Article by Anne Frankel, Esq., and Josey Richards, Law Clerk
This article discusses whether drug and rehabilitation centers may assert the defense of comparative negligence in personal injury claims arising from plaintiff’s illegal drug consumption. Almost every state follows some form of comparative negligence. But, most courts do not apply comparative negligence to cases involving illegal drug use. Instead, when the action by plaintiff which contributed to his own injuries is a criminal act, the doctrine of in pari delicto, also known as the wrongful conduct rule, may apply. Inpari delicto is a common-law affirmative defense based upon the principle that a plaintiff should not be permitted to recover for damages caused by their own wrongdoing. Although minimal case law exists in which in pari delicto has been applied in actions against drug and rehabilitation centers, courts readily apply the doctrine in cases centered upon illegal drug use. Additionally, courts across the country have permitted in pall delicto as a defense to a variety of professional liability actions.
In Pari Delicto vs. Comparative Negligence
The Pennsylvania Supreme Court recently affirmed the Commonwealth’s adoption of the common law doctrine in pari delicto. Albert v. Sheeleys Drug Store, Inc., 265 A.3d 442 (Pa. 2021). The equitable doctrine of in pari delicto “precludes plaintiffs from recovering damages if their cause of action is based, at least partially, on their own illegal conduct.” Id. at 446-47; citing Joyce v. Erie Ins. Exch., 74 A.3d 156, 164 (Pa. Super. 2013) (“[O]ur law will not allow recovery when an action is grounded in illegal behavior.”). Under Pennsylvania’s adoption of in pari delicto, courts consider two factors in choosing to apply the doctrine: “(1) the extent of the plaintiff’s wrongdoing vis-à-vis the defendant; and (2) the connection between the plaintiff’s wrongdoing and the claims asserted.” Albert, 265 A.3d at 450.
Further, the Court instructed that the doctrine of in pari delicto is not preempted by Pennsylvania’s comparative negligence statutes. Id. at 451. The doctrine of in pari delicto serves to prevent cases from proceeding which would: “(1) condone and encourage illegal conduct; (2) allow wrongdoers to receive compensation for, and potentially even profit from, their illegal act; and (3) lead the public to ‘view the legal system as a mockery of justice.’” Id. at 448; citing Orzel v. Scott Drug Co., 449 Mich. 550, 537 N.W.2d 208, 213 (Mich. 1995). Thus, comparative negligence statutes do not eliminate or replace in pari delicto because the two are not on point. Id.; See also Greenwald v. Van Handel, 88 A.3d 467, 476 (Conn. 2014) (Concluding comparative negligence, which relates to a plaintiff’s contribution to his own injury, does not negate application of the wrongful conduct rule, which reflects public policy considerations). But see Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo Cnty., 773 S.E.2d 627, 635 (Refusing to adopt the wrongful conduct rule because West Virginia’s comparative negligence statute was better suited to evaluate the culpability of plaintiffs’ illegal drug use or otherwise illegal conduct).
Illegal Drug Use
Although case law centering upon illegal drug use in the drug and rehabilitation setting is minimal, it is well established that illegal drug use is the sort of criminal conduct invoking in pari delicto. Courts across the country have held a plaintiff’s illegal drug use justifies preclusion to recovery in a multitude of scenarios. E.g., Romero v. United Slates, 159 F.Supp.3d 1275, 1276-79 (D. N.M. 2015); Alexander v. Synthatron Corp., No. 84-1084, 1991 WL 341741 (Pa. Commw. Ct. 1991). Drug and rehabilitation centers should evaluate whether the doctrine applies when defending claims involving a patient’s illegal drug use.
The doctrine of in pari delicto, also referred to as the wrongful conduct rule, has been applied in a variety of professional negligence claims, including, but not limited to, claims against psychiatrists, social workers, and attorneys. In addition to the recognition of illegal drug use as a trigger for application of the doctrine, drug and rehabilitation centers can look to the doctrine’s application in other professional liability contexts for guidance on successfully asserting the defense.
A psychiatric patient’s criminal conduct cannot be the basis for a tort claim against treating psychiatrists and psychologists. In Cole, a psychiatric patient attempted to bring a professional negligence claim against her psychiatrist for failure to prevent her from murdering her former husband. Cole v. Taylor, 301 N.W.2d 766, 767 (Iowa 1981). Allegedly, plaintiff informed defendant of her violent inclinations and desire to murder her former husband throughout the course of treatment. Id. Plaintiff argued defendant was negligent in failing to restrain her through hospitalization, inadequate treatment of her psychiatric condition, and failure to warn her former husband. Id. at 767-768. Although the Iowa Supreme Court previously held a plaintiff’s criminal conduct was not an automatic bar to recovery in the famous case Katko v. Briney, the court dismissed the suit because “it would be, plain and simple, wrong as a matter of public policy to allow recovery.” Id. at 768. See also Glazier v. Lee, 429 N.W.2d 857 (Mich. Ct. App. 1988) (Holding a psychiatric patient cannot recover against his psychiatrist for emotional damages resulting from murdering his girlfriend).
