Not only have Tarasoff-like protective duties and responsibilities expanded and evolved substantially over the second half of the twentieth century; the protective duties to third persons have spun off curious yet noteworthy developments, particularly in the nineties. Major dimensions of this jurisprudence were discussed by a panel consisting of Alan R. Felthous MD, Ralph Slovenko JD, PhD and Robert Weinstock MD. Klaudia Kachigian MD, JD also contributed substantially to researching recent cases but was unable to attend due to maternity. (Congratulations on your baby girl, Dr. Kachigian!)
Tarasoff-related jurisprudence has evolved over four more or less distinct phases: 1) Pre-Tarasoff, when protective measures included control and hospitalization, but warning foreseeable victims was not a legal duty; 2) Inception (1974-1980), when the duty to protect other persons of a patient's potential violent conduct was introduced; 3) Diversification in the 1980s when courts collectively issued a confusing cavalcade of various rules defining such protective duties; and 4) Substantial retreat from the original Tarasoff-principle and third party liability during the 1990s.
Although the most pronounced trend in the nineties has been a judicial retreat from Tarasoff, not all courts followed the trend. Some adopted the Tarasoff principles for the first time or expanded its application. Where courts rejected or restricted Tarasoff-like liability, they generally followed one of the following approaches: 1) Confining the duty liability to the limitations already established in the state's protective disclosure statute; 2) Finding no duty to warn; 3) Finding no duty to control a voluntary patient; or 4) Proactively acknowledging protective duties but severely limiting this application beyond the limitations of the Tarasoff-Thompson rule.
In an early landmark case in tort law, Palsgraf v. Long Island Railroad , Justice Cardozo declared, "The risk reasonably to be foreseen defines the duty to be obeyed." However, Professor Slovenko stated that this rule is not needed where there is a special relationship between the plaintiff and the defendant. In the Tarasoff case, the Supreme Court of California predicated the duty on the special relationship between the therapist and the patient; the protective obligation was then extended to the victim. This was not argued as a medical malpractice case, which would have been difficult for the plaintiff to prove, but rather as tort law related to public policy.
Professor Slovenko cited the Molien case, which extended protective duties/liabilities to involve non-patients who contract infectious diseases as a result of a physician's failure to explain to the patient the nature of the disease and the need for precautions. Specifically, this case involved the risk of hepatitis B contagion from sexual intercourse. The Florida Supreme Court has also found third party liability where a physician failed to counsel a patient regarding the genetic inheritance of a thyroid tumor which is then passed on to the patient's child. Another issue of third party liability concerns "recovered memories", as occurred in the Ramona case. This has led to a discussion of the nature of interpretations made in psychotherapy needing "veridical truth."
A worrisome spin off from the Tarasoff principle has been the exception of a psychotherapist's testimonial privilege based on earlier protective disclosures or circumstances that could have justified Tarasoff-like disclosures in the course of therapy. Dr. Weinstock explained this exception to privilege was justified by California courts by invoking the "dangerous patient exception" to privileged communication, designed for the purposes of civil commitment (Section 1024 of the California Evidence Code). This pre-Tarasoff statutory provision had nothing to do with protective warnings or testimonial privilege in criminal cases. Court decisions have conflated and confused privileged communication and confidentiality. By being in a situation that retrospectively should have required a protective warning, a clinician can subject him/herself to being compelled to testify in a later criminal prosecution against the patient. Enacted ten years before Tarasoff, this exception as admitted to by the courts, was intended only to permit psychiatric testimony at civil commitment hearings and had no relationship to Tarasoff warnings.
Dr. Weinstock argued that it would be more logical to suspend privilege for anyone who was civilly committed, for which there could be a judicial proceeding, rather than restrict testimony to situations in which there was no judicial proceeding at the time of the protective warning. He further noted that California attorneys are now permitted to issue protective warnings if they "believe" danger exists for which warnings would be helpful. If the Tarasoff exception to privilege is applied to psychotherapists, consistency would dictate application to attorneys as well. This would result in attorneys testifying against their own clients in criminal prosecution.
In Jaffee v. Redmond , the U.S. Supreme Court provided a footnote remarkably similar to the dangerous patient exception of Section 1024 in California. One federal court has already applied a dangerous exception to privilege in criminal prosecution. Thus, other courts could conceivably follow the problematic pattern in California in carving this chink out of the psychotherapist-patient privilege and "criminalizing" Tarasoff warnings.