  posed  a  specific

threat to Bryson, the court found no actionable duty arising from

these factors.

           After  ruling  for  the Center on  these  points,  the

superior  court  proceeded to consider the Center's  relationship

with  Bryson as a potential source of duty.  The court determined

that  Bryson's status as the Center's patient created  a  special

relationship between Bryson and the Center - a relationship  that

required the Center to exercise due care to avoid exposing Bryson

to  an  unreasonable  risk  of harm in the  treatment  setting  -

including  an  unreasonable  risk of harm  from  other  patients.

Because  the court believed that it might have been possible  for

the  Center to have taken additional steps to protect Bryson from

Kompkoff  without violating its statutory duty  to  maintain  the

confidentiality of his records, the court reasoned that a triable

question of fact existed as to the Center's compliance with  this

relation-specific duty toward Bryson.  On this limited basis, the

superior  court  decided  the issue of duty  in  Bryson's  favor,

concluding:

                Alaska law and federal law prohibit the
          kinds  of  warnings that Bryson  claims  were
          owed  to her.  There was, however, a "special
          relationship"  formed between the  Defendants
          and  Bryson.  The Defendants did not  have  a
          duty to warn based on a general knowledge  of
          Kompkoff's  criminal  history  because   [the
          Center  was  not] "on notice"  that  Kompkoff
          posed a specific threat to anyone at the time
          of  the  assault  on Bryson.   However,  this
          special  relationship between Defendants  and
          Bryson,  combined with Defendants'  inability
          to    disclose    confidential    information
          regarding patients to other patients, created
          a   limited  duty  on  Defendants'  part   to
          reasonably   safeguard  patients   from   one
          another  such  that patients did  not  become
          particularly vulnerable to other patients  by
          virtue of their participation in the program.
          By   encouraging  interaction   outside   the
          residential  treatment setting, [the  Center]
          had a duty to establish reasonable guidelines
          and  general warnings that may have prevented
          this incident.
          
           Both parties petitioned for interlocutory review - the

Center  insisting that the superior court erred in  declining  to

grant  its  motion  for summary judgment completely,  and  Bryson

arguing  that the court erred in unduly restricting the scope  of

the Center's duty.  We granted review and ordered full briefing.

III. DISCUSSION

           The  Center  argues that the superior court  erred  in

finding  that  it had an actionable duty to protect  Bryson  from

danger.  Because federal and state confidentiality law prohibited

the  Center  from  disclosing  Kompkoff's  criminal  history,  it

reasons  that  no  duty  to warn Bryson could  have  arisen.   In

contrast,  Bryson faults the superior court for  unduly  limiting

the  Center's  actionable  duty.  Pointing  to  language  in  the

summary  judgment  order suggesting that the Center  owed  Bryson

only "a limited duty" and that this duty only required the Center

"to establish reasonable guidelines and general warnings," Bryson

maintains  that  the  court too narrowly defined  the  protective

measures that could potentially fall within the Center's duty  to

use  due care in providing treatment.  We separately address  the

parties' divergent positions concerning the duty's existence  and

its scope.4

          A.   Existence of the Center's Duty Toward Bryson

           The  superior  court  noted that because  federal  and

Alaska  laws obliged the Center to keep the treatment records  of

its  patients  confidential,5 no duty to warn or  protect  Bryson

from  Kompkoff  arose under their provisions.   Relying  on  this

finding,  the  Center  insists that the confidentiality  statutes

shielded it from liability by precluding any actionable duty from

arising.   We  find the Center's argument unpersuasive.   As  the

superior  court  recognized,  the  Center  could  not   be   held

accountable  for  failing to take protective actions  that  would

have  violated applicable confidentiality laws.  Yet  nothing  in

these laws expressly or implicitly absolves health care providers

of the responsibility for protecting their patients by reasonably

available means that comply with the laws' requirements.  If  the

Center  could have taken legally permissible measures to  protect

Bryson,  the  confidentiality statutes  would  not  rule  out  an

actionable duty.

