Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
The revelation of a communication under the above circumstances is not a breach of trust
or a violation of professional ethics; as stated in the Principles of Medical Ethics of the American
Medical Association (1957), section 9: “A physician may not reveal the confidence entrusted to
him in the course of medical attendance . . . [u]nless he is required to do so by law or unless it
becomes necessary in order to protect the welfare of the individual or of the community.” We
conclude that the public policy favoring protection of the confidential character of patientpsychotherapist
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.
. . .
The judgment of the superior court in favor of defendants . . . is reversed, and the cause
remanded for further proceedings consistent with the views expressed herein.
Notes
1. The Restatement’s catalog of special relationships. The Tarasoff opinion rests heavily on
section 315 of the Second Restatement and its view of the significance of a “special relationship”
between the defendant and the third party. Since the Tarasoff decision, the Third Restatement has
offered a nonexhaustive catalog of special relationships, including the relationship of a parent and
a dependent child; a custodian and those in custody; employers and employees; and (as in
Tarasoff) mental health care professionals and their patients. See RESTATEMENT (THIRD) OF
TORTS: LIAB. FOR PHYS. & EMOT. HARM § 41 (2012). What makes these relationships special?
Are there others that belong on this list?
2. Common law limits on the Tarasoff rule. Some courts, including the California Supreme
Court, have limited Tarasoff’s holding to apply only when the psychotherapist knows that an
“identifiable victim” is in danger. See, e.g., Thompson v. County of Alameda, 614 P.2d 728 (Cal.
1980); Fraser v. United States, 674 A.2d 811 (Conn. 1996). Other courts have held that
psychotherapists owe no duty to victims at all. See, e.g., State v. Cowles, 151 P.3d 353 (Alaska
2006); Santa Cruz v. Nw. Dade Cmty. Health Ctr., Inc., 590 So. 2d 444 (Fla. Dist. Ct. App. 1991);
Boulanger v. Pol, 900 P.2d 823 (Kan. 1995); Furr v. Spring Grove State Hosp., 454 A.2d 414
(Md. Ct. Spec. App. 1983); Kehler v. Eudaly, 933 S.W.2d 321 (Tex. App. 1996); Nasser v.
Parker, 455 S.E.2d 502 (Va. 1995).
3. Negligent failure to diagnose. Tarasoff involved a therapist who had predicted violence
toward a specific individual and allegedly failed to fulfill the duty triggered by that prediction. In
jurisdictions that have chosen to recognize the duty of care outlined in Tarasoff, should therapists
also be subject to liability for failing to predict violence? In California, the answer initially
appeared to be “yes.” In Hedlund v. Superior Court, a case involving an alleged missed diagnosis
and the patient’s subsequent violent assault on the plaintiffs, the California Supreme Court noted
that “[a] negligent failure to diagnose dangerousness in a Tarasoff action is as much a basis for
liability as is a negligent failure to warn a known victim once such diagnosis has been made.”
669 P.2d 41, 45 (Cal. 1983). In response to Hedlund, the California State Assembly disallowed
civil lawsuits stemming from a psychotherapist’s failure to predict violence. CAL. CIV. CODE §
433