The court reversed and remanded the case to the trial court as to AMC. Legal commentators have long considered the application of Tarasoff to infectious disease cases and specifically to AIDS cases. Regents of the University of California , n that the California Court of Appeals directly applied Tarasoff to such a case.
During the surgery or immediately thereafter, Jennifer received transfusions of blood and blood products blood. The day following surgery, Jennifer's physician, Dr. Fonklesrud continued to treat Jennifer. About three years later, Jennifer began dating Daniel Reisner. A short time later, the couple began sexual relations. Jennifer and her parents immediately informed Daniel and his parents. Daniel was immediately tested for HIV. Daniel sued Dr. The defendants conceded there was a duty to warn, but maintained that there was no duty to warn unidentifiable third parties.
The defendants then moved for judgment on the pleadings summary judgment and the trial court granted the motion on the basis that no duty was owed to an unidentifiable third party. Daniel appealed from this judgment. The appeals court held that the duty to warn established in Tarasoff dictated the result in Reisner.
The court supported Daniel's claim that the defendants did not have to warn Daniel specifically but that they did have to warn Jennifer and her parents, who were likely to apprise him of the danger. The fact that Jennifer and her parents had done just that when they learned of the diagnosis did much to confirm Daniel's contention.
The Reisner court next addressed the defendant's contention that, even if there were a duty to warn identifiable third parties, there was no duty to unidentified third parties. The court looked at the line of third-party liability cases and determined that third-party liability was not conditioned on the potential victims being readily identifiable as well as foreseeable.
The court noted that Dr. Fonklesrud had continued to maintain a physician-patient relationship with Jennifer until she died, which occurred after Daniel's injury.
The court considered this continued relationship and the foreseeability of Jennifer's likelihood of entering an intimate relationship as bases to negate the defendant's efforts to avoid liability due to the time lapse between the negligent act and Daniel's injury.
The Reisner court also considered relevant case law articulating the standard of care in communicable and infectious diseases. In DiMarco v. Lynch Homes-Chester County , n a Pennsylvania hepatitis B case, the court affirmed a duty to third parties as follows:.
Physicians are the first line of defense against the spread of communicable diseases, because physicians know what measures must be taken to prevent the infection of others Such precautions are taken not to protect the health of the patient whose well-being is already compromised, rather such precautions are taken to safeguard the health of others.
Thus, the duty of a physician in such circumstances extends to those "within the foreseeable orbit of harm. If a third person is in that class of persons whose health is likely to be threatened by the patient, and if erroneous advice is given to that patient to the ultimate detriment of the third person, the third person has a cause of action against the physician, because the physician should recognize that the services rendered to the patient are necessary for the protection of the third person.
The Reisner court summarily dismissed several of the defendant's minor issues and, as a final analysis, considered the defendant's contention that finding a duty was owed to Daniel would open the floodgates of litigation by allowing fourth and fifth parties to sue.
The court rejected the argument because the facts that favor Daniel in this case evidence how unlikely it is there are dozens of other Daniels waiting in the wings. Moreover, liability to fourth and fifth persons would, by its nature, be limited by traditional causation principles.
The court went on to state the following:. However, the possibility of such an extension does not offend us, legally or morally. Viewed in the abstract and not with reference to Jennifer or Daniel , we believe that a doctor who knows he is dealing with the 20th Century version of Typhoid Mary ought to have a very strong incentive to tell his patient what she ought to do and not do and how she should comport herself in order to prevent the spread of her disease.
The judgment of the trial court was reversed and the case was remanded for trial. Daniel was awarded his appeals costs. Bradshaw v. Daniel n is another case example of the application of Tarasoff to an infectious disease case.
Elmer Johns was admitted to the hospital with complaints of headaches, muscle aches, fever, and chills. Although Rocky Mountain Spotted Fever was considered in the differential diagnosis and chloromycetin therapy started, the diagnosis was not confirmed until after Johns' death. Although the treating physician communicated with Johns' wife, he never mentioned the danger of exposure to Rocky Mountain Spotted Fever or that the disease had been the cause of Johns' death.
One week after Johns' death, his wife was admitted with similar symptoms. The diagnosis of Rocky Mountain Spotted Fever was made but, despite treatment, she died three days later.
There was no physician-patient relationship between Mr. Johns' physician and Mrs. Johns' son brought suit against Mr. Johns' physician, alleging that the physician's negligence in failing to advise Mrs. Johns that her husband died of Rocky Mountain Spotted Fever and her risk of exposure proximately caused her death.
