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Preventing the Wreckage of the Future: Referrals & Liability

Liability Issues for Substance Abuse Facilities Referring to Recovery Residences

Many people who begin their recovery journey by going through a substance abuse treatment program are subsequently directed to recovery residences of all types.  “Though we work out our solutions on a spiritual as well as altruistic plane, we favor hospitalization of the alcoholic who is very jittery or befogged.  More often than not, it is imperative that a man or woman’s brain be cleared before he is approached,” Alcoholics Anonymous, “Doctor’s Opinion”, Fourth Edition 2001.   Some of these facilities identify themselves as “halfway houses”—which may provide little more than a bed and access to support groups. Other recovery residences provide life skills programming, access to clinical services, and a higher level of structure for their residents.

Recovery residences are facilities used by recovering alcoholics and drug addicts that serve as a bridge between a more formalized substance abuse treatment facility and a return to a non-institutional setting (a return home or to a new home).  The number of recovery residences grew in response to a need for safe and peer supportive housing in which people could reside during early recovery. Certainly there is consistent support among therapeutic professionals for directing individuals to recovery residences upon discharge from primary care.

The question that arises is whether the substance abuse treatment facility has a responsibility or obligation to ensure that these facilities they refer, direct, or send individuals to, are actually safe, adequately secure and appropriately managed.

referral libility

While evaluating this analysis, there are some basic tort principles to appreciate the potential liability a substance abuse facility has when making such referrals.  Certainly, if the facility is a full or partial owner of the recovery residence, there is very direct relationship.  However, I will address how a substance abuse facility, with no direct financial relationship with the housing provider, may legally be held responsible in the event of tragic circumstances related to an individual who was previously treated by the referring facility.

However, Ms. Gross’s attorneys argued that this was not a premises liability lawsuit* and that there was a “special relationship” between her and Nova.  They argued that this special relationship included the duty to warn her of foreseeable and unreasonable risk of injuries; and the court agreed with her. Perhaps the most telling case, while not directly involving a substance abuse facility and recovery residence is the Gross vs. Family Service Agency Inc. and Nova Southeastern University case, 716 so. 2d 337 August, 1998.  In this case, the Plaintiff, Ms. Gross, was a student who had moved from North Carolina to Fort Lauderdale to study at Nova Southeastern University in the doctorate psychology program.  As part of the curriculum, she was required to complete an internship which involved going off campus.  Nova provided each student with a listing of approved Practicum sites, complete with a description of the type of experience offered at each site.  Each student selects six internships from the list and is placed, by Nova, at one of the selected sites. In this case, Ms. Gross submitted to her six selections of which Family Services was one of her selections. She was assigned by Nova to Family Services, Inc.  Family Services, Inc. was located about fifteen minutes from Nova’s campus.  One evening, while leaving Family Services, Ms. Gross was accosted by a man in the parking lot.  She was abducted from the parking lot and sexually assaulted.  There was evidence that prior to this attack, Nova had been aware of several other criminal incidents which occurred at or near the FSA parking lot.  The issue in this case was that Nova claimed that it did not own or operate the premises in which the Plaintiff was abducted and later assaulted.   Nova further argued that the injury did not occur on their premises, nor did they control or own either the premises from which she was abducted or the actual place where the assault occurred, and that the injury was actually inflicted by a third party that Nova didn’t have any control over.

The court went on explain that while a person or entity generally has no duty to take precautions to protect another against criminal acts of a third party, exceptions to this general rule have emerged—including the “special relationship” exception.    Among the recognized “special relationships” in which defendants have been held liable for failure to exercise reasonable care when injuries have actually been inflicted by third parties are in situations which include the employer/employee, landlord/tenant, landowner/invitee, and school/student.  Another example was the Shurben v. Dollar Rent- A – Car 676 so 2d 467 (Fla DCA 1996).  The Court ruled that the rental car entity had an obligation to warn the plaintiff, a British tourist who was shot while vacationing in Miami, of an unreasonable risk of exposure to harm by warning them to avoid certain high crime areas.

special relationshipIn looking at the relationship between clients and substance abuse treatment facilities, there are several distinctions from the relationship between a graduate student and the university, or the tourist and a rental car facility.  In my view, these differences would further obligate the substance abuse treatment facility to ensure the safety and adequacy of the recovery residences they recommend or refer clients to.   Certainly, a large percentage of clients are from areas other than where the substance abuse treatment facility and recovery residences are located.  The substances abuse facilities are in a far superior position to ascertain whether the recovery residences are in a safe neighborhood, whether there were prior incidents or complaints of violence or even serious mismanagement.  Moreover, these clients are certainly more vulnerable than one would imagine Ms. Gross, a doctoral candidate might be—suggesting not only that they would rely more heavily on the recommendations of any referral from their treating facility, but again, that the facility owes them more than a  list of places which have not been carefully scrutinized. More importantly there are additional therapeutic considerations one would hope a substance abuse facility would take into consideration before making a suggestion or recommendation. This is the analysis which I would argue applies precisely to this situation; that a “special relationship” is created between the substance abuse facility and the client, so they have a responsibility to ensure that whatever recovery residence is recommended is safe and appropriate for the specific client.

As to the liability of the recovery residences themselves, they too have legal exposure based on the special relationship, the concept of taking charge of a person who may have known dangerous propensities and an involuntary assumption of duty and as a premises liability claim*.  These are topics that I plan to discuss in more detail in future articles.

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