Deconstructing the Duty to Warn Doctrine
By Hon. Nathaniel Schlicher, MD, JD, MBA, FACEP
Associate Director, TeamHealth Patient Safety Organization; Regional Director of Quality, TeamHealth Northwest; Emergency Physician, St. Joseph’s Medical Center, Tacoma, WA
Dr. Schlicher reports no financial relationships relevant to this field of study.
The enigma of the rights of the individual vs. the rights of society has confounded ethicists, philosophers, lawmakers, and artists for millennia. In medicine, the duty to warn in the setting of the care for mental health patients is our professional personification of this societal tension. The duty to warn doctrine, often referred to by the foundational Tarasoff case,1 is a classic ethical quandary presented to every medical student in their training. The fundamental dilemma posed in these cases is the intersection between the individual right to privacy as expressed by the confidentiality of the physician-patient relationship and the physician’s duty to warn the broader public of potential danger and harm.
It has been the generally accepted standard that a provider must warn a third party of the potential harm from a patient when there is significant threat of harm toward a reasonably identifiable person. The delicate balance of these ethical challenges has come under recent assault in Washington in the case of Volk v. Demeerleer.2 The court effectively disemboweled the sacredness of the physician-patient relationship in the name of the greater hypothetical good, no matter how vague, unforeseeable, and remote it may be. How shall we care for patients and uphold our Hippocratic oath in these trying times?
The Volk case, like so many involving mental health patients, arises out of a tragedy that cannot be dismissed easily. A psychiatrist accused of malpractice started caring for a patient in 2001 for bipolar depression. He treated the patient intermittently when the patient sought care for his disorder, helping him manage his depression through a difficult divorce, family estrangement, work instability, and other life stressors. Like many with bipolar depression, the patient was somewhat compliant with his medications and sometimes would go for long stretches without regular care.
The patient expressed suicidal and homicidal thoughts to his psychiatrist intermittently, but he never acted on them. The patient last expressed homicidal thoughts about his ex-wife and her new boyfriend to his psychiatrist in 2005. The patient never attempted to harm his ex-wife or her boyfriend, and went on to enter into a new and successful relationship that resulted in an engagement, pregnancy, and shared living arrangement with his partner and her three children.
Tragically, in July 2010, the patient murdered his recently estranged fiancée and one of her sons and seriously injured another. He had not seen his psychiatrist since April 2010, at which time he was working on his relationship with his significant other and managing some mildly intrusive suicidal thoughts. At no time had the patient expressed homicidal thoughts toward the victims. The court record reflected that “family members, friends, and acquaintances who visited [the patient] shortly before the incident gleaned no indication of any plan to kill someone or to commit suicide. Many expressed shock at the deaths.”2 The families of the victims sued the psychiatrist for medical malpractice despite not being his patients, claiming that the homicidal and suicidal behavior was foreseeable and preventable.
Crystal Ball Required Foreseeability
The court found that the duty to warn extended to any foreseeable victims, not just those readily identifiable. The court relied on the prior case of Petersen v. State,3 decided shortly after Tarasoff, which expanded the duty to warn to any foreseeably endangered patient, holding that the issue of foreseeability was an issue of fact for a jury to decide.4 This is in spite of the fact that the court acknowledges that commentators and most other courts have criticized the decision for its overly broad duty implications. Furthermore, the court acknowledges that the legislature, by statute, narrowed this duty for involuntary commitment patients to warn those that the “patient has communicated an actual threat of physical violence against a reasonably identifiable victim or victims.”5 The Volk decision instead holds that the duty for voluntary outpatient treatment extends more broadly than in the setting of involuntary treatment to include all foreseeable victims.
This is a truly astonishing standard and wholly impractical in the real world. Arguably, a clinician must warn anyone with a nexus to the patient who could become a victim at any time in the future. Herein, the patient had not expressed homicidal thoughts in five years, never to this victim, and had no imminent threat of harm, according to those in his life. How would the psychiatrist meet the standard? Notify any new significant other in a patient’s life that the patient had made previous statements of homicidal thoughts to an ex-spouse and her new boyfriend? Maybe post a comment on their Tinder, Facebook, or Snapchat accounts for all to see of their homicidal flights of fancy? Or possibly take out a newspaper ad if their thoughts are more of a general societal nature? One cannot think of a more destructive standard to undermine the physician-patient relationship.
