HEALTH LAW SUPPLEMENT Fall 2007

Is there a “Tarasoff” duty to protect in New York State? This is perhaps the most discussed issue at risk-management seminars I give. The short answer is a qualified “probably.” The long answer follows.
The legal principle of the well-known Tarasoff case is simply stated. When a therapist knows that a patient is likely to harm a specific third party, the therapist has a duty to protect and warn the intended victim of the danger. The Tarasoff court, a California court whose ruling applies only in California, held that the duty to protect can include notifying the police and taking whatever other steps are reasonably necessary under the circumstances, Tarasoff v Regents of Univ of Calif, 551 P2d 334 (1976). Many states’ highest courts and legislatures reacted to the Tarasoff ruling with holdings or laws that adopt, sometimes with limitations, sometimes with expansions, its basic principle. In the 20 years since its appearance, the principle had been flatly rejected in only one state, Florida, Boynton v Burglass, 590 So2d 446 (1991).
No New York court has yet found a therapist liable for failure to protect or warn a third party. However, one New York court found that a breach of confidentiality by a therapist was justified when a therapist’s patient threatened a third-party. A psychologist working at a State facility told the police that his patient had threatened the life of the psychologist’s son’s schoolmate during a therapy session. The psychologist also called the schoolmate’s family and warned them about his patient’s dangerous intent. The patient sued for breach of confidentiality, but the court held that the psychologist was justified in breaching a confidence, Oringer v Rotkin, 556 NYS2d 67 (1st Dept 1990). In another case, a New York court stated without holding (and thus with little value as precedent or as guidance) that “where a patient may be a danger to himself or others, a physician is required to disclose to the extent necessary to protect a threatened interest,” MacDonald v Klinger, 446 NYS2d 801 (4th Dept 1982).
One New York statute does permit breaches of confidentiality to protect third parties. New York Mental Hygiene Law § 33.13(c)(6) permits releases of information without a patient’s consent by psychiatrists and psychologists working in State licensed facilities “to an endangered individual and a law enforcement agency when a treating psychiatrist or psychologist has determined that a patient or client represents a serious and imminent danger to that individual. The reasons for any such disclosure shall be fully documented in the clinical record. Nothing in this paragraph shall be construed to impose an obligation upon a treating psychiatrist or psychologist to release information pursuant to this paragraph.”
This law is significant for several reasons. First, it defines what type of danger must be presented before a breach of confidentiality can be justified, i.e., “a serious and imminent danger to an individual.” Second, it specifically does not impose an obligation to protect third parties, only permission to do so. Finally, it applies only to doctors working in State licensed facilities, and not to private practitioners. Some commentators have gone so far as to suggest that this statute indicates that New York has rejected any Tarasoff duty because an option is not a mandate.
An issue that’s legally related to whether psychotherapists have a duty to intended victims of violent patients is whether outpatient therapists have sufficient control over patients so that therapists’ actions, or lack thereof, might be legally viewed as a possible cause of harm to endangered third parties. In one New York case, an appellate court ruled that an outpatient counselor had no duty to warn a husband of his wife’s threat to him, Wagshall v Wagshall, 538 NYS2d 597 (2nd Dept 1989). The wife had shot her husband while they were in marriage counseling. The court seemed to base its decision on two findings; one, that the husband already knew of the wife’s threat to him (she had assaulted him before) and; two, that the wife was not under the control of the therapist, and therefor the therapist’s failure to warn the husband could not be legally viewed as a proximate cause of his injuries. This case can be seen as a rejection by one court of a Tarasoff duty, but it may also be limited by its peculiar facts.
So what is the answer to the question in the title of this article? I think it’s this: New York courts and our State legislature have not clearly decided whether a Tarasoff duty exists in New York, but there are enough suggestions in our cases and our law so that it’s probably safer for a therapist to act as if there is such a duty. (Supporting this position is a finding by New York’s highest court that, under some circumstances, a doctor can be liable to third parties for potential harm caused by the doctor’s care of a patient, similar to but not exactly the same as the underlying principle of the Tarasoff case, Tenuto v. Lederle Laboratories, 605 NYS2d 17 (1997). A physician was found negligent for failing to warn an immune-compromised father of risks to him of
administration of oral polio vaccine to his daughter.) Although New York courts and the legislature have not imposed a duty to protect and warn as yet, they have, in certain cases, removed the rationale formerly used for not acting when a third party was threatened, i.e., that it would be an unjustified breach of confidentiality. So the legal risk of protecting third parties, a suit for breach of confidentiality, is significantly lessened, while the legal risk of not protecting and warning third parties is potentially great. i.e., a suit for wrongful death.
So if you’re to assume that you have a duty to endangered third parties, when does it arise and how should it be carried out? The Mental Hygiene Law can be used to determine when an obligation may arise: when you know of a serious and imminent threat of danger to a specific person. It may also arise if you know of such a risk to a class of identifiable victims, e.g., see Fraser v US, 236 Conn 625 (1996). For instance, a patient may threaten to burn down his place of employment. In the latter type, you may not know names of intended victims, but they can nevertheless be identified.
It also may be helpful to illustrate when the duty may not arise:
■If you are treating a child molester who molests without planning, i.e., neither you nor he knows who his victims will be in advance, you may not have a legal duty to his victims. They are not identifiable.
■If a patient tells you he intends to kill his ex-wife on their 10th wedding anniversary, which is 2 years hence, you may not have a legal duty to her until the date approaches. The risk will not be imminent until then.
■If a now happily re-married female patient tells you that she killed her abusive ex-husband five years ago, made it look like a suicide and was neither a suspect nor charged with a crime, there may be no duty. This is a past crime that you have no duty to report, and given the circumstances of the past crime, it does not suggest a serious risk to anyone in the present.
■Suppose a male patient tells you that he intends to kill his wife, you believe that he might, and so you warn her and the police. Suppose then that his wife attempts to obtain an Order of Protection from Family Court and, in doing so, asks you to testify on her behalf about the threat that you believe is presented by her husband. Any possible duty to protect her might not extend to a duty to testify on her behalf, and doing so might even lead to viable actions against you by your patient for unjustified breach of confidentiality.
Understand that I’m not suggesting that you do nothing in cases like those described above. Your professional conscience and clinical judgement may dictate that you take some action. (And if you do take action, please do so in consultation with an attorney to avoid or reduce potential adverse legal consequences.) The point is that a third party might not have standing to sue you based on your failure to act.

