HEALTH LAW SUPPLEMENT Winter 2019

Is there an affirmative “Tarasoff” duty to protect in New York State? This is perhaps the most discussed issue at risk-management seminars that I give. The short answer is a qualified “probably.” A longer answer follows:
The legal principle of the well-known Tarasoff case is: When a therapist knows that a patient is likely to harm a specific third party, the therapist has an affirmative duty to the intended victim to protect and warn the potential victim of the danger; if the therapist fails to fulfill this duty, and the third party is harmed, the therapist may be liable to the victim. 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 have reacted to the Tarasoff ruling with holdings or laws that adopt, sometimes with limitations, sometimes with expansions, its basic principle. Since its appearance, the principle had been judicially rejected in only one state, Florida, Boynton v Burglass, 590 So2d 446 (1991).
No New York court has yet to find a therapist liable to a third party for failure to protect or warn that third party. In one case, however, a New York court did state 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).
New York courts have directly addressed a related issue however, namely whether a therapist who warns a third party of intended harm from a patient is liable to the patient for the unauthorized disclosure or breach of confidentiality. One 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, Oringer v Rotkin, 556 NYS2d 67 (1st Dept 1990). See also, enunciating the same principle, but with a different outcome, Juric v Bergstraesser 2013 NY Slip Op 02808 (3rd Dept, 2013).
One New York statute does even explicitly permit breaches of confidentiality to protect specific third parties. New York Mental Hygiene Law (MHL) § 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.” 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 is stated specifically in the statute that it does not impose an obligation to protect third parties on which basis a third party might sue. Finally, it applies only to practitioners working in State licensed facilities, and not to private practitioners. Some commentators have suggested that this statute indicates that New York has rejected any affirmative Tarasoff duty because an option is not a mandate.
Another New York statute permits a limited breach of confidentiality but is meant to protect the public generally, and not specific individuals, from violence by firearms. The SAFE (Secure Ammunition and Firearms Enforcement) Act at Section 9.46 of the MHL imposes on certain specified mental health professionals a requirement that they report their individual patients to the County Director of Community Services, for forwarding to the NYS Division of Criminal Justice (DCJS), when they believe such patients are “likely to engage in conduct that will cause serious harm to self or others.” DCJS then determines whether the reported patient has or has recently applied for a permit for firearms, and if they have, then officials will suspend or revoke the license and remove the firearm. It is not a requirement of the law that the patient own a firearm. The law grants immunity to mental health professionals who decide whether or not to report “reasonably and in good faith.” Importantly, the law imposes no duty on mental health professionals to break confidentiality and warn significant others, third-parties, and/or general law enforcement authorities when a patient presents an imminent risk of danger to self or others, as a Tarasoff duty would.
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 might also be seen as a rejection of a Tarasoff duty, but it may 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. Some additional support for this position are findings 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. See Tenuto v. Lederle Laboratories, 605 NYS2d 17 (1997) and Davis v South Nassau Communities Hosp, N.Y. Slip Op 09229 (2015) Physicians were found negligent for, respectively, failing to warn an immune-compromised father of risks to him of administration of oral polio vaccine to his daughter, and failing to warn a third party of the danger posed to her when their patient drove a car following their administration to him of an opiate drug.
Although New York courts and the legislature have not imposed an affirmative duty to protect and warn third parties as yet (a law has recently been proposed however), they have, in certain cases, removed the rationale formerly used for not acting when a third party was threatened, that is, that it would be an unjustified breach of confidentiality. So the legal risk to a therapist of protecting third parties, a lawsuit or professional disciplinary complaint for breach of confidentiality, is significantly lessened, while the legal risk of not protecting and warning third parties is, albeit uncertain, potentially great, i.e., a suit for wrongful death.

IN THE NEXT ISSUE OF THE NEWSLETTER : THE PROPOSED TARASOFF LAW IN NYS, AND THE COST TO MENTAL HEALTH PROFESSIONALS OF NOT HAVING ONE.

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