When do therapists legally owe a duty of care to persons other than their patients? It is an axiom that good medical care involves consideration not only of the patient but also of others. In law, the general principle is that the risk which may result from one's behavior, as reasonably perceived, determines the duty of care.
History of Third Party Decisions
The duty to third parties finds expression in court decisions or legislation imposing various reporting obligations on physicians. In Tarasoff v Regents of University of California, the California Supreme Court held that when a patient poses a serious danger of violence, a therapist has a duty to exercise reasonable care to protect the threatened victim of that danger (Tarasoff v The Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14, 83 A.L.R.3d 1166 ). That decision was widely followed by subsequent court rulings, with some jurisdictions ruling that the therapist may be held liable to anyone, identifiable or not, who is harmed by the patient. This is analogous to physicians failing to report a contagious disease situation and then being held liable to third parties who contract that disease from the patient.
The courts have stated that psychiatrists or mental hospitals owe a duty to the general public to exercise reasonable care regarding escape prevention and release decisions. In these cases, no distinction is made between foreseeable and unforeseeable victims. Likewise, a physician who fails to warn a patient of the soporific effects of medication may be held liable to anyone injured by the patient in a motor vehicle accident while the patient is medicated.
In derivative actions, such as those of a husband or parent for the loss of the wife's or child's society, the law has long recognized that a wrong done to one person may invade the protected rights of one who is intimately related. But by and large, the courts have been reluctant to recognize a duty to third-party nonpatients when there is no contractual relationship, duty to warn or duty to control.
Liability insurance policy lines, to some extent arbitrary, are drawn to narrow the scope of liability. In determining to whom a duty of care is owed, the courts are mindful of the extent of liability insurance coverage, although this is unmentioned. There is a miscegenetic union of insurance and liability. The courts not only consider the foreseeability of harm, but they also assess the competing public policy considerations for or against imposing liability. As one court expressed it, "Liability must be controlled by workable and just limits" (Iancona v Schrupp, 521 N.W.2d 70 [Minn. App. 1994]).
A number of jurisdictions (or various courts within a jurisdiction) allow only the patient to sue over negligent treatment, even when that malpractice causes physical injury to others-as occurs when tuberculosis is improperly treated and consequently passed on to family members. In an Illinois case of this sort, the defendant physician raised the specter of potentially unlimited liability to all those infected by his patient, as well as all those whom they infect. He also asserted that allowing the patient's immediate family to sue would constitute an artificial distinction between family members and all others whom his patient or his patient's family might infect.
The majority of an intermediate appellate court agreed (Britton v Soltes, 205 Ill. App. 3d 943, 563 N.E.2d 910 ). Justice Charles Freeman dissented and would have extended the duty to the patient's immediate family. He said, "I cannot agree that limiting the right to sue...to a patient's immediate family members, i.e., to those with whom he has special relationships, is an artificial and arbitrary distinction" (563 N.E. 2d at 916).
In this type of situation, other jurisdictions by and large have not limited a cause of action only to patients. In a case decided by the Pennsylvania Supreme Court, a physician negligently advised a patient exposed to hepatitis that she could be confident she had not contracted the disease and was not contagious if she remained symptom-free for six weeks. However, the correct waiting period is six months. The patient refrained from sexual intercourse for eight weeks after the exposure and then resumed sexual intercourse with the plaintiff. Both patient and plaintiff were later diagnosed with hepatitis. The court held that the plaintiff had a cause of action against the physician (DiMarco v Lynch Homes, 525 Pa. 558, 583 A.2d 422 ).
Recovered Memory Cases
The past decade or so has been marked by controversy as to whether a third party has a cause of action against a therapist on the grounds that the therapist negligently implanted or reinforced false memories of child sexual abuse. In 1994 in California, Gary Ramona made history when he sued his daughter's therapists for inducing false memories of incest, and he was awarded $500,000 (Ramona v Ramona, Case No. 61898 [Cal. Sup. Ct. 1994]). The trial court held that the therapists owed a duty of care, not only to the patient, but also to the patient's father. The theory of the decision was that the father was a direct victim of the defendants' malpractice (Johnson, 1997).
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