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Emergency physicians' duty to warn and protect: A critique and guidelines
Printed in the USA
The Journalof Emergency Medicine, Vol. 4. pp. 75-78, 1986
Copyright 0 1986 Pergamon Journals Ltd
??
EMERGENCY PHYSICIANS’ DUTY TO WARN AND PROTECT: A CRITIQUE AND GUIDELINES James E. Pointer,
MD,*
and Leslie 6. Small, RNt
‘Associate Chief, Emergency Medicine, Highland General Hospital, Oakland, Californra, and Medical Director, Emergency Medical Service District, Alameda County; and tThird-Year Student, Golden Gate University Law School, San Francisco, California Reprint address: James E. Pointer, MD, Associate Chief, Emergency Medicine, Highland General Hospital, 1411 E. 31st Street, Oakland, CA 94602
Judicial History of Duty to Warn and Protect
0 Abstract-For ten years, psychotherapists in California have practiced under a court decision which imposed a duty to warn intended victims of violent crimes. Other cases extended the scope of the psychotherapists’ duty to warn to an alarming degree. Although there have been no court cases involving emergency physicians, it is reasonable to assume that, under certain circumstances, the duty to warn could be extended to primary care physicians. Emergency physicians should familiarize themselves with applicable case law and should be aware of measures to use to avoid potential civil liability. Cl Keywords - negligence: liability; duty to warn: patient dangerousness
Introduction In 1974, the California Supreme Court in a landmark case Tarasoff v Regents of University of California, ruled in the first of a number of court decisions that resulted in a significant impact on the practice of psychology and psychiatry.’ Although the decisions thus far have addressed only psychotherapists, it is probable that future case law will extend to emergency physicians the duty to warn intended victims of violence. w
Tatiana Tarasoff was a woman acquaintance of Prosenjit Poddar, a psychotherapy patient at the University of California Hospital in Berkeley during 1969. When Poddar readily admitted to his therapist that he wished to kill Tarasoff, the therapist notified campus police by phone. The police released Poddar with a warning. After Poddar stabbed and killed Tarasoff two weeks later, her family sued the campus police and the therapist. The California Supreme Court reversed the original superior court decision and ruled that the therapist had been negligent for failure to warn Tarasoff of Poddar’s homicidal death wish. A clamor from the psychotherapeutic community prompted a rehearing by the supreme court. The court, somewhat surprisingly, broadened the therapist’s responsibility to include not only a duty to warn but also a duty to protect. According to the court, the special relationship between the psychotherapist and the patient established this expanded duty toward threatened victims. In addition, the court asserted that the therapist
Emergency Medicine and the Law is coordinated by Maurice O’Connor,
Denver General Hospital. RECEIVED:16 August 1985; ACCEPTED:20 November 1985
MD,
of the
=
75
0736-4679/86 $3.00 + .OO
76
must take reasonable precautions to prevent harm to the intended victim but gave no specific guidelines.2,3 Not unexpectedly, psychotherapists voiced objections to the decision because of its potential adverse impact on confidentiality.4 In Thompson v County of Alameda, a known male juvenile offender killed a 2year-old boy shortly after a county probation officer released him from custody. The offender had stated he intended to kill a young child. The court noted that the killer had threatened no identifiable person. It had been impossible to warn the parents of every child in the community; therefore, the court did not extend the duty to protect to the probation officer.S In Bellah v Greenson, a young woman who admitted to her psychiatrist her desire to kill herself indeed committed suicide. The woman’s family sued the attending psychiatrist, claiming he had a duty to protect. The court relied upon the Tarasoff ruling and agreed that therapists owed a duty to protect, but only to unsuspecting victims of violent acts and not to suicidal patients.6 In Thompson v County of Alameda, and Bellah v Greenson, the courts somewhat narrowed the psychotherapists’ duty to warn, as defined by the Tarasoff case. However, two recent cases significantly extended this duty. In Jablonski by Pahls v UnitedStates, Jablonski submitted to psychotherapy after threatening to assault his girlfriend’s mother sexually. The psychiatrist who ultimately counseled the patient did not obtain pertinent medical charts which documented Jablonski’s past homicidal thoughts against his wife and his propensity for future violent behavior. In spite of some incriminating psychiatric assessments, the psychotherapist continued to see Jablonski as an outpatient over a period of weeks. Jablonski ultimately killed his girlfriend. The court held that the psychiatrist had failed to protect the victim adequately. Even though Jablonski made no actual threats against his girlfriend, the court ruled that his past history of threats against his wife made violent attack on the victim reasonably likely. Fur-
