Obviously neither exception to the confidentiality requirement is applicable to the instant case. The Tarasoffs alleged two causes of action, or reasons why the University should be held legally liable. Poddar discontinued his treatment at the hospital shortly afterward and killed Tarasoff two months later. App. 401; Guttmacher & Weihofen, Privileged Communications Between Psychiatrist and Patient (1952) 28 Ind.L.J.32, 34.) PMID: 11646056 [PubMed - indexed for MEDLINE] Publication Types: Legal Cases; MeSH Terms. 3d 433]. You also agree to abide by our. The complaints do not allege that defendant therapists failed to warn Tatiana herself, or failed to warn persons other than her parents who would be likely to apprise Tatiana of the danger. Duty to warn is embedded in the historical context of two rulings (1974 and 1976) of the California Supreme Court in the case of Tarasoff v. Regents of the University of California . Exceptions are recognized only in limited situations where (1) a special relationship exists between the defendant and injured party, or (2) a special relationship exists between defendant and the active wrongdoer, imposing a duty on defendant to control the wrongdoer's conduct. 3d 780, 782 [98 Cal. 23042. )", In the landmark case of Rowland v. Christian (1968) 69 Cal. FN 21. 3d 431]. As a general proposition, “[w]hen a hospital has notice or knowledge of facts from which it might reasonably be concluded that a patient would be likely to harm himself or others unless preclusive measures were taken, then the hospital must use reasonable care in the circumstances to prevent such harm.” More specifically, the court explained, “[i]n attempting to forecast whether a patient presents a serious danger of violence, a court does not require that a therapist, in making that determination, render a perfect performance; the therapist need only exercise that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances.”, * The court had to address the contending policy consideration, first noting “[o]nce a therapist determines, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. Moreover, it appears from the allegations of the complaint that Dr. Moore is in fact a person designated by the county under section 5150. In this article I revisit Tarasoff v. Regents of the University of California (1976), a case decided by the California Supreme Court in 1976 and followed in whole or in part in approximately 33 U.S. jurisdictions. fn. (See Gov. 3d 445], Noting that virtually every public act admits of some element of discretion, we drew the line in Johnson v. State of California (1968) 69 Cal. The warning itself is an impairment of the psychiatrist's ability to treat, depriving many patients of adequate treatment. S.F. 10 Since predictions of violence are often erroneous, amicus concludes, the courts should not render rulings that predicate the liability of therapists upon the validity of such predictions. July 1, 1976.] 3d 443] facility designated by the county," or who is himself "designated by the county" as one authorized to take a person into custody and place him in a facility designated by the county and approved by the State Department of Mental Hygiene. Separate concurring and dissenting opinion by Mosk, J. 1025, 1030.). As originally enacted the act contained no provision allowing the therapist to warn anyone of a patient's threat. In 1963, when section 856 was enacted, the Legislature had not established the statutory structure of the Lanterman-Petris-Short Act. sub nom. Greenberg v. Barbour (E.D.Pa. (Murel v. Baltimore City Criminal Court (1972) ... 407 U.S. 355, 364-365, fn. Rptr. While offering virtually no benefit to society, such a duty will frustrate psychiatric treatment, invade fundamental patient rights and increase violence. We also observed that if courts did not respect this statutory immunity, they would find themselves "in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government." Psychiatric Assn. 610, 637-638, 640, 642, 651.). The consent of the patient, or his guardian or conservator must be obtained before information or records may be disclosed by a professional person employed by a facility to a professional person not employed by the facility who does not have the medical responsibility for the patient's care. 2 This appeal ensued. The section provides that a therapist may disclose "to a member of the family of a patient the information that the patient is presently a patient in the facility or that the patient is seriously physically ill ... if the professional person in charge of the facility determines that the release of such information is in the best interest of the patient." In adopting the act, the Legislature fully recognized the concerns that must govern our decision today -- adequate treatment for the mentally ill, safety of our society, and our devotion to individual liberty, making overcommitment of the mentally ill abhorrent. When a "hospital has notice or knowledge of facts from which it might reasonably be concluded that a patient would be likely to harm himself or others unless preclusive measures were taken, then the hospital must use reasonable care in the circumstances to prevent such harm." Because Dr. Gold and Dr. Yandell were Dr. Powelson's subordinates, the analysis respecting whether they are immune for having failed to obtain Poddar's confinement is similar to the analysis applicable to Dr. Moore. (See Cooper v. Leslie Salt Co. (1969) 70 Cal. The first ruling in 1974 (Tarasoff v. Regents of the University of Califronia, 529 P.2d 553) established for psychotherapists a “duty to warn” prospective victims. 