Tarasoff Revisited: Nebraska Court Rejects Obligation Of Psychiatrist After Patient Murders Girlfriend

There is a tragic case from Omaha that has resulted in a remarkable decision over tort liability for psychiatrists. The case involves a patient, Mikael Loyd, who had been admitted to Lasting Hope Recovery Center later he told authorities that he wanted his aid in killing his mum. Psychiatrist Jeana Benton determined that he wasn’t a danger at the hospital and he had been released. He then murdered his girlfriend, Melissa Rodriguez, who broke up with him during his hospital stay.  Her parents, Angela Rodriguez and Adan Rodriguez, sued Lasting Hope and Benton’s employer, University of Nebraska Medical Center Physicians, however the Nebraska Supreme Court affirmed the dismissal of the action Because of a lack of any legal duty to warn or protect the girlfriend.
Melissa’s body has been discovered the day after the launch of Loyd, who’d returned to Lasting Hope and had been detained there. Loyd was afterwards found incompetent to stand trial.
The opinion discusses the case of Tarasoff v. Regents of University of California, which I teach in my torts class. When she said that she wanted to date other guys, Podder went to counseling in the University Health Service and can be treated with psychologist, Dr. Lawrence Moore. After he told Moore that he wished to get a gun and kill Tarasoff, Moore delivered a letter to campus authorities who interview Podder and decided that he wasn’t a danger. Podder subsequently went straight ahead and murdered Tarasoff.
Justice Mathew O. Tobriner maintained that”… the confidential character of patient-psychotherapist communications has to yield to the extent that disclosure is imperative to avert danger to other people. The protective privilege ends where the public peril begins.” As a result, the hospital has been held accountable for the criminal acts of a third party — a thing that generally (but not necessarily ) cuts proximate causation. It also rejects powerful arguments made by doctors that such accountability would create a chilling affect on counseling. A significant number of patients often express their rage by focusing on people and stating an intent to”kill that man.” In the vast majority of such situations, the open disclosure has been addressed and defused. But in the event the individual understands that the physician will have to tell authorities, such feelings are not as likely to be expressed and dealt with.
We have discussed conclusions stretching Tarasoff. But some states have passed laws limiting its effect. In Nebraska, the state supreme court previously dominated in Munstermann v. Alegent Health, 271 Neb. 834, 716 N.W.2d 73 (2006) that:

[A] psychologist is responsible for failing to warn of and protect from a patient’s threatened violent behavior, or failing to call and warn of and protect from a patient’s violent behavior, when the patient has conveyed to the psychiatrist a severe threat of bodily violence against himself, herself, along with even a reasonably identifiable victim or victims. The duty to frighten or to take reasonable precautions to provide protection against violent behavior shall arise only under those limited cases… and shall be discharged by the psychiatrist if reasonable efforts are made to communicate the threat of the victim or victims and also to some law enforcement agency.

It afterwards added the clarification the “`[A] duty to warn and protect arises only in the event the data conveyed to the psychiatrist leads the psychiatrist to believe that their individual poses a severe risk of grave physical harm to another.'” Rodriguez v. Catholic Health Initiatives, 297 Neb. 1 , 899 N.W.2d 227, 239 (2017).
In cases like this, the court ruled that that burden wasn’t satisfied.  The court distinguished between the duty to the mother Rather than the girlfriend:

Here, it is uncontroverted that Loyd never actually communicated to Benton that he intended to harm Melissa. We noted in Rodriguez I that if the Special Administrators’ assert were supported with details that Loyd had hauled to Benton a severe threat of bodily violence against Melissa, those details may give rise to an obligation to warn. Nevertheless, the undisputed truth today in the document do not support that allegation.
Really, the sole reasonably identifiable victim whom Loyd hauled an intent to harm was his mommy. During Benton’s evaluations, Loyd specifically voiced a goal to kill his mom from retaliation for his father’s death. According to these verbal expressions of risks, Benton ordered Lasting Hope staff to call Loyd’s mom to frighten her. And by the time Benton had ordered Loyd’s release, she understood that OPD was conscious of Loyd’s risks of violence against his mom, since Lasting Hope personnel had discussed the dangers with OPD officials, who also warned Loyd’s mother.
As the Special Administrators now concede, Loyd never voiced to Benton or anybody else in Lasting Hope that he intended to harm Melissa. He never identified Melissa by title or perhaps by description in accordance with his expression homicidal ideation. And to the extent that the arrest warrant identified Melissa as the casualty of Loyd’s past misconduct, it did not amount to an actual communication by Loyd, nor did it forecast that he would perpetrate physical violence against Melissa in the future. As a result, no duty to warn Melissa has been triggered below Munstermann.

Notice, even with the statutory standard, the Court seems to affirm the duty to warn the mom and Dr. Benton clearly understood that duty in ordering the staff to reach out to the mother.
What is also notable is the discussion of the duty to safeguard compared to the duty to warn. It was also rejected:

As analyzed above, the first duty implicated by Munstermann is the psychologist’s duty to warn. However, with its plain language, the Munstermann principle applies evenly to the psychologist’s responsibility to safeguard.
In every clause of this Munstermann principle that restricts psychiatrists’ duty to warn, there is an equal limitation on their duty to safeguard. …To the extent that any duty to warn and protect does arise, it”shall be discharged by the psychiatrist if reasonable efforts are made to communicate the threat of the victim or victims and also to a law enforcement agency.”
…The Legislature explicitly enacted those limitations in response to Tarasoff and, together, fashioned a state policy”to preempt an expansive ruling [from Nebraska] that a therapist could be held responsible to the mere failure to forecast potential violence by her or his individual.” As failure to warn claims are premised in part on psychiatrists’ duty to predict their patients’ potential violence, so too are failure to shield claims. Thus, we see the Munstermann principle as a true determination of state policy related to the duty of psychiatrists to warn–and shield –third parties from their patients’ violent behavior.

There is also an interesting concurring opinion by Justice Jonathan Papik about the wider scope given the waiver by the Court. Papik noted that in Munsterman the Court acknowledged that the statutes regulating the responsibilities of accredited mental health practitioners and psychologists did not explicitly apply to psychiatrists and, therefore, a psychologist’s responsibility was”still controlled by law.” Papik questions that basis for then holding that while those statutes “`may not be literally applicable, [they are] clearly indicative of legislatively accepted public coverage.'” Id.  At 846, 716 N.W.2d at 84 (quot-ing Parson v. Chizek, 201 Neb. 754, 272 N.W.2d 48 (1978)).
Of Catholic Health Initiatives, Neb., No.

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