QUESTION 1

All of P’s tort claims would be based on the alleged negligence of Hospital (H) staff. In order to succeed in a
negligence action, a plaintiff must show that the defendant owed him a duty of care, that such duty was breached by the
defendant=s failure to act as a reasonable, prudent person under the circumstances, and that the breach was the cause in
fact and proximate cause of the plaintiff’s injury. As explained below, it is unclear whether P could satisfy all of these
requirements with respect to any of his potential negligence claims. It is also possible that the state, which owns and
operates H, would be immune from liability for some or all of P’s claims.
A. Treatment with Antipsychotic Drugs
P’s tort action for damages resulting from his treatment with antipsychotic drugs would be based on the alleged
negligence of H physicians in: 1) prescribing antipsychotic medications between his initial hospitalization and the time he
developed TD; 2) continuing such medications after P developed TD; and 3) failing to obtain the informed consent of P or
a guardian to such treatment.
H clearly had a duty with respect to P’s medications based on the doctor-patient relationship. But to establish that
H psychiatrists were negligent in prescribing antipsychotic drugs, P must show that the physicians failed to act with the
care and skill of the average, qualified psychiatrist. In assessing whether a psychiatrist has met this standard, a court will
typically compare his or her conduct with that of psychiatrists nationally, not locally. In order to prevail on this claim, P
would thus need to show that an average, qualified psychiatrist would have treated P differently than did H psychiatrists.
Under this standard, it seems next to impossible to establish that H psychiatrists were negligent in prescribing
antipsychotic drugs to P between the time antipsychotic drugs were first prescribed and the time P developed TD.
According to the Am. Psychiatric Assoc. (APA), antipsychotic drugs are the only treatment for schizophrenia, a very
serious illness; the APA standards and all other available facts suggest that psychiatrists across the nation would have
given P antipsychotic drugs, just as did H psychiatrists. The fact that P was not in a high-risk group for developing TD
bolsters this conclusion. So does the fact that risperidone, the drug P is currently taking, was initially thought to reduce the
risks of TD.
It is less clear that H psychiatrists conformed to custom in continuing treatment with antipsychotic drugs after P
developed symptoms of TD. It will be necessary to consult experts to determine the typical course of action when TD
symptoms become evident. However, establishing negligence at this point would probably be fruitless because the
damage had already been done; continued treatment with antipsychotic drugs does not appear to be the cause of any
worsening in P’s symptoms or his long-term prognosis.
P might also contend that H psychiatrists failed to obtain his informed consent to treatment with antipsychotic
drugs. To succeed in such a claim, P would have to show that: a) H doctors failed to disclose a material risk about which
a reasonable person in P’s position would want information when making a decision to accept antipsychotic drug
treatment; and b) disclosure of that risk would likely lead a reasonable, prudent patient to decline such treatment. Given
P’s memory problems, it is unclear whether H psychiatrists disclosed the risk of TD to him. It is also unclear whether P
had or has the capacity to understand risk information. In the event that he does or did not, he would seem to have the
same status as a child; for a child, a physician must obtain the informed consent of the child’s parent or guardian.
Even if that P can establish that doctors did not disclose the risk of TD to him or that his condition is such that
risk information should have been, and was not, disclosed to a guardian or family member, P’s informed consent claim
still appears to be weak. Because antipsychotic drugs are the only treatment for schizophrenia and the TD risk is
apparently small and reversible, it seems highly unlikely that a jury would conclude that a reasonable, prudent
schizophrenic patient would have declined drug treatment after disclosure of the risk. Although it is more plausible that a
reasonable, prudent schizophrenic would decline further antipsychotic drug treatment after TD symptoms have
materialized, once again, there is no obvious harm that has resulted from post-symptom drug treatment. In some
jurisdictions, the scope of required disclosure is also determined by custom; in such a jurisdiction, P would also have to
show that psychiatrists customarily provided information on the risk of TD.
In sum, based on the currently available information, P’s drug-treatment claims are weak.
B. Failure to Prevent P’s Physical Injuries

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 P’s claim for damages due to physical injuries he has suffered at H would be based on the claim that H employees
negligently failed to supervise him and/or protect him from other patients while in H’s custody. Although there is
generally no legal duty to protect another from self-inflicted injuries or injuries inflicted by third persons, a duty may be
created by a special relationship or assumed through an undertaking to render services. Here, the custodial relationship
between H and P would seem to establish such a duty of care.