The supremacy clause of the U.S. Constitution provides that HIPAA overrules any conflicting statute or court finding regarding the protection of patient privacy in medical care. HIPAA specifically allows for the disclosure of patient information in the setting of “serious and imminent threat.”6 In fact, a three-part test is required for disclosure (45 CFR 164.512(j)(1):
- “Necessary to prevent or lessen”;
- “A serious and imminent threat to the safety of a person or the public”;
- “Disclosure is only to a person(s) reasonably able to prevent or lessen the threat, including the target of the threat.”
This standard appears to be significantly narrower than the application made by the court to the foreseeable threat standard created by the court. When applied to the case at hand, it is hard to imagine that a patient without homicidal ideation in five years and no imminent threat to a specific target would meet the requirements of HIPAA for disclosure. As such, the supremacy clause would require that the court comply with the HIPAA standard and bar disclosure, not demand it.
Hope on the Horizon
While the Volk case is concerning, it is not alone. In the past, other courts have ruled similarly with a broad duty to warn any foreseeable victims.7 Yet, most of these cases have been overturned by subsequent case law and statute. Of 44 jurisdictions with cases on point, 41 have come down on the side of the narrowed duty of imminent, foreseeable, and specifically identifiable victims, with the exceptions of Tennessee, Wisconsin, and Vermont.8 As a result, most clinicians will be subjected to the traditional medical school teaching of the balanced duty to warn. Motions for reconsideration and legislative efforts are underway in Washington to overturn the Volk decision to bring the state in line with the overwhelming majority of states. Yet, that future remains uncertain and underscores the importance of understanding your state’s duty to warn doctrine and engaging in the process to address overly broad and harmful standards that pose existential crises to the physician-patient relationship.
If a provider resides within one of the states that now has a “foreseeability” standard that may violate HIPAA standards, guidance is speculative at best. But, as with most evolving areas of health law, it can be reasonably recommended that providers should document their determination of the risk associated with any complaints of homicidal ideation. Furthermore, documentation of the lack of identifiable victims and foreseeable harm potentially could help a provider in their defense of a patient with vague suicidal and homicidal ideation. Arguably, the only definitive protection would be to refer all cases of threatened harm to others for involuntary commitment to qualify for the higher protections afforded them under statute. This would overburden an already-taxed system and, in the aggregate, possibly do more harm to the whole of the psychiatric population than good. Thus, thorough documentation should be the target of providers in these challenging states.
The care of psychiatric patients is one of the most challenging parts of emergency medicine. With no good risk stratification tools, limited mental health resources in many of our states, and exploding need, decisions like this can seem to turn the difficult into the impossible. Yet, even in these difficult times, we can take some solace in the fact that these are the ethical dilemmas that philosophers have wrestled with for much of our history. We must remain engaged not only in the care of our patients but the education of lawyers, judges, and the greater society on the cost and benefits of these types of decisions. On their surface, they advance the idea of protecting society, but deep down they erode the trust between patients and their providers. We can only hope that cooler heads will prevail and reasonable solutions can be found.
- Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976).
- Volk v. Demeerler, 184 Wash. App. 389 (2014).
- Petersen v. State, 100 Wash.2d 421, 671 P.2d 230 (1983).
- Bernethy v. Walt Failor’s, Inc., 97 Wash.2d 929, 933, 653 P.2d 280 (1982).
- Washington State Legislature. RCW 71.05.120. Available at: . Accessed May 22, 2017.
- U.S. Department of Health and Human Services. Disclosures for Public Health Activities, HIPAA, 45 CFR 164.512(b). Available at: . Accessed May 22, 2017.
- Schuster v. Altenberg, 144 Wis. 2d 223 (1998), Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185 (D. Neb., 1980).
- Turner v. Jordan, 957 S.W.2d 815 (Tenn., 1997), Schuster v. Altenberg, 144 Wis.2d 223,233, 424 N.W.2d 159 (1988), Kuligoski v. Brattleboro, 216 WL 5793088 (Sept 2016).
It has been the generally accepted standard that a provider must warn a third party of the potential harm from a patient when there is significant threat of harm toward a reasonably identifiable person. However, the delicate balance of these ethical challenges has come under recent assault.
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