The defendant made both a motion to dismiss and a motion for summary judgment, arguing that, because there was no patient-physician relationship, there was no duty owed to Mrs. Johns and, therefore, no cause of action. Both motions were denied and the case went to trial.
Both parties appealed and the question of the duty owed to Mrs. Johns eventually reached the Tennessee Supreme Court. The court first noted that there is a general reluctance to countenance nonfeasance as a basis for liability and, therefore, the general rule is that one has no affirmative duty to warn those endangered by the conduct of another.
The court then pointed out the "special relationship" exception in Tarasoff as it carved out an exception to this general rule. Next, the court discussed the myriad of liability cases involving either the physician's failure to diagnose a contagious disease or failure to communicate the contagious nature of the disease to those foreseeably at risk of exposure. The court conceded that Rocky Mountain Spotted Fever is not a contagious disease in the usual sense of the word. However, Mrs.
Johns was as much at risk of contracting the disease as she would have been had it been a classic contagious disease. The court analyzed the case as follows:. Thus the case is analogous to the Tarasoff line of cases adopting a duty to warn of danger and the contagious disease cases adopting a comparable duty to warn. Here, as in those cases, there was a foreseeable risk of harm to an identifiable third party, and the reasons supporting the recognition of the duty to warn are equally compelling here.
The court concluded that the existence of the physician-patient relationship is sufficient to impose upon a physician an affirmative duty to warn identifiable third persons in the patient's immediate family against foreseeable risks emanating from a patient's illness.
The court held Mr. Johns' physician owed Mrs. Johns a legal duty to warn of the risk of Rocky Mountain Spotted Fever. Although, to date, there have been no applications of Tarasoff to genetic cases, the New Jersey case of Safer v. Pack n makes that eventuality probable.
There, the father was diagnosed with polyposis of the colon with carcinoma. Long after the father died, the daughter developed carcinoma of the colon with metastases. It was only after her father's records were examined that the daughter became aware of the details of her father's illness and its genetic propensities. The daughter sued the father's treating physician and the court found for the daughter. The court held that the physician had a duty to warn family members of genetically transmissible diseases.
The court found no impediment to warning those at risk of genetically transmissible diseases. This duty to protect third parties from potential patient-generated harm appears to be a natural forum for further application of Tarasoff. Tarasoff has opened the doors of the judiciary to expanding concepts of duty and foreseeability beyond the expectations of either Justice Andrews or Justice Cardozo in their eloquent opinions in Palsgraff v.
Long Island R. The minority opinion of Justice Andrews in this case expressed that, once negligence is established, the defendant is liable for unforeseeable harm and unforeseeable plaintiffs, as well. The Reisner case, in particular, is significant in that it increases the duty to avoid foreseeable harm to third persons whose identities are unknown to the physician and are not readily ascertainable. In addition to Tarasoff , the Reisner court cited Myers , which extended the duty to a foreseeable but not readily identifiable victim.
The duty of health care providers to third parties now goes well beyond the exclusive duty under earlier common law merely to their patients. The courts have extended the duty to situations that were unforeseeable, even by the Tarasoff court. The initial concerns regarding the psychiatrist's inability to predict violent behavior of the patient and the effect of abrogation of the duty of confidentiality on the practice of psychotherapy have been overshadowed by the application of the Tarasoff doctrine in the driving cases and the more recent AIDS cases.
Mental health professionals have become more sensitive to this expanded duty and have become attentive to the issues raised by Tarasoff and its progeny. The American Psychiatric Association and its local branches have been active in promulgating model statutes addressing the legal issues in hopes of clarifying the duty for practicing mental health professionals, while preserving the sanctity of the therapist-patient relationship.
Only a few studies have attempted to assess the impact of the Tarasoff decision on psychiatric practice. It is, however, now clear that the concerns about the potential loss of confidentiality have not had the adverse impact on psychiatric practice that the amici curiae and Justice Clark's strong dissent in Tarasoff predicted. Ultimately, Tarasoff has stimulated greater awareness of the violent patient's potential for acting out such behavior, encouraging closer scrutiny and better documentation of the therapist's examination of this issue.
The discharge of this duty to any potential victim based upon Tarasoff II allows the therapist far more flexibility, based upon reasonable care to protect an intended victim.
The therapist may use discretion to take a variety of steps including a warning to the intended victim or to others who are likely to apprise the victim of danger. Further, the police may be notified or other steps taken, which are appropriate under the circumstances. Paul Appelbaum has stated that "no court decision in the last generation has succeeded in so raising the anxieties of mental health professionals" as has the Tarasoff decision.
