Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

If one patient threatens another

Q: As an FP, I sometimes counsel and treat patients for depression or drug dependence. I treated a husband and wife separately for depression and prescribed medication to manage the symptoms. The husband terminated treatment at a time when he was also abusing drugs. The wife successfully completed treatment and is now off medication.

The couple has been separated for a long time. The wife is seeking a protective order against her husband, because he abuses her verbally and she fears he'll become violent. She has asked me to testify to her husband's diagnosis. If I agree, could I be held liable for violating his privacy? What's a doctor's legal obligation in cases involving potentially violent patients?

A: State laws governing the confidentiality of the doctor-patient privilege generally protect information learned during the course of treatment. So disclosing such information could be construed as a breach of the husband's privacy. However, the risk of being sued for inappropriate disclosure is relatively low, since disclosure typically doesn't do great monetary damage to the patient.

On the other hand, when a doctor knows of a specific and serious threat of violence, his obligation changes. In the landmark 1976 case of Tarasoff v. Regents of the University of California, a patient told his therapist that he planned to shoot his former girlfriend. The therapist told campus police but didn't warn the intended victim. After the patient killed the young woman, her family sued the therapist and his university employer for failure to warn. The court determined that protection of third parties against a clear and identifiable danger supersedes the confidentiality privilege.

The duty to warn or protect others can vary somewhat depending on the jurisdiction and the type of harm threatened, but most states have case law or legislation endorsing the same principle. The physician usually is immune from liability for breaching confidentiality in such cases. If he fails to warn a victim, however, and a homicide or physical injury occurs, he can face tremendous liability—especially when more than one victim is involved.

Ask yourself, "How immediate is the threat?" and "How clearly identifiable is the victim?" In your patients' case, the identity of the possible victim is clear but the threat doesn't appear to be imminent. If the husband makes a direct and overt threat, you would be obligated to warn the potential victim.

The court may also order you to testify. The wife's lawyer could make a motion to compel testimony, but the judge probably won't order it if he isn't convinced that the wife is in immediate danger. Courts will generally hold the privilege paramount unless there is an overriding need to protect a third party, because a patient's willingness to confide in a doctor and participate in therapy often hinges on the integrity and confidentiality of the relationship. If the court does order you to testify, you'll have qualified immunity from a breach-of-confidentiality claim.

The wife's lawyer may also request your records to see if they mention any history of threats, abuse, or both. Since written information is also privileged, you will again have to wait for the court to rule.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2002;24:68.