COMMENTARY

Malpractice Dangers for Psychiatrists

O. Brandt Caudill, Jr, Esq

Disclosures

December 29, 2009

In This Article

Your Duty to Warn of Patient Threats

A less-frequent malpractice issue involves the duty to warn to protect third parties from patients' specific threats of violence against them. The frequency is relatively rare, but lawsuits generally occur in tragic circumstances, and juries typically are sympathetic.

The duty to warn of a patient's violent tendencies was first articulated by the California Supreme Court in Tarasoff v Regents of the University of California in 1976. Whether the duty applies depends on what state the psychiatrist practices in, because some states have refused to adopt the Tarasoff rationale. Because of concerns about the unpredictability of violence, the California legislature enacted a statute, Civil Code section 43.92, which provided that no duty to warn arose unless the patient made an expressed threat of violence against a readily ascertainable third party. These statutes vary by state, so a psychiatrist faced with such a situation should check with someone familiar with the law in his or her jurisdiction.

It's imperative for psychiatrists to document when a patient makes threats. If the patient carries out the threat, the opposing lawyers will thoroughly scrutinize the process of both the patient and the psychiatrist. I've seen several instances where the warnings were made, police intervened, and found evidence that the patient could carry out the threat, but the patient still sued, claiming that there was no basis for a warning.

Fortunately for California psychiatrists, through Civil Code Section 3292, making a warning entitles the psychiatrist to immunity from suit by the patient. So a psychiatrist is better off making the warning than worrying about a patient's anger.

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