It would be more difficult to establish that H’s duty to P was breached. Although we know that staff turnover is
high as compared to private psychiatric hospitals, a court might well look only to public facilities in considering custom,
and we have no evidence on custom in such facilities. Nor do we know who inflicted P’s injuries, when those injuries
took place, why they occurred, or whether there were particular supervisory failures that placed P at risk.
It is possible, but by no means certain, that the doctrine of res ipsa loquitur (RIL) could be used to overcome these
evidentiary problems. The doctrine permits the trier of fact to infer both negligence and causation when: a) the harm
suffered by the plaintiff does not usually occur in the absence of negligence; b) other responsible causes, including the
plaintiff’s conduct, are sufficiently eliminated by the evidence; and c) the indicated negligence with within the scope of
the defendant’s duty to the plaintiff.
The case of Ybarra v. Spangard offers some support for the use of RIL here. In Ybarra, the plaintiff was
permitted to use RIL against a hospital and other medical personnel in a suit to recover damages for injuries suffered
while unconscious and in the care of the various defendants. The court’s ruling was based on several considerations,
including the defendants’ participation in an integrated health-care system, the defendants’ greater capacity to produce
evidence about how the harm occurred, and the fact that patients injured while unconscious would rarely be able to
succeed in a tort action without the use of RIL. Some of these concerns apply here: being in a delusional state is akin to
being unconscious; delusional patients injured in such a state will rarely be able to recover for their injuries if forced to
provide proof of how those injuries occurred; and H employees have greater capacity to produce evidence on the source of
P’s injuries. Moreover, there would be only one defendant in P’s claim against H, and all of the potential culpable parties
were under H’s supervision. However, the Ybarra plaintiff’s injury -- one entirely unrelated to his medical treatment-- was
almost certainly the result of negligence by hospital staff. Given the likelihood that many of H’s patients are potentially
violent and the possibility that P inflicted his own injuries, it is much less clear that P’s injuries are the result of
negligence. Further research will be necessary to determine whether state mental hospitals are typically able to avoid
patient injuries of the sort that P suffered. If other hospitals typically succeed in preventing such injuries, then it seems
likely that a court would permit the use of RIL in this case. If not, then it seems unlikely that a court would permit the use
of RIL.
C. Provision of Inadequate Recreation and Treatment
A lawsuit alleging negligent failure to provide adequate recreation and treatment would face major obstacles in
establishing that H’s duty of care had been breached and that such breach caused P to suffer harm.
By virtue of its custodial relationship with P and its undertaking to provide rehabilitative services -- an
undertaking on which P and his family seem to have relied -- H should have a duty to provide treatment to P in a non-
negligent manner. However, courts tend to be very conservative in imposing a legal duty on state agencies when such a
duty would open up a new area of potentially large-scale liability. Courts have, for example, held that the police have no
duty to protect the public and that a state statute which requires public schools to provide annual scoliosis exams to their
students did not create a private right of action. Certainly, P’s claim of inadequate treatment presents similar risks to the
public purse, and it is thus unclear whether P’s claims for inadequate treatment would be actionable.
Even if P had a legal duty to provide adequate treatment to P, it is not obvious that a court would require a state
hospital to provide the same level of services as that provided by a private treatment facility, and we have no evidence that
the services provided by H are any worse than those provided by other state mental hospitals.
If P can establish a breach of H’s duty to provide adequate treatment, it is also unclear whether such breach
caused P to suffer an injury. P had schizophrenia when he entered H; H did not cause this disorder. The primary
treatment for schizophrenia is antipsychotic drugs, and P has received these drugs throughout his various stays at H.
There is no evidence that lack of recreational opportunities or the number of psychiatrist visits has any impact on the
course of schizophrenia. Without such evidence, P will be unable to show that lack of recreational opportunities or
infrequent psychiatric visits has caused a cognizable injury.

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 D. Vicarious Liability and Sovereign Immunity
It appears that all of the actors (doctors, staff) relevant to P’s claims are H employees and that the various actions
complained of (prescribing medications, supervising P, providing therapy) occurred while the actors were performing
their specified responsibilities, the state should be vicariously liable for these actors’ torts.
