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Physician duty to report danger: The case of Tatiana Tarasoff
Patients sometimes confide intimate details of their lives to physicians. This circumstance is one of the privileges of our profession; patients relate their weaknesses to trusted professionals, and seek an empathetic ear. But, what if the revelation by a patient constitutes danger and risk to another party? If so, must the medical professional inform others, outside the physician-patient relationship, in order to protect potential victims who might be harmed by the patient? For an answer, we examine the now famous case of Tarasoff v. Regents of the University of California, a case the set forth the foundations of the physician duty to warn.
Facts of the case
Prosenjit Poddar, a foreign graduate student, came to the University of California (UC), Berkeley, from Bengal, India, in 1967. At Berkeley, he met Tatiana Tarasoff at a folk dancing class. Poddar and Tarasoff met regularly thereafter. On New Year’s Eve, Tarasoff kissed Poddar. Poddar interpreted the act to to signify a serious romantic relationship.
Tarasoff did not reciprocate this view. After some initial dating, once Tarasoff realized how serious Poddar was about her, she tried to make it clear that she was dating other men, and that she was not interested in furthering her relationship with Poddar. Poddar reportedly began to stalk Tarasoff and became depressed. Over time, his studies and health suffered. Throughout the spring and summer of 1969, he had occasional meetings with Tarasoff, tape-recording their conversations and replaying them to figure out why she rejected him. During the summer of 1969, Tarasoff went to Brazil and Poddar seemed to improve.
B. Sonny Bal
Lawrence H. Brenner
At the pleadings of his friends, Poddar sought help from Dr. Lawrence Moore, a psychologist at UC Berkeley’s Cowell Memorial Hospital. During therapy, Poddar confided that he had thought about killing, although Tarasoff was never identified specifically. Concerned, Moore reported this information to the UC Berkeley campus police and asked that they detain Poddar, because, according to the written impression of Moore, Poddar was suffering from paranoid schizophrenic delusions.
Campus police detained Poddar, and released him shortly thereafter since he appeared entirely rational. Moore’s supervisor, Dr. Harvey Powelson, also concurred with this action, and ordered that Poddar not be subject to further detention. By the time Tarasoff returned from her travels in October, Poddar had stopped seeing his psychologist. Neither Tarasoff, nor her parents, were informed that Poddar had revealed an intention to kill.
Poddar then befriended Tarasoff’s brother and, for a time, was his roommate. On Oct. 27, 1969, Poddar stabbed and killed Tarasoff at her home. After the killing, Poddar called the police, confessed and asked to be handcuffed. Tarasoff’s parents sued Moore and other employees of the University, in a legal action that would be memorialized as Tarasoff v. Regents of the University of California.
Legal actions
At the trial court, the complaint was dismissed on legal grounds that the plaintiffs had failed to specify a legitimate reason to sue the defendants, given the confidentiality between a doctor and patient. The court believed the doctor had a duty only to his patient and not to any third-party attendant to the doctor-patient relationship. The Tarasoffs appealed, but the California appeals court concurred with the decision of the trial court. Tarasoffs next appealed to the California Supreme Court.
In 1974, the California Supreme Court reversed the holdings below, and held that the trial court must hear the case. In that ruling, known as Tarasoff I, the court reasoned that a therapist has a duty to use reasonable care to give threatened persons warnings that are essential to avert foreseeable danger. In other words, the court held that Moore had an affirmative duty to tell Tarasoff that she was in danger, given Poddar’s stated intent to kill.
The medical community and policemen protested against this decision, since Tarasoff I meant that both police and mental health professionals were obligated to warn potential victims. In a highly unusual move, the California Supreme Court reheard the case in 1976. That ruling, known as Tarasoff II, clarified that while police could not be held liable, “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 response to how a physician is supposed to protect a victim, as opposed to simply warning the victim, the court said that,“The discharge of this duty may require the therapist to take one or more of various steps. Thus, it may call for him to warn the intended victim, to notify the police, or to take whatever steps are reasonably necessary under the circumstances.”
Judicial reasoning
The court reasoned that doctors had been held liable for negligent failure to diagnose a contagious disease or failing to warn family members of it. Defendants countered, through amici briefs, including an American Psychiatric Association brief, that psychiatrists were unable to accurately predict violence. The court conceded that it did not require therapists to render a perfect performance, “but only to exercise that reasonable degree of skilled care ordinarily possessed by members of their profession under similar circumstances.” While proof, aided by hindsight, is insufficient to establish negligence, the court said that in Tarasoff, the therapist did accurately predict Poddar’s danger of violence.
The court tried to address the difficult tension between the conflicting interests of patient and potential victim. As a social policy, the court said the risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that might be saved. One of the famous quotes from Tarasoff is that of Justice Mathew O. Tobriner who wrote the majority opinion: “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.”
Outcome of Tarasoff
The civil portion of the case was settled out of court for a significant sum of money and never went to trial. Poddar was subsequently convicted of second-degree murder, and served 4 years of a 5-year prison sentence for manslaughter. His conviction was later appealed and overturned on the grounds that the jury was inadequately instructed on his mental capacity. A second trial was not held, and Poddar was released on the condition that he would return to India.
