Estates of Morgan v. Fairfield Family Counseling Center
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Full Opinion
In Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86, 529 N.E.2d 449, this court determined that under certain circumstances a psychiatrist can be held liable for the violent acts of a voluntarily hospitalized patient following the patient’s release from the hospital. The question left open in Littleton, however, was “whether a psychiatrist’s duty to protect a person from the violent propensities of the psychiatrist’s patient extends to the outpatient setting. See, generally, Tarasoff v. Regents of the University of California (1976), 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334.” Littleton, 39 Ohio St.3d at 92, 529 N.E.2d at 455, fn. 3. This is the issue we must decide today.
“SPECIAL RELATION” AND THE DUTY TO CONTROL
It is by now an axiom that duty is an essential element of a cause of action for negligence. See Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180, 472 N.E.2d 707, 710. See, also, Prosser & Keeton on Torts (5 Ed.1984) 164, Section 30. In Ohio, “[t]he existence of a duty depends on the foreseeability of the injury. * * * The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act.” (Citations omitted.) Menifee, supra, 15 Ohio St.3d at 77,15 OBR at 180, 472 N.E.2d at 710. See, also, Hill v. Sonitrol of Southwestern Ohio, Inc. (1988), 36 Ohio St.3d 36, 39, 521 N.E.2d 780, 783. In addition, it is generally recognized that where the defendant “in fact has knowledge, skill, or even intelligence superior to that of the ordinary person, the law will demand of that person conduct consistent with it.” Prosser & Keeton on Torts, supra, at 185, Section 32.
However, foreseeability alone is not always sufficient to establish the existence of a duty. This court has followed the commoñ-law rule, as set forth at 2 Restatement of the Law 2d, Torts (1965) 116-130, Sections 314 to 319, that there is no duty to act affirmatively for another’s aid or protection absent some “special relation” which justifies the imposition of a duty. Littleton, supra, 39 Ohio St.3d at 92, 529 N.E.2d at 455; Hill, supra, 36 Ohio St.3d at 39, 521 N.E.2d at 784; Gelbman v. Second Natl. Bank of Warren (1984), 9 Ohio St.3d 77, 79, 9 OBR 280, 281-282, 458 N.E.2d 1262, 1263.
Restatement Section 314 states the general rule that there is no duty to act affirmatively for another’s aid or protection.
“One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”
The issue, therefore, becomes whether the relationship between a psychotherapist and the outpatient constitutes a “special relation” which imposes a duty upon the psychotherapist to protect others against and/or control the patient’s violent conduct.
In Tarasoff, supra, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, the Supreme Court of California found that the psychotherapist-outpatient relationship constitutes such a special relation. In so finding, the court did not engage in a traditional Restatement analysis. Under a traditional Restatement analysis, Section 319 would take center stage. In Tarasoff, the court treated Section 315 et seq. as reflective of an overall principle that affirmative duties to control should be imposed whenever the nature of the relationship warrants social recognition as a special relation. Id., 17 Cal.3d at 435, 131 Cal.Rptr. at 23, 551 P.2d at 343. In this way, the court subjected Section 315 to an expansive reading. Thus, the court noted that “courts have increased the number of instances in which affirmative duties are imposed not by direct rejection of the common law rule [of
The court then engaged in a two-part analysis. First, the court drew an analogy to cases which have imposed a duty upon physicians to diagnose and warn about their patient’s contagious disease, and concluded that “ ‘by entering into a doctor-patient relationship the therapist becomes sufficiently involved to assume some responsibility for the safety, not only of the patient himself, but also of any third person whom the doctor knows to be threatened by the patient.’ ” Id., 17 Cal.3d at 437, 131 Cal.Rptr. at 24, 551 P.2d at 344, quoting Fleming & Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974), 62 Cal.L.Rev. 1025, 1030.
Second, the court weighed various public policy concerns, concluding that the public interest in safety from violent assaults outweighs the countervailing interests of safeguarding the confidential character of psychotherapeutic communications and the difficulty inherent in forecasting dangerousness. Id., 17 Cal.3d at 437-443,131 Cal.Rptr. at 24-28, 551 P.2d at 344-348.
The court held, therefore, that:
“When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.” Id., 17 Cal.3d at 431, 131 Cal.Rptr. at 20, 551 P.2d at 340.