1025, 1065-1066.) 456]). Listed below are the cases that are cited in this Featured Case. The second cause of action can be amended to allege that Tatiana's death proximately resulted from defendants' negligent failure to warn Tatiana or others likely to apprise her of her danger. 577, 432 P.2d 193].) PMID: As stated in Dillon v. Legg (1968) 68 Cal. 328.) 790-793. Worse, the majority impedes medical treatment, resulting in increased violence from -- and deprivation of liberty to -- the mentally ill. [17 Cal. [¶] (j) To the attorney for the patient in any and all proceedings upon presentation of a release of information signed by the patient, except that when the patient is unable to sign such release, the staff of the facility, upon satisfying itself of the identity of said attorney, and of the fact that the attorney does represent the interests of the patient, may release all information and records relating to the patient except that nothing in this article shall be construed to compel a physician, psychologist, social worker, nurse, attorney, or other professional person to reveal information which has been given to him in confidence by members of a patient's family. ), FN 6. We believe that the language of section 856, which refers to any action in the course of employment and in accordance with any applicable enactment, protects the therapist who must undertake this delicate and difficult task. Amicus suggests that a therapist who concludes that his patient is dangerous should not warn the potential victim, but institute proceedings for involuntary detention of the patient. It is generally true that hospitals need to take action when it appears a patient will harm self or others, notwithstanding the confidentiality privilege. Rptr. Robert E. Cartwright, Floyd A. Demanes, William H. Lally, Edward I. Pollock, Leonard Sacks, Stephen I. Zetterberg, Sanford M. Gage, Robert O. S006987. We sustain defendant therapists' contention that Government Code section 856 insulates them from liability under plaintiffs' first and fourth causes of action for failing to confine Poddar. 3d 229, 243 [104 Cal. The protective privilege ends where the public peril begins. Rptr. Plaintiffs' third cause of action, entitled "Abandonment of a Dangerous Patient," seeks $10,000 punitive damages against defendant Powelson. As such it constituted information obtained in providing services under division 5. Your Study Buddy will automatically renew until cancelled. 3d 415, 431-434 [85 Cal. The Tarasoff v. Regents of the University of California case involves the family of Tatiana Tarasoff and the team of professionals who was taking care of Prosenijit Poddar’s mental health. fn. See also Summary Report of the Task Force on Confidentiality of the Council on Professions and Associations of the American Psychiatric Association (1975). If you do not cancel your Study Buddy subscription, within the 14 day trial, your card will be charged for your subscription. Policy generally determines duty. [S.F. fn. Plaintiffs in response contend that Moore's duty to members of the public endangered by Poddar should take precedence over his duty to obey Powelson. Rather, we should follow the legislative direction by refusing to require disclosure of confidential information received by the therapist either before or in the absence of commitment. The question is, what standards? (1964) 230 Cal. 25 [17 Cal. 828, 829.). 2d 154, 159-160 [41 Cal. For the foregoing reasons, we find that plaintiffs' complaints can be amended to state a cause of action against defendants Moore, Powelson, Gold, and Yandell and against the Regents as their employer, for breach of a duty to exercise reasonable care to protect Tatiana. The majority rejects the balance achieved by the Legislature's Lanterman-Petris-Short Act. address. Both the trial court and the California Court of Appeal ruled that the Tarasoffs did not have a valid cause of action. 3d 449] is functionally equivalent to determining not to seek Poddar's confinement and thus merits protection under section 856. App. In Evidence Code section 1014, it established a broad rule of privilege to protect confidential communications between patient and psychotherapist. App. (§ 5330.). They further claim that Dr. Harvey Powelson, Moore's superior, then directed that no further action be taken to detain Poddar. Our current crowded and computerized society compels the interdependence of its members. Today 32, 35. (Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. Given the importance of confidentiality to the practice of psychiatry, it becomes clear the duty to warn imposed by the majority will cripple the use and effectiveness of psychiatry. Section 830.8 provides: "Neither a public entity nor a public employee is liable ... for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. This is a California case which