Psychiatrist’s Duty to Warn a Potential Victim in Virginia

A psychiatrist has treated his patient for five years. The patient, who has been diagnosed with schizoaffective disorder and PTSD, has a long history of domestic violence toward his family and women. HIs mental health conditions, however, have been well controlled with medication since the psychiatrist began treating him.

On a Saturday evening the psychiatrist gets a call. The patient threatened his ex-girlfriend and the cops were called. The patient wants to meet with the psychiatrist on Monday.

That Monday the psychiatrist examines the patient and determines he needs in-patient care and therapy at a mental hospital. The patient is voluntarily admitted to the local psychiatric hospital. The psychiatrist visits his patient a few times and provides care. After a one-week admission, the patient leaves the mental hospital. Neither the psychiatrist nor the mental hospital warns the ex-girlfriend who was threatened that the patient has been released. Two days later, the patient assaults his ex-girlfriend. She is put in a medically induced coma and passes away four days later.

Psychiatrist’s Duty to Warn in Virginia

Did the psychiatrist or mental hospital have a duty to warn the ex-girlfriend about the patient, whom had threatened the ex-girlfriend and had a history of violence toward women?

In Virginia, the answer may be “no.”

The scenario I gave above is similar to the facts in Nasser v. Parker, 249, Va. 172, 455 S.E.2d 502 (March 3, 1995). In that case George Edwards, a man with a history of committing violent acts against women who rejected him, held a gun to Angela Lemon’s head and threatened to kill her. She obtained a warrant for his arrest and fled her home in Virginia Beach to hide from Edwards.

Edwards consulted Dr. Charles Parker, a licensed psychiatrist who had been treating him for mental problems over a period of 17 yeears. Dr. Parker knew of Edwards’ history of violence toward women and also knew Edwards’s had threatened Lemon. Dr. Parker concluded Edwards’s mental health condition was getting worse and that Edwards needed to seek care in a mental hospital.

Edwards was admitted “on a voluntary basis” to Peninsula Psychiatric Hospital. Dr. Parker visited Edwards in the hospital.

When she found out that Dr. Parker was treating Edwards and had arranged for him to go to the mental hospital, Lemon returned home. Edwards left the hospital, but neither Dr. Parker nor the hospital warned Lemon. A few days later Edwards shot and killed Lemon in her home and then turned the gun on himself.

Lemon’s father brought suit against Dr. Parker and other defendants as the administrator of Lemon’s estate. The plaintiff argued that the defendants had a duty to notify the Lemons of Edwards’s departure from the mental hospital. The plaintiff’s argument relied on the Supreme Court of Virginia having recognized that “a duty to protect one from the wrongful acts of a third party may exist because of a ‘special relationship’ between the defendant and the their party,” as provided in Section 315(a) of the Restatement. That section reads:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct.

The plaintiff argued the the “special relation” requirement was met by the doctor-patient relationship, and that such a finding would be consistent with the holding in Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal. Rapture. 14 (Cal. 1976). In Tarasoff, the court held that “once a therapist … determines, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victims of that danger … [This duty} requires the therapist to warn the endangered party or those who can reasonable be expected to notify him.”

In Nasser, the Supreme Court of Virginia refused to adopt California’s finding in Tarasoff. It found the decision “at odds with this Court’s interpretation of the Restatement provisions relating to one’s duty to control the conduct of a third person.” Going further, the Court determined that Section 319 of the Restatement limits the applicability of Section 315. Section 319 provides:

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.

In other words, the critical question in any case involving a doctor or hospital’s duty to warn is whether the medical provider “took charge” or “exercised control” of the person who committed the criminal act. This language “imports much more than a minimal degree of control, conveying, instead, the notion, as pertinent in the health care context and applicable to both a duty to confine and a duty to warn, that to take charge of a patient means … to ‘assert custody in the sense that the [patient] is in the personal care and control of the [doctor or hospital].” Because Edwards entered the hospital “on a voluntary basis,” the Court found that the Dr. Parker did not take charge of the third person and that no special relation existed between Dr. Parker and Edwards. The plaintiff’s claim was denied.

Have a question about medical malpractice, wrongful death, or the duty to warn? Contact Richmond, Virginia wrongful death lawyer and medical malpractice attorney Corey Pollard for a free consultation. We are here to help you and your loved ones during this difficult time.