Since Tarasoff, a majority of courts that have considered the issue have concluded that the relationship between the psychotherapist and the outpatient constitutes a special relation which imposes upon the psychotherapist an affirmative duty to protect against or control the patient’s violent propensities. Recognizing that the duty is imposed by virtue of the relationship, these courts acknowledge that the duty can be imposed not only upon psychiatrists, but also on psychologists, social workers, mental health clinics and other mental health professionals who know, or should have known, of their patient’s violent propensi
Most of the courts engage in a Tarasoff-type analysis by which Section 315 is subjected to an expansive reading. Others find a duty to exist under the rule stated in Section 319. Collectively, they recognize that there are various levels of being in “control” pursuant to Section 315, or being in “charge” pursuant to Section 319, with corresponding degrees of responsibility for the patient’s violent actions. Thus, although the psychotherapist may have less ability to control the patient in the outpatient setting than in the hospital setting, this lesser degree of control is not held to justify a blanket negation of the duty to control.
Generally, the courts focus their attention on balancing the countervailing public interests that were weighed in Tarasoff, including the additional concern that patients be placed in the least restrictive environment and that nonviolent patients not be subjected to hospitalization against their will in an effort to avoid liability. These courts conclude that the interests of society to be protected against the violent acts of mental patients outweigh the concerns of confidentiality, overcommitment, and difficulty of predicting violent acts. Hamman v. Maricopa Cty. (1989), 161 Ariz. 58, 775 P.2d 1122; Schuster v. Altenberg (1988), 144 Wis.2d 223, 424 N.W.2d 159; Evans v. Morehead Clinic (Ky.App.1988), 749 S.W.2d 696; Bardoni v. Kim (1986), 151 Mich.App. 169, 390 N.W.2d 218; Peck v. Counseling Serv. of Addison Cty., Inc. (1985), 146 Vt. 61, 499 A.2d 422; Brady v. Hopper (C.A.10, 1984), 751 F.2d 329; Lundgren v. Fultz (Minn.1984), 354 N.W.2d 25; Lipari v. Sears, Roebuck & Co. (D.C.Neb.1980), 497 F.Supp. 185; Jablonski v. United States (C.A.9, 1983), 712 F.2d 391; McIntosh v. Milano (1979), 168 N.J.Super. 466, 403 A.2d 500. See, also, Annotation, Liability of One Treating Mentally Afflicted Patient for Failure to Warn or Protect Third Persons Threatened by Patient (1978), 83 A.L.R.3d 1201; 2 American Jurisprudence, Proof of Facts 3d (1988) 327; Sear, The Psychotherapist’s Duty to Warn (1990), 40 Fedn. of Ins. & Corporate Counsel Qtrly. 406, 416-418.
In addition, a number of courts have relied on Tarasoff in finding that a psychotherapist can be held hable for the violent acts of a patient following the patient’s release from the hospital. Wofford v. E. State Hosp. (Okla.1990), 795 P.2d 516; Naidu v. Laird (Del.1988), 539 A.2d 1064; Petersen v. State (1983), 100 Wash.2d 421, 671 P.2d 230; Chrite v. United States (E.D.Mich.1983), 564 F.Supp. 341; Bradley Ctr., Inc. v. Wessner (1982), 250 Ga. 199, 296 S.E.2d 693. See, also,
The parties do not dispute that the psychotherapist-outpatient relationship justifies the imposition of a common-law duty upon the psychotherapist to control the violent propensities of the patient. In fact, Dr. Brown readily admits that “[i]n Tarasqff, supra, the Supreme Court of California set then-novel but reasonable parameters on a psychotherapist’s liability for violent acts of outpatients.” However, our research discloses that Tarasoff does not enjoy universal acceptance. Some courts have concluded that the typical psychotherapist-outpatient relationship lacks sufficient elements of control necessary to satisfy Sections 315 and/or 319. These courts reason that the duty to control is corollary to the right, power, or ability to control, and criticize Tarasoff for not specifically addressing the issue of a psychotherapist’s control over the outpatient. In addition, some of these courts find that public policy militates against the imposition of a duty in the outpatient setting. Boynton v. Burglass (Fla.App.1991), 590 So.2d 446, 448-449; Santa Cruz v. Northwest Dade Community Health Ctr., Inc. (Fla.App.1991), 590 So.2d 444, 445; Wagshall n Wagshall (1989), 148 A.D.2d 445, 447, 538 N.Y.S.2d 597, 598-599; King v. Smith (Ala.1989), 539 So.2d 262; Currie v. United States (C.A.4, 1987), 836 F.2d 209, 213; Cooke v. Berlin (1987), 153 Ariz. 220, 224-225, 735 P.2d 830, 834-835; Hasenei v. United States (D.Md.1982), 541 F.Supp. 999,1009. See, also, Stone, The Tarasoff Decisions: Suing Psychotherapists to Safeguard Society (1976), 90 Harv.L.Rev. 358, 365-366; Note, Affirmative Duty After Tarasoff (1983), 11 Hofstra L.Rev. 1013, 1029-1030.
