Dilemma of Tarasoff : Must Physicians Protect the Public or Their Patients?

131 Cal. Rptr. 14 (Cal. 1976) [hereinafter referred to as Tarasoff].

Id. at 22.

Id. at 19–20.

Id. at 25.

Id. at 25, n.11.

Id. at 27, quoting Principles of Medical Ethics of the American Medical Association (AMA, Chicago) (1957) §9.

Tarasoff, supra note 1, at 27.

Id. at 20.

403 A.2d 500 (N.J. Super. 1979) [hereinafter referred to as McIntosh].

Id. at 503.

Id. at 510.

Id. at 511, 512.

Accord Adebimpe V. McCling J. , Managing the Dangerous Patient: The Tarasoff Penumbra, American Journal of Forensic Psychiatry 2(4):11 (1981/1982); Stone, The Tarasoff Decisions: Suing Psychotherapists to Safeguard Society, Harvard Law Review 90(2): 358 (1976).

The appellate court in McIntosh remanded the case to the trial court for a determination of these factual issues. After a full trial, the jury determined that the physician was not liable. See Brennan R.E. , Letter to the Editor, Journal of the American Medical Association 249(2):191 (January 14, 1983).

Prosser W. , Handbook of the Law of Torts (West Publishing Co., St. Paul, Minn.) (4th ed. 1971) at 340.

Id. at 342. See also Scott v. Watson, 359 A.2d 548 (Md. App. 1976) (duty of landlord to protect tenants from criminal activities of third persons); Totten v. More Oakland Residential Housing, Inc., 134 Cal. Rptr. 29 (Cal. App. 1977) (duty of landlord to protect tenant from criminal attack by strangers).

Tarasoff, supra note 1, at 23, 24, quoting Fleming, Maximov, The Patient or the Therapist's Dilemma, 62 California Law Review 1025, 1030 (1974).

See Semler v. Psychiatric Inst. of Washington, D.C., 538 F.2d 121 (4th Cir. 1976), cert. denied, 97 S. Ct. 83 (1976); Williams v. United States, 450 F. supp. 1040 (D.S.D. 1978); Landeros v. Flood, 131 Cal. Rptr. 69 (Cal. App. 1976); Merchants Nat'l Bank and Trust Co. of Fargo v. United States, 272 F. supp. 409 (D.N.D. 1967); Department of Health & Rehab. Services v. McDougall, 359 So.2d 528 (Fla. App. 1978).

61 Am. Jur. 2d Physicians, Surgeons and Other Healers §142. See also Hoffman v. Blackmon, 241 So.2d 752 (Fla. App. 1970).

See Semler v. Psychiarric Inst. of Washington, D.C., 538 F.2d 121 (4th Cir. 1976), cert. denied, 97 S. Ct. 83 (1976).

See In re B, 394 A.2d 419 (Pa. 1978); Doe v. Roe, 400 N.Y.S.2d 668 (Sup. Ct. 1977).

See, e.g., D.C. Code Ann. §14.307 (1981).

Current Opinions of the Judicial Council of the American Medical Association (AMA, Chicago) (1982) at ix.

Tarasoff, supra note 1, at 25.

Id.

167 Cal. Rptr. 70 (Cal. 1980).

Id. at 72.

Id.

Id. at 72.

510 F. supp. 1125 (D. Pa. 1981).

Id. at 1130.

Id. See also White v. United States, Civ. Action No. 81-1280 (D.D.C. 1981) (federal district court adopted Tarasoff doctrine by implication, requiring expert medical testimony to determine whether health care professionals have satisfied the applicable standard of care).

323 N.W.2d 20 (Minn. 1982).

Id. at 26.

530 F. supp. 1278 (C.D. Cal. 1982).

Id. at 1285.

Id.

497 F. supp. 185 (D. Neb. 1980).

Id. at 193.

162 Cal. Rptr. 724 (Cal. App. 1980) [hereinafter referred to as Mavroudis].

Id. at 730.

Id.

Id. at 734.

141 Cal. Rptr. 92 (Cal. App. 1977).

Id. at 93.

301 N.W.2d 766 (Iowa 1981).

Id. at 768. In addition to cases discussed in the text, other state courts have considered Tarasoff in dicta without adopting or rejecting the doctrine. See Heltsley v. Votteler, 327 N.W.2d 759 (Iowa 1982) (Tarasoff duty, if applicable, would not be imposed when the potential victim already knew of the danger); Estate of Mathes v. Ireland, 419 N.E.2d 782 (Ind. App. 1981) (Tarasoff would be applied only to those cases in which a psychiatrist or psychiatric center had taken charge of the patient and had known that the patient was dangerous); Shaw v. Glickman, 415 A.2d 625 (Md. Ct. of Spec. App. 1980) (patient had not threatened to injure wife's lover nor shown signs of instability; in fact, plaintiff could not recover against the psychiatric team for failing to warn because that warning would have violated state statute pertaining to privileged communications); Delaware v. Tarbutton, 407 A.2d 538 (Del. Super. 1979) (health professionals under Tarasoff rationale would be held to no higher a standard than one of “reasonable care and skill” as measured by locally prevailing practice; Delaware would probably not require physicians to warn when it is a class of persons at risk).