Health care providers' duty to warn.
IN THE AREA of health care providers and their professional liability, tort law is changing. The tort of negligence has already been defined as "conduct which falls below a standard established by law for the protection of others against unreasonable risk of harm" and involves a duty of care to those individuals. (1) For health care providers, common law tort principles regarding negligence dictate that a duty of care is owed to their patients because of the special relationship that exists between the two parties. Many states have determined that a duty and thus a liability can be created when a special relationship exists between the plaintiff and defendant. (2) As a result, some states have expanded upon this and concluded that the duties of health care providers extend beyond their office doors and into the community at large (ie, to injured third parties--known or unknown).
Sometimes, these conclusions have appeared to conflict with the Hippocratic Oath and the obligation of providers who are physicians to keep secret whatever is heard or seen. This limitation on the provider/patient privilege of confidentiality places providers at times in a health care dilemma. The health care provider should be analogous to attorneys who must keep communications with their respective clients privileged unless such communications pertain to the commission of a future crime.
It seems clear that tort law principles of negligence are being broadened by court findings. (1) The nationwide expansion of the duty to warn, particularly with physicians who treat mental illnesses, is largely the result of the acceptance and adoption of the holding set forth in the seminal case of Tarasoff v Regents of the University of California. (3) The Tarasoff case established a general rule that a mental health care provider has a duty to use reasonable cause to protect third parties from becoming victims of the provider's patient. This duty begins at the time when the provider determines that the patient presents a serious danger of violence to another. (4)
In Tarasoff the court rejected the argument that the mental health care provider's inability to accurately predict dangerousness should insulate him from liability to third parties. (5) In this case, the court sought to balance the following: the foreseeability of harm to a third party; the degree of certainty that .she would suffer injury; the closeness of the connection between defendant's conduct and the third parties' injury; the moral blameworthiness attached to the defendant's conduct; and the potential consequences to the community in making its decision. Some states have adopted its holding, whereas subsequent decisions from other states have been far from unanimous in their interpretation of Tarasoff. (6)
In addition to mental health, health care in general has become another area where there has been litigation relative to the "duty to warn and/or protect." Courts throughout the country have held that the existence of a contagious disease can create in the health care provider a duty to warn third parties of the danger when a physician-patient relationship exists between the doctor and the person with the disease. The "foreseeability of victims" approach has been used with these health care providers by extending the physician's liability beyond the traditional doctor-patient relationship to third parties. Even where courts consider a patient's reliance, the courts' focus is on whether the physician could foresee harm to a third party. The specific victim of the harm, however, need not always be identifiable beforehand. (2)
Cases involving a pharmacist's liability as a health care provider to warn third parties have been based on a distinction regarding the cause of the patient's injury. Case law mentions two major types of causes of injury for pharmacists. The first type is an adverse drug reaction. Courts, in these cases, have consistently held that the pharmacist is not liable for failing to warn even the patient of an adverse drug reaction. The second type relates to injury if there is improper prescription of a drug by the physician. Courts' holdings have differed in these situations, with some holding pharmacists liable and others not holding them liable. (7)
The primary purpose of this paper is to discuss implications of the extension of liability to third parties for Tennessee health care providers.
Tennessee courts have determined that a duty, and thus a liability, can be created when a special relationship exists between the plaintiff and the defendant. We will describe in detail those court cases on appeal that have attempted to answer this question.
Hembree v State of Tennessee (2001) (8)
A patient was found not guilty by reason of insanity after an April 1985 attack on his sister with a hatchet while he was suffering from a psychotic episode. He was committed by the Circuit Court of Stewart County to the Middle Tennessee Mental Health Institute (MTMHI) in Nashville for involuntary psychiatric care and treatment on March 1, 1988. In January 1989, he was transferred from MTMHI to Luton Community Mental Health Center for mandatory psychiatric outpatient treatment. In July 1989, he was transferred to Vanderbilt Mental Health Center for continued services. He also attended outpatient therapy thorough Harriet Cohn Mental Health Center in Clarksvllle while enrolled as a student at Austin Peay College. On October 31, 1992, he entered a private residence in Clarksville with a .410 gauge shotgun and shot to death two individuals, seriously wounded two other individuals, and committed aggravated assault on five individuals. He was convicted on all charges and sentenced to two consecutive life terms in p rison plus 56 years. The estate of the victims brought suit against the State of Tennessee before the Claims Commission charging MTMHI with the tort of negligence in the January 23, 1989, release of the patient from their hospital.
The Tennessee Claims Commission rendered judgment in favor of the claimants. The State appealed. The Court of Appeals found for the Claims Commission as to the negligence of MTMHI stating that the foreseeability requirement did not require the tortfeasor to foresee the exact manner in which the injury took place only that the tortfeasor could have foreseen, or through the exercise of reasonable care should have foreseen the general manner in which the injury or loss occurred.
