There is an interesting case out of Denver where Heidi Hemmat at KDVR Fox 31 has resigned after death threats tied to her investigation of a local business. The threat however was not made to her directly but reported by the psychiatrist treating the owner. It appears to be a direct application of the ruling in Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976), requiring doctors to disclose threats made by patients to their potential victims.
Hemmat is an award-winning journalist who went into a dumpster to find receipts that the owner had thrown away. The owner confronted her in the dumpster, as captured on the news program.
The man reportedly went to a therapist and expressed his desire to hurt or kill Hemmat. Despite the confidentiality rules under HIPPA, the psychiatrist contacted Hemmat. Hemmat said that the doctor informed her that the owner was on a “72 hour mental hold” but, since it was 4th of July weekend, he would likely be released before then. Hemet then concluded that the station was not doing enough to protect her and resigned. This happened in 2015 but she just came forward with the story. The disclosure was made in a Thanksgiving public letter.
The case obviously draws instant comparison with the Tarasoff opinion. In that seminal 1974 case, Prosinjit Podder, an Indian Graduate student at Berkeley, fell in love with Tatiana Tarasoff. When she stated that she wanted to date other men, Podder went to counseling at the University Health Service and is treated by psychologist, Dr. Lawrence Moore. When he told Moore that he wanted to get a gun and kill Tarasoff, Moore sent a letter to campus police who interview Podder and decided that he was not a risk. Podder then went ahead and murdered Tarasoff.
In a groundbreaking decision, Justice Mathew O. Tobriner held that “… the confidential character of patient-psychotherapist communications must yield to the extent that disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.” As a result, the hospital was held liable for the criminal actions of a third party — something that usually (but not always) cuts off proximate causation. It also rejects strong arguments made by doctors that such liability would create a chilling effect on counseling. A large number of patients often express their anger by focusing it on individuals and stating an intent to “kill that guy.” In the vast majority of such cases, the open disclosure is addressed and defused. However, if the patient knows that the doctor will have to tell authorities, such feelings are less likely to be expressed and addressed. In speaking with doctors around the country at hospital and conference events, this remains one of the most controversial and resented cases for some medical and psychiatric professionals. I share their concern over the lack of a clear standard of when such disclosures must be made. The standard is maddeningly vague and offer little guidance for professionals in making these tough decisions.
We have previously discussed such controversies. These are tough cases to be sure. The court was trying to establish some responsibility for doctors in cases of a clear risk to third parties. However, the fear is that doctors will simply contact police to avoid any risk of liability — seriously undermining treatment for patients expressing anger or resentment toward others.
In the Oregon case, it is not clear if the owner sued the doctor for the violation of HIPPA and insisted that he was expressing feelings and not a plan of action. However, it does not appear that the owner suffered legal fallout from the disclosure in terms of an arrest.