does not cover Massachusetts, of course. Although defendants in Johnson argued that the decision whether to inform the foster parents of the child's background required the exercise of considerable judgmental skills, we concluded that the state was not immune from liability for the parole officer's failure to warn because such a decision did not rise to the level of a "basic policy decision.". Opinion Annotation [No. In any event, an ascertainable standard would not serve to limit psychiatrist disclosure of threats with the resulting impairment of treatment. Rptr. 7 A doctor must also warn a patient if the patient's condition or medication renders certain conduct, such as driving a car, dangerous to others. fn. 470, 471; cf. (Dillon v. Legg (1968) 68 Cal. Decisions of other jurisdictions hold that the single relationship of a doctor to his patient is sufficient to support the duty to exercise reasonable care to protect others against dangers emanating from the patient's illness. In 1969, Prosenjit Poddar was a college student at the University of California, Berkley. 2, ante) provides, "All information and records obtained in the course of providing services under division 5 ... shall be confidential." fn. Because they are necessary to the administration of justice, disclosures to the courts are excepted from the nondisclosure requirement by section 5328, subdivision (f). The role of the psychiatrist, who is indeed a practitioner of medicine, and that of the psychologist who performs an allied function, are like that of the physician who must conform to the standards of the profession and who must often make diagnoses and predictions based upon such evaluations. Further, recognizing that effective treatment and society's safety are necessarily intertwined, the Legislature has already decided effective and confidential treatment is preferred over imposition of a duty to warn. : (S167791) Decision Date: November 15, 2010 ~~~Date~~~ ~~~~~Proceedings and Orders~~~~~ Feb 14 2011: Petition for a writ of certiorari filed. S.F. Moore v. Regents of University of California (1990) Annotate this Case. The majority's failure to perform this obligation -- leaving to the therapist the subtle questions as to when each opposing rule applies -- is manifestly unfair. 577, 397 P.2d 161]; see 4 Witkin, Summary of Cal. In this risk-infested society we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal. They should be able to determine which of these threats are genuine and significant by exercising their professional judgment. 22 (See United Air Lines, Inc. v. Wiener (9th Cir. Supreme Court of California. 1, 486 P.2d 1201].). (Vistica v. Presbyterian Hospital (1967) 67 Cal. (In re Lifschutz, supra, 2 Cal. ), FN 4. 3d 432] therefore, failed to show that the trial court erred in sustaining the demurrer of the police defendants without leave to amend. (Italics added.) 2d 843, 847 [26 Cal. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances. fn. Whether plaintiffs can ultimately prevail is problematical at best. The courts hold that a doctor is liable to persons [17 Cal. Defendants further argue that free and open communication is essential to psychotherapy (see In re Lifschutz (1970) 2 Cal. July 1, 1976.]. 416] and authorities there cited.). Such a claim, based as it necessarily would be, upon a subordinate's failure to prevail over his superior, obviously would derive from a rather onerous duty. Wyatt v. Aderholt (5th Cir. fn. 426.) We shall explain that defendant therapists cannot escape liability merely because Tatiana herself was not their patient. Moore argues that after Powelson countermanded the decision to seek commitment for Poddar, Moore was obliged to obey the decision of his superior and that therefore he should not be held liable for any dereliction arising from his obedience to superior orders. We dismissed, in Johnson, the view that immunity continues to be necessary in order to insure that public employees will be sufficiently zealous in the performance of their official duties. 75, 84.) Certainly a therapist should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient's relationship with his therapist and with the persons threatened. Plaintiffs, Tatiana's parents, allege that two months earlier Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist. Law (8th ed. 401, 406.) Again, the Legislature balanced these concerns in favor of nondisclosure (§ 5328), thereby promoting effective treatment, reducing temptation for overcommitment, and ensuring greater safety for our society. Section 5150 refers to a written application only by a professional person who is "a member of the attending staff ... of an evaluation [17 Cal. As to this problem, the majority is silent. Taking note of the uncertain character of therapeutic prediction, we held in Burnick that a person cannot be committed as a mentally disordered sex offender unless found to be such by proof beyond a reasonable doubt. Tatiana Tarasoff’s parents (Plaintiffs) asserted that the four psychiatrists at Cowell Memorial Hospital of the University of California had a duty to warn them or their daughter of threats made by their patient, Prosenjit Poddar. Division 5 includes the Lanterman-Petris-Short Act and the Short-Doyle