However, the state’s sovereign immunity may preclude the award of damages to P. It will be necessary to
research state law on this point, but state agencies are typically immune when they are performing so-called governmental
or discretionary functions. Using this test, policy decisions regarding funding for therapy and staff at H should be subject
to the state’s immunity. On the other hand, operational decisions (when to obtain informed consent, what treatment to
give a particular patient) are typically outside the scope of sovereign immunity. Thus, some of P’s negligence claims
would likely fall outside the scope of the state’s sovereign immunity and be actionable.
COMPOSITE ANSWER
4. Peter (P) would be able to bring multiple claims against Hospital (D) under a negligence theory. In order to succeed
on a negligence claim, Peter would need to prove that: D owed him a duty of care, D breached that duty of care, this
breach of care by D was both the cause in fact and proximate cause of P’s injuries, and that he suffered damages as a
result of this breach. . . .
A. Antipsychotic Drug Treatment
P would need to establish that D owed him a duty of care. It is fairly certain that D owed P a duty of care because
of the special relationship between D as P’s medical caregiver and P as D’s patient.
As D is a state-run facility, all of the doctors employed at D are state employees. Therefore State can be held
liable for the negligence of the staff of D through the theory of vicarious liability, which holds employers liable for the
torts of their employees which are committed during the scope of the employee’s job. In this case, it is clear that the
decision to initially prescribe and the decision to continue prescribing risperidone to P was within the scope of the
doctors’ employment. . . .
State could argue that it is not vicariously liable for the actions of the employees at D if those individuals are
independent contractors (as is often the case in hospitals). However, even if the employees at D are independent
contractors and not employees, it is possible that the care of mentally ill residents is a nondelegable duty and that the D is
still liable for the actions of . . . independent contractors.
1. D may have breached its duty of care toward P in several ways. . . . For learned professionals, including doctors,
the standard of care is custom, established by experts. Custom is set by national and not local standards. In order to know
if P’s doctors violated custom when prescribing antipsychotics, we must look to national psychiatric customs with regard
to the prescription of anti-psychotic drugs to schizophrenic patients.
We are told that antipsychotics are the only treatment for schizophrenia and that, according to the APA guidelines,
antipsychotics are “indicated for nearly all episodes of acute psychosis in patients with schizophrenia.” We would need to
know more about P’s paranoid schizophrenia to know if he suffered from acute psychosis. But it seems probable that his
psychiatrists treated him in accordance with national custom.
2. P could argue that his doctors at D have been negligent in continuing his treatment with risperidone (R) after the
emergence of his TD symptoms. . . . In order to assess the viability of this claim, we would need to know what the
custom is among doctors when signs of TD emerge. If most doctors would stop administering R, then this could be a
strong claim. There is a causation issue, however, since we do not know if ceasing R would cause P’s TD symptoms to
go away. . . . We would need to rely on expert witnesses to say that continued R use would likely exacerbate P’s
symptoms.
3. In addition to claiming that D negligently prescribed drugs to P, he may have an informed consent claim. Joan
believes that P consented to be treated with the drugs, but she doubts that P’s doctors told him about TD. State can be
held liable for not providing adequate informed consent if D failed to disclose all material risks, including any possible
alternative forms of treatment. While more facts are needed (and could likely be acquired by obtaining any consent
forms, records of P’s consultations, etc.) to determine whether D did inform P of the risk of developing TD, if Joan’s
belief is true, D could be liable for this failure.

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 This claim has potential causation issues as well, however. In order to prove that D’s failure to inform P of all
material risks actually caused his development of TD, P would have to show that he would have forgone the treatment if
the risk was made known. This will certainly be an uphill battle. P’s mental state may not have given him the ability to
process the risks involved in the treatment, or even to remember that he was told of them. . . Additionally, these drugs are
the only known way to deal with the symptoms of schizophrenia, so it is likely that a jury will determine that P would
have consented to the only available treatment.
B. Failure to Prevent P’s Physical Injuries
4. P could also claim that State was negligent (again through vicarious liability for the actions of its employees at D)
for failing to properly supervise the other inpatients at D (and P himself) which resulted in P suffering physical injuries
(i.e., broken ribs, dislocated shoulder, bite marks, fractures, etc.) Similar arguments could be made regarding D owing a
duty, with the strongest argument being that D owed P a duty for creating the hazard that is allowing patients with varying
degrees of mental illness to interact with each other . . . We would again need further information about what is
customary in mental health facilities, particularly state-run mental health facilities, as to communication and interaction
between patients and procedures for dealing with physical altercations between patients.
