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DUTY TO WARN: WHO? WHEN?
Developments in Kansas Law
Since Tarasoff
Camille Nohe
Assistant Attorney General &
General Counsel
to Behavioral Sciences Regulatory
Board
July 2000
Negligence is not actionable
unless it involves the invasion of a legally protected
interest, the violation of a right. In every instance,
before an act is said to be negligent, there must
exist a duty to the individual complaining, the
observance of which would have averted or avoided
the injury. The plaintiff who sues his fellow
man sues for a breach of duty owing to himself.
Legal duties are not discoverable
facts of nature, but merely conclusory expressions
that, in cases of a particular type, liability
should be imposed for damage done. Duty is not
sacrosanct in itself, but only an expression of
the sum total of those considerations of policy
which lead the law to say that the particular
plaintiff is entitled to protection.
In some circumstances an actionable
negligence case may involve a failure or breach
of a duty to warn another of a dangerous person's
intentions. Since the now famous 1976 Tarasoff
case, various duty to warn cases have made their
way to the Kansas appellate courts. Following
an overview of Tarasoff is a review of
those cases that have applicability to mental
health therapists in Kansas and a discussion of
the direction in which the Kansas courts appear
to be headed concerning a mental health therapist's
duty to warn.
* * *
In Tarasoff, a voluntary outpatient was
receiving therapy at a hospital. The patient informed
the therapist that he was going to kill an unnamed
girl, readily identifiable as Tatiana Tarasoff,
when she returned home from spending the summer
in Brazil. While the therapist took a preliminary
step toward seeking involuntary commitment of
the patient, that process was not completed. Shortly
after Tatiana's return from Brazil, the patient
went to her residence and killed her. It was within
this context that the California Supreme Court
held the therapist liable for failure to warn
Tatiana or her parents of the danger posed by
the patient.
In the course of its decision, the Court discussed
and balanced competing policies of confidentiality
and protection of other persons:
We realize that 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 this 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.
We conclude that the public policy favoring protection
of the confidential character of patient-psychotherapist
communications must yield to the extent to which
disclosure is essential to avert danger to others.
The protective privilege ends where the public
peril begins.
The Tarasoff Court thus held:
When a therapist determines, or pursuant to the
standards of his profession should determine,
that his patient presents a serious danger of
violence to another, he incurs an obligation to
use reasonable care to protect the intended victim
against such danger. The discharge of this duty
may require the therapist to take one or more
of various steps, depending upon the nature of
the case. 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.
* * *
The 1983 Kansas case of Durflinger v. Artiles
involved an involuntarily committed patient (passive-aggressive
personality with sociopathic tendencies) who was
discharged from a hospital as being no longer
in need of care or treatment. A week after his
discharge, the former patient killed his mother
and younger brother by shooting each several times
with a rifle. Surviving family members sued the
doctors (psychiatrist/hospital clinical director,
psychologist, attending and ward physicians) employed
at Larned State Hospital during the time of the
patient's confinement.
The actual issue before the Kansas Supreme Court
was whether a claim for negligent release of
a patient would be recognized in Kansas. The defendants
argued that they should be insulated from civil
liability for their acts, even if negligent, on
the basis that prediction of dangerousness of
a mental patient is too difficult to make and,
further, to hold otherwise would seriously cripple
their ability to function professionally and would
have a catastrophic effect on the civil rights
of mentally ill persons. The Kansas Supreme Court
did not agree. In reaching its affirmative decision
that a negligent release claim would be recognized
in Kansas, the Court favorably discussed the duty
to warn concepts developed in Tarasoff. Quoting
directly from that case, the Kansas Court affirmed:
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. Thus
the judgment of the therapist in diagnosing emotional
disorders and in predicting whether a patient
presents a serious danger of violence is comparable
to the judgment which doctors and professionals
must regularly render under accepted rules of
responsibility.
We recognize the difficulty that a therapist
encounters in attempting to forecast whether a
patient presents a serious danger of violence.
Obviously, we do not require that the 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 speciality] under similar
circumstances'. Within the broad range of reasonable
practice and treatment in which professional opinion
and judgment may differ, the therapist is free
to exercise his or her own best judgment without
liability; proof, aided by hindsight, that he
or she judged wrongly is insufficient to establish
negligence.
After concluding that an action for negligent
release of a patient with violent propensities
could be maintained in Kansas, the Court acknowledged
that it could end the discussion. However, the
Court believed it important to distinguish negligent
release actions from other types of third-party
actions against physicians (or psychotherapists)
for damages done by their mental patients.