Our new revised HIPAA Manual is available. Our new “HIPAA Compliance Manual for Small Mental Health Practices in New York State, Second Edition – 2007” authored by Bruce has all the instructions and forms needed for compliance with all of the HIPAA Rules i.e., the Privacy Rule and the newer Security and Transaction Rules. The 2003 edition of our Manual that was distributed to many clients addressed compliance only with the Privacy Rule. Compliance with the Privacy Rule is not the same as compliance with the Security Rule. The new Manual contains an essential HIPAA Security Standards Matrix in order for compliance with the Security Rule to be established and maintained. We have tried to make the Manual the most accurate, simple, and cost-effective compliance system possible and designed it especially for psychotherapy practices. We waited to publish a new edition until procedures to comply with all three of the Rules were established, as they now seem to be. The new Manual also contains as supplements basic record-keeping templates for psychotherapists (Intake and Treatment Planning form, Progress Note, Consultation Note and Termination Summary) and informed consent forms for individual, child, couple and family, and group therapy. Finally, a CD-ROM (pdf file) containing the entire Manual is included. Even practitioners who are not HIPAA compliant will find much of the information and many of the forms useful; HIPAA has established new standards of care for the privacy and security of patient health information that are relevant for all practitioners. An order form for the Manual, which costs $69.98 with tax and shipping, can be downloaded at our website, www.brucehillowe.com or you can call us at 800-286-0369 to place an order.

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFICS OF YOUR SITUATION.

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