How to Handle Therapist Liability Cases for the Plaintiff

It is the day after their daughter Elaine, 24, was murdered in her bedroom by her ex-boyfriend Jim. Elaine's stunned parents are in court at Jim's arraignment. They listen to the prosecutor detail the crime as told by Jim in his confession. The prosecutor explains how Jim was despondent over his break-up with Elaine. How Jim took his father's gun. How Jim ' well liked by Elaine's family ' had a key to their small colonial home. The prosecutor explains how Jim entered the home with the gun tucked in a gym bag. How nobody was home and that he went upstairs to Elaine's bedroom. He explains that Elaine and her younger sister returned to the home, and started upstairs. He explains that Jim heard them and hid under a sink. He then details the encounter with Elaine. How Elaine spotted Jim under the sink, yelled to her sister to get out, saw the gun and held her hands up defensively.

Elaine's parents listen as the prosecutor details the firing of six bullets from the gun ' all striking their daughter. The parents then hear the prosecutor say that Jim has confessed to the murder. In his confession, Jim reported that he had been seeing a therapist “for the past month” and that he had been telling his therapist about his thoughts of killing Elaine and himself. It is reported by the prosecutor that when a prior relationship ended, Jim ' a veterinarian ' strangled his ex-girlfriend's cat. They get the sinking feeling that the murder of their daughter was preventable, and they then consult our firm.

The Obligation of a Therapist to Protect a Third Person From a Dangerous Patient

Under certain circumstances mental-health professionals ' whether psychiatrists, psychologists, social workers or others ' have a duty to protect innocent third parties from their dangerous patients. If you attended law school some time after 1976, you probably recall the seminal case of Tarasoff v. Regents of University of California, 17 Cal.3d 425 (1976). In Tarasoff, a graduate student named Prosenjit Poddar, who was attending the University of California at Berkley, confessed to his counselor a desire to kill another student he was obsessed with: Tatiana Tarasoff. Although his counselor recognized that Poddar was dangerous and even briefly had him committed, neither Tatiana nor her family were warned of the threat.

Two months later, Poddar murdered Tatiana Tarasoff.

Prior to Tarasoff, therapists had already been taking steps to contain dangerous patients before they harmed themselves or others. But it wasn't until Tarasoff that the common law imposed a duty on mental-health professionals to protect foreseeable victims from dangerous patients.

The language of Tarasoff ought to sound familiar to those who have engaged in medical malpractice cases of this nature: “When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.” Id.

Tarasoff, then, imposed an obligation not only in cases where the therapist actually knew about the danger, but also where he or she “should have known.” Although Tarasoff is often seen as imposing a duty to warn a potential victim ' or those within the danger zone of a potential victim ' the obligation is more (or in some cases less) than a warning. There is an obligation “to protect” the foreseeable victim. This needs to be clearly understood when confronted with one of these tragic cases.

Keep in mind that part of the teaching of all mental-health professionals who are going to be engaged in therapy is their obligations under Tarasoff. Homicide and suicide are among the most important issues that therapists confront. Risk management deals extensively with these issues, and they are extensively written about and taught. (For excellent references on the background and case law surrounding this duty to protect, I suggest two authors: Dr. Paul Appelbaum and Dr. John Monahan.)

Your state may or may not have a case that expressly endorses Tarasoff, but likely there are cases dealing with the obligation to third parties in analogous situations. Bear in mind that mental-health professionals generally do not enjoy the same immunity as is often conferred on state employees. Similarly, you will need to look at your state statutes on the confidentiality between therapist and patient and the exceptions to confidentiality. Given the state-to-state variability of the law, we primarily addresses the strategic issues one faces in these cases.

Pre-litigation Discovery

Because of the shrouded nature of mental-health care, a victim or a victim's family comes to know of a potential case only through happenstance. In our case, it was the prosecutor's recitation of the confession of the murderer that tipped the family off to the potential issue. Had Jim not confessed that he had been telling his therapist about his thoughts of murdering Elaine, it is unlikely that the family ever would have known that the crime was preventable.

