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CAROL T. KING AND DAVID A. KING v. CAROL BREACH EDWARD RUSSEK (04/15/88)

decided: April 15, 1988.

CAROL T. KING AND DAVID A. KING, SR., HER HUSBAND, APPELLANTS
v.
CAROL BREACH; EDWARD RUSSEK, M.D.; DENNIS PHILBIN, INDIVIDUALLY AND AS DEPUTY WARDEN FOR TREATMENT SERVICES FOR DAUPHIN COUNTY PRISON; DAUPHIN COUNTY PRISON; STANLEY MROZOWSKI, INDIVIDUALLY AND AS ADMINISTRATOR OF DAUPHIN COUNTY MENTAL HEALTH AND MENTAL RETARDATION PROGRAM; AND DAUPHIN COUNTY MENTAL HEALTH AND MENTAL RETARDATION PROGRAM, APPELLEES



Appeal from the Order of the Court of Common Pleas of Dauphin County, in the case of Carol T. King and David A. King, Sr., her husband v. Carol Breach, Edward Russek, M.D., Dennis Philbin, individually and as Deputy Warden for Treatment Services for Dauphin County Prison, Dauphin County Prison, Stanley Mrozowski, individually and as County Administrator of Dauphin County Mental Health and Mental Retardation Program, and Dauphin County Mental Health and Mental Retardation Program, No. 3328 S 1985, dated August 18, 1986.

COUNSEL

David Fleming Taylor, for appellants.

Jay R. Braderman, for appellees, Dennis Philbin and Dauphin County Prison.

William A. Fetterhoff, for appellees, Stanley Mrozowski; The Dauphin County Mental Health and Mental Retardation Program, and Edward Russek, M.D.

President Judge Crumlish, Jr., Judge Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 115 Pa. Commw. Page 357]

Carol T. King and David A. King, Sr. (appellants) appeal from an order of the Court of Common Pleas of Dauphin County which granted summary judgment in favor of defendants Dennis Philbin (Philbin), Dauphin County Prison (Prison), Stanley Mrozowski (Mrozowski), and Dauphin County Mental Health and Mental Retardation Program (MH/MR Program).

Appellants filed a complaint against Philbin, Mrozowski, the Prison and the MH/MR Program, as well as Dr. Edward Russek (Dr. Russek) and Carol Breach (Breach) for damages as the result of injuries the wife-appellant allegedly sustained on October 3, 1983 at approximately 11:10 p.m. while carrying out her duties as a psychiatric nurse at Harrisburg State Hospital (Hospital). At that time, wife-appellant was in a room where medicines and medical equipment were stored, procuring a syringe to administer medication to Breach, when that individual, without warning or provocation, came in and assaulted her. Breach, on September 20, 1983, had been transferred to the Hospital from the Prison, where she had been confined since January 19, 1983. Her transfer to the Hospital had been ordered by the Court of Common Pleas of Dauphin County, acting upon a petition for involuntary commitment filed by Joseph J. Mullen, a counselor at the Prison.

At the time of the assault, Breach was housed in a dormitory room, which she shared with five other patients, in the admissions ward of the psychiatric unit of the Hospital. She was free to leave this room at any time and move about most of that portion of the ward in which the female patients were housed and have contact

[ 115 Pa. Commw. Page 358]

    with hospital personnel and other patients. During her incarceration at the Prison, Breach, for much of the time, had been confined to a cell by herself, either for therapeutic purposes or to discipline her for, inter alia, assaults she had committed upon members of the prison staff.

It is alleged in the complaint that Philbin, who was Deputy Warden for Treatment Services at the Prison, and Mrozowski, who was County Administrator for the MH/MR Program, were familiar with Breach and her mental disorders; that, prior to Breach being transferred to the Hospital, they knew that she had a propensity to assault other persons and that, having such a propensity, she was a danger to others, as well as to herself; and that, prior to Breach's transfer, Philbin knew she had been placed in isolation at the Prison. The acts upon which liability is predicated against Philbin and the Prison, as employer of Philbin, as set forth in paragraph 43 of the appellants' complaint, are:

(1) permitting the transfer of Breach to the Hospital;

(2) failure to exercise reasonable care in the treatment of Breach;

(3) failure to provide an adequate community treatment program for Breach;

(4) failure to attach a detailed disclosure of the community treatment plan to the petition for involuntary treatment;

(5) failure to provide an adequate group therapy program for Breach at the Prison;

(6) failure to prescribe and/or recommend the level of security required for Breach at the Hospital;

(7) failure to provide treatment for Breach, who had been diagnosed as being both mentally ill and mentally retarded, at a facility for treatment of mentally retarded persons; and

[ 115 Pa. Commw. Page 359]

(8) failure to coordinate the activities and conduct which were required of treating psychiatrists ...


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