           The  superior court concluded that such  measures  did

potentially  exist, finding that Bryson raised triable  questions

of  fact  regarding  the availability of lawful  steps  that  the

Center might have taken to protect her from unreasonable risk  in

the course of her group treatment with Kompkoff.  The record,  in

our view, supports this conclusion.  The critical question, then,

is whether the Center actually owed Bryson an actionable duty.

           To  determine whether an actionable duty exists  in  a

given  case  we  look  first  for statutes,  rules,  or  existing

precedent  creating  a  duty.6   The  superior  court  found   no

actionable duty arising by statute but concluded that the  Center

had  a  duty to use due care to protect Bryson under our existing

precedent,  which  has  followed  the  approach  taken   by   the

Restatement (Second) of Torts.7

            In   the  absence  of  a  special  relationship,  the

Restatement ordinarily recognizes no duty requiring one person to

protect   another  from  a  third  party.8   But   315   of   the

Restatement  states that when "a defendant stands  in  a  special

relationship  to  either the dangerous person  or  the  potential

victim, the defendant is required to control the dangerous person

or  warn  or  otherwise protect the victim."9   Restatement   323

and    299A  supplement  this  provision.   Section  323  broadly

describes  the  kind  of  special  relationship  at  issue  here,

providing that one who undertakes "to render services to  another

which he should recognize as necessary for the protection of  the

other's  person  or  things" may be held liable  for  failing  to

exercise reasonable care in performing such services.10   Section

299A  more  narrowly provides that "one who undertakes to  render

services in the practice of a profession or trade is required  to

exercise the skill and knowledge normally possessed by members of

that   profession   or   trade  in  good  standing   in   similar

communities."11   These  provisions  reflect  the   Restatement's

overarching  view that "undertakings can create a duty  of  care"

and  that  "one who voluntarily assumes a duty must then  perform

that duty with reasonable care."12

           The  superior  court reasoned that, by undertaking  to

provide substance abuse treatment to Bryson, the Center formed  a

special  relationship  requiring it to take  reasonable  care  to

protect  Bryson  from danger in the course  of  her  treatment  -

including foreseeable danger from her fellow patients.  We agree.

The  Center  undertook to provide substance  abuse  treatment  to

Bryson,  and  by  doing so it assumed a duty to  treat  her  with

reasonable  care.  We thus affirm the superior court's conclusion

that the Center owed Bryson an actionable duty of due care.

          B.   Scope of the Center's Duty Toward Bryson

           Bryson  challenges the superior court's order defining

the  Center's  duty  of due care, arguing that  it  too  narrowly

limits  the  duty's scope.  Specifically, Bryson  points  to  the

order's  concluding paragraph, which describes the Center's  duty

as  a  "limited" one requiring the Center to give guidelines  and

warnings:

          [The] special relationship between Defendants

          and   Bryson,   combined   with   Defendants'

          inability     to     disclose    confidential

          information  regarding  patients   to   other

          patients,   created   a   limited   duty   on

          Defendants'  part  to  reasonably   safeguard

          patients  from one another such that patients

          did  not  become particularly  vulnerable  to

          other    patients   by   virtue   of    their

          participation in the program.  By encouraging

          interaction outside the residential treatment

          setting, [the Center] had a duty to establish

          reasonable  guidelines and  general  warnings

          that may have prevented this incident.

           Bryson  reads  the  court's  concluding  reference  to

guidelines  and  warnings as defining the  outer  limits  of  the

Center's  duty.   She  maintains  that  this  definition  is  too

restrictive, insisting the Center's duty required it do more than

issue  "guidelines and general warnings" if other, more effective

protective  measures  were reasonably  available.   But  Bryson's

exclusive  focus on the summary judgment order's closing  remarks

overlooks  the  main body of the order, where the superior  court

addressed the Center's duty in considerably greater detail:

