The Journalof Emergency Medicine, Vol. 4. pp. 75-78, 1986 Printed in the USA ??Copyright 0 1986 Pergamon Journals Ltd

EMERGENCY PHYSICIANS’ DUTY TO WARN AND PROTECT: A CRITIQUE AND GUIDELINES

James E. Pointer, MD,* and Leslie 6. Small, RNt

‘Associate Chief, Emergency Medicine, Highland General Hospital, Oakland, Californra, and Medical Director, Emergency Medical Service District, Alameda County; and

tThird-Year Student, Golden Gate University Law School, San Francisco, California Reprint address: James E. Pointer, MD, Associate Chief, Emergency Medicine,

Highland General Hospital, 1411 E. 31st Street, Oakland, CA 94602

0 Abstract-For ten years, psychotherapists in California have practiced under a court decision which imposed a duty to warn intended victims of violent crimes. Other cases extended the scope of the psychotherapists’ duty to warn to an alarming degree. Although there have been no court cases involving emergency physicians, it is reasonable to assume that, under certain cir- cumstances, the duty to warn could be extended to primary care physicians. Emergency physi- cians should familiarize themselves with appli- cable case law and should be aware of measures to use to avoid potential civil liability.

Cl Keywords - negligence: liability; duty to warn: patient dangerousness

Introduction

In 1974, the California Supreme Court in a landmark case Tarasoff v Regents of Uni- versity of California, ruled in the first of a number of court decisions that resulted in a significant impact on the practice of psychology and psychiatry.’ Although the decisions thus far have addressed only psy- chotherapists, it is probable that future case law will extend to emergency physicians the duty to warn intended victims of violence.

Judicial History of Duty to Warn and Protect

Tatiana Tarasoff was a woman acquaint- ance of Prosenjit Poddar, a psychotherapy patient at the University of California Hos- pital in Berkeley during 1969. When Poddar readily admitted to his therapist that he wished to kill Tarasoff, the therapist noti- fied campus police by phone. The police released Poddar with a warning. After Pod- dar stabbed and killed Tarasoff two weeks later, her family sued the campus police and the therapist. The California Supreme Court reversed the original superior court decision and ruled that the therapist had been negligent for failure to warn Tarasoff of Poddar’s homicidal death wish. A clam- or from the psychotherapeutic community prompted a rehearing by the supreme court. The court, somewhat surprisingly, broad- ened the therapist’s responsibility to include not only a duty to warn but also a duty to protect. According to the court, the special relationship between the psychotherapist and the patient established this expanded duty toward threatened victims. In addi- tion, the court asserted that the therapist

w Emergency Medicine and the Law is coordinated by Maurice O’Connor, MD, of the

= Denver General Hospital. RECEIVED: 16 August 1985; ACCEPTED: 20 November 1985 0736-4679/86 $3.00 + .OO

75

76 James E. Pointer and Leslie 6. Small

must take reasonable precautions to pre- vent harm to the intended victim but gave no specific guidelines.2,3 Not unexpectedly, psychotherapists voiced objections to the decision because of its potential adverse im- pact on confidentiality.4

In Thompson v County of Alameda, a known male juvenile offender killed a 2- year-old boy shortly after a county proba- tion officer released him from custody. The offender had stated he intended to kill a young child. The court noted that the killer had threatened no identifiable person. It had been impossible to warn the parents of every child in the community; therefore, the court did not extend the duty to protect to the probation officer.S

In Bellah v Greenson, a young woman who admitted to her psychiatrist her desire to kill herself indeed committed suicide. The woman’s family sued the attending psy- chiatrist, claiming he had a duty to protect. The court relied upon the Tarasoff ruling and agreed that therapists owed a duty to protect, but only to unsuspecting victims of violent acts and not to suicidal patients.6

