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Violence may test state's limits of liability

by Alan Markow, published

When a Sacramento County conservator placed Ofiu Edwards Foto into an Oak Park group home, she may not have realized that the man was dangerous (although that information was easily available with a minimum of research).  But Rachael Harris almost certainly believed that she could not be held liable for any harm caused by Foto because of laws protecting the state and its mental health workers from liability.

But Foto, a 6-foot, 300-pound 40 year old paranoid schizophrenic, flew into a rage on September 5, 2008, killed a 65 year old woman and left the woman’s husband (a worker in the group home) with a permanent and debilitating brain injury.  Sacramento Superior Court Judge Rudolph Loncke will not let the county off the hook under the usual “hold harmless” provisions.  “You want to sneak that information by people?” he pointedly asked county counsel this week when she suggested that the conservator had no duty to inform the group home about Foto’s violent background.

Loncke has forced a $14.5 million wrongful death lawsuit by the injured family member to remain in the courts for the time being rather than dismissing it out-of-hand on the basis that the state and county cannot be held accountable for its actions because … well, because those are the rules.  And that brings us to the point.  Rules designed to allow good people such as mental health workers to do their jobs without fear of legal retribution become double, dull-edged swords when accountability is neglected.

It is impossible at this point in the case to know whether Ms. Harris failed in her duties to look deeply enough into Mr. Foto’s background and report out to the Oak Park group home about the life-threatening danger he posed.  One can hope that the court case will be allowed to go forward so the public will be able to find out whether there is fault to be laid at the feet of the conservator or the system for the damage that has been done to the family in question.  But given the known cases of failures of stewardship by state workers in areas such as Child Protective Services, it’s high time that we re-evaluate the blanket protection we provide and – at the very least – ensure that it is accompanied by rigorous training and supervisory follow-up so that the rationale for accountability is more transparent and the steps taken to protect public safety include adequate due diligence.

This situation is the polar opposite of the desire for “tort reform” in which lobbyists and politicians argue that the threat of malpractice suits force physicians to practice expensive forms of “defensive medicine.”  But for a patient who has been maimed by an error in an operating room, a defense attorney may be their only source of retaliation.  In the case of state health care workers, tort reform exists by fiat.  And the inability to pursue a legal remedy will leave the deeply damaged family in this particular case with no place to turn.

Foto himself has been found incompetent to stand trial because of his mental condition, although he is scheduled for another competency hearing in 2012.  According to a story published Tuesday in the Sacramento Bee, Foto had a history of violence “dating back to 1988,” including a 2005 assault resulting in serious injuries to a 76 year-old female at another guest house in Sacramento County.

The Bee has filed an action to unseal documents relating to the county’s placement of Foto in the group home.  A hearing on that action is scheduled for September 28.

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