In these other actions liability is not predicated
upon the inherent duty of the physician in the
ordinary course of treatment of his patient, but
rather that a special relationship existed which
required the physician to take some affirmative
action outside the regular course of treatment
to protect third persons. Such affirmative actions
are for the benefit of third parties, not the
patient, and involve such steps as notifying a
potential victim, calling the police or instituting
commitment proceedings.
The Tarasoff situation was the first example
the Kansas Supreme Court mentioned in its duty
to warn discussion:
The therapist had knowledge an office patient
was dangerous to a readily identifiable third
person. He did not warn the third person and the
patient murdered her. The California court held
the therapist had an affirmative duty to warn
the victim, call the police, or take other appropriate
action for the victim's protection.
The Court also referenced the 1980 Nebraska case
of Lipari v. Sears, Roebuck & Company
that involved a mental patient who had been committed
to and had been receiving psychiatric care from
the Veterans Administration. After his discharge
the patient purchased a shotgun and resumed psychiatric
day care treatment from the V.A. for about a month.
The patient then stopped the treatment and a month
later walked into a nightclub and shot one person
to death and seriously wounded another. While
the subsequent lawsuit was a claim for failure
to detain the patient by seeking commitment, the
Kansas court recognized that the duty imposed
by the Nebraska Court required the taking of an
affirmative action for the protection of a third
party.
The Kansas Court in Durflinger noted that
in both Tarasoff and Lipari a "special
relationship" existed between the therapist and
patient which required the therapist to take action
for the benefit of a third person, and extensively
quoted the Nebraska Lipari decision. In
so doing the Court again countered arguments about
the difficulty of predicting dangerousness:
The Court recognizes that it may be difficult
for medical professionals to predict whether a
particular mental patient may pose a danger to
himself or others. This factor alone, however,
does not justify barring recovery in all situations.
The standard of care for health professionals
adequately takes into account the difficult nature
of the problem faced by psychotherapists. . .
. The Court is of the opinion that the difficulty
in predicting dangerousness does not justify denying
recovery in all cases.
Again, quoting Lipari favorably:
To summarize, this [Nebraska] Court is of the
opinion that under Nebraska law the relationship
between a psychotherapist and his patient gives
rise to an affirmative duty for the benefit of
third persons. This duty requires that the therapist
initiate whatever precautions are reasonably necessary
to protect potential victims of his patient. This
duty arises only when, in accordance with the
standards of his profession, the therapist knows
or should know that his patient's dangerous propensities
present an unreasonable risk of harm to others.
As noted, while the Durflinger court contributed
a great deal of discussion concerning a duty to
warn, its actual decision involved liability for
the negligent release of a patient with violent
propensities. However, in 1984, the 10th
Circuit Federal Court of Appeals was called upon
to decide whether liability in Kansas could be
predicated upon a therapist's failure to warn
or failure to detain based upon a special relationship.
* * *
The case of Beck v. Kansas University Psychiatry
Foundation, arose out of the following situation:
Boan, a disturbed former prisoner and former mental
patient walked into the emergency room at the
KU Medical Center and fired three shotgun blasts,
killing two people. In a lawsuit that followed
this incident, plaintiffs alleged negligence by
defendants for failure to take precautions to
deal with the violent and dangerous propensities
of a former patient. One of the precautions plaintiffs
claimed was a duty to warn others. Looking directly
at the discussion in Durflinger, the federal
court said:
[T]he Kansas Supreme Court in Durflinger,
through its approval of Tarasoff v. Regents
of University of California and Lipari
v. Sears, Roebuck & Company, gave a strong
indication that Kansas would allow liability for
failure to warn.
The federal district court then determined, under
the facts of the case, that the plaintiffs had
stated a legally sufficient claim of duty to warn
and the case should go forward to trial. However
(for reasons not important to this discussion),
the plaintiffs dismissed the federal court case
and re-filed their lawsuit in Kansas state court.
The case eventually reached the Kansas Supreme
Court which viewed the "duty to warn" issue somewhat
differently than the federal district court had.
Instead of relying on Tarasoff and its
Kansas progeny, the Durflinger case, the
Court looked to the 1984 Kansas case of Cansler
v. State. The Cansler situation involved
seven armed and dangerous convicts who had escaped
from Kansas State Penitentiary, a fact not disclosed
to law enforcement agencies in the area. There
the Court had based its ultimate decision on a
common-law duty imposed upon all who take charge
of persons extremely dangerous to others and had
held that failure of the State to give prompt
warning to nearby law enforcement agencies constituted
a breach of a duty to warn.
