Psychotherapy

Psychiatrists Duty to Warn and Protect
by Theodore B. Feldmann, M.D., Department of Psychiatry and Behavioral Sciences
University of Louisville School of Medicine

New HIPAA regulations have re-emphasized the importance of maintaining the privacy of medical records and patient information. While confidentiality has always been an essential component of psychotherapeutic work, government regulations have progressively eroded both confidentiality and privilege in psychiatric practice. One of the most problematic areas concerns the psychiatrist's duty to warn and protect potential victims from violence committed by patients. This article reviews the evolution of the duty to warn and protect.

The Tarasoff Case
The duty to warn and protect had its origins in the landmark case of Tarasoff v. Regents of the University of California. Prosenjit Poddar was an Indian graduate student at Berkeley who briefly dated Tatiana Tarasoff, a fellow student and daughter of a faculty member. Poddar, who was unfamiliar with American customs and had never dated before, came to believe that he had a "special relationship" with Tarasoff. He felt betrayed and humiliated when Tarasoff attempted to end the relationship.

Poddar became increasingly obsessed with Tarasoff and made numerous attempts to maintain their relationship. When these failed, he became depressed and sought counseling at the University Health Service. During one session he revealed his intention to kill Tarasoff. The therapist requested that campus police take Poddar to a psychiatric hospital. The police interviewed him but did not seek hospitalization because Poddar promised to stay away from Tarasoff. Several weeks later he stabbed her to death.

The Tarasoff family sued the university failure to warn their daughter of Poddar's threats. The trial court dismissed the case, saying that while physicians and therapists had a duty to patients there was no duty to third parties. The California Supreme Court (1974) reversed the decision and ruled that therapists bear a duty to use "reasonable care to give threatened persons such warnings as are essential to avert foreseeable danger."

A petition to rehear the case was filed in 1976. At that time the California Supreme Court held 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 such danger." The therapist must warn the victim, notify police, or take "whatever steps are reasonably necessary."

The case was eventually settled out of court. Poddar served four years in prison for manslaughter; his conviction was eventually overturned due to faulty jury instructions on diminished capacity. Poddar was not retried on condition that he return to India.

Expansion of the Duty to Warn and Protect
The next major case involving a duty to warn and protect was Lipari v. Sears Roebuck & Co. (1980). Ulysses Cribbs purchased a shotgun from a Sears store and used that weapon in a nightclub shooting, killing Mr. Lipari and wounding his wife. Cribbs was treated at a VA Hospital one month before shooting.

Mrs. Lipari filed suit against Sears for negligent sale of a shotgun to a mentally ill person. Sears and Mrs. Lipari filed suit against the VA for negligent treatment, alleging that the hospital should have known Cribbs was dangerous.

U.S. District Court denied the defendant's motion for dismissal. The court found that therapists have a duty to detain potentially dangerous patients. The victims belonged to a class of individuals that were foreseeable victims, i.e., the public at large. The case was ultimately settled out of court for one million dollars.

Another case involving the Department of Veterans Affairs was Jablonski v. United States (1983). Phillip Jablonski killed his girlfriend, Melinda Kimball, and had earlier threatened Kimball's mother (Mrs. Pahls). A wrongful death was filed suit against the VA Hospital, alleging that negligence by VA doctors was the proximate cause of Kimball's death.

Jablonski received an outpatient evaluation at the Loma Linda (CA) VA after he threatened Kimball's mother. Melinda Kimball, who was never specifically threatened, accompanied Jablonski to the evaluation. Local police called the VA about Jablonski's prior criminal record but the information was not relayed to the psychiatrist, who later said he would have hospitalized Jablonski had he known of the patient's violent history. Jablonski admitted to prior psychiatric treatment but no attempt was made to obtain the old records.

Jablonski refused voluntary admission and the psychiatrist found no basis for involuntary commitment. Kimball refused to end her relationship with Jablonski even though she felt unsafe with him. Several days later Kimball was murdered.

U.S. District Court ruled that the VA committed malpractice by its failure to record and transmit police information, failure to canvas VA hospitals in the area for old records, and failure to adequately warn Kimball. Each of these actions was a proximate cause in Kimball's death. The U.S. Court of Appeals upheld the district court ruling. According to the appellate court, a therapist/patient relationship existed and the psychiatrist should have known that Jablonski was dangerous. Thus, Kimball was a foreseeable victim and the therapist had a duty even though she was not specifically threatened.

In the 1980s, two cases focused on the psychiatrist's duty to protect the public from dangerous acts committed by patients operating motor vehicles. The first case was Petersen v. State of Washington (1983). Cynthia Petersen was injured when her vehicle was struck by Larry Knox's car. Five days before the accident Knox was discharged from Western State Hospital. The admission was precipitated by a PCP-induced psychosis. One day prior to discharge Knox returned from a pass and was observed driving his car recklessly on hospital grounds. Upon discharge Knox threw away his medication and resumed drug use.

Petersen alleged that the state was negligent for releasing Knox from the hospital and failing to protect her from his dangerous propensities. The Washington Supreme Court held that the psychiatrist had a duty to take reasonable care to protect anyone who might be foreseeably endangered by Knox's drug-related mental problems - the psychiatrist knew Knox was reluctant to take medication and was likely to revert to drug use.

