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EPs might have a legal “duty to warn” individuals if a patient threatens violence against them.
EPs frequently encounter patients who were involved in violent acts or who threaten violence. “This raises questions about provider-patient confidentiality, and the circumstances in which that confidentiality can and must be broken,” says Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine in New Haven, CT.
State “duty to warn” or “duty to protect” statutes vary. “Furthermore, the duty to protect not only varies between states but across time,” Monico notes.1
The legal precedent behind state duty to warn statutes stems from the landmark 1976 case of Tarasoff v. Regents of the University of California. That case involved a graduate student who killed a woman after disclosing the threat to do so to his therapist. The therapist informed the campus police, but no one warned the eventual victim. The California Supreme Court stated that therapists have a duty to warn others who are in foreseeable danger from the therapists’ patients.
“Ultimately, during the rehearing of the case, the ‘duty to warn’ enunciated in the first ruling was expanded,” Monico says. The court stated that the therapist has a duty to “use reasonable care to protect the intended victim against such danger.”2
“Since the initial Tarasoff ruling, subsequent courts have expanded the duty to warn a potential victim into a more onerous ‘duty to protect,’” Monico explains. This may involve warning the potential victim, telling the police, or taking other steps that are reasonably necessary under the circumstances.
“There is no blanket federal duty to warn or protect. Instead, these duties are defined and codified into three distinguishable categories of state laws,” Monico says. These are:
“Interstate variability has resulted in a ‘duty to warn’ landscape fraught with legal risk and immunity limits, navigated by practitioners that typically seek to find the path of least resistance,” Monico says.3
EPs are shielded from allegations of breach of confidentiality if they do warn someone. EPs can be held liable if their failure to warn leads to a violent act, Monico adds.
“At least 20 states seem to extend the duty to include physicians who are not necessarily credentialed in psychiatry, as long as the physician purports to offer mental health treatment or represent a frequent point of contact for persons with psychiatric disorders,” Monico notes.4
Financial Disclosure: The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor), Stacey Kusterbeck (Author), Diana Nordlund, DO, JD, FACEP (Author), Jonathan Springston (Editor), Shelly Morrow Mark (Executive Editor), and Terrey L. Hatcher (Editorial Group Manager).