Tarasoff Revisited: Nebraska Court Rejects Liability Of Psychiatrist After Patient Murders Girlfriend

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 Initiatives297 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 Health271 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. Chizek201 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 .

30 thoughts on “Tarasoff Revisited: Nebraska Court Rejects Liability Of Psychiatrist After Patient Murders Girlfriend”

  1. I disagree with the wording of the law. If someone threatens to murder an identifiable person, then the law should state that all close associates should be notified, especially significant others.

    The person most likely to murder a woman is her husband, boyfriend, or lover, past or present. If someone has specific rage against an individual, and is a serious threat, then he’s capable of violence. There should be a duty upon mental health professionals to warn people in a current, or recent relationship with someone who is considered a threat to anyone, even if they had not directly named that significant other. Such violence is so easily transposed. How many times has a violent man come home furious that he got fired or had problems with his boss, gotten into a fight, and then murdered his wife or girlfriend?

    I believe the problem lies with the law itself. The court had no choice but to apply the law as it was written, and Lloyd apparently did not voice threats to Rodriquez.

    Let this tragedy be the catalyst to change the law.

    I would also want an investigation into what led to the hospital deeming Lloyd no longer a threat, and releasing him. Perhaps with enough Lithium or Haloperidol he managed to appear harmless.

    The mental healthcare system, and its attendant laws, require reform in the US.

  2. Mespo, you might know better than I, but one can divide the patients into two categories, the truly ill and those that are more or less normal. In the former the decision might appear easier, but in the latter which represents a much larger portion of the population a lot of people say things in haste that was never meant. How does one distinguish the non-serious from the serious comments? Murderers exist in the general population.

    1. S Meter:

      I think you have to err on the safe side by taking all but the most ludicrous (“I’m going to murder my aunt in Singapore” when you’re in New York) seriously. Making that assertion in a clinical setting is different that me doing the same at my local watering hole. The patient is trying to say something to his doc.

      1. Mespo, I think one of the two of us might be erring on the number of “normal” individuals that make dangerous and serious statements. I think the psychiatrist needs to report any that seem serious to him but that leaves many serious ones out there that cause harm to themselves or others. It’s a statistical guessing game where one has to assume the psychiatrist will be wrong many times in his life. I don’t know that laws can be written to address those failures. One saving grace is that many of those uttered intentions that were missed never get realized because of lack of opportunity during the time frame where the threat existed.

    2. S Meyer:

      I know of two people who had a connection to a seriously mentally ill person. One was related to a mentally ill man, and the other knew a mentally ill woman from school. In both cases, these people were a threat. One kept knives and other edged weapons on her at all times to fight the “demons” she thought were after her. The other repeatedly expressed a desire to harm others. He’d get put on a hold, given medicine, and released. Once out, he wouldn’t take his meds because he did not like the side effects. Rinse repeat. The family of the man was essentially told that he could not be committed until he harmed someone or himself.

      This was years ago. I don’t get the impression that much has changed.

      It used to be too easy to get someone committed. Now it’s too hard.

      1. I know of a person who was known to be mentally ill. He went to a public mental health facility and plead with them to put him away because he had urges to kill someone. They didn’t but he did.

        1. He killed someone? Am I understanding you correctly?

          God bless him for trying to get help. Poor man, and his poor victim.

      2. I’m sure that you know lots of mentally ill people yourself. Major depression, for example, is pretty common. You may not consider it a serious mental illness, but it is. The vast majority of people with mental illnesses do not need to be institutionalized.

  3. This is just wrong because the therapist controls the facts and the standard of care is a subjective one: first, s/he creates and maintains the records documenting the threat, so after learning that the patient they just released committed murder, there is strong incentive to alter or lose the records. I’ve seen too many cases of fetal monitoring strips going missing after a baby is born with brain damage, so don’t dismiss this as a possibility. In this case, there allegedly was no record of a threat to the girlfriend–just the mother, but who knows what really happened during the therapy session because what DID happen is that he murdered the girlfriend, so we DO know he posed a danger to her. Secondly, thanks to the legislature, liability is premised upon the therapist’s subjective risk assessment: ‘[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.’” This flies in the face of the tort law definition of the standard of care being what a reasonably-prudent practitioner of the same discipline would do under the same or similar factual circumstances. Here, no matter how unreasonable the psychiatrist’s belief that his/her patient did not pose a serious risk of grave danger to another, there is no liability. The therapist is the sole expert witness on liability. So, all the therapist has to to is testify that, in their judgment, s/he didn’t perceive any danger, and the victim gets nothing. The practical effect is that the Nebraska legislature has eliminated liability for failing to warn or protect, because what therapist is ever going admit that they knew their patient posed a risk of grave danger to another person, but that they decided not to warn or protect the victim?

    1. Natch, what the devil are you talking about? The plaintiffs can introduce their own expert witnesses, the defendant is not the sole expert. LOL. Sal

    2. If a nurse was aware of anomalies or warning signs during fetal monitoring, was aware that the monitoring record existed and that it went missing, then they have an obligation to report this information to law enforcement. Even without the records, a nurse can testify that he or she saw an irregular or dropping heart beat.

      Doctors sometimes get away with malpractice enabled by the silence or assistance of nurses and administrators.

      Fetal monitoring strips are usually required to be kept for 28 years, 10 years after the age of majority. If a strip goes missing, a missing document charge can be brought against a hospital, which also directs the jury to reach the conclusion that evidence was deliberately tampered with.

      Modern perinatal data management systems keep electronic records, but they do require software that may go out of date. There are now systems that create searchable databases by patient for fetal monitoring strips stored as pdfs.