Accordingly, you may have little to go on at first. We had only our clients' recollection of what the prosecutor said was stated in Jim's confession ' hearsay by any standards. By the time we first met with our clients, Jim had pleaded guilty to murder and received a 40-year sentence. He had tried in vain to commit suicide shortly after his arrest. Despite this, and the information that he was being seen by a therapist at the time of the murder, the judge rejected Jim's attempt to be committed to a psychiatric institution.

You will not be able to obtain either the subject or prior treatment records easily. In our case, all documentation reflecting Jim's psychiatric treatment, both present and past, was sealed. Even though Jim was in jail, the records of the therapist were off limits, as they fell under no exception allowing for their release under our statutes. We were also reluctant to approach Jim (through his attorney) for authorizations. [Note: Jim had one primary therapist, but others also saw him, so in this case there were multiple defendants.]

One of the critical decisions you will confront in these cases is how to treat the criminal patient. Do you meet with him? Do you take his deposition? Does he testify at trial? You don't want to give the impression that you are in cahoots with the convicted felon, and you want to keep the focus squarely on the civil defendants. On the other hand, you may need his testimony.

Our preference was to win, if possible, on the documented evidence and not to have to rely on a criminal who was doing 40 years in prison. We started, therefore, with the police file as well as the unsealed transcript from the criminal case. Getting the police file is critical in these cases. The police had done a significant amount of legwork. While the investigation was understandably focused on the commission of the crime itself, it contained tidbits of information that provided some leads. For example, shortly after the murder, a friend of Jim's provided a statement to the police. The friend stated that Jim had told him prior to the murder that “maybe he should just kill her [Elaine]” and that he had been having thoughts of killing Elaine but was “ working it out with his therapist.”

More importantly Jim's confession was as advertised: He stated that “on and off since [breaking up with Elaine three months ago] I have thought about killing myself. I have also thought about killing Elaine. I told my therapist[s] about this.” This was enough, according to our expert, to file suit. That opinion was premised on the veracity of the confession, also supported by the statement of the friend. We knew in order to prevail we would need more.

The Complaint

In filing your complaint, you need to remember that these cases are about the obligation to protect. One method of protection is to warn the police and the potential victim. Protecting can also include committing the patient, voluntarily or involuntarily. It can include seeing the patient more frequently or prescribing the appropriate medication. Obviously the stronger the form of protection (i.e., commitment) the stronger your causation case will be.

We alleged that the defendants were negligent for failing to warn Elaine, her family, and law enforcement about Jim's dangerous propensities. We also alleged the failure to seek commitment of Jim per state statute, and the failure to treat him appropriately (and therefore to “protect” his victim). We made sure to include language that the defendants “knew or should have known” of Jim's risk of seriously harming Elaine. (The obligations under Tarasoff, for those states that have followed it, are not limited to actual knowledge of homicidal risk. Rather, if the defendant should have known of a serious risk of harming a specific individual or one within the zone of a specific individual, it will likely survive a motion to strike.)

In making your allegation of failing to commit the patient as a “danger to himself or others” ' likely the language used by your commitment statute ' make sure to allege that the therapist[s] “failed to request that [the patient] be voluntarily committed.” This is very important because the defense in these cases (as well as suicide cases) often argues that you can't deprive someone of their liberty against their will. If the therapist does not first ask the patient to agree to be committed, however, then that defense falls flat.

Similarly, if the claim involves a failure to warn the victim or failure to bring in outside persons, such as the patient's family, the therapist should first ask the patient to waive confidentiality. Confidentiality belongs to the patient, and the patient has a right to waive it. Without first asking the patient, the therapist cannot as easily argue the evils of “breaching” confidentiality.

Discovery

During discovery, you will need to address the issue of the records, if you haven't already. Although common sense would incline toward allowing an exception to confidentiality where the patient has committed a serious criminal act and where there is a question as to the civil liability of the professional treating the patient, our state's legislature had not created such an exception.

In our case, I had been told previously by defense counsel for one of the three defendants that the records “supported her case.” She added that she “wanted to show me the records” but couldn't because “they were confidential.” At this point I knew two things: that she did not want to show me the records and that they did not support her case. I also wondered how it was that she had gained access to Jim's records. I thought they were confidential. Did she have an authorization?