Based on such concerns, in , the Council on Psychiatry and Law of the American Psychiatric Association APA developed a Model Statute as a resource for its district branch chapter members to use in stimulating legislative action. This Model Statute attempted to balance public safety with the needs and concerns of the mental health professions. It stated, as follows:. Scope of cause of action. Except as provided in paragraph 5, no cause of action shall lie against a [physician], nor shall legal liability be imposed, for breaching a duty to prevent harm to person or property caused by a patient unless a the patient has communicated to the [physician] an explicit threat to kill or seriously injure a clearly identified or reasonably identifiable victim or victims, or to destroy property under circumstances likely to lead to serious personal injury or death, and the patient has the apparent intent and ability to carry out the threat; and b the [physician] fails to take such reasonable precautions to prevent the threatened harm as would be taken by a reasonably prudent [physician] under the same circumstances.
Reasonable precautions include, but are not limited to, those specified in paragraph 2. Legally sufficient precautions. Any duty owed by a [physician] to take reasonable precautions to prevent harm threatened by a patient is discharged, as a matter of law, if the [physician] either a communicates the threat to any identified victim or victims; or b notifies a law enforcement agency in the vicinity where the patient or any potential victim resides; or c arranges for the patient to be hospitalized voluntarily; or d takes legally appropriate steps to initiate proceedings for involuntary hospitalization.
Immunity for disclosure. Whenever a patient has explicitly threatened to cause serious harm to person or property, or a [physician] otherwise concludes that a patient is likely to do so, and the [physician], for the purpose of reducing the risk of harm, discloses any confidential communications made by or relating to the patient, no cause of action shall lie against the [physician] for making such disclosure.
For purposes of this [section], "patient" means any person with whom a [physician] has established a [physician]-patient relationship. For purposes of this [section], ["physician"] means a person licensed to practice medicine in this state.
Limited applicability of this section. This section does not modify any duty to take precautions to prevent harm by a patient that may arise if the patient is within the custodial responsibility of a hospital or other facility or is being discharged therefrom.
Many states, before and after the promulgation of APA's Model Statute, enacted laws limiting a therapist's liability so long as certain specific actions are taken by the therapist when a patient threatens violence. California enacted a statute in wherein the therapist may gain immunity from liability if reasonable efforts are made to warn the potential victim and the local police are contacted.
Alan Stone commented on this development that "the duty to warn is not as unmitigated a disaster for the enterprise of psychotherapy as it once seemed to critics like myself. Most of these protective disclosure or anti- Tarasoff statutes require an actual threat toward an identifiable victim, with immunity under circumstances similar to the California statute contacting the victim, police, or both. The need for such statutes to guide therapists has been underscored by court decisions that seem to reflect no uniformity in the duty to warn or protect, and vary from a specific and clear threat of violence against an identifiable victim n to the most vague, with not even a threat or designated victim revealed when violence may be foreseeable.
The result has been a steady expansion of the duty to protect third parties. The Tarasoff case seems conservative by comparison with its progeny. The driving cases and the Reisner case reviewed earlier in this article represent a significant overdetermination and expansion of duty originally envisioned by the Tarasoff court. According to Appelbaum, the standard of care as a measure of liability has evolved into a strict liability standard.
Concern exists about the vagueness and breadth of the duty resulting from the Tarasoff progeny, in that the psychotherapist may believe he or she must take all reasonable steps to protect potential victims. Consequently, the therapist is left with uncertainty about whether the duty has been fully discharged. After all, strict liability might be imposed if the threatened act of harm occurs and the therapist had not taken some additional step in protecting the harmed victim.
The APA Model Statute provides some flexibility with respect to exercising that duty, including involuntary hospitalization. Most statutes addressing this issue specify how this duty may be discharged in order to acquire immunity.
Appelbaum et al. Simon warned that an uncertain legal environment creates danger that an "iatrogenic liability neurosis can take hold of the therapist's professional judgment. The trick is to render unto Caesar that which is Caesar's, but to never lose sight of the primary duty of the therapist: to render good clinical care to the patient.
Appelbaum expressed these concerns in more optimistic terms: "Clinicians have learned to live with Tarasoff , recognizing that good common sense, sound clinical practice, careful documentation, and a genuine concern for the patients are almost always sufficient to fulfill their legal obligations. One survey of California psychotherapists n found that they increased their efforts to evaluate potential for violence in their patients after the Tarasoff decision.