A social worker does not have a duty to protect a patient from committing illegal acts which the patient admitted to in therapy. In Greenwald, plaintiff was awaiting criminal charges for the downloading, viewing, and possession of child pornography when he initiated suit against his former social worker. Greenwald v. Van Handel, 88 A.3d 467, 470 (Conn. 2014). Plaintiff began treatment with defendant social worker at the age of seven and remained in treatment with defendant for ten years. Id. at 469. Two years after ending therapy with defendant, plaintiff’s home was raided in relation to child pornography. Id. at 470. As the basis of his claim, plaintiff alleged he admitted to viewing child pornography on multiple occasions during sessions with defendant social worker over the years. Id. at 469-470. Plaintiff argued defendant had a duty to protect him from committing the illegal act because he was a minor during the course of treatment and defendant should be liable for damages arising from the impending criminal prosecution. Id. at 470, 476. The court refused to accept plaintiff’s theory of liability because imposing liability on a defendant for the legal consequences of a plaintiff’s criminal conduct would create a system in which a plaintiff’s recovery increases with the increasing severity of the illegal act. Id. at 477-478. The Supreme Court of Connecticut affirmed defendant’s motion to strike due to plaintiff’s claim contravening public policy. Id.
A client who passively participates and observes the forgery of documents by his attorney cannot recover in a legal malpractice action. In Quick, an attorney mistakenly listed the president of a company instead of the company itself on a complaint against another company for breach of a consulting contract. Quick v. Samp, 697 N.W.2d 741, 743 (S.D. 2005). Once it was discovery plaintiff’s company, not plaintiff himself, was the real party in interest, the attorney prepared a backdated document which assigned the company’s rights under the consulting contract to plaintiff. Id. Plaintiff watched the attorney forge the backdated document and, after plaintiff stated he could not convincingly forge his ex-wife’s signature on a document, passively watched the attorney forge the ex-wife’s signature. Id. A different attorney who was unaware of the forgery tried the case and plaintiff did not object as the document was admitted into evidence. Id. After the first day of trial, plaintiff disclosed to the trial attorney the document was forged. Id. In response, the trial attorney promptly settled the case for much less than its value to avoid plaintiff testifying in regards to the document at trial. Id. When plaintiff brought a legal malpractice claim against the original attorney, the court reasoned plaintiff had multiple options other than to passively participate in the forgery and was in pari delicto with defendant attorney. Id.
Although the doctrine of in pari delicto appears to be readily applied, there are some recognized exceptions defendants should be aware of. The Supreme Court held in Bateman that matters of public policy may be taken into consideration when deciding whether in pari delicto should apply to a set of facts. Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 307 (1985). Additionally, the doctrine does not apply when one party acts “under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age so that his guilty may be far less in degree than that of his associate in the offense.” Choquette v. Isacoff, 836 N.E.2d 329, 333 (Mass. App. Ct. 2005) (quoting 1 Story, Commentaries on Equity Jurisprudence § 423, at 399-400 (14th Ed. 1918).
Courts have found exceptions to application of in pari delicto in cases involving a plaintiff’s illegal drug use. A Pennsylvania District Court reasoned a plaintiff’s illegal drug use may not invoke the doctrine of in pari delicto when the illegal drug use resulted from defendant’s conduct. Laskowski v. U.S. Dept. of Veterans Affairs, 918 F.Supp.2d 301, 331 (M.D. Pa. 2013). In Laskowski, a veteran suffering from PTSD brought a medical malpractice claim against the veteran’s hospital. Id. at 305. Plaintiff asserted the hospital’s failure to adequately treat his PTSD led to his mental deterioration and subsequent arrest. Id. Defendant hospital claimed plaintiff underreported his symptoms to his psychiatrist and that defendant’s drug and alcohol abuse exacerbated his condition in defense. Id. at 310-11. The court ruled in favor of plaintiff because plaintiff was a good patient and actively sought help from the VA. Id. at 328. Thus, plaintiff’s drug and alcohol abuse, and therefore criminal conduct, resulted from the medical negligence at issue because plaintiff developed his addiction due to uncontrolled PTSD. Id. at 328.
A plaintiff’s claim against a drug and rehabilitation center may be barred from recovery under in par delicto. The doctrine is consistently applied in cases centered upon a plaintiff’s illegal drug use and in a variety of professional liability contexts. Although courts regularly recognize illegal drug consumption as the sort of crime encompassed by in part delicto, there may be a policy argument that potential plaintiffs are in drug and rehabilitation centers for the purpose of preventing themselves from committing additional crimes. However, the Pennsylvania Supreme Court case of Albert clearly states that although drug addiction is devastating, illegal drug consumption is still a criminal act and a strong argument for application of in pari delicto in the drug and rehabilitation center context can be made.