In Thompson v County of Alameda, and Bellah v Greenson, the courts somewhat narrowed the psychotherapists’ duty to warn, as defined by the Tarasoff case. However, two recent cases significantly extended this duty. In Jablonski by Pahls v United States, Jablonski submitted to psychotherapy after threatening to assault his girlfriend’s mother sexually. The psychiatrist who ultimately counseled the patient did not obtain per- tinent medical charts which documented Jablonski’s past homicidal thoughts against his wife and his propensity for future vio- lent behavior. In spite of some incriminating psychiatric assessments, the psychotherapist continued to see Jablonski as an outpatient over a period of weeks. Jablonski ultimate- ly killed his girlfriend. The court held that the psychiatrist had failed to protect the victim adequately. Even though Jablonski made no actual threats against his girlfriend, the court ruled that his past history of threats against his wife made violent at- tack on the victim reasonably likely. Fur-

thermore, the problem of warning a possi- ble but unidentifiable victim which existed in the Thompson case did not exist in the Jablonski case even though the victim was not as obvious as the victim in Tarasoff.’

Hedlund v Superior Court of Orange County further expanded the duty to pro- tect. Stephen Wilson told his psychiatrist that he intended to harm his girlfriend, LaNita. The therapists did not warn the victim and subsequently Wilson severely in- jured her in direct view of her 2-year-old son, Darryl. LaNita claimed that her son suffered serious emotional damage. The court ruled that the psychiatrist owed a duty to protect both mother and son as both were reasonably foreseeable victims of Stephen’s threats of violence.8 The Hed- lund court cited Molien v Kaiser Founda- tion Hospitals and Dillon v Legg as sup- porting precedents. In Molien, primary care physicians misdiagnosed a woman as hav- ing syphilis. The physicians did not warn the patient’s husband of the diagnosis. Up- on suit, the court substantiated the plain- tiffs claims of emotional distress and ruled that the duty to warn extended to the hus- band who might reasonably be emotionally distressed at news of such a diagnosis.g In Dillon v Legg, a woman was an eye-witness to her young child’s death by a negligent driver. The court ruled in favor of the mother’s claim for damages for emotional distress because this emotional injury was clearly foreseeable. lo The Hedlund court asserted that the Dillon opinion “compelled” the Hedlund ruling because emotional in- jury to LaNita’s son was as foreseeable as that to the mother in Dillon.s

Over a ten-year period, the courts have significantly expanded the duty to protect to persons whom a violent patient does not specifically threaten. These unnamed vic- tims may include a spouse, child, or other close relative. It is not unreasonable to as- sume that a therapist may owe a duty to protect to an unrelated roommate, close friend or companion, or work associate. The courts have left many questions un- answered regarding the scope of the duty

Duty to Warn and Protect

to protect: What individuals must thera- pists protect? What constitutes adequate protection of a potential victim? What other professionals might be responsible for this duty in the future? In A4erers v Quesen- berry, the court ruled that primary care physicians have a duty to warn if a medical condition could cause physical harm to a patient or to a third party. In this case, Lex- andria Hansen, a diabetic, received care from her physicians on several occasions during her pregnancy. On one visit, her physician was unable to detect fetal heart tones and directed Hansen to drive to a local hospital for tests even though she was emotionally distressed and her diabetes was out of control. While driving to the hos- pital, the patient struck a pedestrian. The court ruled that the physicians were negli- gent for failure to warn Hansen of the fore- seeable consequences of her uncontrolled diabetes.”