James E. Pointer and Leslie 6. Small
thermore, the problem of warning a possible but unidentifiable victim which existed in the Thompson case did not exist in the Jablonski case even though the victim was not as obvious as the victim in Tarasoff.’ Hedlund v Superior Court of Orange County further expanded the duty to protect. Stephen Wilson told his psychiatrist that he intended to harm his girlfriend, LaNita. The therapists did not warn the victim and subsequently Wilson severely injured her in direct view of her 2-year-old son, Darryl. LaNita claimed that her son suffered serious emotional damage. The court ruled that the psychiatrist owed a duty to protect both mother and son as both were reasonably foreseeable victims of Stephen’s threats of violence.8 The Hedlund court cited Molien v Kaiser Foundation Hospitals and Dillon v Legg as supporting precedents. In Molien, primary care physicians misdiagnosed a woman as having syphilis. The physicians did not warn the patient’s husband of the diagnosis. Upon suit, the court substantiated the plaintiffs claims of emotional distress and ruled that the duty to warn extended to the husband who might reasonably be emotionally distressed at news of such a diagnosis.g In Dillon v Legg, a woman was an eye-witness to her young child’s death by a negligent driver. The court ruled in favor of the mother’s claim for damages for emotional distress because this emotional injury was clearly foreseeable. lo The Hedlund court asserted that the Dillon opinion “compelled” the Hedlund ruling because emotional injury to LaNita’s son was as foreseeable as that to the mother in Dillon.s Over a ten-year period, the courts have significantly expanded the duty to protect to persons whom a violent patient does not specifically threaten. These unnamed victims may include a spouse, child, or other close relative. It is not unreasonable to assume that a therapist may owe a duty to protect to an unrelated roommate, close friend or companion, or work associate. The courts have left many questions unanswered regarding the scope of the duty
Duty to Warn and Protect
protect: What individuals must therapists protect? What constitutes adequate protection of a potential victim? What other professionals might be responsible for this duty in the future? In A4erers v Quesenberry, the court ruled that primary care physicians have a duty to warn if a medical condition could cause physical harm to a patient or to a third party. In this case, Lexandria Hansen, a diabetic, received care from her physicians on several occasions during her pregnancy. On one visit, her physician was unable to detect fetal heart tones and directed Hansen to drive to a local hospital for tests even though she was emotionally distressed and her diabetes was out of control. While driving to the hospital, the patient struck a pedestrian. The court ruled that the physicians were negligent for failure to warn Hansen of the foreseeable consequences of her uncontrolled diabetes.” The case law certainly does not exempt emergency physicians or any physicians from duty to protect. Indeed, the courts appear to be expanding the protections afforded the public by gradually extending the duty to protect on a case-by-case basis. It is logical to assume that this trend will continue. Concerns over this judicial broadening of the ill-defined duty prompted introduction of Assembly Bill 2900 by Allister McAllister in the California legislature in early 1984. The bill proposed to exempt a psychotherapist from any monetary liability or cause of action from failure to warn and protect as long as the therapist did warn and protect reasonably identifiable victims of actual threats of violence. The bill would have required the therapist to make reasonable efforts to discharge the duty. In spite of passing both houses of the California Legislature, Governor George Deukmejian vetoed the bill. The Governor claimed that the bill defined the scope of the psychotherapists’ duty too narrowly; the public needed more protection from violent attacks. It is reasonable to expect that lobbying efforts will support new legislation at a future Assembly session. Although the
to
Table 1. Emergency Physician Guidelines for Use in Managing the Potentially Dangerous Patient 1. 2. 3. 4. 5.
Take all threats seriously. Secure available medical records. Document pertinent present and past history. Secure psychiatric consultation, if appropriate. File involuntary psychiatry hold form, if appropriate/available. 6. Warn “readily identifiable,” and “foreseeable” victims if patient escapes or if psychiatric consultation is not available. 7. Call law enforcement officials to attempt to protect potential victims. 8. Document all efforts to warn and to protect.
preponderance of duty to warn and protect case law and legislative activity is in California, the issue is relevant nationwide.
