This photo, taken from a Short family Facebook page, shows them on vaction in Mexico several months before their deaths. All were killed on Sept. 10, 2015, the victims, according to the state Court of Appeals, of ”familicide.”
Trustee: Park Nicollet had duty of care to prevent 2015 murder-suicide
The state Supreme Court will review a wrongful death suit accusing Park Nicollet of failing to prevent the deaths of a Greenwood, Minn., businessman and his family.
The state’s high court agreed last week to review the Court of Appeals’ ruling in the case, Smits v. Park Nicollet Health Services.
On Feb. 16, a three-judge appellate panel reversed a Hennepin County District Court’s grant of summary judgment and remanded the case back for trial.
The Court of Appeals panel ruled that Brian Short’s mental-health provider owed a duty of care to him, as a matter of law, before he killed himself, his wife and his three kids.
And because material fact issues exist as to whether his family members were “foreseeable plaintiffs”—meaning, placed at predicable risk—the panel deemed the District Court’s grant of summary judgment for Park Nicollet improper.
Short, 45, was a former registered nurse and entrepreneur who founded AllNurses.com. In the summer of 2015, he killed himself, his wife Karen Preiss Short and their three teen-aged children, Madison, Brian and Brooklyn. Their bodies were found in their home near Lake Minnetonka. All had died by shotgun blasts.
Countdown to tragedy
In the three months before the killings, Brian Short sought help nine times from multiple Park Nicollet practitioners for anxiety, work-related stress and depression, according to the February Court of Appeals’ opinion, written by Judge Jennifer L. Frisch.
The April 16, 2020, District Court order then under appeal was written by Hennepin County District Court Judge Thomas S. Fraser. Both judge’s accounts contribute to the following narrative of the case.
On June 16, 2015, Short visited a Park Nicollet urgent-care facility, citing concerns about stress, anxiety and a possible heart condition. He was scheduled to see his primary-care doctor two days later, despite his objections that he couldn’t wait that long.
He reported no history of psychological problems and denied any suicidal or homicidal ideations during that visit. The urgent care physician assistant who treated him ruled out cardiac issues and prescribed Xanax for Short’s anxiety. He was then directed to follow up with his primary-care doctor, who saw him two days later.
That doctor noted that Short sought help for “anxiety and depressed mood” and that he recently had lost about 30 pounds of body weight. Short denied having suicidal thoughts, but said he had been depressed for weeks and was having trouble sleeping. The doctor prescribed Zoloft and asked him and to return for a checkup in five weeks, if needed.
He didn’t get significantly better. On a follow-up urgent care visit on June 27, Short complained that the Zoloft wasn’t helping. He was prescribed Ambien and Ativan and told to return to see his primary-care doctor as needed.
He did, on July 6, 2015, again complaining of anxiety and insomnia. The primary-care physician documented that “overall symptoms are moderate to severe” and instructed Short to increase his Zoloft intake. He also refilled the Ativan, and prescribed trazodone in place of Ambien as a sleep aid. The doctor further recommended that Short see a counselor.
On July 15, 2015, Short saw an advanced-practice registered nurse, who noted no significant improvement in his condition and determined that his symptoms indicated severe depression.
On an assessment form completed during that visit, Short reported he sometimes felt he might be better off dead. He also mentioned panic attacks, stress about his business’ declining profits, his company’s involvement in a lawsuit and his fears about losing his home, according to Fraser’s account.
The APRN diagnosed Short with severe depression without psychosis, as well as generalized anxiety and panic disorder. She directed him to continue taking the same Zoloft dosage, but increased his Ativan intake and referred him to therapy. The nurse also asked him to return in four weeks, if needed.
He then saw a licensed Park Nicollet social worker for psychotherapy twice over the next few weeks, according to Frisch’s account.
On Aug. 14, Short had his last visit with a Park Nicollet nurse. She found that his insomnia symptoms alone had improved. She prescribed Lexapro to replace the Zoloft and instructed Short to return in four to six weeks, or sooner if needed.
Short postponed a scheduled Aug. 27 visit with his therapist to Sept. 10, 2015.
On that day, Short and his family were found dead in their home, victims of what the Court of Appeals’ ruling calls “familicide.”
Brian Short
Wrongful death suit
A trustee, David Smits, filed a wrongful death suit for the family’s next of kin in July 2019. According to the civil complaint:
“This tragic, horrific and foreseeable outcome would have been prevented by minimally competent medical treatment.”
The lawsuit claimed that Park Nicollet providers were negligent, because they “deviated from the standard of care in a number of respects,” according to Fraser’s District Court summary judgment order.
The trustee’s expert witnesses, for instance, testified that Short should have been seen by a psychiatrist rather than a nurse practitioner and therapist, and that Short’s treatment should have been “more proactive, searching and aggressive.”
