Doctor-Patient Secrecy Has Its Limits

Since 1976 psychiatrists have not been very happy with judges. In that year, the California Supreme Court--in an unprecedented case--ruled that psychiatrists have a responsibility to protect potential victims of their violent patients.

In other words, if a therapist believes that his patient may injure someone, then he has a legal duty to protect the would-be victim, perhaps by warning the victim or notifying the police.

The case pitted doctor-patient confidentiality against the duty to warn, and the duty to warn won out.

Special Relationship

As noted in last week’s Legal View column, people generally do not have a duty to protect or assist others unless they have a “special relationship,” which then allows the courts to impose such a duty.

In what Stanford law professor Marc Franklin calls the California Supreme Court’s “attempt to create a duty on the part of everybody,” the court decided in this landmark case that the special relationship between a patient and doctor was enough to impose a duty on the doctor to protect third parties--the potential victims.

In 1969, Prosenjit Poddar killed Tatiana Tarasoff. Tarasoff’s parents filed a wrongful-death suit against the University of California and the psychiatrists employed in its health center who had examined Poddar. They claimed the doctors should have warned Tarasoff of possible danger.

The trial court dismissed the suit, but the California Supreme Court overturned the decision, ruling that “when a therapist determines, or . . . should determine that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against the danger.”

The case was sent back for trial on these issues, but was later settled out of court.

Other states have relied on this decision to expand legal duties in their own states. And just last week, the California attorney general relied on the Tarasoff decision when he issued an advisory opinion that said structural engineers have a legal duty to warn the public about buildings that could collapse.

Atty. Gen. John Van de Kamp opined that an engineer who discovers “an imminent risk of serious injury to the occupants” must warn the occupants or notify local building officials.

This opinion points out the legal dilemma that the courts have failed to adequately address, according to Franklin. What if the engineer is wrong and the building is not in danger of collapse? Then, after warning the occupants because of his newly announced legal duty, the engineer might be sued by them for the emotional distress caused by his faulty analysis.

Or what if the therapist is wrong about the violent propensities of his patient and scares the potential victim needlessly? The Supreme Court responded to this argument by saying, “the risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that may be saved.” But that doesn’t mean the needlessly shaken victim can’t sue the doctor for his unprofessional prediction.

Ruling Criticized

The Tarasoff ruling has been criticized because it allows courts to second-guess the therapeutic process, fails to recognize the difficulty of predicting violent behavior and violates doctor-patient confidentiality.

Although the court acknowledged the difficulty of predicting violent behavior, it decided that a therapist should be held to account if he does not meet professional standards of skill, knowledge and due care.

The state Legislature passed a bill this year that would reduce the impact of the Tarasoff decision and only require therapists to make “reasonable efforts” to inform victims and law enforcement authorities of “serious threats” of physical violence “communicated” by the patient. The bill has not yet been signed into law by the governor.

A few other states have expanded the legal duty imposed by California. Psychiatrists in Nebraska and Washington state owe a duty of care to anyone endangered by their patients, even if the patient is not threatening anyone in particular.

In Nebraska, a psychotic patient fired a shotgun into a crowded nightclub, and the court held his psychiatrist responsible.

In Washington, a man was released from a psychiatric hospital just five days before he ran his car into and seriously injured a woman. He had been diagnosed as a schizophrenic, which was due in part to his use of the drug “angel dust.” His doctor said there was a chance that his patient would begin using “angel dust” again and could become violent, but the doctor did not commit him for a longer stay.

In upholding the jury verdict for $250,000, the Washington Supreme Court said the doctor breached a legal duty to take reasonable precautions to protect anyone who might foreseeably be endangered by the man’s mental problems.