Guidelines for the Emergency Physician There are some important but simple concepts for the emergency physician to consider when dealing with a potentially violent patient (see Table 1). Psychotherapists have pointed out that the prediction of dangerous behavior is an important factor in duty to warn and protect cases. There is no clear consensus that a therapist can predict dangerousness. Retrospective analyses have not demonstrated consistent validity of such predictions.LZ,‘3 The emergency physician usually has no comprehensive training in psychiatry or psychotherapy and should not attempt to predict dangerousness. This determination must be the responsibility of our behavioralist colleagues. If possible, any potentially dangerous patient should be referred for immediate evaluation even if filing an involuntary psychiatric hold is required. If psychiatric evaluation is impossible or the patient escapes the emergency department, it is important to warn potential victims and to notify an appropriate agency to provide protection. Physicians should call or have police notify family or persons at the patient’s address of record. Document all efforts or attempts on the patient record. As
James E. Pointer and Leslie B. Small
78
the Jablonski case illustrates, available medical records and abstract pertinent history on the chart should be used. In spite of these concerted efforts to warn and protect, there is no guarantee that a court will not demand more. The law pertaining to duty to
warn and protect is extremely unsettled. There are currently no laws that protect or exempt the emergency physician from this duty. The ambiguity which clouds this issue mandates that emergency physicians take careful, thoughtful, but simple precautions.
REFERENCES 1. Tamsoff v Regentsof the Universityof California. Cal Reptr 1974; 118:129-145. 2. Tarasoff v Regentsof the Universityof California, Cal Reports (3rd series) 1976; 17:425-464. 3. Cooper AE: Duty to warn third parties. JAMA 1982; 248:431-432. 4. Roth LH, Meisel A: Dangerousness, confidentiality, and the duty to warn. Am J Psychiatry 1977; 134:508-511. 5. Thompson v County of Alameda. Cal Rep (3rd series) 1980; 22714-764. 6. Bellah v Greenson. CalApp Rep (3rd series) 1978; 81:614-625. 7. Jablonski by Pahls v UnitedStates.Fed Rep (2nd series) 1983; 712:391-399.
8. Hedlund v Superior Court of Grange County. Cat Reports (3rd series) 1983; 34:695-710. 9. Molien v Kaiser Foundation Hospitals. Cal Rep (3rd series) 1980; 27:916-937. 10. Dillon v Legg. Cal Rep (2nd series) 1968; 68:728752. 11. Meyers v Quesenberry. Cal App Rep (3rd series) 1983; 144:888-895. 12. Birns H, Levien JS: Dangerousness: Legal determinations and clinical speculations. PsychiatryQ 1980; 52:108-131. 13. Monahan J: The prediction of violent behavior: Toward a second generation of theory and policy. Am J Psychiatry 1984; 141:10-15.
The Journalof Emergency Medicine, Vol. 4. pp. 75-78, 1986
Copyright 0 1986 Pergamon Journals Ltd
??
EMERGENCY PHYSICIANS’ DUTY TO WARN AND PROTECT: A CRITIQUE AND GUIDELINES James E. Pointer,
MD,*
and Leslie 6. Small, RNt
‘Associate Chief, Emergency Medicine, Highland General Hospital, Oakland, Californra, and Medical Director, Emergency Medical Service District, Alameda County; and tThird-Year Student, Golden Gate University Law School, San Francisco, California Reprint address: James E. Pointer, MD, Associate Chief, Emergency Medicine, Highland General Hospital, 1411 E. 31st Street, Oakland, CA 94602
Judicial History of Duty to Warn and Protect
0 Abstract-For ten years, psychotherapists in California have practiced under a court decision which imposed a duty to warn intended victims of violent crimes. Other cases extended the scope of the psychotherapists’ duty to warn to an alarming degree. Although there have been no court cases involving emergency physicians, it is reasonable to assume that, under certain circumstances, the duty to warn could be extended to primary care physicians. Emergency physicians should familiarize themselves with applicable case law and should be aware of measures to use to avoid potential civil liability. Cl Keywords - negligence: liability; duty to warn: patient dangerousness
Introduction In 1974, the California Supreme Court in a landmark case Tarasoff v Regents of University of California, ruled in the first of a number of court decisions that resulted in a significant impact on the practice of psychology and psychiatry.’ Although the decisions thus far have addressed only psychotherapists, it is probable that future case law will extend to emergency physicians the duty to warn intended victims of violence. w
Tatiana Tarasoff was a woman acquaintance of Prosenjit Poddar, a psychotherapy patient at the University of California Hospital in Berkeley during 1969. When Poddar readily admitted to his therapist that he wished to kill Tarasoff, the therapist notified campus police by phone. The police released Poddar with a warning. After Poddar stabbed and killed Tarasoff two weeks later, her family sued the campus police and the therapist. The California Supreme Court reversed the original superior court decision and ruled that the therapist had been negligent for failure to warn Tarasoff of Poddar’s homicidal death wish. A clamor from the psychotherapeutic community prompted a rehearing by the supreme court. The court, somewhat surprisingly, broadened the therapist’s responsibility to include not only a duty to warn but also a duty to protect. According to the court, the special relationship between the psychotherapist and the patient established this expanded duty toward threatened victims. In addition, the court asserted that the therapist
Emergency Medicine and the Law is coordinated by Maurice O’Connor,
Denver General Hospital. RECEIVED:16 August 1985; ACCEPTED:20 November 1985
MD,
of the
=
75
0736-4679/86 $3.00 + .OO
76
