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The Duty to Warn Third Parties in Emergency Medicine
By Jason D. Heiner, MD, MC, USA, Department of Emergency Medicine, and Gregory P. Moore, MD, JD, Attending Physician, Emergency Medicine Residency, Madigan Army Medical Center, Tacoma, WA.
The confidential nature of the therapeutic relationship between physician and patient is an integral component of the practice of medicine. The landmark Tarasoff case established a legal duty for a physician to breach this confidential relationship to warn third parties from foreseeable violence. In this article, the authors review this case and how the duty to warn third parties has extended beyond cases involving violence to include foreseeable harm from medication side effects and infectious disease.
Origins of the Concept
An expectation of confidentiality between physician and patient is an essential component of the therapeutic relationship. This duty to maintain confidentiality enables the transfer of potentially sensitive patient information to best serve the patient. The landmark case of Tarasoff v. Regents of University of California established a new duty for a physician to warn a third party regardless of this obligation of confidentiality, concluding that the "protective privilege ends where the public peril begins."1
In 1969, Prosenjit Poddar was briefly detained by campus police on the request of his psychologist, Dr. Moore, after confiding his intention to kill Tatiana Tarasoff. Neither the victim nor her parents were warned before Poddar successfully carried out his deadly threat. In Tarasoff v. Regents of University of California (1976), Tatiana Tarasoff's parents argued to the California Supreme Court that their daughter's death occurred after Dr. Moore and others negligently failed to warn them.1 They alleged that the therapists predicted that Poddar would kill, and that harm to a third party (Tatiana) was foreseeable. The court found that the therapists not only had a duty to their patient, but also had a duty to warn a third party of foreseeable violence.
The physician's duty to warn a third party of violence has been subsequently supported since Tarasoff. In Dorothy McGrath et al v. Barnes Hospital, et al, a paranoid schizophrenic being treated in an inpatient setting admitted several times to having thoughts of stabbing his mother.2 Reportedly, he had made this statement many times in the past, so no attempt was made to warn his parents. The night that he was released to the care of his parents, he stabbed both of them, killing his father and severely injuring his mother. The hospital was sued by the patient's mother for failure to warn. She was awarded $2 million, despite a defense that the family was already aware of this risk of violence given his long history of mental illness.
Key to these cases are the issues of foreseeability and the special relationship existing between a physician and his or her patient. The Tarasoff decision declared that the physician has a duty not only to the patient, but also to other third parties. In the cases described above, the threats of violence created foreseeable harm to a readily identifiable victim. This concept of foreseeable danger to a third party can be applied even when a victim is not readily identifiable. For example, if a patient declares, "I am going to kill someone in the hospital microbiology lab," this threat is not specific but does indicate a foreseeable danger. However, if the same patient declared, "I am going to kill someone in the United States Army," a non-specific threat without useful foreseeability has been made. It would be practical to warn a small lab, but not the entire United States Army. The concept of foreseeable danger has also been applied when harm has been due to the consequences of medications and infectious disease rather than violence.
Tarasoff on Medications
Courts have variably applied the Tarasoff concepts to subsequent cases regarding harm secondary to medications. In the Tarasoff opinion, it was stated not only that "a hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons," but also that 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."1 This opinion was honored in Myers v. Quesenberry (1983) after a diabetic patient who was prescribed insulin struck a pedestrian during a hypoglycemic episode.3 When the third party pedestrian argued that he was a foreseeable victim, liability was imposed on the doctor who did not warn the patient of a potential impaired ability to drive secondary to her condition.
Alternatively, the Tarasoff opinion has been dismissed in similar contexts. In Kirk v. Michael Reese Hospital and Medical Center (1987), a patient prescribed fluphenazine and chlorpromazine consumed alcohol and struck a tree while driving, injuring the car's passenger.4 The passenger sued the prescribing physician, but liability was not imposed on a physician when the court found that the physician had no duty to the passenger, who was not a foreseeable victim.
