Georgia jury favors patient confidentiality, not duty to warn.

Should a doctor's duty to protect a patient's confidence outweigh his or her duty to warn others that the patient may pose a danger?

According to a DeKalb, Georgia, state court jury, it should. In December 1999, the jury found in favor of Gordon Garner III, a former police officer with Gwinnett County, who sued a psychologist for violating the physician-patient privilege. (Garner v. Stone, No. 97A-320250-1 (Ga., DeKalb County Super. Ct. Dec. 16, 1999.)

Garner, who had been a police officer for 30 years, suffered job-related stress in the summer of 1995. He began seeing psychologist James Gonzales. According to court documents, Garner told Gonzales that he was "tired and angry, hated work, and had had suicidal thoughts." Gonzales referred him to psychologist Anthony Stone for evaluation to determine whether he was fit for duty as a police officer.

On August 30, 1995, a day after arguing with his supervisor, Garner confided in Stone that he had a vivid fantasy of killing the supervisor and vague fantasies regarding other members of the police department. Stone found Garner unfit for duty, and it was recommended that he be placed on a 30-day leave of absence. Stone did not warn Garner's supervisor about Garner's statements because he felt there was no imminent danger.

Two weeks passed, and Stone did not reevaluate Garner. He did, however, issue a warning to the police chief. Garner was put on leave and ordered to undergo a fitness-for-duty evaluation by psychologist Stephen Sampson. According to court documents, Sampson reported that Garner was "burned out and should not be on the street carrying a gun."

The day Stone issued the warning, Garner stopped seeing Gonzales and began therapy with a psychiatrist, who found Garner was fit for duty and posed no threat. Sampson countered that Garner could perform light work, such as desk duty, but not the regular duties of a police officer.

Garner was offered a position in the animal control department in December 1995, and he was terminated three months later when he refused to take the oath of office required for the position. Garner based his refusal on his understanding that the position was only temporary.

Although Garner's suit against Gwinnett County and his supervisor alleging violations of the Americans with Disabilities Act was dismissed on summary judgment, he sued Stone claiming negligence and defamation, claiming that his suspension from the police force and demotion resulted from the psychologist's betrayal.

Stone argued that his duty to warn others that Garner may have posed a danger far outweighed his duty of patient confidentiality. Garner's lawyers, Neal Howard of Atlanta and Columbus, Georgia, and William Gere Quinn III of Decatur, Georgia, claimed that Garner's statements to the psychologist were privileged and that state law provided no exception.

In December 1999, a jury awarded Garner and his wife damages and attorney fees.

"What we have here is a conflict between state law and the Georgia State Board of Examiners of Psychologists' Code of Conduct," said Howard. Georgia law states that communications between psychologists and their patients are privileged and cannot be revealed without the patients' permission. The code of conduct, on the other hand, says that psychologists may reveal a confidence to protect the patient and others from harm.

"Psychologists are saying now that they're damned if they do and they're damned if they don't," said Howard. "But really, it all depends on the circumstances of each case. Psychologists are trained professionals. They have to decide whether to breach patient confidentiality based on the facts of the circumstances."