                Plaintiff's  exposure to  Kompkoff  was
          directly related to Plaintiff's treatment  by
          [the    Center].    There   was   a   special
          relationship  between  Plaintiff   and   [the
          Center]   by   virtue   of   this   treatment
          relationship.      Arguably,      Plaintiff's
          association  with  Kompkoff  away  from   the
          treatment   facility   was   due    to    the
          encouragement  of  [the  Center].   If   [the
          Center]   encourages  its  patients   to   be
          available  to  one  another  outside  of  the
          treatment  facility, there is a  commensurate
          duty  to  provide  reasonable  safeguard   or
          guidelines   for  its  patients  when   these
          contacts occur.  These might include cautions
          or  restrictions with regard to the public or
          private    places    for    such    meetings,
          restrictions  as  to  meetings  between   the
          sexes,   and  reminders  that  the   criminal
          records  of  co-patients cannot be disclosed,
          such  that  traditional safeguards for  one's
          safety  should not be set aside when  dealing
          with other members of the treatment group.
          
                 The   Court  accepts  [the   Center's]
          contention    that    it   cannot    disclose
          confidential  records or be  accountable  for
          not incarcerating Kompkoff.  The question for
          the jury in this case seems to be whether  it
          was  reasonable for [the Center] to encourage
          contact between patients outside of treatment
          given   its  inability  to  disclose  patient
          history  and,  if  so,  whether  there   were
          reasonable  steps  [the Center]  should  have
          taken, given its statutory limitations,  that
          would have prevented this incident.
          
           Reading the superior court's closing remarks in  light

of the more extensive discussion of duty contained in the body of

its  decision, we understand the court's concluding reference  to

guidelines   and   general  warnings  to  be  illustrative,   not

exclusive.   As the superior court indicated in the body  of  its

decision,   the   Center  has  a  duty  "to  provide   reasonable

safeguard[s]  or guidelines," and these safeguards or  guidelines

"might  include cautions or restrictions" on contact outside  the

treatment center. (Emphasis added.)  These statements demonstrate

that  the  superior  court did not mean to narrowly  confine  the

Center's  duty to one of issuing guidelines and general warnings.

And we see nothing else in the decision below suggesting that the

superior court would preclude Bryson from establishing her  claim

by proving that the Center negligently failed to take other kinds

of  precautions.  In fact, the body of the decision  describes  a

broader  reach  for  the  duty, generally defining  the  ultimate

questions at issue as "whether it was reasonable for [the Center]

to  encourage contact between patients outside of treatment given

its  inability  to disclose patient history and, if  so,  whether

there were reasonable steps [the Center] should have taken, given

its   statutory  limitations,  that  would  have  prevented  this

incident."

            As  we  interpret  it,  then,  the  superior  court's

definition  of  the  privilege comports  with  the  Restatement's

principles.  While recognizing that the Center's duty  could  not

require it to take any unlawful actions, the court ruled that the

Center owed Bryson a duty of reasonable care to take lawful steps

to  ensure Bryson's safety.  Under the Restatement,  the Center's

duty  of  reasonable care must be measured in terms of the  skill

and  knowledge normally used by treatment providers under similar

circumstance.13  In other words, the Center had a duty to act as a

reasonable  treatment provider under the circumstances.   Because

this  duty arose from the Center's special treatment relationship

with  Bryson, it is necessarily limited to the treatment context:

the Center owed Bryson  no duty to protect her from others except

in  connection  with the Center's treatment of Bryson.   And  the

scope  of  the  duty  here is also necessarily  confined  by  the

Center's obligation to obey applicable confidentiality laws.  But

under  the circumstances at hand, as the superior court  properly

recognized,  whether  the Center breached its  duty  of  care  by

taking  or  failing  to  take any particular  action  presents  a

question of fact, not a question of duty.14

IV.  CONCLUSION

          We AFFIRM the superior court's summary judgment order.