In light of the opposing views on the subject, we deem it necessary to resolve the issue of duty in the outpatient setting by balancing the various factors which are the focus of judicial attention on both sides of the issue. These factors consist of the following: (1) the psychotherapist’s ability to control the outpatient; (2) the public’s interest in safety from violent assault; (3) the difficulty inherent in attempting to forecast whether a patient represents a substantial risk of physical harm to others; (4) the goal of placing the mental patient in the least restrictive environment and safeguarding the patient’s right to be free from unnecessary confinement; and (5) the social importance of maintaining the confidential nature of psychotherapeutic communications. See Littleton, supra, 39 Ohio St.3d at 93-94, 97-98, 529 N.E.2d at 456-57, 459. See, also, Perreira v. State (Colo.1989), 768 P.2d 1198, 1214-1215.
A
In weighing these factors, we must bear in mind that duty is not an immutable concept, nor is it grounded in natural law. As Prosser & Keeton explains, “[t]he
Accordingly, there is no more magic inherent in the conclusory term “special relation” than there is in the term “duty.” Both are part and parcel of the same inquiry into whether and how the law should regulate the activities and dealings that people have with each other. As society changes, as our sciences develop and our activities become more interdependent, so our relations to one another change, and the law must adjust accordingly. “Duty” is not a rigid formalistic concept forever embedded in the standards of a simplistic yesteryear. Relations perhaps regarded as tenuous in a bygone era may now be of such importance in our modern complicated society as to require certain assurances that risks associated therewith be contained. These principles do not shed their inherent flexibility when applied in the context of a defendant’s duty to control the violent conduct of a third person. See Lipari, supra, 497 F.Supp. at 192-193; McIntosh, 168 N.J.Super. at 495, 403 A.2d at 515; Tarasoff, 17 Cal.3d at 442, 131 Cal.Rptr. at 27-28, 551 P.2d at 347-348; Prosser & Keeton on Torts, supra, at 356-358, Section 53; Harper & Kime, The Duty to Control the Conduct of Another (1934), 43 Yale L.J. 886, 904-905.
B
There is indeed a current running through the relevant Restatement sections that in order for a special relation to exist between the defendant and the third person, the defendant must have the ability to control the third person’s conduct. Moreover, the cases from which these sections derive indicate that the ability to control is not the fictitious control which provides the basis for vicarious liability. Instead, “control” is “used in a very real sense.” Harper & Kime, The Duty to Control the Conduct of Another, supra, 43 Yale L.J. at 891. Further, it would be tantamount to imposing strict liability to require the defendant to control a third person’s conduct where he lacks the ability to do so.
However, those courts which find the ability to control to be lacking in the outpatient setting tend to take a rather myopic view of the level or degree of control needed to impose the duty. They appear to assume that in order to satisfy Section 315 in general, or Section 319 in particular, there must be actual constraint or confinement, whereby the third person’s physical liberty is taken
The argument could be made that the two Illustrations to Section 319 describe situations where the potentially harmful individual is confined and then negligently released. However, the rule stated in Section 319 is noticeably broader. Just as there are diverse levels of control, there are different levels of taking “charge.” In contrast to the “takes charge” language of Section 319, Section 320 sets forth the duty of one who “takes the custody” of another under certain conditions to control the conduct of third persons as to prevent them from harming the other. The comments to Section 320 indicate that the term “custody,” as used in Section 320, is more suggestive of restrictions on liberty. Thus, “the illustrations appended to [Section 319], which are drawn in the context of a private hospital or sanitarium for the insane, are obviously not by way of limitation.” McIntosh, 168 N.J.Super. at 483, 403 A.2d at 509, fn. 11.
