Duty to Warn Flashcards
Tarasoff v. Regents of UC Berkley
patient threat to kill girlfriend. Told police but not girl or her family. 2 months later he killed his ex-girlfriend.
Court: Creates an exception to patient-therapist privilege if the patient is a danger to himself or others. Not just a duty to warn, but a duty to protect. Had to notify the individual target of the threat.
Following Tarasoff: Court grapple with when the duty to warn arises. Many say: When there is a specific threat, to a specific person, and foreseeable danger.
California: Is there a duty to control the actions of others?
No, unless a special relationship exists.
Almonte v. New York Medical College (1994)
Duty to warn and protect a non-specific victim.
Garner v. Stone (1973)
Confidentiality and the duty not to warn and protect.
Ewing v. Godlstein
Patient tells his father of feeling suicidal and harming his ex’s new boyfriend. Father told therapist about this threat. Patient later killed the victim. The victim’s family sues the Dr. for wrongful death. Defendant argues under Civil Code 43.92.
Court: communications made to the therapist with the purpose of advancing that patient’s therapy, there will be the duty to warn. Duty arises from the concern, not from how the concern is communicated. Each case needs to be decided individually.
Ewing v. Northridge Hospital Medical Center (2004)
Patient punched father, told father that he planned on killing himself and the victim. Father takes patient to hospital. Father says he told hospital staff about threats. Hospital says they were only told about the punch. Encouraged him to commit self voluntarily. Patient was discharged the next day. Killed the victim and himself.
“The pivotal factual question is whether the psychotherapist actually held the belief or made the prediction. If so, it does not matter that the belief or prediction was premised, in some measure, on information derived from a member of the patient’s family.”
Psychotherapist Liability for Failure to Predict Patient’s Dangerous Behavior
Liable if other mental health practitioners, adhering to standards of the profession would have predicted such behavior.
Tarasoff: “the majority’s rule that a therapist may be held liable for failing to predict his patient’s tendency to violence if other practitioners, pursuant to the ‘standards of the profession,’ would have done so.”
Liability is not based on a breach of the standard of care but rather the specific duty to warn which arises from communication of a threat.
Issues with Psychotherapist Liability for Failure to Predict
Dangerousness is difficult to predict and predictions are often not not accurate.
Therapists might err on the side of caution, leading to over-disclosure.
Might cause therapists to focus too much on the patients’ ‘dangerousness” rather than their care.
Holds therapists to an ill-defined community standard.
Civil Code Section 43.92
Enacted to limit psychotherapist liability for failure to warn to instances in which the therapist actually believed or predicted a patient posed a serious risk of inflicting grave bodily injury.
Jurors and Experts
o Jurors require no expert guidance to ascertain a psychotherapist’s actual belief or prediction.
o Experts not needed when jurors can use common knowledge to figure out that the defendant did wrong
