There is a tragic case out of Omaha that has led to a notable decision over tort liability for psychiatrists. The case involves a patient, Mikael Loyd, who was admitted to Lasting Hope Recovery Center after he told police that he wanted their help in killing his mother. Psychiatrist Jeana Benton determined that he was not a risk at the hospital and he was released. He then strangled his girlfriend, Melissa Rodriguez, who broke up with him during his hospital stay. Her parents, Angela Rodriguez and Adan Rodriguez, sued Lasting Hope and Benton’s employer, University of Nebraska Medical Center Physicians, but the Nebraska Supreme Court affirmed the dismissal of the action due to a lack of any legal duty to warn or protect the girlfriend.
Melissa’s body was discovered the day after the release of Loyd, who had returned to Lasting Hope and was arrested there. Loyd was later found incompetent to stand trial.
The opinion discusses the case of Tarasoff v. Regents of University of California, which I teach in my torts class. In the 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 interviewed Podder and decided that he was not a risk. Podder then went ahead and murdered Tarasoff.
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 affect 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.
We have discussed decisions extending Tarasoff. However, some states have passed laws limiting its impact. In Nebraska, the state supreme court previously ruled in Munstermann v. Alegent Health, 271 Neb. 834 , 716 N.W.2d 73 (2006) that:
[A] psychiatrist is liable for failing to warn of and protect from a patient’s threatened violent behavior, or failing to predict and warn of and protect from a patient’s violent behavior, when the patient has communicated to the psychiatrist a serious threat of physical violence against himself, herself, or a reasonably identifiable victim or victims. The duty to warn of or to take reasonable precautions to provide protection from violent behavior shall arise only under those limited circumstances . . . and shall be discharged by the psychiatrist if reasonable efforts are made to communicate the threat to the victim or victims and to a law enforcement agency.
It later added the clarification that “‘[A] duty to warn and protect arises only if the information communicated to the psychiatrist leads the psychiatrist to believe that his or her patient poses a serious risk of grave bodily injury to another.'”Rodriguez v. Catholic Health Initiatives, 297 Neb. 1 , 899 N.W.2d 227, 239 (2017).
In this case, the court ruled that that burden was not satisfied. The court distinguished between the duty to the mother as opposed to the girlfriend:
Here, it is uncontroverted that Loyd never actually communicated to Benton that he intended to harm Melissa. We noted in Rodriguez I that if the Special Administrators’ claim were supported by facts that Loyd had communicated to Benton a serious threat of physical violence against Melissa, those facts could give rise to a duty to warn. But the undisputed facts now in the record do not support that allegation.
Indeed, the only reasonably identifiable victim whom Loyd conveyed an intent to physically harm was his mother. During Benton’s evaluations, Loyd specifically expressed an intention to kill his mother in retaliation for his father’s death. Based on these verbal expressions of threats, Benton ordered Lasting Hope staff to call Loyd’s mother to warn her. And by the time Benton had ordered Loyd’s discharge, she knew that OPD was aware of Loyd’s threats of physical violence against his mother, because Lasting Hope staff had discussed the threats with OPD officers, who also warned Loyd’s mother.
As the Special Administrators now concede, Loyd never expressed to Benton or anyone else at Lasting Hope that he intended to harm Melissa. He never identified Melissa by name or even by description in connection with his expression of homicidal ideation. And to the extent that the outstanding arrest warrant identified Melissa as the victim of Loyd’s past misconduct, it did not amount to an actual communication by Loyd, nor did it predict that he would commit physical violence against Melissa in the future. As a result, no duty to warn Melissa was triggered under Munstermann.
Note, even with the statutory standard, the Court appears to affirm the duty to warn the mother and Dr. Benton clearly understood that duty in ordering the staff to reach out to the mother.
What is also notable is the discussion of the duty to protect as opposed to the duty to warn. It was also rejected:
As analyzed above, the first duty implicated by Munstermann is the psychiatrist’s duty to warn. But by its plain language, the Munstermann rule applies equally to the psychiatrist’s duty to protect.
In each clause of the Munstermann rule that limits psychiatrists’ duty to warn, there is an equal limitation on their duty to protect. …To the extent that any duty to warn and protect does arise, it “shall be discharged by the psychiatrist if reasonable efforts are made to communicate the threat to the victim or victims and to a law enforcement agency.”
…The Legislature explicitly enacted these limitations in response to Tarasoff and, with them, fashioned a state policy “to preempt an expansive ruling [in Nebraska] that a therapist can be held liable for the mere failure to predict potential violence by his or her patient.”Just as failure to warn claims are premised in part on psychiatrists’ duty to predict their patients’ future violence, so too are failure to protect claims. Accordingly, we view the Munstermann rule as an accurate determination of state policy with respect to the duty of psychiatrists to warn—and protect—third parties from their patients’ violent behavior.
There is also an interesting concurring opinion by Justice Jonathan Papik on the broader scope given the statute by the Court. Papik noted that in Munsterman the Court acknowledged that the statutes governing the duties of licensed mental health practitioners and psychologists did not expressly apply to psychiatrists and, therefore, a psychiatrist’s duty was “still controlled by common law.” Munstermann v. Alegent Health, 271 Neb. 834 , 845 , 716 N.W.2d 73 , 83 (2006). Papik questions that foundation for then holding that while those statutes “‘may not be literally applicable, [they are] clearly indicative of legislatively approved public policy.'” Id. at 846 , 716 N.W.2d at 84 (quot-ing Parson v. Chizek, 201 Neb. 754 , 272 N.W.2d 48 (1978)).
The case is Rodriguez v. Lasting Hope Recovery Ctr. of Catholic Health Initiatives , Neb., No. S-19-1116, 3/5/21 .