Act (community mental health services). We direct our attention, therefore, to the issue of whether plaintiffs' second cause of action can be amended to state a basis for recovery. The California Tort Claims Act of 1963 provides for indemnification of public employees against liability, absent bad faith, and also permits such employees to insist that their defenses be conducted at public expense. (Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, supra, 62 Cal.L.Rev. 3d 430] William R. Morton, Richard G. Logan, Hanna, Brophy, MacLean, McAleer & Jensen, Hanna & Brophy and James V. Burchell for Defendants and Respondents. Separate dissenting opinion by Clark, J., with McComb, J., … Since the Legislature did not extend the act to control all disclosures of confidential matter by a therapist, we must infer that the Legislature did not relieve the courts of their obligation to define by reference to the principles of the common law the obligation of the therapist in those situations not governed by the act. 612, 13 A.L.R. The issue in the present context, however, is not whether the patient should be incarcerated, but whether the therapist should take any steps at all to protect the threatened victim; some of the alternatives open to the therapist, such as warning the victim, will not result in the drastic consequences of depriving the patient of his liberty. 1 In addition, the majority fails to recognize that, even absent the act, overwhelming policy considerations mandate against sacrificing fundamental patient interests without gaining a corresponding increase in public benefit. 3d 455] legislative concern that disclosure might impair treatment, thereby harming both patient and society, are shown by section 5328.1. In “Tarasoff II,” the California Supreme Court reheard the case, noting the plaintiffs’ argument that therapists failed to exercise reasonable care to protect Tatiana Tarasoff. Thus, disclosing even the fact of treatment is severely limited. 1976), was a case in which the Supreme Court of California held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient. This contention was examined in Fleming and Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. Wests Calif Report. FN 7. Confidentiality; Dangerous Behavior* Duty to Warn; Humans; Jurisprudence* Law Enforcement; Liability, Legal; Malpractice; Mentally Ill Persons; Physician-Patient Relations; Prognosis (1964) 230 Cal. The section further provides, with exceptions not applicable here, that "a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." No. The giving of a warning, defendants contend, constitutes a breach of trust which entails the revelation of confidential communications. When the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, liability is imposed only if the defendant bears some special relationship to the dangerous person or to the potential victim. Yet those difficulties are multiplied manyfold when psychiatrists venture from diagnosis to prognosis and undertake to predict the consequences of such illness: '" A diagnosis of mental illness tells us nothing about whether the person so diagnosed is or is not dangerous. 829, 467 P.2d 557, 44 A.L.R.3d 1].) 3d 441] In Evidence Code section 1024, the Legislature created a specific and limited exception to the psychotherapist-patient privilege: "There is no privilege ... if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger." 373]; Goldstein & Katz, supra, 36 Conn.Bar J. We emphasize that our conclusion [17 Cal. 441.) Tarasoff v. the Regents of the University of California (1976) everyone involved in previous case was pissed off at what had happened, case was reheard in SC of California, all therapists have a duty to protect intended victims by either warning victims directly, notifying police, or … Plaintiffs' complaints state no cause of action for exemplary damages. (Goldstein & Katz, supra, 36 Conn.Bar J. If the exercise of reasonable care to protect the threatened victim requires the therapist to warn the endangered party or those who can reasonably be expected to notify him, we see no sufficient societal interest that would protect and justify concealment. 693, 711 et seq. His treating psychologists failed to warn Ms. Tarasoff of the danger she was in. Morally questionable, the rule owes its survival to "the difficulties of setting any standards of unselfish service to fellow men, and of making any workable rule to cover possible situations where fifty people might fail to rescue ...." (Prosser, Torts (4th ed. Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. Furthermore, the provisions of the Lanterman-Petris-Short Act defining a therapist's duty to withhold confidential information are expressly limited to "information and records obtained in the course of providing services under Division 5 (commencing with section 5000), Division 6 (commencing with section 6000), or Division 7 (commencing with section 7000)" of the Welfare and Institutions Code (Welf. First, the patient's constitutional right of privacy (In re Lifschutz, supra, 2 Cal.3d 415) is obviously encroached upon by requiring the psychotherapist to disclose confidential communications. 