Reflections on massacre at Virginia Tech: legalities of mental illness, liability

by • May 1, 2007 • UncategorizedComments Off on Reflections on massacre at Virginia Tech: legalities of mental illness, liability1613

© The Medical-Legal News 2007

By Dan Clifford, publisher

On April 16 Seung-Hui Cho, a 23-year-old student at Virginia Tech University in Blacksburg, Va., killed 32 people, and himself, in a preplanned rampage.

The incident has prompted a lot of soul searching and second guessing among members of many professions, as numerous warning signs of Cho’s impending explosive behavior failed to avert his lethal actions.

Cho’s roommates, women stalked by Cho and several teachers were aware of his oddness. He had been declared mentally ill by a court magistrate in late 2005 and sent to a local mental facility, and had been banned from classes when fearful students complained. But, importantly, he did not make threats and broke no laws.

Keith McCormick, a private practitioner and former prosecutor in Morehead, Ky., and member of this newspaper’s editorial board, offered some thoughts on the legal fallout from the massacre: “When a teacher comes in and says, ‘This guy’s writing about going to kill somebody and he needs some help,’ then they can send him to counseling, and unlike other places where you may or may not wish to partake [in counseling], a university does have the authority to disenroll you, send you home and make you a legal stranger, and they have the authority to keep you off the premises if you do not wish to take counseling.”

Lewis Laska, a Tennessee attorney and publisher of several medical malpractice publications, said of the Virginia Tech incident, “The liability, if any, will be for ‘educational malpractice,’ not psychiatrist/psychologist malpractice, for failure of the school to heed the warnings of the two professors who voiced concern about the guy. There have been other cases where schools have been found liable, e.g. a student burns down a dormitory while crazy, and students die.”

Laska also added that sovereign immunity in lawsuits is “a state-by-state thing.”

Virginia has sovereign immunity, wherein the state or state-run institutions cannot be sued. Virginia will allow up to $100,000 in damages under its Tort Claims Act. Complicating this, however, is that Cho was a third party and not an employee or agent of Virginia.

Newsday reported a Richmond attorney who speculated that since contract law does not fall under sovereign immunity, plaintiffs could try a breached contract argument against Virginia Tech for a failure to warn of Cho’s danger.

Michael Prescott, a suspense novel writer, noted on his blog, “The most troubling aspect of the Virginia Tech case, beyond the loss of innocent lives, is that people could be so naive and oblivious when it came to Cho’s condition. He was a psychotic, rapidly deteriorating toward a fugue state, a full psychotic break.” Prescott documented Cho’s strange mannerisms, incoherent writings, profound solitude and withdrawal, and his symptoms of what most likely was schizophrenia.

As to mental illness, McCormick says, “When it comes to the mentally ill it is such a gamble, and they have no authority to keep a patient. You can be as nutty as a June bug, so long as you have not hurt anyone or yourself. There are all these people — gun sellers, pshycotherapists, everybody who was dealing with him — and they did not know what the end result was going to be.”

“One place where all these privileges crumble in most modern states is when somebody has a known target and is a discernable threat — they can take action. If there is an identifiable target they not only can, but must, report that.”

“It goes to the basics that have to do with liability, forseeability, Palsgraf and a lot of old ancient law.”

McCormick adds, “Did any one person have enough knowledge or information to foresee a threat? Maybe or maybe not. Maybe as a group, if they all were to have run into each other on Main Street, they would have. Did any one individual have enough information?”

The Associated Press reported criminal justice professor James Alan Fox as saying that while Cho was “prototypical” of mass killers, such a fact does not mean that somebody could have predicted his actions. On Fox quips, “The typical mass murderer is extraordinarily ordinary.”

New York Times and AP stories accounted that Cho had been sent to St. Albans Psychiatric Clinic where he had been declared mentally ill, but not a threat. He was encouraged to have follow-up care, but it was unknown if he did.

As to firearms sales, McCormick added, “The guy who sold the gun, did he have enough information? We have decided that 16 is a kid, and 18 is a kid and that 21 is not, for the purpose of purchasing firearms. Cho was compliant. What special duty did the gun shop owner have to apply his own set of rules? That’s the scary part.”

Cho’s name was not entered into a firearms database as a mentally ill person because he had never been committed to a mental facility. Such persons are blocked from gun purchases in the federal database, though it is up to each state to submit cases.

The governor of Virginia recently tightened the laws with regard to firearms and the mentally ill in that state.

As to medical and school records, McCormick says, “Cho’s grades and school stuff are governed by FERPA, and his medical records, even if they were lodged on campus, are covered by HIPAA. Unless law enforcement is conducting an investigation, the records are off limits.”

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