The case law certainly does not exempt emergency physicians or any physicians from duty to protect. Indeed, the courts appear to be expanding the protections af- forded the public by gradually extending the duty to protect on a case-by-case basis. It is logical to assume that this trend will continue. Concerns over this judicial broad- ening of the ill-defined duty prompted in- troduction of Assembly Bill 2900 by Allister McAllister in the California legislature in early 1984. The bill proposed to exempt a psychotherapist from any monetary liability or cause of action from failure to warn and protect as long as the therapist did warn and protect reasonably identifiable victims of actual threats of violence. The bill would have required the therapist to make reason- able efforts to discharge the duty. In spite of passing both houses of the California Legislature, Governor George Deukmejian vetoed the bill. The Governor claimed that the bill defined the scope of the psycho- therapists’ duty too narrowly; the public needed more protection from violent at- tacks. It is reasonable to expect that lobby- ing efforts will support new legislation at a future Assembly session. Although the

Table 1. Emergency Physician Guidelines for Use in Managing the Potentially Dangerous Patient

1. Take all threats seriously. 2. Secure available medical records. 3. Document pertinent present and past history. 4. Secure psychiatric consultation, if appropriate. 5. File involuntary psychiatry hold form, if appro-

priate/available. 6. Warn “readily identifiable,” and “foreseeable”

victims if patient escapes or if psychiatric consul- tation is not available.

7. Call law enforcement officials to attempt to pro- tect potential victims.

8. Document all efforts to warn and to protect.

preponderance of duty to warn and protect case law and legislative activity is in Cali- fornia, the issue is relevant nationwide.

Guidelines for the Emergency Physician

There are some important but simple con- cepts for the emergency physician to consid- er when dealing with a potentially violent patient (see Table 1).

Psychotherapists have pointed out that the prediction of dangerous behavior is an important factor in duty to warn and pro- tect cases. There is no clear consensus that a therapist can predict dangerousness. Ret- rospective analyses have not demonstrated consistent validity of such predictions.LZ,‘3 The emergency physician usually has no comprehensive training in psychiatry or psy- chotherapy and should not attempt to pre- dict dangerousness. This determination must be the responsibility of our behavioralist colleagues. If possible, any potentially dan- gerous patient should be referred for imme- diate evaluation even if filing an involuntary psychiatric hold is required. If psychiatric evaluation is impossible or the patient es- capes the emergency department, it is im- portant to warn potential victims and to notify an appropriate agency to provide protection. Physicians should call or have police notify family or persons at the pa- tient’s address of record. Document all ef- forts or attempts on the patient record. As

78 James E. Pointer and Leslie B. Small

the Jablonski case illustrates, available med- warn and protect is extremely unsettled. ical records and abstract pertinent history There are currently no laws that protect or on the chart should be used. In spite of these exempt the emergency physician from this concerted efforts to warn and protect, there duty. The ambiguity which clouds this issue is no guarantee that a court will not de- mandates that emergency physicians take mand more. The law pertaining to duty to careful, thoughtful, but simple precautions.

REFERENCES

1. Tamsoff v Regents of the University of California. 8. Hedlund v Superior Court of Grange County. Cat Cal Reptr 1974; 118:129-145. Reports (3rd series) 1983; 34:695-710.

2. Tarasoff v Regents of the University of California, 9. Molien v Kaiser Foundation Hospitals. Cal Rep Cal Reports (3rd series) 1976; 17:425-464. (3rd series) 1980; 27:916-937.

3. Cooper AE: Duty to warn third parties. JAMA 10. Dillon v Legg. Cal Rep (2nd series) 1968; 68:728- 1982; 248:431-432. 752.

4. Roth LH, Meisel A: Dangerousness, confidential- ity, and the duty to warn. Am J Psychiatry 1977; 134:508-511.

5. Thompson v County of Alameda. Cal Rep (3rd series) 1980; 22714-764.

11.

12.

Meyers v Quesenberry. Cal App Rep (3rd series) 1983; 144:888-895. Birns H, Levien JS: Dangerousness: Legal deter- minations and clinical speculations. Psychiatry Q 1980; 52:108-131.

6. Bellah v Greenson. Cal App Rep (3rd series) 1978; 13. 81:614-625.

7. Jablonski by Pahls v United States. Fed Rep (2nd series) 1983; 712:391-399.

Monahan J: The prediction of violent behavior: Toward a second generation of theory and policy. Am J Psychiatry 1984; 141:10-15.