In any event, our strategy was to avoid any “simpatico” with the patient/murderer ' even to the extent of simply asking for an authorization. We instead took a shot with the court, asking for a court order to release the records on equitable grounds. How can you prove (or even defend) one of these cases unless you have access to the records?

The defense argued that there was no express statutory exception, and that without the records our case would have to be dismissed. We reminded the defense and the court that without the records the only evidence ' as contained in Jim's confession ' was that he had been telling more than one therapist that he was thinking of killing Elaine. Without the records, we argued, they could not discuss the treatment at all.

We lost our motion, but now had some cover. We sent a letter to Jim's lawyer asking, on behalf of “all the parties,” that Jim sign authorizations to allow the release of the records. As it turned out, Jim was perfectly willing to allow access to the records, if only to demonstrate that he too was failed by the therapists.

When analyzing a Tarasoff case, it is important to understand what the “risk factors” are for violent behavior, just as one would research risk factors when analyzing any other medical malpractice case. Most of the risk factors for violence dovetail with those for suicide: a major Axis I disorder (most commonly depression); “ideation”; access to firearms; inability to control anger; lack of a sound support system; and a history of harm to others and/or oneself. Patients who present with any of these risk factors need to undergo a thorough risk assessment for homicidality, suicidality, or both.

The therapy records will probably make or break your case. Imagine a case that asked the jury to accept the word of a jailed murderer versus that of a trained therapist. Sure enough, the records proved critical in our case. The records contained an initial evaluation of Jim's presenting problems. The problems were rated from 0 to 3. Next to homicidal ideation (i.e., homicidal thoughts), there was a rating of 2 (“moderate”). Suicidal ideation was also given a 2. Depression was rated as a 3 (“severe”). Jim evaluated himself on a scale of 1-5 as having a level 5 (highest) on his inability to control anger, his feelings of loss/separation, and his depression.

In the records it was further reported that six years prior to the visit, Jim “went to an institute after killing [a different] ex-girlfriend's cat.” It was also noted that Jim had “ongoing thoughts of harming Elaine but said that he won't, will call if this changes.” Therefore the records established a person with both homicidal and suicidal ideation, a history of violence against an animal, an inability to control anger, and a report of ongoing thoughts of harm to a specific person. It was plenty to go on.

If the defendant practices as part of a mental health group, the group is likely to have written policies dealing with issues like commitment, confidentiality, and risk assessment of the homicidal/suicidal patient. Take the deposition of the office manager and obtain these written policies.

The policies in our case set forth what was supposed to happen when a patient presented to the group with homicidal or suicidal ideation. They called for a written form to be completed and faxed to the clinical supervisor so that a determination could be made on the disposition of the patient. This form contained detailed questions pertaining to risk, including access to firearms, frequency of ideation, family support, and history. At the end of the form was a line for a “containment plan” and a question: “Tarasoff warning issued?” These were the rules “before there ever was this case” (as we would later argue to the jury).

The therapist who saw Jimtwo weeks before the murder chose not to fill out the form and fax it to his supervisor. He clearly violated the policy, which the supervisor admitted was a “safety policy” to protect patients from harming themselves or others.

The defense sought to take Jim's deposition and Jim refused to answer any questions. This solved our problem with what to do with Jim. We were happy with the written record, along with Jim's confession. We knew that whatever testimony Jim would give ' years later from his jail cell with whatever motivations he currently had ' would be unreliable and would potentially water down the facts as we knew them.

The strategy in these cases is to put the focus squarely on the defendant therapists. When the farmer puts the fox in the henhouse and the fox eats all the hens, it is the farmer who bears the responsibility. Jim was simply the fox in our case.

Handling the Experts

These cases, perhaps more than any other, are factually driven. You need experts, of course, to get to the jury, but the case is not likely to come down to the experts. In preparing your expert, however, you want to make sure that he or she is specific about when the line was crossed in your case, so that action needed to have been taken. Psychiatrists and other mental-health professionals can have a tendency to be uncertain, equivocal and overly analytical. Work out those kinks with your experts, and help them distill their criticisms into simple, concrete statements.

