This is the fifth article of our series discussing practical and evidentiary issues in medical malpractice. Each article will examine recent medical malpractice case law and focus on the practical and evidentiary issues within them. The goal is to provide some useful insight into the obstacles that occurred in hopes that future cases can adapt and develop new ways to overcome these challenges.
Introduction
Physician-patient confidentiality is a necessary component of the doctor-patient relationship. It allows patients to share personal information with their physician that they may not share with anyone else in order to obtain optimal care and health outcomes.1
However, there are situations where a physician may be permitted, or required, to disclose confidential patient information for legal or ethical reasons. For example, legislation requires a physician to report if a patient has a medical condition that makes it dangerous for them to drive2 has certain communicable diseases3 or when there is a child in need of protection.4
Physicians may also be permitted, in certain circumstances, to disclose confidential information about a patient if it would be in the interest of safety to the public or an individual. But does this ever rise to a duty on the part of the physician to warn third parties of a danger posed by a patient? This article discusses when the interest in public safety overrides physician-patient confidentiality and examines how the “duty to warn” has been approached by the courts over the years.
Tarasoff v. Regents of the University of California
The most famous case on the duty to warn third parties is the 1976 US case of Tarasoff v. Regents of the University of California5 in which the Supreme Court of California held that mental health professionals have a duty to protect an individual they determine is at risk of danger.
On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff, a university student whom he was acquainted with. At trial, Ms. Tarasoff’s parents alleged that two months prior to her death, Mr. Poddar had confided his intention to kill Ms. Tarasoff to Dr. Lawrence Moore, a psychologist employed at a hospital at the University of California at Berkeley. Dr. Moore alerted the campus police who briefly detained Mr. Poddar but released him when he appeared rational. The plaintiffs argued that Dr. Moore failed to exercise reasonable care to protect Ms. Tarasoff by warning her or others likely to apprise her of the danger. The defendants argued that they owed no duty of reasonable care to Ms. Tarasoff.
The court found that as a general rule, a person does not owe a duty to control the conduct of another, nor to warn those in danger of such conduct, but noted that an exception to this rule exists in cases where “the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct.”6 Applying this exception, the court found that a relationship of defendant therapists to either Ms. Tarasoff or Mr. Poddar would suffice to establish a duty of care. The court held that once a therapist has determined, or should reasonably have determined, that a patient poses a serious danger of violence to others, he or she bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.7
The defendants argued that free and open communication is essential to psychotherapy and that unless a patient is assured that the information he or she reveals will be held in the utmost confidence, he or she will be reluctant to make the full disclosure required to diagnose and treat. In response, the court stated that “we conclude that 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.”8
The Tarasoff decision and the duty to warn has been discussed by Canadian courts. However, there have been no cases in which a positive duty on the part of a medical professional has been specifically found.