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In California, psychiatrist not liable following patient's unexpected attack on neighbor's family.

By most accounts, Tarasoff v. Regents of University of California is the most well-known judicial ruling pertaining to mental health professionals. It has also spawned a lengthy legacy of ensuing rulings exploring its parameters both within California, which is the only state where it is directly controlling, and in other states across the country.

Tarasoff involved a college student--Prosinjit Podder--who in 1969 sought treatment for depression from a psychologist employed by the University of California at Berkley. During their ninth psychotherapy session, the student revealed his intention to kill a fellow student--Tatiana Tarasoff--who had rebuffed his romantic advances. The psychologist informed the police who briefly detained Podder but released him when he appeared rational and promised to stay away from Tarasoff. Two months later when Tarasoff returned from abroad, Podder shot and stabbed Tarasoff to death. Tarasoff's parents sued the university and its employees for their failure to warn their daughter or them of the danger Podder posed. The California Supreme Court, rejecting the argument that psychotherapists do not have a legal duty to nonclients, held that clinicians must assess whether danger to a third party from a client is foreseeable and, if so, "use reasonable care to protect the intended victim."

It has been reported that thirty-two jurisdictions impose either a duty to protect or a duty to warn, thirteen other states permit but do not mandate the breach of confidentiality to warn potential victims, and seven states have not ruled on the issue. Jurisdictions identified as having a legal duty to protect include: Arizona, California, Connecticut, Delaware, District of Columbia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Jersey, North Dakota, Ohio, Oklahoma, Pennsylvania, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, Wisconsin, and Wyoming. However, it has also been asserted that no two states approach the legal issues identically. Yvona L. Pabian et al., Psychologists' Knowledge of Their States' Laws Pertaining to Tarasoff-Type Situations, 40 PROF. PSYCHOL.: RES. & PRAC. 8, 9 (2009). For the abstract of this article, see http:// Record&uid=2009-01453-012.

Practitioners tend to hold several erroneous beliefs about Tarasoff, including the erroneous belief that it established a duty to warn (the California Supreme Court in 1976 clarified that this was a duty to protect, which could be satisfied in a number of ways beyond an actual warning); that this duty encompasses clients that are suicidal; that this duty is invoked by any and all threats made by a client; and that the Tarasoff ruling applies outside California. A 2009 survey of psychologists from Ohio, Michigan, New York, and Texas concluded that 76.4% of them were misinformed about their state laws, notwithstanding that many of them were confident that they understood their applicable duty. The survey also found that there was no significant association between psychologists' knowledge of this duty and their continuing education in legal and ethical issues, their graduate training in ethics, and their clinical experience with dangerous clients. Id. at 10-12.

What further complicates matters for mental health practitioners is that their obligations to third parties continue to be explicated by the courts. For example, there have been a series of California cases that have explored what obligations mental health professionals owe to third-parties harmed by one of their clients. In a recent ruling by the Fourth District of the California Court of Appeal, the question was raised whether a psychiatrist could be held liable after the psychiatrist's patient shot and killed two members of a neighbor's family.

The psychiatrist had provided care to this client, who suffered from Asperger's Syndrome, for three months when he was about 16 years old. The young man had been teased by "bullies at school" and had taken out his rage and frustration on his parents by throwing things at them and physically attacking them. A neighbor's son was his only known friend. But this treatment was discontinued when his family returned him to his primary physician for psychiatric management.

Treatment was resumed, however, when the client was almost 18 years old, and continued for the next year-and-a-half. Treatment included the prescription of various medications. Among the medications prescribed near the end of this period was Geodon to address his irritability and moodiness, paranoid anxiety, and obsessive thinking regarding his inability to form close social relationships. Because of various side effects, including "irritability and nastiness" and moving "in and out of reality," this medication was replaced by a regimen of four medications: Lexapro, Effexor, Ativan, and Concerta, although Lexapro was the only new medication.

At about this time, the client joined an online website where he posted messages suggesting he wanted to kill himself and had unsuccessfully tried suicide. He later posted a message that he had purchased a gun with which he was going to cause a lot of damage and that he blamed his parents and his psychiatrist for his feelings. Shortly after this, the young man took his gun to his neighbors' house and shot and killed his friend's father and sister, and then returned home and shot and killed himself. The psychiatrist was unaware of any threats made by the young man to harm others or himself.

In a lawsuit on behalf of the neighbors, a claim was made that the psychiatrist committed medical negligence when he prescribed medications--including Geodon, Effexor, and Celexa--known "to have adverse side effects in teenagers, including homicidal and/or suicidal propensities," and that this negligent prescription increased the risk that his client would exhibit violent behavior and caused him to shoot and kill his neighbors. The psychiatrist responded that he was unaware that his client had a violent history or that he intended to cause serious physical harm or death to any third party. He contended that these medications were more likely to decrease rather than increase the risk of violent tendencies or acts and were regularly used by reputable psychiatrists. The plaintiffs responded that Effexor and Celexa "were at the time of the incident, labeled with black box warnings ... of the potential for violent side effects in young people."

On appeal, the court ruled that the plaintiffs could not proceed with their claim. With regard to a psychiatrist's duty of care to third parties outside the psychotherapeutic relationship, the court noted a series of factors to be considered: (1) the extent to which the transaction was intended to affect the victim; (2) the foreseeability of harm to the victim; (3) the degree of certainty that the victim would suffer an injury; (4) the closeness of the connection between the defendant's conduct and the injury suffered; (5) the moral blame attached to the defendant's conduct; and (6) the policy of preventing future harm. In its analysis, the court reasoned that the relationship between the psychiatrist and the patient was not intended to affect the victims in any way, that it was not reasonably foreseeable that the patient would harm this patient as the patient had never made a threat against them, that the psychiatrist had no information about the patient's past violence and could not predict his future dangerousness, that the connection between the injury and the psychiatrist's conduct was not sufficiently close to impose a duty of care on the psychiatrist, and that no moral blame attached to the psychiatrist's conduct.

The court rejected the plaintiffs' argument that the psychiatrist with his treatment "caused" the young man to "turn murderous." The court determined that the psychiatrist did not create the young man's mental disorder or his social isolation, noting that the young man already suffered from Asperger's Syndrome when he became the psychiatrist's patient. Further, the plaintiffs had failed to show that the psychiatrist owed them a duty to protect them from harm as his patient did not exhibit violent tendencies or motives directed against his victims and, indeed, was not "noticeably deranged." Thus, the court concluded that the psychiatrist did not owe these neighbors a duty of care and the psychiatrist was entitled to a dismissal of this cause of action. Greenberg v. Superior Court, 92 Cal. Rptr. 3d 96 (Ct. App. 2009).
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Author:Hafemeister, Thomas L.
Publication:Developments in Mental Health Law
Date:Jan 1, 2009
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