Predictions that the Tarasoff decision was an isolated, anomalous ruling would prove incorrect. In 1985, The California Supreme Court found that a mental health professional has a duty not only to a patient, but also to individuals who are specifically being threatened by a patient. The same year, the California legislature codified the Tarasoff rule: California law now provides that a psychotherapist has a duty to protect or warn a third party only if the therapist actually believed or predicted that the patient posed a serious risk of inflicting serious bodily injury upon a reasonably identifiable victim. The Tarasoff rule was later expanded by a California appeals court in two lawsuits stemming from a murder-suicide. Over time, Tarasoff has been adopted by most states in the United States and is widely influential in jurisdictions outside the United States.
The significance and relevance of Tarasoff is that the Supreme Court of California addressed a complicated area of tort law concerning the duty owed by a medical professional. The court’s analysis required a balancing test between the need to protect privileged communication between a physician and his patient, and the protection of the greater society against potential threats.
The dissent
In judicial cases where judgment is not unanimous, it is worthwhile to examine both sides of the argument. In Tarasoff, Justice Mosk wrote a partial dissent, arguing two things: that the rule in future cases should be one of the actual subjective prediction of violence on the part of the psychiatrist, which occurred in this case, not one based on objective professional standards, because predictions are inherently unreliable; and the psychiatrists notified the police, who were presumably in a better position to protect Tatiana than she would be to protect herself. Justice Clark also dissented, quoting a law review article that stated, “the very practice of psychiatry depends upon the reputation in the community that the psychiatrist will not tell.”
The progeny of Tarasoff
Robert Bierenbaum, a plastic surgeon, was convicted of murder in 2000 for the strangulation death of his wife, Gail Katz-Bierenbaum. Bierenbaum, a licensed pilot, took a 2-hour flight from Essex County, New Jersey over the Atlantic Ocean on the day that his wife vanished. He failed to mention this fact to authorities during their initial questioning. The prosecution stated that Bierenbaum discarded his wife’s dismembered body in the ocean. The body was never recovered.
Despite a witness testimony for the defendant who said that he saw the victim in a bagel shop during the time that Bierenbaum took his flight, Bierenbaum was sentenced to 20 years to life in prison. He appealed, but the conviction was upheld in the New York State Supreme Court in 2002.
Like Tarasoff, People of the State of New York v. Robert Bierenbaum was a landmark decision. Bierenbaum set a precedent on upholding physician-patient privilege, even when a Tarasoff warning is invoked: “Neither a psychiatrist issuing a Tarasoff warning nor a patient telling his friends he’s in treatment constitute a waiver of a patient’s psychiatrist-patient privilege.” The Bierenbaum case was later used as precedent in the California case of Glyn Sharf, where the accused was charged of murdering his wife, even though the victim’s body was never found. Circumstantial evidence consisted of the victim’s jewelry found under brush in the front yard of Scharf’s girlfriend, a woman the victim had never met.
In another case related to Tarasoff, Geno Colello was in psychotherapy with Dr. David Goldstein and was despondent over the breakup of his relationship with Diana Williams, who had recently begun dating Keith Ewing. Colello asked his father to loan him a gun. When his father refused, Colello said he would get another gun and “kill” the “kid” who was dating Williams. Colello’s father relayed this threat to Goldstein, who urged him to take Colello to Northridge Hospital Medical Center. Later that evening, a hospital social worker evaluated Colello. Colello’s father told the evaluator about his son’s threat. Colello was admitted to the hospital as a voluntary patient, but discharged the next day. The following day, he shot and killed Ewing and himself.
Ewing’s parents sued Goldstein and the hospital, alleging that Colello posed a foreseeable danger to their son and that Goldstein and the hospital were aware of the threat, but failed to discharge their duty to warn either Ewing or a law enforcement agency. At trial, Goldstein claimed he was not liable for failure to warn because Colello had never directly disclosed to him any intention to seriously harm Ewing. The hospital claimed that expert testimony was required to prove a psychotherapist’s liability for failure to warn and noted that the plaintiffs had no plans to present such testimony. The trial judge agreed with both arguments and granted summary judgment to the defendants.
On appeal, the California Court of Appeal held that the plaintiffs had a credible legal claim. Specifically, the court held that the defendants’ duty to warn could have been triggered by the statements Collelo’s father made to Goldstein and the social worker regarding his son’s threats. The court saw no difference between threats conveyed directly by the patient and those related by an immediate family member of the patient.
Tarasoff today
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Rulings subsequent to Tarasoff have extended its reach, both in California and other states, and have eroded the historically protected patient-physician confidentiality. Medical practitioners need to give careful thought to handling threats reportedly made by a patient, even if the threat is revealed to them by a relative of the patient. Indeed, while the California court did not reach the issue of threats reported by other third parties because that issue was not presented on the facts, the court did not rule out future extension of the Tarasoff doctrine to cover such cases.
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Disclosures: Bal and Brenner have no relevant financial disclosures.