Breach of Duty to Warn

The Illinois Mental Health and Developmental Disabilities Confidentiality Act (“MHDDCA”), 740 ILCS 110/1 et seq., provides protection for communications between mental health practitioners and their patients. Pursuant to the MHDDCA, no disclosures of confidential information may be made to anyone without the express written permission of the patient except in a few, very specific, exceptions. One of those exceptions is the duty to warn.

As a general rule, a person owes no duty to warn a third party concerning the potentially dangerous conduct of another.  In many jurisdictions, however, case law has carved out exceptions to that rule, where a “special relationship” is involved.  In Tarasoff v. Regents of the University of California, the landmark case on this subject, the California Supreme Court[1] held that a psychologist who had knowledge of a patient’s intention to harm a specific individual had a duty to exercise reasonable care to warn the intended victim.  Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976).

Facts: Prosenjit Poddar was a Bengali of the Harijan (untouchable) caste who had worked his way through the Indian educational system and eventually traveled to California to study naval architecture at the University of California-Berkley in 1967. One year later he met Tatiana Tarasoff. Despite Prosenjit’s attempts at romance with Tatiana, she was uninterested and rebuffed his advances. After Tatiana’s final rejection of him, Prosenjit began to exhibit symptoms of clinical depression; eating and sleeping irregularly, failing to keep up with his classes or his job, and listening endlessly to tape recordings he had secretly made of his conversations with Tatiana. Upon the urging of a friend, Prosenjit agreed to seek mental health counseling at the University of California-Berkeley Hospital.

In August 1969, Prosenjit confided to the clinical psychologist he was seeing at the hospital of his intention to kill Tatiana. After consulting with two psychiatrists, the psychologist decided to commit Prosenjit for observation and reported the threat to campus police. Although the police briefly detained Prosenjit and searched his apartment, he was eventually released because he appeared rational and stated that he would stay away from Tatiana. Prosenjit never returned to therapy and his psychologist’s supervisor directed that no further action be taken to commit Poddar or warn Tatiana or her parents of the threats.  On October 27, 1969, Prosenjt Poddar killed Tatiana Tarasoff. After Tatiana’s death, her parents filed suit against the University. The lower courts dismissed the civil action against the University, finding that there was no cause of action because the University owed no duty of care to Tatiana, as she was not their patient, but rather just a third party.

Holding:  The California Supreme Court reversed the decision of the lower courts and allowed Tatiana’s parents to maintain their cause of action against the University of California for the failure to warn. The case was remanded back to the district court for a retrial.

Reasoning:  The Court carefully considered the impact of the confidential nature of mental health communications and the necessity of obtaining mental health services, but determined that the public policy interest in protecting the public from a known threat of harm prevailed. The Court stated:

We realize the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed.  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.  To the contrary, the therapist’s obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger.

The Tarasoff opinion does not decide whether the University was negligent. The case merely holds that the Plaintiff has stated a cause of action that, if proved at trial, would entitle Tatiana’s parents to relief. On remand to the lower court, the trier of fact would have had to decide whether the University’s failure to notify the victim or her family did in fact constitute a breach of the duty to the third-party victim. The trial court could have found that by notifying the police, the University had exercised due care and was not negligent. Interestingly, the case was settled by the parties out of court prior to retrial.

Following the issuance of the Tarasoff opinion, an increasing number of jurisdictions held that personnel involved in the psychiatric treatment of a patient have not only a right, but a duty to warn of a patient’s potential dangerousness.

In Thompson v. County of Alameda, another California case, a juvenile delinquent stated that if released from custody, he would kill a young child residing in his neighborhood, but he named no specific victim.  Upon his release from the county institution, the delinquent made good on his threat by killing a young neighbor.  In a lawsuit against the county institution, however, the California Supreme Court held that in the absence of a readily identifiable foreseeable victim, there was no duty to warn.  The existence of an identifiable group of potential victims was insufficient to create a duty to warn, in light of the infrequency with which threats of violence by a patient are carried out, and in light of society’s interest in encouraging free communication between therapist and patient.  Thompson v. County of Alameda, 27 Cal. 3d 741, 167 Cal. Rptr. 70, 614 P.2d 728 (1980).

In Brady v. Hopper, individuals shot by John Hinckley during his attempted assassination of Ronald Reagan sued Hinckley’s psychiatrist.  Again, however, the federal district court in that case held that even in a situation involving a special relationship, such as the one between a therapist and patient, the therapist does not owe a duty to the world at large, and cannot be held liable for injuries inflicted on third persons, absent specific threats to a readily identifiable victim.  Brady v. Hopper, 570 F. Supp. 1333, 1338 ( D. Colo. 1983).

Several courts have discussed the foreseeability component of the duty to warn, and have imposed upon therapists an affirmative duty to investigate the possibility of dangerousness.  In Bradley Center Inc. v. Wessner, a private hospital was held liable for failing to pursue “further attempts to evaluate in a more intensive fashion the inside deterioration” of a patient who, while released on a one-day pass, murdered his ex-wife.  Bradley Center Inc. v. Wessner, 161 Ga. App. 576, 287 S.E. 2d 716, 723 (1982).  In Hedlund v. Superior Court of Orange County, a California court recognized that the duty to warn is “inextricably interwoven with the diagnostic function,” and that “the duty imposed on the therapist… is first to diagnose or recognize the danger posed by the patient…”  Hedlund v. Superior Court of Orange County, 34 Cal. 3d 695, 669 P.2d 41, 45 (1983).  Under these cases, then, the therapist has a duty to take some initiative in determining a patient’s dangerousness.