The study found that therapists had a heightened awareness of and concern about potentially violent behavior. Roth and Meisel reported the first clinical data on Tarasoff -type situations, wherein one of four emergency room Tarasoff -type cases involved warning a potential victim. McNiel and Binder noted that, between and , there was a large increase in the use of dangerousness as grounds for civil commitment. They intimated that psychiatrists also may have used involuntary hospitalization as a way of protecting themselves from future lawsuits.
In a later study by Binder and McNiel, of 27 cases at the University of California, San Francisco, based upon interviews of residents' experiences in situations involving Tarasoff -type warnings to third parties, almost half of the 46 residents in this large university program had issued Tarasoff warnings.
Their survey also found that warnings generally were appreciated by the potential victims and had little effect on the therapeutic relationship. Actually, most of the potential victims already knew of the threats and had taken steps to avoid the violent patient. Unfortunately, there is no accepted legal standard for the assessment of the risk of potential harm to a third party by a therapist. Rosenhan surveyed 1, California psychotherapists a decade after Tarasoff.
Nearly all respondents indicated they would have warned potential victims due to ethical obligations even if the law did not require them to do so. The results in this survey also reflected a greater cautiousness in accepting such patients for treatment, a trend toward seeking consultation with colleagues, and a heightened anxiety about being sued.
Beck's earlier survey, soon after Tarasoff , did not find the Tarasoff duty to be an onerous task to academic psychiatrists due to relative availability of colleagues with whom to discuss the cases and the plethora of available services and facilities in a university setting. Assessing the effect of Tarasoff and its progeny upon the practice of psychotherapy is difficult. The three major surveys, n two of which were done after Tarasoff II , n may be summarized as follows:.
Therapists had increased sensitivity to probing for violence in their patients. A small minority of therapists rejected violent patients and discussion of violence for fear of liability. Therapists aware of Tarasoff were more likely to warn potential victims.
Seventy to eighty percent of therapists believed there was an ethical duty to protect even before Tarasoff. Therapists continued to treat violent patients.
Therapists accepted the concept that societal safety was more important than confidentiality. Therapists often went beyond warning the potential victim to protect.
Eighty-five percent of therapists were aware of Tarasoff , but were confused about what was required by the law. Ninety percent of therapists had warned a potential victim. Almost all therapists believed their duty to warn was based on an ethical obligation, regardless of the law. Therapists were more cautious in treating violent patients. There was an increased trend among therapists toward seeking informal consultation with colleagues.
There was heightened fear of litigation among therapists. Also, well before Tarasoff , prominent psychiatrists, including Karl Menninger and Seymour Halleck, had expressed the belief that to reveal confidential information under circumstances where violence was imminent was neither a breach of trust nor unethical. Considering the current state of the law and ethical pronouncements regarding the expanded duty to society, while maintaining trust within the therapist-patient relationship, therapists today must reflect on how best to assess and document potential violence to third parties.
Therapists must then consider how to warn or protect within the confines of sound clinical judgment while adhering to this new legal duty. In light of developing case law, which is articulating a near strict liability standard in the continuing trend to compensate third parties, therapists must attend to this issue with greater sensitivity and detail.
Past medical records, where applicable, must be thoroughly reviewed; past therapists and referral sources must be queried where appropriate. Consultations and second opinions must be sought when threats of violence occur or when there is question about competence to drive, as part of outpatient management, as well as in-patient discharge planning. The approach should be similar to management of an acutely suicidal patient, regarding the handling of the concern for the patient's acting out the threat.
If such a careful and reasonable approach is taken, including documentation of the assessment of the pertinent issues and treatment plan, then the therapist should not be held liable, even if harm should occur to a third party.
If therapists view potential violent behavior toward third persons as a therapeutic issue in alliance with the patient for example, exploring with the patient what it would mean if the violence were to be acted upon , then not only will the risk be lowered, but the clinical issues will have been addressed. Before breaching confidentiality, all therapeutic approaches must be considered by therapist and patient.
Only if such efforts seem unlikely to provide adequate protection should confidentiality be breached, and then only after advising the patient of the plan. Based upon the case law and surveys over the past 25 years, even if confidentiality must be breached, the earlier anticipated negative effects have not materialized.
There is just no evidence thus far that patients have been discouraged from coming to therapy, or discouraged from speaking freely once there, for fear that their confidentiality will be breached. Nor is there empirical evidence that such protections instituted by therapists have been ineffective. Moreover, the majority of therapists have not been driven away from treating potentially violent patients who seek help.
Patients accept the limits of confidentiality in their use of psychotherapy. Empirical data to address definitively many of these earlier questions and fears must await further studies due to the fact that the base rate of violence by psychiatric patients is so low. Fleming and Maximov had articulated the double bind in which therapists would find themselves when there was potential of harm to a third party, believing that the therapist would be vulnerable to litigation no matter what course of action was chosen.
