CASE REVIEW: Are therapists immune under duty to warn rules when they seek police assistance for a dangerous patient who has made no specific threats?
Robinson v. Mount Logan Clinic
182 P.3d 333 (2008)
The Utah Supreme Court recently undertook to decide whether a therapist is shielded from liability when she calls law enforcement to seek assistance for a dangerous patient but erroneously informs the police that her patient is not armed with a weapon – when the patient is in fact so armed – and the weapon injures a police officer who responds to the scene.
Facts and prior proceedings
The case arose when a therapist called police to assist her with a patient she was treating. He had become agitated and the therapist believed he was suicidal. The therapist was aware that the patient “had a history of threatening violent behavior and had sometimes waved a gun around at home, threatening himself and his family. She also knew that the patient sometimes kept a gun in his truck.” The therapist knew the patient had returned to his truck during her session – and when she asked him if he had a weapon, the patient replied, “Maybe I do, maybe I don’t.”
When police were called, the dispatcher asked the therapist if the patient had “any weapons or anything like that?” The therapist replied, “No.”
Two officers went to the scene and a confrontation ensued at which time the therapist, for the first time, mentioned that her patient might have a weapon.
During a struggle, a handgun in the patient’s pocket discharged, striking one of the officers in the foot. He later filed a lawsuit against the therapist. The therapist filed a motion to dismiss, arguing that she could not be held liable because her patient made no actual threat. Without an actual threat, there is no duty to warn.
The lower court agreed and dismissed the lawsuit. The police officer appealed and the Utah Supreme Court overturned the lower court, concluding that even where there is no duty to warn if a therapist takes the affirmative step of contacting police about a dangerous patient the law demands that the therapist act reasonably.
The court’s rationale relied on the statutory “duty to warn” rule as well as the common law doctrine that imposes liability on all persons who undertake a duty they don’t otherwise have as a matter of law.
The statutory “duty to warn” rule
Utah law provides that “A therapist has no duty to warn or take precautions to provide protection from any violent behavior of his client or patient, except when that client or patient communicated to the therapist an actual threat of physical violence against a clearly identified or reasonably identifiable victim.”
In this case, the client made no actual threat. Thus, the therapist argued she had no duty to warn or protect the officer under Utah’s statutory “duty to warn” rule. However, because the therapist contacted police for assistance with a dangerous patient, the court said she created a different duty of care, one derived from common-law that obligated her to communicate information to police in a non-negligent manner.
In short, if a therapist is going to seek law enforcement’s help with a dangerous patient who has made no specific threat against any particular person, she has to be mindful of the risks facing the police officers – which means she must inform them of all facts that might bear on risks to their safety.
The therapist also tried the alternative argument that she was covered by the immunity provisions of the statutory “duty of care” rule because the patient made a threat of physical violence against himself when he threatened suicide. The court declined to address the question whether the Utah duty-to-warn rule contemplates a patient threatening suicide but they seemed skeptical as such a case wouldn’t involve the therapist taking steps to “warn” anyone. Had the court accepted this argument, there would have been no lawsuit because the therapist complied with her duty under the statute simply by contacting police.
Similarly, as there was no suggestion that the patient made an actual threat of physical violence to the police, this case was not covered by the duty-to-warn statute because the injured officer was not a “clearly identified or reasonably identifiable victim” to whom a duty might have arisen under the statute.
As with the previous argument, had there been such a threat, there would have been no lawsuit because the therapist complied with her duty under the statute simply by contacting police.
The common law “duty of care” rule
A different duty of care arose (not under the “duty-to-warn” statute) because the therapist undertook an affirmative act for the benefit of another. When any person “undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care.”
This ruling did not determine whether the therapist in fact did act negligently. It only concluded that there was no protection from liability under the duty-of-care statute. A jury will have to decide whether the therapist acted unreasonably in the circumstances by not revealing at the outset of her report to police that her clearly dangerous patient may have had a weapon.
Implications for therapists Some will read this ruling and think the better course would have been not to contact police because by asking for assistance the therapist developed a legal “duty” to report the facts “reasonably” – a duty that exposed the therapist to potential liability if she acted “unreasonably.” By saying nothing at all to police, the therapist could have avoided liability altogether. But that would have exposed the therapist to a risk of harm to herself.
Thus, while creating a legal duty is a burden, it is safer than not seeking help at all. Therapists would be wise, however, to consider the ramifications of this decision in terms of understanding how to report a dangerous situation to law enforcement when it does not involve a specific threat of harm to police. Training, rather than avoiding assistance, is clearly the better choice.
Wendy J. Murphy is an adjunct professor of law at New England School of Law in Boston, Mass. She is a former prosecutor, impact litigator and attorney specializing in the representation of crime victims, women and children. Her first book, And Justice for Some, was published by Penguin/Sentinel in September 2008. Her e-mail address is firstname.lastname@example.org.