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Physician duty to warn third parties

By Lisa Pupo Lenihan, Esq.

June 27, 1991, was a fateful day in the life of Teresa Hausler. At 9:25 a.m., her ex-boyfriend, Gad Joseph, telephoned his mental health counselor to tell him that he was going to kill Teresa. The counselor immediately had him come in for therapy, which began at 11:00 a.m. and ended at noon, with Gad’s promise that he would not hurt Teresa.

Fifteen minutes later, Teresa telephoned the counselor to tell him that she was going to Gad’s apartment to pick up her clothing. The counselor advised her not to go to the apartment but to return to her new home in Reading. Teresa, in what would be the worst decision of her young life, ignored the advice and continued onto Gad’s apartment. At 12:30 p.m. Gad arrived and, in a fit of rage, fatally shot her six times in the head and abdomen.

At the time of the lawsuit subsequently filed by Teresa Hausler’s family against the mental health counselor and his employer, Albert Einstein Medical Center in Philadelphia, the law in Pennsylvania was still unclear regarding what duty a medical professional owed to a third party, i.e., someone not his or her patient.

Almost every first year law student in the last 20 years learned about the infamous case of Tarasoff v. Regents of the University of California. This was the first case in the country where a court held that a mental health professional may have a duty to protect others from possible harm by a patient. The facts of Tarasoff are eerily similar to the facts in the Teresa Hausler case.

In Tarasoff, the California Supreme Court, always liberally ahead of the other courts in the nation, concluded that the relationship between a mental health care professional and his patient constituted a special relationship imposing upon that professional a duty to protect a third party against harm. Twenty years later, (November, 1998), because of the actions of Gad and Teresa, the Supreme Court of Pennsylvania expressly adopted Tarasoff as law in this Commonwealth.

There are presently no hard and fast rules delineating when a physician may have an obligation to a non-patient third party. However, Pennsylvania courts are slowly but surely extending the duty of care assigned to members of the health care profession, the greatest degree being given to those members of the mental health specialties. The courts are focusing on whether the injured party was clearly identified by the patient or identifiable by the physician. In addition, the potential transmission of a communicable disease plays a large role in the scope of duty determination.

There are a string of Pennsylvania cases addressing the issue of when a physician may be liable to a non-patient. In 1990, the Supreme Court found that a physician who provided erroneous information to his patient, a blood technician who had been exposed to hepatitis, would have liability to the patient’s boyfriend who contracted the disease through her. The primary reason for this holding was the public policy of protecting the general public from communicable diseases and the foreseeability of the injured party (any intimate partner of the patient).

In 1991, the Superior Court held that a physician did not have a duty of care to pedestrians who were injured when the physician’s patient lost consciousness while operating a motor vehicle because of a diabetic condition known to the doctor. The basis for the decision was that there was no foreseeable injury to third parties coming into contact with the patient.

Similarly, in 1996, the same court held that an ophthalmologist owed no duty to a bicyclist struck by a car operated by the ophthalmologist’s vision-impaired patient, because the bicyclist was not a foreseeable victim of the ophthalmologist’s failure to report the patient motorist’s inability to drive to PennDot.

That same year, the same court found that a physician who was treating a mother and child who suffered from cytomegalovirus, owed a duty to warn his patients that they should avoid contact with pregnant women whose unborn infants may be at risk of death or birth defects. The court found that a woman and her baby who were exposed to the infected mother and child could sue the doctor because they were “foreseeable third parties.”

Ruling in a case of psychiatric treatment, the Superior Court in 1990 found that a psychologist (or psychiatrist) owes no duty to warn or otherwise protect a non-patient where the patient has not threatened to inflict harm on a particular individual.” The distinction between that decision and Theresa Hausler’s case (Emerich) would be that there was not an “identifiable” victim. In Dunkle, a patient was diagnosed with a schizophrenic type disorder. His psychiatrist discontinued his medication and discharged him. Several months later, the patient strangled and killed his live-in girlfriend. The court found no duty on the part of the psychiatrist to the girlfriend/victim because the patient never indicated specific violent tendencies and never stated that he intended to harm his girlfriend.

Three years later, the Superior Court reaffirmed this ruling and found that medical personnel (in this case from the V.A. Hospital) had no duty to warn the potential victim unless the victim’s specific identity is brought to their attention.

During the same month as the decision in Teresa Hausler’s case, the Supreme Court agreed to hear a case decided by the Superior Court in April of 1998. This was the much publicized case of Althaus by Althaus v. Cohen. In that case, Dr. Judith Cohen treated the daughter of Richard and Renee Althaus and diagnosed her with borderline personality disorder due to severe and bizarre sexual abuse allegedly perpetrated upon her by her parents and their friends. Criminal charges were brought against the parents which were subsequently dismissed. The parents later filed a lawsuit against Dr. Cohen.

The court found that because Dr. Cohen played an active role in the criminal case against the Althauses (she testified) it believed she extended her role beyond the therapeutic treatment context and ruled that the Althaus’ could sue her for their injuries.

The court made it clear, however, that it did not conclude that a psychiatrist who treated a child for alleged sexual abuse owed an absolute duty of care to the parents of that child, should there have been negligent psychiatric treatment. The court therefore attempted to strictly limit its decision to the facts of the case.

This case is still on appeal; however, depending upon the final decision of the Supreme Court, it is likely to impose ramifications on both mental health professionals and the general medical profession, which will be even wider reaching than the ruling in Emerich.

Mental health professionals are viewed by the courts as having a greater ability to predict the potentially harmful acts of their patients. Confidentiality rights are outweighed by the public interest in safety from violence. This is particularly so because they are charged by law with the ability to predict whether someone is likely to cause harm to himself or others and cause that person to be involuntarily committed. As stated by the Supreme Court in Emerich, “mental health professionals are trained to detect, identify, evaluate and deal with threats and violent behavior, thus, setting themselves apart from others who are faced with the knowledge of threats of violence against the third party.”

With the advent of the managed care system, many general practitioners are treating patients for mental health issues and also prescribing medication for these conditions. Query: Will they also be held to a higher standard of care to evaluate the propensity of their patients for dangerousness and violent behavior?

My advice to all health care professionals is to err on the side of caution and to document, document, document. This is particularly true in the case of a contagious or communicable disease. As most of you are probably aware, there are special laws applicable to the diagnosis of a person as being HIV-positive. Physicians may be subject to liability in these situations if they disclose confidential HIV-related information to persons not specifically defined by statute.

Under the Confidentiality of HIV-Related Information Act, a physician may disclose confidential HIV-related information to a known contact of the patient. Contact is defined as a “sex sharing or needle sharing partner of the subject.” A physician may only do so if he or she reasonably believes that disclosure is medically appropriate and there is a significant risk of future infection to the contact. The physician must inform the patient of his or her intent to disclose and also counsel the patient regarding the need to notify the “contact.”

However, unlike other communicable diseases, the Act further states that a physician has no duty to identify, locate or notify any contact and specifically preclude any cause of action for non-disclosure. Thus, under the law, physicians do not have a duty to notify third parties of the potential that they may be exposed to the communicable disease of AIDS or HIV infection.

Should a health care professional treat a patient with a serious contagious disease or a communicable disease, she should ensure that accurate information is provided to that patient, document that information in the patient’s medical chart and have a witness to the conversation. In addition, any medical professional who is advised by a patient of an intent to harm an identified third party is likely to be found to have a duty toward that third party to advise them, or perhaps the police department, of the potential that they may be harmed.

Lisa Pupo Lenihan, Esq., is a partner with the law firm of Burns, White & Hickton, L.L.C. in Pittsburgh.

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