693. After discussing this information with three other psychiatrists and the campus police, Moore and his colleagues decided not to confine Poddar or notify Tarasoff of the threat. We also noted in Johnson that federal courts have consistently categorized failures to warn of latent dangers as falling outside the scope of discretionary omissions immunized by the Federal Tort Claims Act. 23 Dec 1974. Based upon the allegations before us, we conclude that Moore's conduct is protected. 765, 525 P.2d 669]; Dillon v. Legg, supra, 68 Cal. Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. Did Defendants owe a duty to the victim thus making them liable for the harm that ensued? Psychiatric and legal expertise on the subject requires the same judgment. Until a patient can trust his psychiatrist not to violate their confidential relationship, "the unconscious psychological control mechanism of repression will prevent the recall of past experiences." 1967) 272 F. Supp. [S.F. Applying this exception to the present case, we note that a relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in section 315 of the Restatement Second of Torts, a duty of care may arise from either "(a) a special relation ... between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation ... between the actor and the other which gives to the other a right of protection." 240, 447 P.2d 352], between discretionary policy decisions which enjoy statutory immunity and ministerial administrative acts which do not. Fleming and Maximov note that "While [section 1024] supports the therapist's less controversial right to make a disclosure, it admittedly does not impose on him a duty to do so. Supreme Court of California. 8. 3d 439], Amicus contends, however, that even when a therapist does in fact predict that a patient poses a serious danger of violence to others, the therapist should be absolved of any responsibility for failing to act to protect the potential victim. 175, 178.) (Ante, p. Thus the issue here is very narrow: we are not concerned with whether the therapists, pursuant to the standards of their profession, "should have" predicted potential violence; they allegedly did so in actuality. 6 [17 Cal. FN 11. 1956) 234 F.2d 288). Not only has the Legislature specifically dealt with disclosure and warning, but it also has dealt with therapist and police officer liability for acts of the patient. sub nom. 7.). 72, 441 P.2d 912, 29 A.L.R.3d 1316]: "The assertion that liability must ... be denied because defendant bears no 'duty' to plaintiff 'begs the essential question -- whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. 129 (1974). Please check your email and confirm your registration. 2 [32 L. Ed. Rep. (1963) p. 810; Van Alstyne, Supplement to Cal. In the case at bar, plaintiffs admit that defendant therapists notified the police, but argue on appeal that the therapists failed to exercise reasonable care to protect Tatiana in that they did not confine Poddar and did not warn Tatiana or others likely to apprise her of the danger. 3d 461] Although under existing psychiatric procedures only a relatively few receiving treatment will ever present a risk of violence, the number making threats is huge, and it is the latter group -- not just the former -- whose treatment will be impaired and whose risk of commitment will be increased. The murderer, who ended up getting off scott-free because of a technicality, had been treated for mental illness at the university's hospital. It therefore is necessary, we concluded, to "isolate those areas of quasilegislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision." Code, § 1014.) App. (See also authorities cited at p. 327 & fn. 3d 306, 325-328 [121 Cal. Their analysis required a balancing test between the need to protect privileged communication between a therapist and his patient and the protection of the greater society against potential threats. Rptr. 3d 452] matter who makes them, are incredibly inaccurate, and there is a growing consensus that psychiatrists are not uniquely qualified to predict dangerous behavior and are, in fact, less accurate in their predictions than other professionals."' (See Pease v. Beech Aircraft Corp. (1974) 38 Cal. (Dawidoff, The Malpractice of Psychiatrists, 1966 Duke L.J. Potential violence from each patient on each visit ( Richards v. Stanley ( 1954 ) 43 Cal an... A.L.R.3D 1316 ]. ) '', in Johnson, other rationales commonly advanced support... Determination not to continue to press for Poddar 's premature release 147 [ Ohio! Relying upon effective treatment, reduction of violence, and much more contained provision. Unresponsive to Poddar 's confinement ) 503 F.2d 1305 ; Nason v. Superintendent Bridgewater! Blackmon ( Fla.App these resistances seek support from Every possible source and the Presumption Expertise! Thus falls within the coverage of section 5150, however, unlike Court... 1963 ) p. 810 ; Van Alstyne, Supplement to Cal P.2d 304 ] ; Goldstein & Katz Psychiatrist-Patient! December 23, 1974 George A. McKray, San Francisco, for example, a patient presents a danger! Touched only briefly on the nondisclosure provisions of the danger to Tatiana Merchants Nat 45..., those requiring treatment will be charged for your subscription of New opinions from the of! 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