As a result, MTMHI was held liable for the criminal acts of the patient 3 years after they had provided any treatment for him. The court, however, stated that all of the records, not just the discharge summary, should have been submitted to his outpatient provider, and thus MTMHI had failed to adequately warn the outpatient facilities of the violent history of the patient.
Turner v Jordan (1997) (9)
In March 1993, the plaintiff, a nurse was attacked and severely beaten by a psychiatric hospital inpatient. The patient had been diagnosed as bipolar and manic, had been a patient at the hospital on five previous occasions, and had been found dangerous on three of those hospitalizations. A jury had returned a verdict for the nurse allocating 100% of fault to the psychiatrist and 0% to the patient. The psychiatrist appealed. The issue before the Court of Appeals was whether a psychiatrist owed a duty of care to protect a hospital-employed psychiatric nurse from the violent and intentional acts of a hospitalized mentally ill patient.
The higher court found that the defendant's psychiatrist owed a duty of care to the plaintiff nurse because he "knew or should have known that his patient posed an unreasonable risk of harm to a foreseeable, readily identifiable third party." The court also concluded that the defendant psychiatrist's negligence should not be compared with the intentional conduct of the nonparty patient in allocating fault.
Pittman v Upjohn (1994) (10)
An action was brought against the manufacturer of a prescription drug, the prescribing physician, and the pharmacy. The action sought to recover for injuries sustained by a patient's adult grandson when he mistakenly took a prescription drug believing that it was aspirin. The trial court granted the pharmacist's request for summary judgment but denied the physician's request. The physician appealed, and the Court of Appeals granted summary judgment to the physician as well. The Supreme Court, on appeal by the grandson's family, stated that the physician is not limited in his duty to only warn his patients. However, the family did not offer support that the grandson was among those third persons likely to be harmed and therefore entitled to legal protection at the hands of the physician. The family failed to "show that the injury was a reasonably foreseeable probability, not just a remote possibility. . . ." Consequently, the physician's duty to warn did not extend to the grandson, and the physician was entitl ed to summary judgment.
Bradshaw v Daniel (1993) (11)
The physician was treating the husband for Rocky Mountain spotted fever (RMSF) on July 23, 1986. The patient died, and the physician communicated with the wife regarding his care. Although RMSF is a noncontagious disease transmitted by tick bites, the physician did not warn the wife of the risk of exposure to RMSF. One week after her husband's death, the wife was admitted to the hospital displaying some symptoms of the disease. She also died of RMSF. Their son filed a suit claiming that the doctor had been negligent in failing to advise the wife that her husband had died of RMSF, and that the physician's failure to warn of the risk of exposure to the disease proximately caused her death.
The trial judge denied the motion for summary judgment. The appellate court determined that the record did not sufficiently show that there was a risk to the wife that would have triggered a legal duty on the physician's part, and the court granted summary judgment. The Tennessee Supreme Court reversed the appellate court. "The physician-patient relationship was sufficient," the judges said, "to impose upon a physician an affirmative duty to warn identifiable third persons in the patient's family against foreseeable risks emanating from a patient's illness."
Dooley v Everett (1990) (12)
The parents of a 5-year-old boy who had cerebral seizures and severe irreversible neurologic injuries as a result of toxic levels of the drug theophylline brought suit against the pharmacist. The physician had treated the child's asthmatic condition for 2 years with theophylline. In December 1987, however, the physician prescribed the drug erythromycin for the child. The package insert warned of that drug's possible interaction with theophylline. The pharmacist filled the prescription for 3 months without any notice or warning to either the physician or the parents.
The trial court granted the pharmacist summary judgment on the ground that the pharmacist had no duty to warn as a matter of law. The court of appeals reversed and remanded the case for trial. The court stated that the case involved the duty of the pharmacy to its customer and that this duty included the warning of a potential drug interaction.
Harvey v Dominguez (1989) (13)
On September 18, 1984, a deputy sheriff was shot during the performance of his official duty when he attempted to take a mental patient into custody and transport him to Moccasin Bend Mental Health Institute as required by a court order. The patient had been diagnosed as having a paranoid schizophrenic condition and had a history of homicidal tendencies and antisocial behavior, which required either continued confinement in a mental institution or a supervised outpatient treatment plan. The deputy filed suit against various physicians and mental health institutions. The theories of professional negligence included negligence in the patient's treatment and release, as well as a failure to warn the public and the police of the patient's mental condition and his past violent conduct.
The trial court dismissed the complaint on grounds that it failed to state a cause of action. Because of the application of the policemen and firemen rule, a secondary holding indicated that the deputy assumed the risk as a matter of law. The Court of Appeals affirmed and adopted the firemen and policemen rule. This rule states that firemen and policemen are considered licensees in Tennessee. As such, under a negligence theory, there is no duty of care. However, there is a requirement that these professionals not be injured intentionally.