With defense experts, get them to describe their understanding as to when a therapist is required to warn and/or commit to protect others. Take them specifically through their training on violence risk assessment so that you are in a position at trial to establish how fundamental it is to a therapist's job. Have them take you through the procedure that they use to identify patients who are at risk for violence. You want to know specific circumstances in which they have committed patients for homicidal or suicidal concerns.

Defense experts are likely to overstate what is needed in order to require a therapist to act. You are looking for that. If their view borders on the extreme, push it further out. Ask them for an example of a situation that would require a warning ' it is likely to be so extreme that it will help you paint a picture of where he is coming from.

Without getting into details, focus-group your case prior to trial or mediation. Present the case down-the-middle and find out where your weaknesses are. I will simply state that I was never as shocked by a focus group as I was with the case I have been referencing, and it helped us tremendously in terms of preparing for trial.

Defenses

Confidentiality

The defense in these cases will cling to confidentiality like a cloak of immunity. They will argue that if the therapist warns, he breaks the law of confidentiality. Confidentiality is, of course, a cornerstone of mental-health treatment, but it is far from absolute. Tarasoff is illustrative of the limits of confidentiality:

“[T]he confidential character of patient-psychotherapist communications must yield to the extent that disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.”

One way to combat this defense is to understand that it would only apply if the therapist first asked the patient if he would waive confidentiality to allow for a warning, a commitment or both. Only where the patient rejects the request to disclose confidential information is the defendant faced with the issue of breaching that confidentiality. Further, you as the lawyer need to establish where the factual line is in your case. Confidentiality statutes will allow for disclosure, for example, where a patient poses an “imminent harm” to himself or others. If those are the words that your statute uses, you will need to define what “imminent” means in terms of the facts in your case.

Our client was murdered two weeks after Jim's disclosure of his homicidal ideation and other information pointing to his dangerousness. We were successful in getting the defendants to agree that two weeks was certainly imminent, retrospectively.

Further, while it is true that some cases will require you to prove that the therapist needed to “breach” confidentiality, it does not apply in all cases. Committing the patient and breaching confidentiality are not necessarily mutually exclusive. As stated earlier, many patients agree to being hospitalized. After all, the patient who has gone to the therapist seeking help does not want to follow through on his thoughts of killing someone. If he wanted to kill someone, he wouldn't seek help. Making this point was an effective approach in our case.

Finally, flip this argument around as we did in our opening statement: “A person has a right to know when [he or she] is in danger. People have a right to protect themselves.” Pretty soon you will sound like a card-carrying member of the NRA. Another argument against this is simply to ask: “A homicidal patient has a right to confidentiality?”

The 'Predicting the Future'

Argument

The “therapists can't see into the future” or “read minds.” I believe this is a defense that has been focus-grouped by insurance companies and is thrown up in every homicide as well as suicide case. You will need to flip this one around also. You need to be the first to say that a therapist can't see into the future and shouldn't pretend to! It is exactly because a therapist cannot predict the future that the standard of care is to identify risk factors and act when there is potential danger. It is not acceptable to “wait and see,” since the consequences of not acting are so grave.

Because therapists also can't “read minds,” they need to get as much information about a patient's level of risk as possible and then take appropriate preventative action. “Don't try and read the patient's mind and guess whether he will act or not,” your argument should go.

'The Patient Didn't Say'

Obviously, the patient didn't tell the therapist he was going to murder the victim, or the therapist would have done something about it: This is a defense that is used to confuse the standard applicable to a therapist when confronted with a dangerous patient. The standard does not require actual knowledge of an intention and plan to murder a specific person. It requires that, in circumstances where a therapist “should know” of a risk of causing serious or imminent or substantial harm (depending on how it is phrased in your state) to an “identifiable” person, he or she incurs a duty to take steps to protect that person.

In next month's issue, we'll look at trial tactics in therapist liability cases.

Joshua D. Koskoff is an attorney with the Connecticut firm of Koskoff, Koskoff and Bieder PC. He concentrates his practice in medical malpractice and air accidents.

