Third-Party Liability for Physicians ==================================== þ "Your duty to Protect Non-Patients" þ ? case: unknown but predicted third party danger -- doc gave prescription for Vicodin and didn't tell patient not to drive -- patient hits bus full of kids -- court finds physician liable. þ Tarasoff Case: Tony Nocera wrote: >I understand there was a case in the USA where a male patient disclosed to >a doctor that he was planning to kill an ex girlfriend & subsequently >proceeded to do so. The girl's family sued on the basis that the victim >should have been warned about the possible threat to her life. I believe >that a law was then passed to making such disclosures mandatory. > >My questions are: >1) What was the bill called & when did it come into effect? >2) Is it a State or Federal Law? > >With regard to stab or gun shot wounds are they required by law to be >reported to police? If so >1) What was the bill called & when did it come into effect? >2) Is it a State or Federal Law? The landmark case was one in which a university student disclosed to his (university employee) psychiatrist an intent to murder his ex-girlfriend (Tatiana Tarasoff), then did so. I think the case was 'Tarasoff vs the Regents of the University of California', and I believe the courts held that there was some duty to warn. I never heard of any statute arising from this, so perhaps there has been another similar case since that time. --------------------- The Tarasoff case (Vitaly TARASOFF v. REGENTS OF UNIV OF CALIFORNIA, et al, 1976 CA 131 Cal Rptr 14, 551 p2d 334 CA Supreme Court) was an appeal to the California Supreme Court, and as such established *case law* on the duty to warn. Since that time, I believe that _every_state_ in the U.S. _has_ established *statutory law* regarding the duty to warn, that in most respects is similar in intent to Tarasoff. The only state that I am aware of that has differed significantly is Ohio, which has has through statute *relieved* the physician of all *liability* for failure to warn (Ohio Revised Code Annotated, Section 5122.34). Of course, the physician practicing in Ohio may still have an ethical or professional duty to warn. --Richard Richard A. Wagner, MD, Ph.D. Case Western Reserve University raw7@po.cwru.edu ------------------------------------ >From what we learned in class last semester, the issue in the Tarasoff case that decided in favor of Tarasoff was the health care provider only alerted the campus police (which were not peace officers, only campus security), campus security detained the patient, deemed him not a threat (amazing without any med/psych training), and belw it off. The local authorities were never notified, nor was the patient brought in for a more complete psych work up. The campus police then tried to cover up once the murder had been committed. Had the health care provider alerted the local authorities, or the patient been evaluated properly, I imagine, and apparantly the jury concluded, that the murder would have been prevented. The JD who spoke to our class, in response to the question of notifying the intended victim, recommended that we let the local police handle it unless there was an extreme case where the health care provider thought his/her patient was going immediately from the office/hospital to commit the crime, the intended victim was known and was reachable, and the police probably would not be able to respond quick enough to prevent harm (e.g. - the intended victim lived 2 blocks away from the office/hospital and the police station was much further away). Personally, I would hesitate to insert myself that deeply into the circumstances unless there was an extreme case. I am training as a physician, not as a law enforcement officer, and do not pretend to know how to do that job. Jeff Myers, NREMTP MSI UNECOM myersj@rpi.edu ----------------- Thomas A. Amoroso, M.D. wrote: > > GreyERWrit@AOL.COM wrote: > > > > Recently, we had a very upset father of a likely child abuse victim in > > the > > ED. I was peripherally involved, but as I understood it he was > > considering > > shooting the abuser. I thought we had a duty to warn the intended > > (shooting) > > victim and police. Mental health, who prevailed, thought our only > > duty was > > to tell the police, citing Tarasoff. Looking at what's been written > > here, it > > appears the psychologist or psychiatrist in Tarasoff did inform police > > and > > were found to be liable for not warning Tarasoff. Is there an > > emergency > > medicine standard for warning? On a somewhat related note, I found it > > interesting that people who want to kill themselves are considered > > incompetent until proven otherwise, while it took some talking to get > > mental > > health to evaluate this father. > > Greg Bowerman, Modesto > +++++++++++++++++++++++ > As I understand Tarasoff, "you" (assuming you are the provider, either > mental health or EM) would indeed have had a duty to warn the intended > victim. More troublesome to me is the question of mental health > evaluating him. Why was this a problem? As far as I can see, he has > homicidal ideation-this should have been a reflex arc. No neurons > involved. > > >Tom< Drs., While I don't profess to be a clinician, I can tell you the Risk Management/Medical-Legal advice which I'd have given our staff.... Tarasoff