Court Expands Tarasoff Duties in Washington State

A Washington state Supreme Court decision appears to significantly broaden the duty of psychiatrists and other mental health professionals in that state to protect and warn potential victims of violence by patients under their care.

In Volk v. De Meerleer, the court upheld a lower court ruling that expands the so-called Tarasoff standard regarding a mental health professional’s duty to protect and warn a third party of possible violence, asserting that the duty extends to any possible victim—even one that has not been specifically identified by the patient.

The ruling, issued on December 22, 2016, applies only to clinicians in Washington state. Although other states could conceivably adopt a similar standard, the ruling does not establish a legal precedent outside of Washington. (It was a 1976 case, Tarasoff v. Regents of the University of California, that established the principle that a mental health professional has the duty to protect a third party identified by a patient that he or she may be a potential victim of violence.)

Tarasoff has typically been interpreted to mean that the mental health provider owes a duty to the intended victim if the victim is identified or reasonably identifiable. But the decision by the Washington state Supreme Court suggests that the duty is more expansive and that the provider may have an obligation to probe statements about violence to determine whether there is an intended victim and/or to infer the identity of intended victims from past sessions.

APA CEO and Medical Director Saul Levin, M.D., M.P.A., said the ruling is troubling. “The court’s ruling in Volk v. DeMeerleer places clinicians in Washington state in a difficult position and could have detrimental effects on the patient-psychiatrist relationship,” he said. “To the extent that a similar standard of liability could be adopted in other states, it should be of concern to psychiatrists and mental health professionals everywhere. APA will continue to follow developments in Washington state and continue to advocate for a fair and rational approach to Tarasoff duties.”

Ellen Dallager

The decision creates a new category of “medical negligence,” rendering clinicians in Washington state potentially legally liable if it is determined that they should have known someone would be a victim of violence. APA signed on to an amicus brief with the Washington State Psychiatric Association (WSPA), the Washington State Medical Association (WSMA), and five other groups saying that a lower court’s finding that mental health professionals owe a duty of care to the general public, not just to reasonably identifiable third parties, places an unfair burden on clinicians. It might also prevent psychiatrists from accepting certain patients for treatment as well as deter patients from seeking care.

APA President Maria A. Oquendo, M.D., Ph.D., also noted the decision’s potential impact on clinicians in comments to Psychiatric News. “Holding mental health professionals liable to third-party victims who are not identifiable as targets of actual threats places an unreasonable burden on mental health professionals,” she said. “This decision marks a significant departure from previous case law concerning Tarasoff duties. Leaving it to a jury to determine whether a mental health provider ‘should have known’ that a patient would be dangerous has a real potential to interfere with treatment of mental health patients.”

WSPA President Jeffrey Sung, M.D., told Psychiatric News, “The ruling threatens to disrupt patient expectations of confidentiality, decrease motivation for integrating mental health and physical health care, increase referrals for involuntary commitment, expand liability for all health care providers, and reduce the number of clinicians willing to work with potentially violent patients. In recognition of these serious consequences, the WSPA has partnered again with the WSMA and other professional groups to pursue legislative options for relief from this new category of liability.”

The case involved an individual (Jan DeMeerleer) who had been treated by a psychiatrist for many years. At one point, DeMeerleer made homicidal threats against his ex-wife and her boyfriend, but never acted on them. Much later, DeMeerleer killed an ex-girlfriend and one of her children, injured another child, and then killed himself. DeMeerleer had never made threats against those individuals, according to the WSMA.

The suit was filed by a representative of the victims against a representative of the DeMeerleer family, the psychiatrist, and a Spokane, Wash., psychiatric clinic. A Superior Court judge granted summary judgment to the psychiatrist, but the Court of Appeals reversed, finding that the clinician had a duty under Washington law to warn all foreseeable victims and that a jury must determine the issue of foreseeability.

Now that the Supreme Court has upheld the Court of Appeals ruling, the case will go back to the lower court for a jury to determine if, based on the facts, the psychiatrist should have foreseen the danger to the victim.

Marvin Swartz, M.D., chair of the APA Committee on Judicial Action, told Psychiatric News that the Washington state Supreme Court decision potentially undermines the traditional understanding of physician liability.

“Expanding physician liability to a new doctrine of ‘medical negligence’ suggests that courts and juries might begin to adopt a liability standard akin to strict product liability rather than the established standards of medical malpractice,” he said. “The likely result would be a serious undermining of the physician-patient relationship.” ■