It is the day after their daughter Elaine, 24, was murdered in her bedroom by her ex-boyfriend Jim. Elaine's stunned parents are in court at Jim's arraignment. They listen to the prosecutor detail the crime as told by Jim in his confession. The prosecutor explains how Jim was despondent over his break-up with Elaine. How Jim took his father's gun. How Jim ' well liked by Elaine's family ' had a key to their small colonial home. The prosecutor explains how Jim entered the home with the gun tucked in a gym bag. How nobody was home and that he went upstairs to Elaine's bedroom. He explains that Elaine and her younger sister returned to the home, and started upstairs. He explains that Jim heard them and hid under a sink. He then details the encounter with Elaine. How Elaine spotted Jim under the sink, yelled to her sister to get out, saw the gun and held her hands up defensively.

Elaine's parents listen as the prosecutor details the firing of six bullets from the gun ' all striking their daughter. The parents then hear the prosecutor say that Jim has confessed to the murder. In his confession, Jim reported that he had been seeing a therapist “for the past month” and that he had been telling his therapist about his thoughts of killing Elaine and himself. It is reported by the prosecutor that when a prior relationship ended, Jim ' a veterinarian ' strangled his ex-girlfriend's cat. They get the sinking feeling that the murder of their daughter was preventable, and they then consult our firm.

The Obligation of a Therapist to Protect a Third Person From a Dangerous Patient

Under certain circumstances mental-health professionals ' whether psychiatrists, psychologists, social workers or others ' have a duty to protect innocent third parties from their dangerous patients. If you attended law school some time after 1976, you probably recall the seminal case of Tarasoff v. Regents of University of California , 17 Cal.3d 425 (1976). In Tarasoff, a graduate student named Prosenjit Poddar, who was attending the University of California at Berkley, confessed to his counselor a desire to kill another student he was obsessed with: Tatiana Tarasoff. Although his counselor recognized that Poddar was dangerous and even briefly had him committed, neither Tatiana nor her family were warned of the threat.

Two months later, Poddar murdered Tatiana Tarasoff.

Prior to Tarasoff, therapists had already been taking steps to contain dangerous patients before they harmed themselves or others. But it wasn't until Tarasoff that the common law imposed a duty on mental-health professionals to protect foreseeable victims from dangerous patients.

The language of Tarasoff ought to sound familiar to those who have engaged in medical malpractice cases of this nature: “When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.” Id.

Tarasoff, then, imposed an obligation not only in cases where the therapist actually knew about the danger, but also where he or she “should have known.” Although Tarasoff is often seen as imposing a duty to warn a potential victim ' or those within the danger zone of a potential victim ' the obligation is more (or in some cases less) than a warning. There is an obligation “to protect” the foreseeable victim. This needs to be clearly understood when confronted with one of these tragic cases.

Keep in mind that part of the teaching of all mental-health professionals who are going to be engaged in therapy is their obligations under Tarasoff. Homicide and suicide are among the most important issues that therapists confront. Risk management deals extensively with these issues, and they are extensively written about and taught. (For excellent references on the background and case law surrounding this duty to protect, I suggest two authors: Dr. Paul Appelbaum and Dr. John Monahan.)

Your state may or may not have a case that expressly endorses Tarasoff, but likely there are cases dealing with the obligation to third parties in analogous situations. Bear in mind that mental-health professionals generally do not enjoy the same immunity as is often conferred on state employees. Similarly, you will need to look at your state statutes on the confidentiality between therapist and patient and the exceptions to confidentiality. Given the state-to-state variability of the law, we primarily addresses the strategic issues one faces in these cases.

Pre-litigation Discovery

Because of the shrouded nature of mental-health care, a victim or a victim's family comes to know of a potential case only through happenstance. In our case, it was the prosecutor's recitation of the confession of the murderer that tipped the family off to the potential issue. Had Jim not confessed that he had been telling his therapist about his thoughts of murdering Elaine, it is unlikely that the family ever would have known that the crime was preventable.