The first Illinois case to recognize that a duty to warn might exist was Kirk v. Michael Reese Hospital and Medical Center. In that case the Illinois Supreme Court found that a hospital had no duty toward an individual injured while riding in the automobile driven by a recently released patient who allegedly had not been warned not to mix alcohol with his prescribed medication.  Stressing the unreasonable burden that would be placed upon a hospital if it were held liable for all of the harmful acts of released patients, the court held that no duty arose, since the third party who was injured had no “special” relationship with either the hospital or the patient.

The court took care, however, to distinguish the instant case, in which it found no duty, from cases cited by the plaintiff, in which there were allegations that treatment personnel negligently released a patient, or were aware of a patient’s dangerous propensities, and in which courts imposed a duty to take reasonable measures to protect third parties.  Kirk v. Michael Reese Hospital and Medical Center, 117 Ill. 2d 507, 513 N.E. 2d 387 (1987).

Going a step further, in Novak v. Rathnam, the Illinois Appellate Court stated that it believed “that Illinois would adopt Tarasoff’s affirmative duty on therapists to warn foreseeable third parties.”  Novak v. Rathnam, 153 Ill. App. 3d 408, 505 N.E. 2d 773 (3rd Dist. 1987).

Not long thereafter, in the case of Eckhardt v. Kirts, Novak’s prediction was proven correct when the Appellate Court, citing Tarasoff, Brady, Thompson and Kirk, held that under certain circumstances, a psychiatrist would have a duty to warn threatened individuals about a potentially dangerous patient.  Joyce Eckhardt, who suffered from mental disabilities and who had been under the treatment of Dr. Thomas Kirts, a psychiatrist, shot and killed her husband Harold.  In a suit filed by Harold Eckhardt’s mother against Dr. Kirts, the Appellate Court, while ultimately finding that Dr. Kirts owed no duty to the plaintiff, did establish three criteria for determining the existence of a duty to warn:  “First, the patient must make specific threat(s) of violence; second, the threat(s) must be directed at a specific and identified victim, and third, a direct physician-patient relationship between the doctor and the plaintiff or a special relationship between the patient and the plaintiff.”

The court concluded that Dr. Kirts had no duty to warn Harold Eckhardt about Joyce Eckhardt, since Mrs. Eckhardt had never made any specific threats against her husband.  The court refused to consider whether the required “special relationship” existed in this case, leaving open the question of whether such a relationship exists in a situation involving a patient, a psychiatrist and the patient’s spouse.  Eckhardt v. Kirts, 179 Ill. App. 3d 863, 534 N.E. 2d 1339 (2nd Dist. 1989).

In Charleston v. Larson, 297 Ill.App.3d 540, 606 N.E.2d 793 (1st Dist. 1998), a nurse at a psychiatric facility brought an action against one of the facilities psychiatrists after she was attacked by a patient at the facility. Prior to the attack, the patient-attacker had voluntarily admitted himself on an emergency basis and had been seen by the defendant. The plaintiff nurse claimed that pursuant to Eckhardt, the defendant psychiatrist had an affirmative obligation to warn plaintiff or other facility employees of the attacker-patient’s violent propensities. The defendant claimed he had no duty because the attacker-patient had never made a specific threat against the nurse. He also argued that no physician-plaintiff relationship existed between the doctor and plaintiff nor did a special relationship exist between the plaintiff and the attacker-patient. The court accepted defendant’s arguments and upheld the lower court’s dismissal of plaintiff’s cause of action.

Thus, after Eckhardt, Illinois appeared to adopt a judicial duty to warn. Illinois statutory law has addressed the duty in two statutes, the Mental Health Code and the Mental Health and Developmental Disabilities Confidentiality Act. At 740 ILCS 110/11The Illinois Mental Health and Developmental Disabilities Confidentiality Act provides that records and communications may be disclosed:

(viii) when, and to the extent, in the therapist’s sole discretion, disclosure is necessary to warn or protect a specific individual against whom a recipient has made a specific threat of violence where there exists a therapist-recipient relationship or a special recipient-individual relationship;

In addition, at 405 ILCS 5/6-103 the Illinois Mental Health Code provides an exemption from liability for practitioners who have made a good faith effort to fulfill the duty to warn:

There shall be no liability on the part of, and no cause of action shall arise against, any person who is a physician, clinical psychologist, or qualified examiner based upon that person’s failure to warn of and protect from a recipient’s threatened or actual violent behavior except where the recipient has communicated to the person a serious threat of physical violence against a reasonably identifiable victim or victims. Nothing in this Section shall relieve any employee or director of any residential mental health or developmental disabilities facility from any duty he may have to protect the residents of such a facility from any other resident.

Any duty which any person may owe to anyone other than a resident of a mental health and developmental disabilities facility shall be discharged by that person making a reasonable effort to communicate the threat to the victim and to a law enforcement agency, or by a reasonable effort to obtain the hospitalization of the recipient. (Emphasis added)

Under current Illinois law, mental health practitioners must break confidentiality and warn third parties (and this means, when applicable, the intended victim and law enforcement authorities) if the harm is reasonably foreseeable, which means:

1. The patient has made specific threats of violence;
2. To a specific and identified victim
3. There is either a physician-patient relationship or a “special” relationship between the patient and the victim; and
4. The disclosure must be to the extent necessary to allow the victim to avoid harm and allow the authorities to intervene.

[1] Although the seminal case in this area, Tarasoff was not a U.S. Supreme Court case but rather just a Supreme Court of California case. Because it was not a U.S. Supreme Court decision, no other states were bound by Tarasoff, however many states such as Illinois embraced and eventually codified the duty to warn requirement.