The hospital system denied wrongdoing, telling the media in a written statement shortly after the suit was filed:
“As the court case proceeds, we believe the facts will show that our clinicians and care teams provided appropriate care. We were deeply saddened to learn of this unimaginable tragedy.”
After discovery, Fraser ruled that Park Nicollet owed no duty to Short or his family as a matter of law. The judge granted summary judgment to Park Nicollet and dismissed the case with prejudice, writing:
“The case presents unspeakable tragic events. But the court concludes that the law is that Park Nicollet is not liable for the harm inflicted.”
Reversal
A unanimous Court of Appeals reversed. The District Court erred, the appellate panel found, in its grant of summary judgment.
“Based on well-established duties healthcare providers owe to their patients, we hold that Park Nicollet owed a duty to Short ‘to act with the required standard of skill and care,’” Judge Frisch wrote for the appeals panel, citing the state Supreme Court’s 2007 ruling in Becker v. Mayo Foundation.
Rejecting the provider’s argument that it was not responsible because Short was not in its custody at the time of the deaths, the appeals panel found Park Nicollet’s exercise of professional judgment in the Short case was similar to that outlined in the 1979 state Supreme Court ruling, Rum River Lumber Co. v. State.
There, the court affirmed a jury instruction relating to a hospital’s duty to control a person under commitment. That 1979 case involved an arson committed by an escaped mental-health patient, and the Supreme Court rejected the hospital’s arguments that the “standard of care should be equivalent to that used in cases of medical malpractice.”
The malpractice standard might be applicable in assessing a professional judgment to release a mental-health patient, that court ruled. But:
“[That] is largely irrelevant in the context of assessing the actions of a hospital staff in failing to prevent a dangerous person from escaping.”
The same type of professional-judgment question arises in the Short case, the Court of Appeals found:
“Thus, we conclude that a mental-health provider’s lack of custody or control over a patient does not undermine or negate its legal duty to provide treatment in accordance with the applicable standards of care.”
Frisch’s court cautioned, however, that its finding is not dispositive. On remand to District Court, the trustee would have to prove, through expert testimony, that Park Nicollet departed from applicable care standards and that those departures caused his suicide.
The Court of Appeals further found that genuine material fact issues exist as to whether the Short’s family was put at foreseeable risk because of the way Park Nicollet cared for him.
Here, too, Fraser erred, the appellate panel found, when he concluded that foreseeability was foreclosed as a matter of law, because the record contains no evidence of previous violence and instead included only expert testimony to suggest that any standard-of-care departures created foreseeable risk.
Recent state Supreme Court precedent (2017’s Montemayor v. Sebright Prods., Inc.) confirms that expert testimony can provide a basis for genuine material fact issues to support the existence of foreseeability, Frisch’s ruling states.
The provider is free to argue at trial that the absence of previous violence favors a finding that the risk was unforeseeable, Frisch writes. However, she adds:
“… we are aware of no Minnesota authority requiring proof of a previous violent incident to meet the legal threshold of foreseeability.”
The Frisch court made clear it did not find foreseeable risk is a conclusive fact of the case. But whether it is or not is a “close call” and must be decided by a jury, it ruled.
Finally, the Court of Appeals disagreed with Park Nicollet lawyers that its ruling would, in effect, create new law given that the Supreme Court has no precedent supporting the existence of a duty of care in cases like Short’s.
Rather, the Frisch court concludes:
“We apply settled common-law principles to determine whether a duty may exist under the factual circumstances presented.”
Petition for Review
In its petition for review, Park Nicollet’s legal team contends that, were the Court of Appeals decision to stand, it “would radically alter Minnesota law” in two ways.
- First, the provider contends, the court’s finding holds that a “special relationship” is not required before a healthcare provider can be held liable for a patient’s violent acts. It also stands for the proposition and that “liability can be imposed through the provider’s general duty to deliver reasonable medical care,” the lawyers contend.
“This is a stark departure from the court’s longstanding default rule that one person is not liable for harm ‘caused by a third party’s conduct,’” Park Nicollet’s review petition argues, citing the Supreme Court’s 2014 Doe 169 v. Brandon.
- Second, the provider claims, the Frisch court holds that healthcare providers are capable of foreseeing violence in patients who have not previously been violent or expressed violent ideas. That, it claims, is yet another departure from precedent.
The trustee’s attorneys, meanwhile, countered in their own petition opposing Supreme Court review that the Court of Appeals ruling was “unremarkable.”
Park Nicollet disagrees. “The Court of Appeals is not a lawmaking court,” its review petition contends. “If Minnesota law is going to be changed this significantly, it should only be by this court, after full consideration. The court should grant review.”
The Supreme Court did, on May 19.
The case is not yet scheduled for a hearing before the seven justices on the state’s highest court.