Accordingly, you may have little to go on at first. We had only our clients' recollection of what the prosecutor said was stated in Jim's confession ' hearsay by any standards. By the time we first met with our clients, Jim had pleaded guilty to murder and received a 40-year sentence. He had tried in vain to commit suicide shortly after his arrest. Despite this, and the information that he was being seen by a therapist at the time of the murder, the judge rejected Jim's attempt to be committed to a psychiatric institution.

You will not be able to obtain either the subject or prior treatment records easily. In our case, all documentation reflecting Jim's psychiatric treatment, both present and past, was sealed. Even though Jim was in jail, the records of the therapist were off limits, as they fell under no exception allowing for their release under our statutes. We were also reluctant to approach Jim (through his attorney) for authorizations. [Note: Jim had one primary therapist, but others also saw him, so in this case there were multiple defendants.]

One of the critical decisions you will confront in these cases is how to treat the criminal patient. Do you meet with him? Do you take his deposition? Does he testify at trial? You don't want to give the impression that you are in cahoots with the convicted felon, and you want to keep the focus squarely on the civil defendants. On the other hand, you may need his testimony.

Our preference was to win, if possible, on the documented evidence and not to have to rely on a criminal who was doing 40 years in prison. We started, therefore, with the police file as well as the unsealed transcript from the criminal case. Getting the police file is critical in these cases. The police had done a significant amount of legwork. While the investigation was understandably focused on the commission of the crime itself, it contained tidbits of information that provided some leads. For example, shortly after the murder, a friend of Jim's provided a statement to the police. The friend stated that Jim had told him prior to the murder that “maybe he should just kill her [Elaine]” and that he had been having thoughts of killing Elaine but was “ working it out with his therapist.”

More importantly Jim's confession was as advertised: He stated that “on and off since [breaking up with Elaine three months ago] I have thought about killing myself. I have also thought about killing Elaine. I told my therapist[s] about this.” This was enough, according to our expert, to file suit. That opinion was premised on the veracity of the confession, also supported by the statement of the friend. We knew in order to prevail we would need more.

The Complaint

In filing your complaint, you need to remember that these cases are about the obligation to protect. One method of protection is to warn the police and the potential victim. Protecting can also include committing the patient, voluntarily or involuntarily. It can include seeing the patient more frequently or prescribing the appropriate medication. Obviously the stronger the form of protection (i.e., commitment) the stronger your causation case will be.

We alleged that the defendants were negligent for failing to warn Elaine, her family, and law enforcement about Jim's dangerous propensities. We also alleged the failure to seek commitment of Jim per state statute, and the failure to treat him appropriately (and therefore to “protect” his victim). We made sure to include language that the defendants “knew or should have known” of Jim's risk of seriously harming Elaine. (The obligations under Tarasoff, for those states that have followed it, are not limited to actual knowledge of homicidal risk. Rather, if the defendant should have known of a serious risk of harming a specific individual or one within the zone of a specific individual, it will likely survive a motion to strike.)

In making your allegation of failing to commit the patient as a “danger to himself or others” ' likely the language used by your commitment statute ' make sure to allege that the therapist[s] “failed to request that [the patient] be voluntarily committed.” This is very important because the defense in these cases (as well as suicide cases) often argues that you can't deprive someone of their liberty against their will. If the therapist does not first ask the patient to agree to be committed, however, then that defense falls flat.

Similarly, if the claim involves a failure to warn the victim or failure to bring in outside persons, such as the patient's family, the therapist should first ask the patient to waive confidentiality. Confidentiality belongs to the patient, and the patient has a right to waive it. Without first asking the patient, the therapist cannot as easily argue the evils of “breaching” confidentiality.

Discovery

During discovery, you will need to address the issue of the records, if you haven't already. Although common sense would incline toward allowing an exception to confidentiality where the patient has committed a serious criminal act and where there is a question as to the civil liability of the professional treating the patient, our state's legislature had not created such an exception.

In our case, I had been told previously by defense counsel for one of the three defendants that the records “supported her case.” She added that she “wanted to show me the records” but couldn't because “they were confidential.” At this point I knew two things: that she did not want to show me the records and that they did not support her case. I also wondered how it was that she had gained access to Jim's records. I thought they were confidential. Did she have an authorization?

