Psychotherapist Alerted by a Patient's Immediate Family of a Threat by the Patient Can Be Held Liable for Failing to Warn the Patient's Victim; Expert Testimony Not Required to Establish Liability

Article excerpt

Tarasoff v. Regents of Univ. of California, 551 P.2d 334 (1976), the first judicial opinion to rule that a psychotherapist may have a legal duty to take reasonable steps to protect a third party who has been threatened by the psychotherapist's patient, reverberated across the country. A number of states, including California and Virginia, enacted legislation to specify more clearly when this duty arises.

The California legislature established that this duty only exists when "the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim." A California Court of Appeals ruled that this duty is not limited to when the patient has communicated a threat, but is also invoked when a member of the patient's immediate family conveys the threat to the psychotherapist for the purpose of facilitating and furthering the patient's treatment.

In this case, a police officer with a history of emotional problems killed a man who had begun dating the officer's ex-girlfriend. The officer then killed himself. The assailant had been taken to a hospital two days earlier by his father and treated by a licensed clinical social worker employed by the hospital. The father told the social worker that his son had just punched him for the first time in his life and had threatened to kill the man his ex-girlfriend was now seeing. He also stated that he believed his son was likely to carry out the threat.

The social worker perceived the son as angry, upset, and hostile, and because he feared for his own safety, requested assistance from the hospital's security guards during the intake interview. The social worker believed the son met the criteria for involuntary hospitalization but because an involuntary hospitalization would hurt his career as a police officer, the social worker persuaded him to instead voluntarily admit himself to the hospital.

The son was discharged the next day. The parents of the murdered man filed a lawsuit that asserted that the psychotherapist's failure to warn their son constituted professional negligence.

The California Court of Appeals ruled that it did not matter that the threat had not been communicated by the patient because the pivotal question was whether the psychotherapist actually believed or predicted a patient posed a risk of inflicting serious physical harm upon a reasonably identifiable person.

In a companion case, Ewing v. Goldstein, 15 Cal. Rptr. 3d 864 (Cal. Ct. App. 2004), the court reasoned that a literal reading of the statute was not justified because the statute reflected a determination by the legislature that the need to preserve the confidentiality of patient communications must yield when disclosure is necessary to avert serious physical harm to another and that another statutory provision established that a communication between a patient's family members and the patient's therapist, made in conjunction with the diagnosis and treatment of the patient, is a confidential patient communication. …