must take reasonable precautions to prevent harm to the intended victim but gave no specific guidelines.2,3 Not unexpectedly, psychotherapists voiced objections to the decision because of its potential adverse impact on confidentiality.4 In Thompson v County of Alameda, a known male juvenile offender killed a 2year-old boy shortly after a county probation officer released him from custody. The offender had stated he intended to kill a young child. The court noted that the killer had threatened no identifiable person. It had been impossible to warn the parents of every child in the community; therefore, the court did not extend the duty to protect to the probation officer.S In Bellah v Greenson, a young woman who admitted to her psychiatrist her desire to kill herself indeed committed suicide. The woman’s family sued the attending psychiatrist, claiming he had a duty to protect. The court relied upon the Tarasoff ruling and agreed that therapists owed a duty to protect, but only to unsuspecting victims of violent acts and not to suicidal patients.6 In Thompson v County of Alameda, and Bellah v Greenson, the courts somewhat narrowed the psychotherapists’ duty to warn, as defined by the Tarasoff case. However, two recent cases significantly extended this duty. In Jablonski by Pahls v UnitedStates, Jablonski submitted to psychotherapy after threatening to assault his girlfriend’s mother sexually. The psychiatrist who ultimately counseled the patient did not obtain pertinent medical charts which documented Jablonski’s past homicidal thoughts against his wife and his propensity for future violent behavior. In spite of some incriminating psychiatric assessments, the psychotherapist continued to see Jablonski as an outpatient over a period of weeks. Jablonski ultimately killed his girlfriend. The court held that the psychiatrist had failed to protect the victim adequately. Even though Jablonski made no actual threats against his girlfriend, the court ruled that his past history of threats against his wife made violent attack on the victim reasonably likely. Fur-
James E. Pointer and Leslie 6. Small
thermore, the problem of warning a possible but unidentifiable victim which existed in the Thompson case did not exist in the Jablonski case even though the victim was not as obvious as the victim in Tarasoff.’ Hedlund v Superior Court of Orange County further expanded the duty to protect. Stephen Wilson told his psychiatrist that he intended to harm his girlfriend, LaNita. The therapists did not warn the victim and subsequently Wilson severely injured her in direct view of her 2-year-old son, Darryl. LaNita claimed that her son suffered serious emotional damage. The court ruled that the psychiatrist owed a duty to protect both mother and son as both were reasonably foreseeable victims of Stephen’s threats of violence.8 The Hedlund court cited Molien v Kaiser Foundation Hospitals and Dillon v Legg as supporting precedents. In Molien, primary care physicians misdiagnosed a woman as having syphilis. The physicians did not warn the patient’s husband of the diagnosis. Upon suit, the court substantiated the plaintiffs claims of emotional distress and ruled that the duty to warn extended to the husband who might reasonably be emotionally distressed at news of such a diagnosis.g In Dillon v Legg, a woman was an eye-witness to her young child’s death by a negligent driver. The court ruled in favor of the mother’s claim for damages for emotional distress because this emotional injury was clearly foreseeable. lo The Hedlund court asserted that the Dillon opinion “compelled” the Hedlund ruling because emotional injury to LaNita’s son was as foreseeable as that to the mother in Dillon.s Over a ten-year period, the courts have significantly expanded the duty to protect to persons whom a violent patient does not specifically threaten. These unnamed victims may include a spouse, child, or other close relative. It is not unreasonable to assume that a therapist may owe a duty to protect to an unrelated roommate, close friend or companion, or work associate. The courts have left many questions unanswered regarding the scope of the duty
Duty to Warn and Protect
protect: What individuals must therapists protect? What constitutes adequate protection of a potential victim? What other professionals might be responsible for this duty in the future? In A4erers v Quesenberry, the court ruled that primary care physicians have a duty to warn if a medical condition could cause physical harm to a patient or to a third party. In this case, Lexandria Hansen, a diabetic, received care from her physicians on several occasions during her pregnancy. On one visit, her physician was unable to detect fetal heart tones and directed Hansen to drive to a local hospital for tests even though she was emotionally distressed and her diabetes was out of control. While driving to the hospital, the patient struck a pedestrian. The court ruled that the physicians were negligent for failure to warn Hansen of the foreseeable consequences of her uncontrolled diabetes.” The case law certainly does not exempt emergency physicians or any physicians from duty to protect. Indeed, the courts appear to be expanding the protections afforded the public by gradually extending the duty to protect on a case-by-case basis. It is logical to assume that this trend will continue. Concerns over this judicial broadening of the ill-defined duty prompted introduction of Assembly Bill 2900 by Allister McAllister in the California legislature in early 1984. The bill proposed to exempt a psychotherapist from any monetary liability or cause of action from failure to warn and protect as long as the therapist did warn and protect reasonably identifiable victims of actual threats of violence. The bill would have required the therapist to make reasonable efforts to discharge the duty. In spite of passing both houses of the California Legislature, Governor George Deukmejian vetoed the bill. The Governor claimed that the bill defined the scope of the psychotherapists’ duty too narrowly; the public needed more protection from violent attacks. It is reasonable to expect that lobbying efforts will support new legislation at a future Assembly session. Although the
to
Table 1. Emergency Physician Guidelines for Use in Managing the Potentially Dangerous Patient 1. 2. 3. 4. 5.