In any event, our strategy was to avoid any “simpatico” with the patient/murderer ' even to the extent of simply asking for an authorization. We instead took a shot with the court, asking for a court order to release the records on equitable grounds. How can you prove (or even defend) one of these cases unless you have access to the records?

The defense argued that there was no express statutory exception, and that without the records our case would have to be dismissed. We reminded the defense and the court that without the records the only evidence ' as contained in Jim's confession ' was that he had been telling more than one therapist that he was thinking of killing Elaine. Without the records, we argued, they could not discuss the treatment at all.

We lost our motion, but now had some cover. We sent a letter to Jim's lawyer asking, on behalf of “all the parties,” that Jim sign authorizations to allow the release of the records. As it turned out, Jim was perfectly willing to allow access to the records, if only to demonstrate that he too was failed by the therapists.

When analyzing a Tarasoff case, it is important to understand what the “risk factors” are for violent behavior, just as one would research risk factors when analyzing any other medical malpractice case. Most of the risk factors for violence dovetail with those for suicide: a major Axis I disorder (most commonly depression); “ideation”; access to firearms; inability to control anger; lack of a sound support system; and a history of harm to others and/or oneself. Patients who present with any of these risk factors need to undergo a thorough risk assessment for homicidality, suicidality, or both.

The therapy records will probably make or break your case. Imagine a case that asked the jury to accept the word of a jailed murderer versus that of a trained therapist. Sure enough, the records proved critical in our case. The records contained an initial evaluation of Jim's presenting problems. The problems were rated from 0 to 3. Next to homicidal ideation (i.e., homicidal thoughts), there was a rating of 2 (“moderate”). Suicidal ideation was also given a 2. Depression was rated as a 3 (“severe”). Jim evaluated himself on a scale of 1-5 as having a level 5 (highest) on his inability to control anger, his feelings of loss/separation, and his depression.

In the records it was further reported that six years prior to the visit, Jim “went to an institute after killing [a different] ex-girlfriend's cat.” It was also noted that Jim had “ongoing thoughts of harming Elaine but said that he won't, will call if this changes.” Therefore the records established a person with both homicidal and suicidal ideation, a history of violence against an animal, an inability to control anger, and a report of ongoing thoughts of harm to a specific person. It was plenty to go on.

If the defendant practices as part of a mental health group, the group is likely to have written policies dealing with issues like commitment, confidentiality, and risk assessment of the homicidal/suicidal patient. Take the deposition of the office manager and obtain these written policies.

The policies in our case set forth what was supposed to happen when a patient presented to the group with homicidal or suicidal ideation. They called for a written form to be completed and faxed to the clinical supervisor so that a determination could be made on the disposition of the patient. This form contained detailed questions pertaining to risk, including access to firearms, frequency of ideation, family support, and history. At the end of the form was a line for a “containment plan” and a question: “Tarasoff warning issued?” These were the rules “before there ever was this case” (as we would later argue to the jury).

The therapist who saw Jimtwo weeks before the murder chose not to fill out the form and fax it to his supervisor. He clearly violated the policy, which the supervisor admitted was a “safety policy” to protect patients from harming themselves or others.

The defense sought to take Jim's deposition and Jim refused to answer any questions. This solved our problem with what to do with Jim. We were happy with the written record, along with Jim's confession. We knew that whatever testimony Jim would give ' years later from his jail cell with whatever motivations he currently had ' would be unreliable and would potentially water down the facts as we knew them.

The strategy in these cases is to put the focus squarely on the defendant therapists. When the farmer puts the fox in the henhouse and the fox eats all the hens, it is the farmer who bears the responsibility. Jim was simply the fox in our case.

Handling the Experts

These cases, perhaps more than any other, are factually driven. You need experts, of course, to get to the jury, but the case is not likely to come down to the experts. In preparing your expert, however, you want to make sure that he or she is specific about when the line was crossed in your case, so that action needed to have been taken. Psychiatrists and other mental-health professionals can have a tendency to be uncertain, equivocal and overly analytical. Work out those kinks with your experts, and help them distill their criticisms into simple, concrete statements.