In the case before it now, Beck, the Court
determined that the KU Medical Center did not
take charge of Boan and did not have custody or
control over him at any time after his release
from the penitentiary or at the time he entered
the Medical Center with shotgun in hand. Therefore,
the Court said, the common law did not impose
upon the Medical Center the duty to warn which
was found applicable in Cansler. Further,
the Court stated:
Simply because Boan had assaulted Medical Center
personnel some years before, such remote acts
would not form a basis upon which the Center could
reasonably be expected to have anticipated this
occurrence, taken steps to prevent or forestall
it, or warned all persons who came into its building
that Boan might strike at any time.
Thus the Court concluded:
Boan threatened to commit or committed acts of
violence at the Medical Center some years before
the present incident, but there is no claim that
the University police or any other employees of
the Medical Center knew or should have known,
immediately prior to the March 20 shooting incident,
that Boan was armed and approaching the emergency
facility.
In other words, because KU Medical Center was
not a custodial setting in relation to Boan and
Boan's acts of violence were not reasonably foreseeable
to the Medical Center, a duty to warn others was
not triggered.
* * *
Throughout the 1970's and 1980's Nolan Prewett
received both inpatient and outpatient treatment
at various Veterans Administration medical centers
where he incessantly exhibited violent and sexually
deviant behavior, repeatedly attacking patients
as well as members of his family.
Eight days after he was discharged in the mid-80's,
he raped, sodomized and killed a three year old
girl and her six year old sister. Within weeks
prior to his discharge, he had acknowledged fantasies
about little girls, experienced nightmares of
combat scenes in which people were killed, and
expressed a desire to purchase a shotgun. Further,
just prior to his discharge, a VA doctor identified
the young sisters as potential targets of Prewett.
Surviving family members sued the VA in federal
court on a number of legal theories, including
breach of a duty to warn. The federal district
court was thus again called on to determine whether
Kansas courts would find a duty to warn under
the facts of the case. The federal court noted
that the Kansas Supreme Court had made reference
to the "special relation rule" in five earlier
cases. Using this approach, the federal court
found that the psychotherapist-patient relationship,
as a "special relationship," was a sufficient
basis for imposing on the therapist an affirmative
duty to warn for the benefit of other persons.
Citing Tarasoff, Durflinger, Lipari, and
a New Jersey case, the federal court determined
that Kansas would, however, consider "foreseeability"
in determining whether to impose liability for
breach of a duty to warn. The court thus held:
We are of the opinion that the Kansas Supreme
court would adopt the section 315 Restatement
approach and would limit the liability of defendant
to those persons who were foreseeably endangered
by the alleged negligence of the VA. Thus, [defendants]
must establish that the VA psychiatrists or therapists
who treated Nolan Prewett should have determined
under the applicable standards of their profession
that Prewett posed an unreasonable risk of harm
to [the sisters], or a class of persons of which
[the sisters] were members.
Whether the VA's employees should have foreseen
the unreasonable risk of harm to other persons
[specifically the young sisters], the court said,
was a question of fact for jury determination
at trial.
* * *
In 1993 the Kansas Department of Corrections
was sued for an incident arising from one prisoner's
attack on another prisoner. In the ensuing appeal
the Kansas Court of Appeals discussed what is
meant by "forseeability" in the context of a duty
to warn case:
Forseeability, for the purpose of proving negligence
[i.e. breach of a duty], is defined as a common-sense
perception of the risks involved in certain situations
and includes whatever is likely enough to happen
that a reasonably prudent person would take it
into account. An injury is forseeable so as to
give rise to a duty of care [i.e. a duty to warn]
where a defendant knows or reasonably should know
that an action or the failure to act will likely
result in harm.
* * *
Ron Boulanger suffered a brain injury while a
teenager, resulting in physical and mental disabilities.
In the late 1980's he became preoccupied with
religion and believed that his uncle was the devil
incarnate, at one time physically assaulting his
uncle. He was voluntarily hospitalized on three
occasions and subsequently transferred to an intermediate
care facility (not a mental health treatment center)
on a voluntary basis. At the time of the transfer
he was not considered dangerous to himself or
others. The purpose of the transfer was to provide
him with a structured environment, daily medication
monitoring and training in independent living
skills. While there, he did not exhibit any homicidal
or suicidal ideation, nor any intention to harm
his uncle. Upon discharge, he went to live with
his father. Despite the uncle's extreme reluctance,
the father persuaded the uncle to enter the home
while Ron was present. The uncle became apprehensive
in Ron's presence and attempted to leave, but
the father insisted that he stay. Ron left the
room, returned a few minutes later with a shotgun
and shot his uncle.