establishes a duty to warn if a provider identifies via their special relationship with the patient a risk of harm to a third party from that patient. (In other words, the threat would need to be specific to an identified individual and with enough certainty that there is a reasonable fear of harm.) I suspect that the mental health folks might have been steered away by virtue of the fact that some of the case law has narrowed that duty to only applying to cases in which there was the special "patient-provider" relationship and it sounds as if this individual was not a patient. My advice would have taken a slightly different focus which would have been that a) if he was a patient, the duty to warn would have appeared to apply if there was a reasonable likelihood of actual harm; b)if he wasn't a patient, then the patient-provider privilege/confidentiality would not apply to that particular communication and I would have encouraged both the call to the police and the warning call to the potential victim. (I would also have recommended mental health assessment of the individual---but that's based on our state criteria for civil commitment which allows for "danger to self or others".) As for the presumption of competency---even patients who attempt suicide are given the presumption of capacity (at least in this state)---but your point is well taken. The appropriateness of doing an assessment would have been equally applicable in this circumstance as in a potential attempted suicide. Cynthia Wickstrom Risk Manager Saint Joseph Health System Kansas City , MO ------------------------------- Date sent: Sat, 16 Aug 1997 13:52:19 -0500 Send reply to: "EMED-L a list for emergency medicine practitioners." From: "Tom Scaletta, M.D." Organization: Dept. of Emerg. Med., Cook County Hospital Subject: Re: EMS: duty to warn? To: EMED-L@ITSSRV1.UCSF.EDU Thomas J. McGuire wrote: > These issues comes up in paramedic school. Students nail me. I'm unsure > about the answers. > > Do EMS personnel have a "duty to warn" when a patient reveals > intentions/acts that threaten the public health? Examples might be intent > or history of violent acts, spreading STDs via unprotected sex, etc. > The following legal cases have esablished precidence in this area: Tarasoff v. Reagents of the University of California [131 Cal Rptr 14, 551 p2d 334, CA Supreme Court, 1976] illustrates that the duty to warn third parties of the risk of physical harm supersedes that of maintaining a confidential physician-patient relationship. In summary, Prosenjit Poddar told student health he wanted to kill Tatiana Tarasoff. The psychologist informed supervising psychiatrist, who told campus cops, who let Poddar go. After Poddar killed Tarasoff her parents sued for "failure to warn." The initial trial court believed no duty existed, but the California Supreme Court, citing Simonson v. Swensen, determined that a therapist has an obligation to use reasonable care to protect potential victim. In Simonson v. Swensen [104 Neb 224, 177 N.W. 831, NE Sup Court, 1920], a physician diagnosed a young man with syphilis. Since it was considered contagious with simple contact, he told man to leave his boarding house. Because the patient refused, the physician told the patient's landlady of the diagnosis and she evicted him. The Nebraska Supreme Court stated that "the private privilege ends where the public peril begins" emphasizing that a physician has a primary professional obligation to protect the public. Two other cases, McIntosh v. Milano (New Jersey, 1979) and Lawson (Canada) also demonstrate, that a physician is responsible to warn specifically named third party of potential of harm. From a practical standpoint, since a patient expressing a desire to harm others would not be released by an emergency physician, the duty to warn a third party should only become necessary if the patient escapes from medical hold. In this situation, the physician should contact the local police as well as inform the intended victim. In a related case, Gablonski v. United States, a patient with a history of violence to women whenever in close relationships was released. He proceed to kill his current girlfriend, who was not warned, and the court upheld that the therapist was negligent since, although a specific person was not identified, the crime was predictable based on the patient's past history. Similar situations exist when patients with certain medical conditions are being released and there is reason is suspect that the health or safety of others may be in jeopardy (e.g., a school bus driver with a seizure disorder plans to go to work). It is recommended, when faced the dilemma of breaching physician-patient confidentiality, to disclose information to police or other governmental agent whenever necessary to maintain public health and safety rather than protect the privacy of an individual. On-call risk managers or hospital attorneys may be able to help with such cases. [Armitage DT, Townsend GM; "Emergency medicine, psychiatry, and the law" In Medical-Legal Issues, Emergency Medical Clinics of North America, Nov 1993, 11(4):879] In summary, yes you should warn. In my non-legal opinion, your first and foremost duty is to society, not to any individual regardless of professional relationships. Hope this helps. Tom Scaletta, M.D. (and consequentialist)