In a recent case, McKenzie v. Hawaii Permanente Medical Group, Inc. (2002), the Tarasoff opinion was again upheld.5 Three days after being prescribed prazosin hydrochloride to treat hypertension, a patient fainted while driving and struck a pedestrian, Kathyrn McKenzie. The court ruled that a "physician owes a duty to non-patient third parties injured in an automobile accident caused by an adverse reaction to the medication prescribed.where the physician has negligently failed to warn the patient that the medication may impair driving ability and where the circumstances are such that the reasonable patient could not have been expected to be aware of the risk without the physician's warning."
Tarasoff on Infectious Diseases
Tarasoff stated that "a doctor is liable to persons infected by his patient if he negligently fails to diagnose a contagious disease, or, having diagnosed the illness, fails to warn members of the patient's family."1 In this context, the Tarasoff opinion was honored in DiMarco v. Lynch Homes- Chester County, Inc (1990).6 In this case, a physician counseled a patient (a lab technician accidentally exposed to hepatitis B after a needle stick) to refrain from sexual relations for six week, and that if she was symptom-free for six weeks, she was not infected with the virus. After eight symptom-free weeks, she resumed sexual relations with her boyfriend and both the patient and her boyfriend were later found to be infected with hepatitis B. The patient's boyfriend alleged negligence in failure to warn that sexual relations within six months could expose him to the disease. The court found that the physician's duty encompassed such a third party who was "within the foreseeable orbit of risk of harm" to such a sexually transmitted disease.
In Britton v. Soltes (1990), the Tarasoff precedent in the context of infectious disease was not accepted.7 In this case, a doctor was charged with negligence after failing to diagnose a man with tuberculosis whose ex-wife and children later contracted the disease. While the man did live near his ex-wife and children and visited them often, the court concluded that the physician did not have a special relationship with the patient's family. They stated that "the defendant's duty of care will not be so extended, since there is no indication of the point where the duty would end."
Recently, in McNulty v. City of New York (2003), a friend of a patient with infectious meningitis alleged that she approached doctors who had treated the patient and asked whether she needed prophylactic treatment.8,9 She claimed that the doctors did not counsel her to seek treatment and the physicians who were sued claimed that she was told to see her personal doctor. She was subsequently diagnosed with meningitis and suffered serious hearing loss. A lower court found that the doctors had a legal duty to warn the friend. However, on appeal it was ruled the injury did not result from the doctors' performance of the duty of care owed to the patient with meningitis, and no relationship was established.9
Conclusion and Recommendations
The Tarasoff case has implications beyond the duty for physicians to warn third parties of foreseeable violence. The courts continue to honor the Tarasoff opinion in other areas of public health, such as harm to third parties due to medication side effects and infectious disease. It behooves clinicians to be familiar with their states' laws, as not all states honor this decision and disagreement may even exist within a state. Fortunately, a simple alternative would be for physicians to educate a patient about their disease, the potential serious medication side effects, the risks of their infectious disease, to inquire about others who may be at-risk close contacts, and make a reasonable attempt to warn a third party of when a real threat appears to exist. Realize that this liability can be shifted to the patient themselves by simply directing and optimally documenting, "you should not drive or do dangerous activities while on this medication," or "you should warn others of your infectious disease and avoid exposing others to your infectious disease." With this in mind, it is not an unreasonable burden to comply with the intent of Tarasoff regardless of a state's current opinion of this landmark case.
1. Tarasoff v. Regents of the Univ. of Cal., 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14, 1976.
2. Dorothy McGrath et al v. Barnes Hospital et al. Medical Malpractice: Verdicts, Settlements, and Experts. 2000;16:54.
3. Myers v. Quesenberry, 144 Cal. App. 3d 888, 193 Cal. Rptr. 733, 1983.
4. Kirk v. Michael Reese Hospital and Medical Center, 117 Ill. 2d 507, 513 N.E.2d 387, 1987.
5. McKenzie v. Hawaii Permanente Medical Group, Inc., No.23268, June 10, 2002.
6. DiMarco v. Lynch Homes-Chester County, Inc., 525 Pa. 558, 583 A.2d 422, 1990.
7. Britton v. Soltes, 563 N.E.2d 910 (Ill.App.), 1990.
8. McNulty v. City of New York, No. 4927 (1st Dept.), May 21, 2002.
9. Mary Ann McNulty v. The City of New York, et al, NY Int. 65, May 13, 2003.