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Dilemma of Tarasoff: Must Physicians Protect the Public or Their Patients?

Published online by Cambridge University Press:  27 April 2021

Michael D. Roth  and
Laurie J. Levin
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Extract

Physicians nationwide, already worried by an increasing number of professional liability lawsuits and an expanding scope of liability, now face a new and potentially more troublesome development that had its genesis in what many thought was an extraordinary court decision. In Tarasoff v. Regents of the University of California, a psychiatrist was held, in a suit brought by the victim's parents, to be liable for negligence in the death of a woman who was murdered by a patient of that physician. The court held that even though the physician had complied with the traditional duty of protecting the patient's confidentiality, he nonetheless had a duty to warn the victim of the potential threat against her life. Tarasoff was eventually followed by a number of decisions that imposed liability on physicians under similar circumstances.

This article reviews and analyzes the original Tarasoff decision and subsequent judicial rulings on this subject. In addition, the authors briefly explore the historical backdrop of this decision and suggest practical steps that physicians can take to deal with the conflicting duties of protecting confidentiality and protecting potential victims from the danger posed by patients.

Type
Article
Information
Law, Medicine and Healthcare , Volume 11 , Issue 3 , June 1983 , pp. 104 - 131
Copyright
Copyright © American Society of Law, Medicine and Ethics 1983

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References

131 Cal. Rptr. 14 (Cal. 1976) [hereinafter referred to as Tarasoff].Google Scholar
Id. at 22.Google Scholar
Id. at 19–20.Google Scholar
Id. at 25.Google Scholar
Id. at 25, n.11.Google Scholar
Id. at 27, quoting Principles of Medical Ethics of the American Medical Association (AMA, Chicago) (1957) §9.Google Scholar
Tarasoff, supra note 1, at 27.Google Scholar
Id. at 20.Google Scholar
403 A.2d 500 (N.J. Super. 1979) [hereinafter referred to as McIntosh].Google Scholar
Id. at 503.Google Scholar
Id. at 510.Google Scholar
Id. at 511, 512.Google Scholar
Accord Adebimpe, V. McCling, J., Managing the Dangerous Patient: The Tarasoff Penumbra, American Journal of Forensic Psychiatry 2(4):11 (1981/1982); Stone, The Tarasoff Decisions: Suing Psychotherapists to Safeguard Society, Harvard Law Review 90(2): 358 (1976).Google Scholar
The appellate court in McIntosh remanded the case to the trial court for a determination of these factual issues. After a full trial, the jury determined that the physician was not liable. See Brennan, R.E., Letter to the Editor, Journal of the American Medical Association 249(2):191 (January 14, 1983).Google Scholar
Prosser, W., Handbook of the Law of Torts (West Publishing Co., St. Paul, Minn.) (4th ed. 1971) at 340.Google Scholar
Id. at 342. See also Scott v. Watson, 359 A.2d 548 (Md. App. 1976) (duty of landlord to protect tenants from criminal activities of third persons); Totten v. More Oakland Residential Housing, Inc., 134 Cal. Rptr. 29 (Cal. App. 1977) (duty of landlord to protect tenant from criminal attack by strangers).Google Scholar
Tarasoff, supra note 1, at 23, 24, quoting Fleming, Maximov, The Patient or the Therapist's Dilemma, 62 California Law Review 1025, 1030 (1974).Google Scholar
See Semler v. Psychiatric Inst. of Washington, D.C., 538 F.2d 121 (4th Cir. 1976), cert. denied, 97 S. Ct. 83 (1976); Williams v. United States, 450 F. supp. 1040 (D.S.D. 1978); Landeros v. Flood, 131 Cal. Rptr. 69 (Cal. App. 1976); Merchants Nat'l Bank and Trust Co. of Fargo v. United States, 272 F. supp. 409 (D.N.D. 1967); Department of Health & Rehab. Services v. McDougall, 359 So.2d 528 (Fla. App. 1978).Google Scholar
61 Am. Jur. 2d Physicians, Surgeons and Other Healers §142. See also Hoffman v. Blackmon, 241 So.2d 752 (Fla. App. 1970).Google Scholar
See Semler v. Psychiarric Inst. of Washington, D.C., 538 F.2d 121 (4th Cir. 1976), cert. denied, 97 S. Ct. 83 (1976).Google Scholar
See In re B, 394 A.2d 419 (Pa. 1978); Doe v. Roe, 400 N.Y.S.2d 668 (Sup. Ct. 1977).Google Scholar
See, e.g., D.C. Code Ann. §14.307 (1981).Google Scholar
Current Opinions of the Judicial Council of the American Medical Association (AMA, Chicago) (1982) at ix.Google Scholar
Tarasoff, supra note 1, at 25.Google Scholar
Id.Google Scholar
167 Cal. Rptr. 70 (Cal. 1980).Google Scholar
Id. at 72.Google Scholar
Id.Google Scholar
Id. at 72.Google Scholar
510 F. supp. 1125 (D. Pa. 1981).Google Scholar
Id. at 1130.Google Scholar
Id. See also White v. United States, Civ. Action No. 81-1280 (D.D.C. 1981) (federal district court adopted Tarasoff doctrine by implication, requiring expert medical testimony to determine whether health care professionals have satisfied the applicable standard of care).Google Scholar
323 N.W.2d 20 (Minn. 1982).Google Scholar
Id. at 26.Google Scholar
530 F. supp. 1278 (C.D. Cal. 1982).Google Scholar
Id. at 1285.Google Scholar
Id.Google Scholar
497 F. supp. 185 (D. Neb. 1980).Google Scholar
Id. at 193.Google Scholar
162 Cal. Rptr. 724 (Cal. App. 1980) [hereinafter referred to as Mavroudis].Google Scholar
Id. at 730.Google Scholar
Id.Google Scholar
Id. at 734.Google Scholar
141 Cal. Rptr. 92 (Cal. App. 1977).Google Scholar
Id. at 93.Google Scholar
301 N.W.2d 766 (Iowa 1981).Google Scholar
Id. at 768. In addition to cases discussed in the text, other state courts have considered Tarasoff in dicta without adopting or rejecting the doctrine. See Heltsley v. Votteler, 327 N.W.2d 759 (Iowa 1982) (Tarasoff duty, if applicable, would not be imposed when the potential victim already knew of the danger); Estate of Mathes v. Ireland, 419 N.E.2d 782 (Ind. App. 1981) (Tarasoff would be applied only to those cases in which a psychiatrist or psychiatric center had taken charge of the patient and had known that the patient was dangerous); Shaw v. Glickman, 415 A.2d 625 (Md. Ct. of Spec. App. 1980) (patient had not threatened to injure wife's lover nor shown signs of instability; in fact, plaintiff could not recover against the psychiatric team for failing to warn because that warning would have violated state statute pertaining to privileged communications); Delaware v. Tarbutton, 407 A.2d 538 (Del. Super. 1979) (health professionals under Tarasoff rationale would be held to no higher a standard than one of “reasonable care and skill” as measured by locally prevailing practice; Delaware would probably not require physicians to warn when it is a class of persons at risk).Google Scholar