Take all threats seriously. Secure available medical records. Document pertinent present and past history. Secure psychiatric consultation, if appropriate. File involuntary psychiatry hold form, if appropriate/available. 6. Warn “readily identifiable,” and “foreseeable” victims if patient escapes or if psychiatric consultation is not available. 7. Call law enforcement officials to attempt to protect potential victims. 8. Document all efforts to warn and to protect.
preponderance of duty to warn and protect case law and legislative activity is in California, the issue is relevant nationwide.
Guidelines for the Emergency Physician There are some important but simple concepts for the emergency physician to consider when dealing with a potentially violent patient (see Table 1). Psychotherapists have pointed out that the prediction of dangerous behavior is an important factor in duty to warn and protect cases. There is no clear consensus that a therapist can predict dangerousness. Retrospective analyses have not demonstrated consistent validity of such predictions.LZ,‘3 The emergency physician usually has no comprehensive training in psychiatry or psychotherapy and should not attempt to predict dangerousness. This determination must be the responsibility of our behavioralist colleagues. If possible, any potentially dangerous patient should be referred for immediate evaluation even if filing an involuntary psychiatric hold is required. If psychiatric evaluation is impossible or the patient escapes the emergency department, it is important to warn potential victims and to notify an appropriate agency to provide protection. Physicians should call or have police notify family or persons at the patient’s address of record. Document all efforts or attempts on the patient record. As
James E. Pointer and Leslie B. Small
78
the Jablonski case illustrates, available medical records and abstract pertinent history on the chart should be used. In spite of these concerted efforts to warn and protect, there is no guarantee that a court will not demand more. The law pertaining to duty to
warn and protect is extremely unsettled. There are currently no laws that protect or exempt the emergency physician from this duty. The ambiguity which clouds this issue mandates that emergency physicians take careful, thoughtful, but simple precautions.
REFERENCES 1. Tamsoff v Regentsof the Universityof California. Cal Reptr 1974; 118:129-145. 2. Tarasoff v Regentsof the Universityof California, Cal Reports (3rd series) 1976; 17:425-464. 3. Cooper AE: Duty to warn third parties. JAMA 1982; 248:431-432. 4. Roth LH, Meisel A: Dangerousness, confidentiality, and the duty to warn. Am J Psychiatry 1977; 134:508-511. 5. Thompson v County of Alameda. Cal Rep (3rd series) 1980; 22714-764. 6. Bellah v Greenson. CalApp Rep (3rd series) 1978; 81:614-625. 7. Jablonski by Pahls v UnitedStates.Fed Rep (2nd series) 1983; 712:391-399.
8. Hedlund v Superior Court of Grange County. Cat Reports (3rd series) 1983; 34:695-710. 9. Molien v Kaiser Foundation Hospitals. Cal Rep (3rd series) 1980; 27:916-937. 10. Dillon v Legg. Cal Rep (2nd series) 1968; 68:728752. 11. Meyers v Quesenberry. Cal App Rep (3rd series) 1983; 144:888-895. 12. Birns H, Levien JS: Dangerousness: Legal determinations and clinical speculations. PsychiatryQ 1980; 52:108-131. 13. Monahan J: The prediction of violent behavior: Toward a second generation of theory and policy. Am J Psychiatry 1984; 141:10-15.