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02/24/2004: "Emerich v. Philadelphia Center for Human Development"

The warning was vague.

I read the Pennsylvania Supreme Court's opinion in Emerich v. Philadelphia Center for Human Development to gather some of the details we discussed in class. One interesting aspect of the case as it unfolded is that lower courts had ruled in favor of the defendant because the Pennsylvania legislature had not enacted a Tarasoff law.

The Supreme Court overruled the lower courts, finding the reasoning in the Tarasoff decision sound, and finding a basis for an affirmative duty in previous Pennsylvania case law. They specifically based this duty to protect the public on:

1. Physicians are obligated to inform the public (state health agencies) and potential victims of contagious diseases.

2. Psychiatrists have been held liable for the harm caused by psychiatric patients negliently released from their care (usually from a psychiatric hospital).

The Supreme Court also took up one of the arguments raised by the defendant, that clinicians have no real ability to predict violence. The Court found this argument unpersuasive, although they sympathesized with its difficulty:

"Mindful that the treatment of mental illness is not an exact science, we emphasize that we hold a mental health professional only to the standard of care of his profession, which takes into account the uncertainty of such treatment. Thus, we will not require a mental health professional to be liable for a patient's violent behavior because he fails to predict such behavior accurately."

The Court holds clinicians up to the standards of their profession, noting:

1. As noted above, clinicians have been held accountable for negliently releasing patients in their custodial care (i.e., a reasonable clinician would have foreseen the harm caused by the patient and not released him)

2. Clinicians routinely make determinations of violence potential, however imperfect, in involuntarily committing patients to the hospital, or encouraging voluntary hospitalization

3. Clinicians should be making a determination of violence and self-harm in every encounter with a patient, as the standard of care

4. Clinicians do receive, or should receive, information about managing the violent patient as part of their training.

The Court agreed that, like many instances in mental health, the warning given to the intended victim should be as discreet as possible, in order to protect the privacy of the patient.

As we discussed, the Court found that the warning given by the psychotherapist in this case did meet the duty. The therapist told the victim that she should not go to her old apartment that day to retrieve her clothes, without specifically saying that the patient had threatened to kill her. The Court found this warning adequate because:

1. The victim had been physically abused by the patient in the past, so she was familiar with his tendency to violence

2. The victim initiated the call to the therapist, suggesting to the Court that she had concerns that the patient might act violently toward her

3. The therapist told her not to go to the apartment, and the victim chose to not heed that warning.

Thus, the Court found that the proximal cause of the victim's death was her ignoring the therapist's warning. The Court determined that the warning was adequate, while still meeting the requirement of protecting the patient's privacy (i.e., what was said in the emergency session).

Two justices wroting opinions that concurred with the new "duty to protect by warning" but dissenting with respect to whether the warning in this particular case was adequate to discharge the duty. They both essentially argued that if you are going to require therapists to break confidentiality in warning a potential victim, the victim should know reason for the warning and be apprised of the threat. They believe that the therapist in this case should have told the victim that the patient threatened to kill her if she returned for her things.

It's a long opinion, and obviously covers a lot more ground than I've been able to summarize her. If you are interested in learning more, I would encourage you to read it, or at least sections of it. It's a bit on the dry side, as a lot of legal writing is, but it reads fairly smootly and is easily comprehensible to doctoral students, I would think. Heck, even I understood most of it, and I have trouble with them polysyllabic words.