The uncle sued the treating psychiatrist who
monitored Ron's medication at the intermediate
care facility asserting, among other claims, a
duty to warn him of Ron's discharge. The issue
ultimately came before the Kansas Supreme Court.
The Court first noted that an affirmative duty
to protect third persons from harm based on the
"special relationship" analysis has been recognized
in Kansas. The Court further specifically noted
that each of the cases recognizing a special relationship
were fact specific and the results reached were
dictated by the facts in each case.
Then, assuming without deciding, that a duty
to control might be applicable under certain circumstances
to the relationship between a psychiatrist and
a voluntary patient, the Court concluded that
under the facts of this case a special relationship
did not exist. Thus there was no special relationship
that supported a duty to warn (as an extension
of a duty to control the conduct of another) as
alleged by the uncle.
This conclusion was based on the facts that Ron
was a voluntary patient, free to leave at any
time; that he was referred to an intermediate
care facility for structured living, medication
monitoring and independent living training, and
not for intensive psychotherapy or psychiatric
treatment; and most importantly that the uncle
was well aware than Ron had been a threat to him
in the past and was capable of violence. The Court
found that the uncontroverted facts established
that the uncle was fully apprised of the danger
posed by Ron, and very clearly held:
The duty to warn does not arise when the victim
already knows of the danger.
* * *
In a 1996 case some bicyclists were injured when
they were struck by a car driven by a woman who
fell asleep at the wheel. The woman had suffered
from an excessive sleep disorder for years and
was aware that she might become drowsy while driving.
The bicyclists sued the motorist's physician,
alleging negligence on his part for failing to
warn the patient not to drive. The Court reviewed
prior cases that had addressed "special relationships"
in the context of a duty to warn claim, and in
language limiting the duty to warn, reached the
following conclusions:
None of the Kansas cases in which a "special
relationship" has been found concern medical doctor/outpatient
relationships.
A section 315 duty [special relationship triggering
duty to warn] has been imposed only in situations
involving a dangerous person in a custodial setting.
A duty owing under section 315(a) has been found
only in situations in which the party owing the
duty did have the ability or right to control
the third person causing the harm.
Citing the Boulanger case, the Court found
no special relationship between the doctor and
his outpatient and further reiterated the principle
that there is no duty to warn someone of what
they already know.
* * *
In a 1997 case, the Kansas Supreme Court affirmed
the Court of Appeals understanding of "foreseeability"
by reiterating what was stated in the 1993 Cupples
case:
Foreseeability, for the purpose of proving negligence,
is defined as a common-sense perception of the
risks involved in certain situations and includes
whatever is likely enough to happen that a reasonably
prudent person would take it into account. An
injury is foreseeable so as to give rise to a
duty of care where a defendant knows or reasonably
should know that an action or the failure to act
will likely result in harm.
* * *
In the late 1990's, a young woman employed at
a restaurant was raped and killed by a co-worker,
a parolee who had been conditionally released
from prison. Her parents sued the Kansas Department
of Corrections and the parole officer, claiming
in part that the department and the parole officer
breached a duty to warn their daughter of the
parolee's dangerous propensities.
On appeal, the Kansas Supreme Court reiterated
that generally, in the absence of a "special relationship,"
there is no duty to control the conduct of a third
party to prevent harm to others. The Court noted
that a special relationship may exist with persons
in charge of one with dangerous propensities or
persons having custody of another. Whether such
a "special relationship" existed between a parole
office and his parolee and, if so, whether a duty
to warn was triggered, were the issues before
the Court.
Concerning the "special relationship" issue,
the Court recognized that it had only imposed
a duty to control the conduct of third persons
in situations that involved dangerous persons
in a custodial setting, and relied on the Boulanger
case for the following:
[W]e have previously rejected application of
the theory to create a duty on the part of a psychiatrist
to control a patient or warn others of his or
her dangerous propensities, finding no special
relationship.
The Court then concluded that a special relationship
did not exist between the parole officer and parolee;
thus no duty was imposed on the parole officer
to control the parolee's conduct to prevent him
from causing harm to other person. However, the
Court continued, even if a special relationship
were recognized, the issue of whether the duty
to control extended to a duty to warn potential
victims would need to be resolved. In addressing
this issue, the Court emphasized the importance
of remembering that the present case did not involve
a situation where any specific threat of harm
had been directed against any certain individual
or ascertainable group. After reviewing prior
"special relationship" duty to warn cases under
section 315 of the Restatement, the Court held:
[E]ven if a special relationship existed to control
the conduct of [the parolee], the Kansas Department
of Corrections and [the parole officer] owed no
duty under section 315 to warn [the female co-employee]
about [the parolee's] dangerous propensities in
the absence of an express threat.