_______________________________
1Because this case requires us to review a summary judgment order
limiting  the  scope of the Center's actionable  duty  under  the
facts advanced by Bryson, we describe the facts in the light most
favorable to Bryson.
2The  Center  operates  as the chemical dependency  unit  of  the
Fairbanks  Memorial  Hospital, which is  owned  and  operated  by
Banner  Health  Systems.  Guy Patterson was an  employee  of  the
Center during the time at issue in this case.  Our opinion refers
to Patterson and these entities collectively as "the Center."
3The  court of appeals affirmed Kompkoff's fifteen-year  sentence
in Kompkoff v. State, 626 P.2d 1091 (Alaska App. 1981).
4We  review summary judgment rulings de novo to determine whether
any  genuine issues of material fact exist and whether the moving
party  is  entitled to judgment as a matter of  law.   Whether  a
party has a duty of care and, if so, the nature and scope of that
duty  are  questions of law that we also review  de  novo.   See,
e.g., State v. Sandsness, 72 P.3d 299, 301 (Alaska 2003); Dore v.
City of Fairbanks, 31 P.3d 788, 790 (Alaska 2001).
5See  42  U.S.C.  290 dd-2(a) (2003) ("Records of  the  identity,
diagnosis,  prognosis,  or treatment of  any  patient  which  are
maintained  in connection with the performance of any program  or
activity  relating  to  substance  abuse  education,  prevention,
training,  treatment, rehabilitation, or research  .  .  .  shall
.  .  . be confidential and be disclosed only [as permitted under
this  section].");  AS 47.37.210 ("[T]he registration  and  other
records of treatment facilities shall remain confidential and are
privileged to the patient.").
6Dore,  31  P.3d at 792; Wongittilin v. State, 36 P.3d  678,  681
(Alaska 2001).
7See,  e.g.,  P.G. and R.G. v. State, 4 P.3d 326  (Alaska  2000);
R.E.  v.  State, 878 P.2d 1341 (Alaska 1994); Division of  Corr.,
Dep't  of  Health & Soc. Servs. v. Neakok, 721 P.2d 1126  (Alaska
1986).
82  Dan  B.  Dobbs,  The  Law  of  Torts   314,  at  853  (2001);
Restatement  (Second) of Torts  314 ("The  fact  that  the  actor
realizes  or should realize that action on his part is  necessary
for  another's aid or protection does not of itself  impose  upon
him  a  duty  to  take such action.") & cmt.  a  (recognizing  an
exception to the general rule based on special relationship  with
perpetrator or victim) (1965).  We have previously looked to  the
Restatement to aid us in our determination of whether a defendant
has  an  actionable duty.  See Dore, 31 P.3d at 793 & n.32 (cases
cited).
9See Neakok, 721 P.2d at 1126.
10Restatement (Second) of Torts  323 (1965) provides:

          One   who  undertakes,  gratuitously  or  for
          consideration, to render services to  another
          which  he  should recognize as necessary  for
          the  protection  of  the  other's  person  or
          things, is subject to liability to the  other
          for  physical harm resulting from his failure
          to  exercise  reasonable care to perform  his
          undertaking, if
          
                (a)   his failure to exercise such care
          increases the risk of such harm, or
          
               (b)  the harm is suffered because of the
          other's reliance upon the undertaking.
          
11Restatement   (Second)  of  Torts   299A   (1965);   see   also
Restatement  (Second) of Torts  321 (1965)  (stating  that  where
the actor knew or should have known that he or she created a risk
to another and had an opportunity to minimize the risk before the
harm  actually occurred, then he or she owed a duty of reasonable
care  to  attempt  to  avoid the future harm);  W.  Page  Keeton,
Prosser  and Keeton on Torts  33, at 203 (5th ed. 1984)  (stating
that  in  some  situations, "the defendant will  be  held  liable
because his affirmative conduct has greatly increased the risk of
harm to the plaintiff through the criminal acts of others").
12See  Dobbs,  supra note 8,  319, at 860-61 ("The  general  rule
that undertakings can create a duty of care is often expressed by
saying one who voluntarily assumes a duty must then perform  that
duty with reasonable care.").
13See id.  319, at 860-61.
14Because  the  case before us falls within the  class  of  cases
covered  by existing precedent and the Restatement framework,  we
need  not  consider the issue of duty under the  policy  analysis
adopted  in  D.S.W.  v.  Fairbanks  North  Star  Borough   School
District, 628 P.2d 554 (Alaska 1981).