Although the outpatient setting affords the psychotherapist a lesser degree of control over the patient than does the hospital setting, it nevertheless embodies sufficient elements of control to warrant a corresponding duty to control. As we noted supra, there are a number of anticipatory measures that could be taken in the outpatient setting to prevent the patient’s violent propensities from coming to fruition. To find that such measures lack the quality of control would require us to feign ignorance of the facts and testimony in the case sub judice.
In addition, Drs. Goff and Tanay testified that at various points in time after October 11, 1990, the last time Dr. Brown saw Matt, a number of other steps could have been taken by Dr. Brown, FFCC and its employees to prevent Matt’s dangerous proclivities from manifesting. According to their testimony, Dr. Brown should have closely monitored Matt’s condition for at least six months after withdrawing his medication. If this had been done, Dr. Brown could have reinstated Matt’s medication upon the reappearance of symptoms. Since this was not accomplished, Matt’s condition eventually deteriorated to the point of noncompliance while under the care of FFCC. At this point, Drs. Goff and Tanay opined, FFCC should have taken aggressive action to persuade Matt to continue treatment and have his medication reinstated by Dr. Brown. Such action should have included, among other things, strong family involvement, making Matt’s participation in vocational therapy contingent upon continued treatment, and telling Matt that he faced involuntary hospitalization unless he resumed taking his medication. If such measures had proved to be ineffective, and Matt nevertheless continued to deteriorate as he did, he would need to be involuntarily hospitalized, which, Drs. Goff and Tanay opined, should have taken place in May or June 1991.
Thus, we conclude that the psychotherapist-outpatient relationship embodies sufficient elements of control to warrant a corresponding duty to control.
Society has a strong interest in protecting itself from those mentally ill patients who pose a substantial risk of harm. See R.C. 5122.01(B). See, also, Tarasoff, 17 Cal.3d at 440, 442, 131 Cal.Rptr. at 26, 27, 551 P.2d at 346, 347-348. To this end, society looks to the mental health profession to play a significant role in identifying and containing such risks. See, generally, R.C. Chapter 5122. The mental health community, therefore, has a broadly based responsibility to protect the community against danger associated with mental illness. See, e.g., Lipari, 497 F.Supp. at 190; McIntosh, 168 N.J.Super. at 489, 403 A.2d at 512. This responsibility is analogous to the obligation a physician has to warn others of his patient’s infectious or contagious disease.
In Jones v. Stanko (1928), 118 Ohio St. 147, 160 N.E. 456, at paragraphs one and two of the syllabus, the court held that a physician not only has the statutory duty to report his patient’s contagious disease to the appropriate governmental agency, but also the duty “to exercise ordinary care in giving notice of the existence of such contagious disease to other persons who are known by the physician to be in dangerous proximity to such patient.” Jones is important for four reasons. First, it demonstrates that Ohio common law recognizes that a physician can have a duty to others with whom he has no professional relationship. Second, it accepts that a duty can arise by virtue of the public interest in containing certain risks. Third, it places a duty upon the physician to act affirmatively to protect others from a danger not only of which he is aware, but also of which he should be aware. Fourth, the duty owed by the physician to diagnose and treat his patient’s condition for the benefit of others is the same duty already owing to the patient.
As explained in McIntosh, 168 N.J.Super. at 490, 403 A.2d at 512, a patient’s dangerous propensities “may affect [others] in much the same sense as a disease may be communicable. The obligation imposed by this court, therefore, is similar to that already borne by the medical profession in another context.”
D
In Littleton, supra, 39 Ohio St.3d at 97, 529 N.E.2d at 459, we recognized the difficulty inherent in forecasting whether a particular patient may pose a danger to others. Such difficulty, however, does not justify a blanket denial of recovery. The concept of due care adequately accounts for the difficulty of rendering a definitive diagnosis of a patient’s propensity for violence. The psychotherapist is not expected to render a perfect prediction of future violence. All that is