Wharton v Bridges (1980) (14)
A corporation brought a suit for indemnity against the physician. The corporation alleged that the physician negligently conducted a physical examination of the prospective employee of the corporation; that the physician negligently certified the employee as physically fit to drive a truck in interstate commerce; that the corporation hired the employee to drive a truck relying on the physician's certification; and that while driving the truck, the employee was involved in a collision proximately caused by the employee's physical disabilities that the physician failed to discover. The trial judge directed a verdict for the physician. The Court of Appeals affirmed the directed verdict. The Supreme Court reversed the decision and stated the following:
The duty owed was to conduct a pre-employment physical examination in accordance with the recognized standard of acceptable professional practice in the medical profession and the specialty thereof, if any prevailing in the community in which he practiced. In our opinion, it was reasonably foreseeable that if an examination fell below that standard and resulted in certifying an unfit person as physically qualified to drive a commercial vehicle, the probable consequences would be a highway accident causing loss or injury to a third party or parties.
Health care providers can, under certain circumstances, be held liable in a malpractice claim when a nonpatient third party is injured. When a victim or estate of a deceased victim files a lawsuit based on a failure to warn or protect, the issue to be resolved is whether the care given was neglected, substandard, or failed to satisfy fiduciary or legal duties and whether the errors might have led to the harm inflicted.
As noted by the cases described, while there may be some controversy in the appeals courts' decisions, it is clear that health care providers are at significant risk of liability to nonpatient third parties. The rules stating that fault is firmly established only where the provider violated clear legal regulations or deviated from the usual, clinical standard of care have been expanded. The provider seems to walk a precarious tightrope in regard to maintaining confidentiality versus the "duty to warn and/or protect" vulnerable third parties. Health care providers should be allowed to expect some margin in which to exercise good faith judgment before being found in error of either committing breach of confidence or of failure to take specific extra clinical measures. The cases presented may call that expectation into question. As a result, further research is needed to determine what, if any, written guides or policies should be adopted and followed by health care providers while also assuring that vulnerable third parties are warned and protected. (15)
In summary, an awareness of the potential liability to nonpatient third parties, sufficient communication between treatment providers and their patients about "duty to warn," and maintenance of a high standard of professional care are all useful in limiting the liability exposure in these cases.
(1.) Keeton WP: Unforeseeable consequences. Prosser and Keeton on Torts. St. Paul, Minn, west Publishing, 5th Ed, 1987, p 280
(2.) Leibovich RJ: Torts-Bradshaw v Daniel: making Tennessee physicians liable for the actions of ticks. Mem St U L Rev 1994; 24:377
(3.) Hemstreet MA: Tort Law Thapar V Zezulka: A rejection of a mental-health professional's duty to warn third parties. Am J Trial Advoc 1999; 23:477
(4.) Stern E: Tarasoff cases weigh patients' confidentiality rights with society's protection needs. Masspsy.com. Vol 9, No. 11, 2001
(5.) Tarasoff v Regents of the University of California, 551 P 2d 334 (Cal 1976)
(6.) Perlin ML: Tarasoff and the dilemma of the dangerous patient: new directions for the 1990s. Law Psychol Rev 1992; 16:29
(7.) Laizure KL: The pharmacist's duty to warn when dispensing prescription drugs: recent Tennessee developments. Mem St U L Rev 1992; 22:517
(8.) Hembree v State of Tennessee, WL 574461 (Tenn Ct App 2001)
(9.) Turner v Jordan, 957 SW 2d 815 (Tenn 1997)
(10.) Pittman v Upjohn company, 890 SW 2d 425 (Tenn 1994)
(11.) Bradshaw v Daniel, 854 SW 2d 865 (Tenn 1993)
(12.) Dooley v Everett, 805 SW 2d 380 (Tenn Ct App 1991)
(13.) Harvey v Dominguez, WL 12311 (Tenn Ct App 1989)
(14.) Wharton Transport Corp v Bridges, 606 SW 2d 521 (Tenn 1980)
(15.) Felthous AR The duty to protect. Principles and Practice of Forensic Psychiatry. Rosner R (ed). New York, Chapman Hall, 1994, pp 76-87
* The nationwide expansion of the "duty to warn" concept is largely the result of the acceptance and adoption of the holding set forth in the seminal case of Tarasoff v Regents of the University of California.
* Courts throughout the country have held that the existence of a contagious disease can create in the health care provider a duty to warn third parties of the danger when a physician-patient relationship exists between the doctor and the person with the disease.
* The "foreseeability of victims" approach has been used with these health care providers by extending the physician's liability to third parties.
From the Tennessee Department of Mental Health and Developmental Disabilities and the Department of Psychiatry, Vanderbilt University School of Medicine, Nashville, Tenn.
Reprint requests to Judith J. Regan, MD, MBA, Tennessee Department of Mental Health and Developmental Disabilities, 425 Fifth Ave N, Fifth Floor, Nashville, TN 37247.