This claim also poses major causation issues as no one really seems to know exactly what caused P’s injuries as
he doesn’t really remember (despite his vague recollection that he was attacked by other hospital patients). We would
likely need to see if there was some sort of video surveillance of the hospital . . . or if D had some method of documenting
altercations between patients or patient episodes. . . .
5. Using res ipsa loquitur, we may be able to get this claim to a jury. Res ipsa has three main prongs. First, the event
must be more likely than not attributable to negligence. If a staff person was supervising the patients properly, he would
have been able to deter the attacks and thus Peter would not have been injured. Secondly, the injuries must be caused by
an agency within the exclusive control of the defendant. The D staff [and patients] are within the exclusive control of the
management; their jobs are to supervise and protect the patients from harm. Thirdly, P cannot be contributorily negligent.
D would argue that res ipsa fails on two of these prongs because the actions of the other patients against P are not within
its exclusive control. The patients’ volitional acts break the chain of causation and thus they are not liable. Also, D would
argue that the injuries are solely caused by P and thus he was completely negligent, causing the third prong to fail.
Further, generally, res ipsa cannot be used against a group of defendants but, because all of the staff people who were
supposed to be supervising worked for D, this may be allowed. In all, again it is unclear if this is a viable claim, but we
may be able to get to the jury.
C. Staffing, Therapy, and Recreation
2. P could also have a negligence claim based upon the fact that he is only receiving talk therapy for one hour each
week. . . . It will be highly relevant in assessing this claim whether the decision to give one hour of therapy per week was
based on P’s doctor’s recommendation or on orders given by D administrators or . . . state regulators. If the doctor made
the choice, we would evaluate that choice based on the national standard applicable to psychiatrists. It seems likely that
the average doctor would give more therapy than this, but we cannot be sure without more research. If a D administrator
or State regulator made the decision to give P one hour of therapy per week, we would want to check the relevant statutes
and regulations and look to see what is customary in mental hospitals before pursuing this claim. . . . It is possible, even if
a regulation or custom has been violated, that the courts will seek to protect from liability a state institution that appears to
be chronically underfunded. Courts often allow for some flexibility in the administration of regulatory regimes.
In order for this claim to succeed, we would need to establish a causal link between P’s insufficient therapy and
the injuries he has sustained. It is possible, for example, that sufficient therapy could have helped P leave the hospital
sooner. . . . It is possible that talk therapy could have helped P to gain more insight into the workings of his illness,
rendering future hospital visits . . . unnecessary. It is also possible that greater contact with his doctors might have led
them to discover a different course of treatment. . . . We would need expert witnesses to testify on any of these causation
claims, and more research is needed to determine this claim’s viability.
6. Similar to this claim, P might argue that State’s chronic understaffing of the hospital, with a high staff-turnover
and staff-patient ratio, constitutes negligent maintenance of the facility. This claim appears weak, though, as there is no
indication that this has caused P damages. More information is needed. If, for instance, expert testimony can be provided
establishing that more frequent visits with a psychiatrist would significantly reduce the need for antipsychotics and thus

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the risk of developing TD, or that a lower staff-patient ratio would decrease the chance of patient-to-patient attacks, these
two claims might hold more weight.
State will likely fight P’s case at the outset based on . . . immunity. An important distinction here will be whether
or not State runs the hospital or if a municipal government does. If the municipal government does, it will not be able to
rely on an immunity defense because this would appear to be a proprietary function based on the existence of privately
run psychiatric hospitals. Proprietary functions, unlike governmental functions, are not protected by immunity since it
would be unfair to spare the government from litigation while there are other private actors that can be sued.
Nevertheless, assuming that the hospital is run by State as the fact pattern indicates, a governmental immunity may not be
iron clad. State and federal entities have chosen where to give up immunity and expose themselves to tort actions. . .[, for
example] in the Federal Tort Claims Act (FTCA). There are exceptions to the liability contained in it, namely . . . the
discretionary function [exception]. . . . A discretionary function is defined as a function that involves actual discretion
(choice) and is made at a high level. Here, . . . the statement by D’s director that “he cannot do more without a larger
budget” does not indicate who provides that budget. Does the State government directly control it? . . . These are
questions that need to be answered in order to determine how effective an immunity defense could be.