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

Witt & Tani, TCPI 8. Duty Problem
43.92 (West 2013). In other jurisdictions, however, Hedlund-type actions still appear to be
available. Consider Perreira v. State, 768 P.2d 1198 (Colo. 1989) (en banc), which stemmed
from the shooting death of a police officer by an outpatient of a state mental health center. Prior
to the shooting, the defendant doctor had been “of the opinion that [the patient] did not pose any
risk of violence to others upon his release.” The court held that the doctor “had a legal duty to
exercise due care in determining whether [the patient] had a propensity for violence and, if
released from his involuntary commitment, would thereby present an unreasonable risk of serious
bodily harm to others, including a police officer in the position of [the plaintiffs’ decedent].” Id.
at 1205, 1220; see also Bardoni v. Kim, 390 N.W.2d 218, 222 (Mich. Ct. App. 1986) (emphasis
added) (recognizing that a psychiatrist owes a duty of reasonable care to a third party if the
psychiatrist (1) “knew or, according to the standards of his profession, should have known that his
patient posed a serious threat of danger to others” and (2) “knew or should have known that his
patient was dangerous specifically to the injured third party”). Published opinions suggest that
negligent diagnosis cases are rare, as compared to cases where a therapist predicted violence and
then allegedly failed to take reasonable steps. Why might that be?
4. The content of the Tarasoff duty. Where a therapist owes a duty of care to a third party,
what conduct satisfies that duty? What conduct falls short? The case law is at times frustratingly
vague. See, e.g., Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185, 193 (D. Neb. 1980)
(recognizing that a therapist has a duty to “initiate whatever precautions are reasonably necessary
to protect potential victims of his patient”). The authors of the Third Restatement identify some
actions that may comprise part of this duty, including “providing appropriate treatment, warning
others of the risks posed by the patient, seeking the patient’s agreement to a voluntary
commitment, [or] making efforts to commit the patient involuntarily.” RESTATEMENT (THIRD) OF
PHYSICAL AND EMOTIONAL HARMS § 41 cmt. g. Various courts have, at different times, found all
these actions salient. See, e.g., Hamman v. Cty. of Maricopa, 775 P.2d 1122, 1223, 1128–29
(Ariz. 1989) (en banc) (considering that the psychiatrist did not review previous medical records,
provide instructions to follow if the patient’s condition worsened, or warn likely victims of the
danger); Petersen v. State, 671 P.2d 230, 237 (Wash. 1983) (en banc) (noting the psychologist’s
failure to petition the court for the patient’s temporary civil commitment); Kuligoski v.
Brattleboro Retreat, 156 A.3d 436, 450–53 (Vt. 2016) (discussing whether therapists properly
trained a patient’s caretakers before discharge). Still, when courts discuss a therapist’s duty of
care to a third party, they seem chiefly concerned with the question of to whom the duty is owed,
not what conduct satisfies that duty. Why might that be?
5. Legislative responses. State legislatures have responded to Tarasoff in different ways.
Certain states provide that mental health professionals have an affirmative duty to take
precautions against violent patients. See, e.g., IDAHO CODE ANN. § 6-1902 (2013); MICH. COMP.
LAWS § 330.1946 (2014). Some states do not establish an affirmative duty, but have enacted
legislation permitting mental health professionals to disclose patients’ threats. See, e.g., FLA.
STAT. § 456.059 (2013); MISS. CODE ANN. § 41-21-97 (2013). Other states have immunized
mental health professionals from liability. See, e.g., DEL. CODE ANN. tit. 16, § 5402 (2014). A
majority of states that impose an affirmative duty limit the duty to instances when the patient
threatens a reasonably identifiable third party. See, e.g., CAL. CIV. CODE § 43.92 (West 2013);
N.J. STAT. § 2A:62A-16 (2014); TENN. CODE ANN. § 24-1-207 (2013). Other states limit mental
health professionals’ duty to instances when the patient threatens a specified victim. See, e.g.,
COLO. REV. STAT. § 13-21-117 (2013). See generally Mary I. Wood, Comment, Protective
434