Texas psychiatrist dodges Tarasoff bullet.

• Position: Includes survey of tort cases

Texas Psychiatrist Dodges Tarasoff Bullet

Statutes requiring confidentiality of patients' Communications with mental health professionals trump any duty a psychiatrist has to warn appropriate third parties when a patient makes specific threats of harm toward a readily identifiable person, the Texas Supreme Court held in Thapar v. Zezulka, 994 S.W.2d 635 (1999).

In Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976), the Supreme Court of California established the rule, followed in many jurisdictions, that mental health professionals have a duty to warn third parties of a patient's threats and that the failure to do so gives rise to tort liability. In fact, in the Texas case, the Texas Court of Appeals recognized such a cause of action. 961 S.W.2d 506 (Tex. App.--Houston (1st Dist. 1997).

But the state supreme court reversed, citing a 1979 statute, three years after Tarasoff, that classifies communications between mental health professionals and their patients as confidential and prohibits disclosure to third parties unless one of the statute's exceptions applies. One of the exceptions is disclosure to law enforcement personnel if there is the probability of imminent physical injury to the patient or to others. But, the court noted, the language of the statutory exceptions renders them permissive rather than mandatory.

"The confidentiality statute here does not make disclosure of threats mandatory nor does it penalize mental health professionals for not disclosing threats," Justice Enoch wrote for the court. "And, perhaps most significantly, the statute does not shield mental health professionals from civil liability for disclosing threats in good faith. Thus, if a common law duty to warn is imposed, mental health professionals face a Catch-22. They either disclose a confidential communications that later proves to be an idle threat and incur liability to the patient, or they can fail to disclose a confidential communication that later proves to be a truthful threat and incur liability to the victim and the victim's family."

Canadian Mother Dodges Liability to Son as Fetus

In a decision driven by public policy considerations, and with two justices dissenting, the Supreme Court of Canada ruled that a mother should not be liable in tort for damages to her child caused by her negligent act that allegedly injured the fetus in her womb. Dobson (Litigation Guardian of) v. Dobson, No. 26152, July 9, 1999.

The plaintiff...