Section 12 Legal Principles

• Library: Mental Health 2006

Health care professionals generally owe a duty only to patients with whom they have entered into a relationship, either expressly or implicitly. There is no duty to the general public to protect them from harm. There is also no duty to control the conduct of another, except under the duty to protect a patient. In limited circumstances there may be a duty to a third person.

Missouri has adopted the duty to warn as set forth in Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976). This was an action brought against a psychologist to recover for the murder of Tatiana Tarasoff, the girlfriend of a patient of the psychologist. The patient killed Tatiana two months after he had confided to the psychologist his intent to kill her. The psychologist did not warn Tatiana about this threat against her based on the confidentiality and privilege of the patient’s communication. The plaintiff’s action was based on the psychologist’s failure to warn Tatiana of the impending danger.

In Bradley v. Ray, 904 S.W.2d 302 (Mo. App. W.D. 1995), the scope of the duty to warn was clearly delineated. Kelly Pope was allegedly abused by her stepfather, Lester Pope, from 1980, when she was four years old, until 1989. Kelly’s mother became aware of the abuse and arranged to have Dr. Ray and Dr. Strnad render psychiatric services to Mr. Pope. Dr. Ray and Dr. Strnad were psychologists with a practice in Columbia. They began counseling Mr. Pope in 1988 for the abuse of Kelly, but shortly thereafter terminated the counseling. It was alleged that Dr. Ray and Dr. Strnad were aware that Mr. Pope was continuing to abuse Kelly, but failed to warn anyone of the abuse and failed to make a report as required by § 210.115, now RSMo Supp. 2005.

In analyzing whether Missouri would recognize this theory of liability, the Bradley court focused on the principles commonly relied on by other states in imposing a duty to warn. They include the foreseeability of the harm, the special relationship between the psychotherapist and the patient, and the public policy of the state to discourage or prevent foreseeable harm. The court also noted that consideration must be given to the magnitude of the burden to the practitioner of guarding against the injury and the consequences of placing that burden on the practitioner.

As in most states, the “general rule under Missouri common law is that a private person has no duty to protect another from deliberate criminal attacks by a third...