its members. In this risk-infested society we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal. If the exercise of reasonable care to protect the threatened victim requires the therapist to warn the endangered party or those who can reasonably be expected to notify him, we see no sufficient societal interest that would protect and justify concealment. The containment of such risks lies in the public interest.
Id., 17 Cal. 3d at 442, 131 Cal. Rptr. at 28.
Most jurisdictions that have considered the issue have concurred with the Tarasoff court in finding that a mental health professional has a duty to take reasonable steps to avert harm to others threatened by her patient. See, e.g., Hamman v. County of Maricopa, 161 Ariz. 58, 775 P.2d 1122, 1128 (Ariz. 1989); Davis v. Lhim, 124 Mich. App. 291, 335 N.W.2d 481, 486-89 (Mich. App. 1983); McIntosh v. Milano, 168 N.J. Super. 466, 403 A.2d 500, 512 (N.J. Super. 1979); Peck v. Counseling Serv., 146 Vt. 61, 499 A.2d 422, 426 (Vt. 1985) (plurality); Schuster v. Altenberg, 144 Wis. 2d 223, 424 N.W.2d 159, 171 (Wis. 1988). The duty imposed by these courts is in general accord with the limits on patient-therapist confidentiality recognized by the American Medical Association:
The obligation to safeguard patient confidences is subject to certain exceptions which are ethically and legally justified because of overriding social considerations. Where a patient threatens to inflict serious bodily harm to another person and there is a reasonable probability that the patient may carry out the threat, the physician should take reasonable precautions for the protection of the intended victim, including notification of law enforcement authorities.
American Medical Association Principles of Medical Ethics P 5.95, reprinted in Council on Ethical and Judicial Affairs of the American Medical Association, Current Opinions, at 21 (1989).
The Pennsylvania courts have neither adopted nor rejected the reasoning of Tarasoff and its progeny. See Dunkle v. Food Serv. East, Inc., 400 Pa. Super. 58, 582 A.2d 1342, 1346 (Pa. Super. 1990). In Dunkle, the Pennsylvania Superior Court suggested that, if it were to recognize Tarasoff, it would interpret that decision narrowly because of the strong concern in Pennsylvania for confidentiality of patient-therapist communications, as expressed, inter alia, in the MHPA. See id. at 1347. The court did not suggest, however, that the Mental Health Procedures Act stood as an absolute bar to disclosure by a therapist of her patient's threats of violence.
Further, even if the Pennsylvania courts were to determine that the Mental Health Procedures Act did establish a privacy interest under Pennsylvania law that was sufficiently strong to bar defendants from disclosure in the present circumstances, such a conclusion would not necessarily establish a violation of plaintiff's federal constitutional rights. Plaintiff's constitutionally-protected right to privacy is not necessarily coextensive with her privacy rights under state law.
Defendants in the present case found themselves in an extraordinarily delicate position. On the one hand, they were bound by their ethical and statutory duty to maintain the confidentiality of plaintiff's communications to them. On the other hand, they were aware, based on plaintiff's repeated threats, of a grave danger to the individuals who were the targets of plaintiff's threats. Once they decided to act, defendants limited their disclosure only to the fact that plaintiff had made the threats and apparently had the means to carry them out, and communicated the threats only to law enforcement personnel and one of the individuals threatened. Given the extensive judicial recognition of a common-law duty to warn and the limits placed on the ethical duty of confidentiality by the American Medical Association, I cannot conclude that defendants' acts improperly infringed on plaintiff's Fourteenth Amendment right to privacy.
It may be that defendants' conduct violated the Pennsylvania Mental Health Procedures Act, and plaintiff may have a remedy under that law. Plaintiff does not seek such a remedy here, however; rather, she seeks to recover for alleged injury to her constitutional rights. On the undisputed facts before the court on defendants' motion for summary judgment, I have concluded that no such injury exists. Accordingly, defendants' motion for summary judgment will be granted.
An appropriate order follows.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 799 F. Supp. 534.
Upon consideration of defendants' motion for summary judgment, and plaintiff's response thereto, for the reasons given in the foregoing opinion, it is hereby ORDERED and DIRECTED that defendants' motion for summary judgment is GRANTED, and plaintiff's complaint is DISMISSED.
JULY 15, 1992