* * *
A patient, diagnosed as a chronic schizophrenic,
had been committed to Osawatomie State Hospital
primarily based on a determination of dangerousness
to himself due to poor judgment and poor impulse
control. After about a month, he was granted a
temporary off-grounds pass. Within the 24 hours
prior to his pass, the patient had not exhibited
any behavior that warranted revocation of the
pass. While on pass and a passenger in his mother's
car, the patient grabbed the steering wheel of
the car, causing it to veer into the path of on-coming
traffic. His mother was injured and the driver
of the on-coming car was killed. The inevitable
lawsuit followed, with the mother and surviving
family of the on-coming car's driver claiming,
in part, that the hospital, nurses and psychiatrist
had a duty to control the patient and to prevent
him from harming others, and that duty extended
to a duty to warn.
On appeal, the Court applied the legal principle
that as a general rule, in the absence of a "special
relationship," there is no duty on an actor (i.e.
hospital, nurses, psychiatrist) to control the
conduct of a third party (i.e. patient) to prevent
harm to others. Thus, for the hospital, nurses
and/or psychiatrist to be liable, they must have
had a duty to the mother and driver on the on-coming
car to control the patient and prevent him from
harming others. Was there any such duty? Somewhat
evading that question and relying heavily on the
rationale in the Schmidt case, the Court
stated:
Even if this court found that a special relationship
existed, the question of whether the duty to control
extends to a duty to warn potential victims would
remain. . . . In the case at hand, there is sufficient
evidence that [the patient] never had dangerous
propensities towards others, only toward himself.
Thus, following the Schmidt holding, even
if we determined that [the patient] did have dangerous
propensities, the record provides no evidence
of any express threat to [the mother] or [the
driver of the on-coming car], or any threat at
all.
In conclusion, the defendants [hospital, nurses
and psychiatrist] did not have a special relationship
with plaintiffs [the mother and the driver of
the on-coming car], and thus, did not owe them
a duty greater than the duty they owed the public
at large.
* * * * *
Discussion
In Tarasoff a patient had confided in
his psychotherapist that he intended to kill his
girlfriend. The therapist did not warn the young
woman, and the patient carried out his stated
intention. The therapist was held liable for breach
of a duty to warn the girlfriend of the impending
danger posed by the patient. "When a therapist
determines, or pursuant to the standards of his
profession should determine, that his patient
presents a serious danger of violence to another,
he incurs an obligation to use reasonable care
to protect the intended victim against such danger."
In the quarter century since the Tarasoff
decision, a comparable factual scenario has not
been presented to either of the Kansas appellate
courts. Thus no "on point" case law has been established
in Kansas. While the Kansas appellate courts have
been presented with asserted failure to warn claims
in varying situations, the courts have curtailed
any proposed expansion of a Tarasoff doctrine.
The courts have limited acknowledgment of a "special
relationship" that may trigger a duty to warn
to those relationships established in a custodial
setting, such as a prison or an involuntary commitment
setting. Even then, for a duty to warn to be imposed,
a threat that poses a foreseeable danger to an
identifiable person or persons must be expressed
by the patient. Finally, a duty to warn is not
imposed if the person is already aware of the
danger.
That being said, it is important to note that
in several of the decisions discussed, the Court
was careful to leave the liability door open by
indicating that duty to warn cases (as with all
negligence cases) are fact specific. While the
Court has not appeared inclined to expand a Tarasoff
doctrine, it is not unreasonable to assume that
in a comparable fact situation, the Court would
adopt the Tarasoff reasoning as a basis
for liability of a mental health therapist.
It appears to come down to this: If a therapist
must choose between maintaining confidentiality
or warning an identifiable person of an express
threat of violence made by a patient, the therapist
would be well served by choosing to protect that
person's life. If there should be a subsequent
lawsuit or complaint to the licensing board by
the patient for failing to maintain confidentiality,
it is difficult to imagine that the choice of
saving a life would not be a valid defense. Conversely,
if a patient's expression does not rise to the
level of a specific threat of violence to an identifiable
person, it appears that the therapist may maintain
the confidential nature of the relationship without
fear of a successful lawsuit based on breach of
a duty to warn.
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