      In any case, data archives are the purview of the hospital. It is the hospital, most of all, which has the most liability specifically for records archive.

      1. CYOA is why the responsibility for data archive lies with the hospital, not the attending physician or surgeon.

  4. Gauging the true intent of someone threatening violence, in a culture that is quite comfortable with casual threats of violence, is indeed quite the task. In any sort of helping profession it is truly the bane of one’s existence.

    Elvis Bug

    1. This is a good point but the salient question for involuntary committment, is there person an imminent threat to themselves or others? so it must be reckoned

      unfortunately there is a horrible shortage of inpatient care berths across America, and knowing this, the system downplays its perceptions of likelihood to do harm, in a form of covert rationing or perhaps triage is a better word.

      the usual person that gets killed by someone with mental illness, is the patient himself or herself, i suspect.

      I wonder sometimes, does society much even care?

      the past year has lead me to believe the system WANTS people to kill themselves

      anyhow, now that the Democrats are in charge, will they step up to the plate and help fund inpatient mental health facilities? I wont hold my breath, seems like a bipartisan failing that goes on and on one year after another

      Sal Sar

  5. Sounds similar to the lawsuits claiming that Trump should be liable for the rioting of his supporters (which will likely be dismissed)

  6. Fatal quibbling, if you ask me. These people are nuts and threats should be reported to authorities and family. One wonders about the duty the his insane patient declared “I’ve got a gun and I’m going to kill the first person I see outside your office, doc.”

    1. If I remember correctly, in Tarasoff the therapist did discreetly tell police of the patient’s threat to murder his girlfriend. The court knew that wouldn’t protect anyone even if the therapist didn’t hence the enhanced duty to warn the intended victim which evolved into a duty to protect. How can the therapist protect a potential victim? I haven’t thought that through, but one possibility is civil commitment of the patient combined with warning the family and police.

      In any event, one hopes a clearly framed, and limited, duty for a therapist to intervene can be developed. If I were a therapist I would want a legal mechanism in place that gave me the means and duty to intervene if a patient who is a clear danger to himself and others is credibly plotting murder or serious harm. What if your patient says he is going to poison hundreds of jars of baby food in supermarkets? Patient confidentiality or not, you have to stop him.

      1. Young, “clear danger”, what is that when one is talking about the human mind? People kill without ever mentioning it to another and when they do mention it the target might be someone else. At best this is all very murky. Murky regulation is dangerous.

        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.”

        Who determines when that peril begins? That is the psychiatrist’s ballpark where the only review of the psychiatrist’s work is another psychiatrist who utilizes the notes written by the first psychiatrist. Whatever laws are written are open to interpretation and one thing that is worrisome is that inadvertently we can provide the state with too much power over the individual through the psychiatrist. That has been done before.

        1. “Who determines when that peril begins? ”
          ****
          When the question is what responsibility a therapist has to prevent harm then it will be the therapist. The therapist will have to sail between Scylla and Charybdis. If he reveals a confidence without justification he faces discipline before the medical board and a civil lawsuit. If he fails in a duty to warn or protect he faces a civil lawsuit as Tarasoff did plus deaths on his conscience. Those dangers should be in place on both sides so that he will be very sure of what he is doing before going either way and make sure that he documents the medical record thoroughly. If it isn’t recorded it didn’t happen.

          In Tarasoff the therapist was very, very sure that the girl was in grave danger. He acted despite the existing state of the law against acting. But it wasn’t enough. She died and he was sued.

          In the Colorado theater shooting incident the therapist was nearly certain that her patient was going to do something dangerous but she didn’t do anything and people died.

          In the Virginia Tech shooting the therapist was very concerned but did nothing and people died.

          I believe it was in Georgia that a therapist was worried about a patient, maybe a sheriff’s deputy, and reported him. The therapist was wrong,and he was successfully sued.

          The therapist may be the last chance to identify these risks so it should be on him to do it, but it shouldn’t be easy.

          1. ” If it isn’t recorded it didn’t happen.”

            That is the ultimate result of too much regulation.

            “The therapist may be the last chance to identify these risks so it should be on him to do it, but it shouldn’t be easy.”

            Do you like playing dice?

            This doesn’t mean I am against reporting by a psychiatrist. I am for it but we are dealing with something extremely murky and murkiness doesn’t create good law.

            1. A friend once told me, “One good thing about learning law is that it increases your tolerance for ambiguity.”

              True

              At times ambiguity can’t be avoided and someone just has to work his way through it.

              The ” If it isn’t recorded it didn’t happen” is a common expression with medical students and doctors to remember that the medical record is a medico-legal document that could end up in a legal situation as evidence. If you asked the patient if he was allergic to penicillin and you didn’t note his reply in the record how can you demonstrate that you asked if he goes into shock? Oops! Put it in the record. Obviously you would want to have a complete record if you are about to have a patient confined because he is, you believe, an imminent risk to identified people. Someone may ask why you thought that at that time. Nice to have a contemporaneous note.

              1. I think I get the gist of what you are saying. I look at it that the notes are written after the disposition is decided. Essentially that means that for a singular patient whose disposition is on the line there are essentially two different notes. The final decision determines which note is chosen.

                Physicians write notes to conform to the desires of three major parties. 1) payment 2) legal 3) unpaid research (physicians are forced as the research is incorporated into the electronic notes that require approval for Medicare payment.). The note is supposed to be an aid for patient care but #1 and #2 dominate. It doesn’t pay legally for physicians to get too medically smart in their notes. Every word opens them up to suit and missing words open them up to lower payments along with suits.

    2. Mespo, I think you are looking at a narrow spectrum of people that can be considered dangerous when one of them walks in the room. What about the rest of the population?

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