The data so far, although not conclusive, suggest that therapists are neither abandoning their obligations to their patients nor to society in taking protective actions. Earlier concerns about disruption of treatment have been overblown. Unfortunately, the studies thus far have been based upon information primarily obtained from direct questions posed to therapists.
As Rudegeair and Appelbaum n have suggested: "Given that therapists are likely to be reluctant to describe any history of abandonment' when asked on a questionnaire, the demonstration of this predicted outcome would require a more oblique research instrument. Although confidentiality is an integral part of therapy, patients accept therapists' legal and ethical obligations to society. As Slovenko has stated:. Trustnot absolute confidentialityis the cornerstone of psychotherapy. Talking about a patient or writing about him without his knowledge or consent would be a breach of trust.
But imposing control where self-control breaks down is not a breach of trust when it is not deceptive. And it is not necessary to be deceptive. Regents of the Univ. None of the case sources indicate his course of study. Poddar, P.
Poddar, Cal. Poddar I , Cal. Merton, supra note Superior Court of Orange County, P. United States, F. Burrell, S. Durham County Mental Health and Devel. Disabilities and Substance Abuse Auth. Lemon, N. Mangelsdorf, P.
Quesenberry, Cal. Eastern Maine Medical Center, A. Kuzilla, N. Bridges, S. Tips, S. In the case of Praesel v. Johnson, S. Nevertheless, other state courts have relied on Gooden in establishing common law. A condition of his probation was that he refrain from using controlled substances. Knox's treating psychiatrist was well aware of his continued use of controlled substances. Hibberd and raped their daughter. The trial court allowed this information to be introduced as rebuttal to the treating psychiatrist's testimony.
Pate v. Threkel, So. Hopper, F. Sears, Roebuck and Co. But see Thapar v. Unexpected clinical features of the Tarasoff decision: The therapeutic alliance and the "duty to warn".
AIDS policy: Position statement on confidentiality, disclosure, and protection of others. Commission on AIDS. Ethical issues involved in the growing AIDS crisis.
Council on ethical and judicial affairs. JAMA ; Year : Volume : 21 Issue : 2 Page : The story of Prosenjit Poddar. J Mental Health Hum Behav ; Related articles Confidentiality duty to warn Poddar Tarasoff. Access Statistics. Sitemap What's New Feedback Disclaimer. Nevertheless, Sarkar evidently found it as difficult to fit into the America of the s as did Poddar in the late Sixties. Sure, he must have been unhinged but the triggers for the imbalance could well lie in the desperation to belong in an alien culture.
Assimilation, integrating into the American way of life, it seems, is not for everyone, especially for Indians from protective, middle class families. No wonder so many NRIs still look to their homeland for a reaffirmation of their success and status in society, why they are so eager to open up their hearts and wallets for a leader who they reckon will make India great again and stand up to other world leaders including those of their adopted country, why they welcome Narendra Modi on his every trip to Yankee land as a conquering hero.
When Prosenjit Poddar reached Berkeley in , the number of Indian students, in fact the number of Indians in America was barely a fraction of what it is today. The United States had just about set out to beat Russia then USSR at the game of winning the hearts and minds of the third world and scholarships had just begun to pour in.
Prosenjit Poddar was one such scholarship holder. Not someone who had set IIT on fire but still good enough for America. One can only imagine the shock Prosenjit Poddar, who had known only Balurghat and Kharagpur till then, both small towns, more rural than urban, must have felt when he stepped into Berkeley of the Sixties.
This was the cradle of the churning that American society had then begun to experience, made memorable by bra burning, free sex, birth control pills, doping, drugging, breakthrough music bands, violent student protests. If the ground beneath his feet trembled, it was, surely, only to be expected.
So did Poddar. There was some do or the other there most Fridays, often it was an evening of folk dances where students from different countries mixed with abandon. Poddar has already been in America one whole year before he could gather up courage to come down and attend one of these evenings. Lonely and awkward, he soon found himself spellbound by pretty, young Tanya, formally known as Tatiana Tarasoff, a second generation offspring of Russian immigrants who hoped to join college herself the following year.
They became friends, she visiting him in his room at the International House where they chatted, even as he secretly taping their conversations. He also introduced her to a couple of fellow Indian students there. Sometimes they went out on dates, which usually did not amount to more than having ice cream together. He met her family, her brother had no issues but her father did not like the sight of him at all.
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