With defense experts, get them to describe their understanding as to when a therapist is required to warn and/or commit to protect others. Take them specifically through their training on violence risk assessment so that you are in a position at trial to establish how fundamental it is to a therapist's job. Have them take you through the procedure that they use to identify patients who are at risk for violence. You want to know specific circumstances in which they have committed patients for homicidal or suicidal concerns.

Defense experts are likely to overstate what is needed in order to require a therapist to act. You are looking for that. If their view borders on the extreme, push it further out. Ask them for an example of a situation that would require a warning ' it is likely to be so extreme that it will help you paint a picture of where he is coming from.

Without getting into details, focus-group your case prior to trial or mediation. Present the case down-the-middle and find out where your weaknesses are. I will simply state that I was never as shocked by a focus group as I was with the case I have been referencing, and it helped us tremendously in terms of preparing for trial.

Defenses

Confidentiality

The defense in these cases will cling to confidentiality like a cloak of immunity. They will argue that if the therapist warns, he breaks the law of confidentiality. Confidentiality is, of course, a cornerstone of mental-health treatment, but it is far from absolute. Tarasoff is illustrative of the limits of confidentiality:

“[T]he confidential character of patient-psychotherapist communications must yield to the extent that disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.”

One way to combat this defense is to understand that it would only apply if the therapist first asked the patient if he would waive confidentiality to allow for a warning, a commitment or both. Only where the patient rejects the request to disclose confidential information is the defendant faced with the issue of breaching that confidentiality. Further, you as the lawyer need to establish where the factual line is in your case. Confidentiality statutes will allow for disclosure, for example, where a patient poses an “imminent harm” to himself or others. If those are the words that your statute uses, you will need to define what “imminent” means in terms of the facts in your case.

Our client was murdered two weeks after Jim's disclosure of his homicidal ideation and other information pointing to his dangerousness. We were successful in getting the defendants to agree that two weeks was certainly imminent, retrospectively.

Further, while it is true that some cases will require you to prove that the therapist needed to “breach” confidentiality, it does not apply in all cases. Committing the patient and breaching confidentiality are not necessarily mutually exclusive. As stated earlier, many patients agree to being hospitalized. After all, the patient who has gone to the therapist seeking help does not want to follow through on his thoughts of killing someone. If he wanted to kill someone, he wouldn't seek help. Making this point was an effective approach in our case.

Finally, flip this argument around as we did in our opening statement: “A person has a right to know when [he or she] is in danger. People have a right to protect themselves.” Pretty soon you will sound like a card-carrying member of the NRA. Another argument against this is simply to ask: “A homicidal patient has a right to confidentiality?”

The 'Predicting the Future'

Argument

The “therapists can't see into the future” or “read minds.” I believe this is a defense that has been focus-grouped by insurance companies and is thrown up in every homicide as well as suicide case. You will need to flip this one around also. You need to be the first to say that a therapist can't see into the future and shouldn't pretend to! It is exactly because a therapist cannot predict the future that the standard of care is to identify risk factors and act when there is potential danger. It is not acceptable to “wait and see,” since the consequences of not acting are so grave.

Because therapists also can't “read minds,” they need to get as much information about a patient's level of risk as possible and then take appropriate preventative action. “Don't try and read the patient's mind and guess whether he will act or not,” your argument should go.

'The Patient Didn't Say'

Obviously, the patient didn't tell the therapist he was going to murder the victim, or the therapist would have done something about it: This is a defense that is used to confuse the standard applicable to a therapist when confronted with a dangerous patient. The standard does not require actual knowledge of an intention and plan to murder a specific person. It requires that, in circumstances where a therapist “should know” of a risk of causing serious or imminent or substantial harm (depending on how it is phrased in your state) to an “identifiable” person, he or she incurs a duty to take steps to protect that person.

In next month's issue, we'll look at trial tactics in therapist liability cases.

Joshua D. Koskoff is an attorney with the Connecticut firm of Koskoff, Koskoff and Bieder PC. He concentrates his practice in medical malpractice and air accidents.