The $250,000 judgment awarded Petersen by the trial court was upheld. Generally there is no duty to protect third parties unless a special relationship exists - in this case a doctor-patient relationship existed between the psychiatrist and Knox. The Petersen court followed the Lipari model - there is a duty to "anyone who might be foreseeably endangered."

The other driving case was Naidu v. Laird (1988). Ann Laird brought a wrongful death action against Dr. Naidu, a psychiatrist at Delaware State Hospital. The suit alleged that Dr. Naidu was negligent in releasing a mental patient, Hilton W. Putney.

Five months after discharge, while in a psychotic state, Putney killed Laird's husband in a motor vehicle accident. Putney had an extensive psychiatric history of schizophrenia and medication noncompliance. Prior medical records described Putney as dangerous, "especially if he should drive an automobile in his present condition," but Dr. Naidu did not review the past records. Putney was discharged against medical advice and did not follow-through with outpatient treatment.

At trial, the plaintiff's expert cited negligence which included discharge without adequate follow-up, failure to address noncompliance, and failure to consider all treatment alternatives. The jury verdict against Dr. Naidu was $1.4 million.

On appeal Dr. Naidu argued that he had no duty to prevent a former patient from causing injury to the public. The doctor argued that his treatment of Putney was not the proximate cause of Laird's death.

The Delaware Supreme Court upheld the verdict and said that there was sufficient evidence that Dr. Naidu breached the duty of reasonable care. The rationale was that the patient's past history should have been taken into consideration in determining whether to seek involuntary commitment. The court also held that "physical or temporal remoteness should not bar recovery," even though the passage of time decreases the likelihood that a defendant's acts are the proximate cause of harm.

Two California cases examined whether or not Tarasoff warnings issued to potential victims are protected by privilege (i.e., are they admissible in court as evidence against a defendant charged with a violent crime?). The first case was People v. Wharton (1990). George Wharton was convicted of the murder of his girlfriend, Linda Smith, and was sentenced to death. Two weeks before the murder, Wharton sought treatment from a psychologist and psychiatrist. Both warned Linda Smith that she was in danger. This case focused on two relevant issues under the California Evidence Code. Section 1014 of the code stated that, "a patient has a privilege to refuse to disclose confidential communications between patient and psychotherapist." Section 1024 was the dangerous patient exception - Tarasoff warnings were not protected by privilege.

At trial the prosecution attempted to obtain testimony from both doctors about their Tarasoff warnings. The trial court agreed that the prosecution could inquire into the conversations with Linda Smith. Communications between the doctors and the victim were discoverable, as were the professional impressions and diagnoses that prompted the warnings. Defendant statements that did not trigger the Tarasoff warnings were excluded.

The issue on appeal was whether the trial court misconstrued the scope of the dangerous patient exception to privilege in Section 1024 of the evidence code. The California Supreme Court upheld the trial court ruling. The court acknowledged that public policy favors confidentiality in psychotherapy, but neither the warning statement to the victim nor the therapy material that led to the warning were privileged under Section 1024.

The Wharton decision was tested in Menendez v. Superior Court (1992). Lyle and Eric Menendez were charged with the murder of their parents. The brothers reported the crimes to their psychologist, Dr. Leon Oziel, during therapy sessions and threatened his family if he the disclosed the information. In response to the threats Dr. Oziel issued Tarasoff warnings to the threatened parties.

At trial the prosecution sought to introduce records from the therapy sessions that prompted the Tarasoff warnings. The state's intention was to use this information as evidence that the Menendez brothers had committed the crimes. Dr. Oziel claimed that privilege should prevent disclosure. The prosecution cited the Section 1024 dangerous patient exception to privilege and the trial court rejected privilege claims for all notes. The California Court of Appeals concurred.

In reviewing the case, the California Supreme Court held that partial disclosure of the tapes and notes was permitted. Section 1024 applied to portions of sessions that gave rise to Tarasoff warnings. Sessions and communications not related to the warnings were protected by privilege.

Duty to Warn and Protect in Kentucky
The Kentucky version of Tarasoff was Evans v. Morehead Clinic (1988). Jerry Evans, maintenance manager at an apartment complex in Flemingsburg, was shot and wounded by George Allen on December 1, 1983. Allen committed suicide after the shooting. In April 1983 Allen had been hospitalized for a paranoid psychosis.

Allen's family had told the psychiatrist that Allen had made threats to shoot the victim. Two months later he was re-examined by a psychologist at the clinic. At that time Allen believed his wife was having an affair with a younger man (thought to be Evans), but he did not verbalize any threats. During the months leading up to the shooting, Allen became increasingly obsessed with the victim. No warnings were issued to the victim and there were no further attempts to hospitalize Allen.

Evans filed suit in Fleming Circuit Court, claiming the clinic failed to warn him about a dangerous patient. The trial court dismissed the case. The Kentucky Court of Appeals reversed the decision and held that a "psychiatrist or therapist has the duty of ordinary care to protect a reasonably foreseeable victim from assault by a patient." The legislature incorporated the court's ruling into KRS 202A.400.

Summary
Psychiatrists clearly have a duty to warn and protect persons threatened by psychiatric patients. Failure to do so results in significant civil liability. Civil commitment is one obvious way to satisfy the duty to warn and protect. Other actions include direct notification of the threatened party and notification of the nearest law enforcement agency.

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