Report from the Pilot Fitness ARC F–11
violent behavior except if the patient has communicated to the psychotherapist a serious threat
of physical violence against a reasonably identifiable victim or victims.” (Emphasis added.)
79
Although variability exists between and among the various State statutes, they can generally be
divided into those that (1) impose an affirmative duty
80
; or (2) are permissive.
81 82
Additionally,
a few states have not enacted Tarasoff statutes, and one state found the Tarasoff rationale
“unpersuasive.”
83
It should be noted, however, that even among jurisdictions with a like-kind
statute (for example, affirmative duty), variations exist. Therefore, before considering a
statute’s effect within a particular jurisdiction, a careful reading of the applicable statute and its
interpretive case law is essential.
Two examples, one from an affirmative duty jurisdiction and another from a permissive
jurisdiction, illustrate how state courts have interpreted their Tarasoff statutes. In Colorado, a
mental health provider is “not liable for damages in any civil action for failure to warn or
protect a specific person or person … against the violent behavior of a person receiving
treatment … except where the patient has communicated to the mental health provider a serious
threat of imminent physical violence against a specific person.” (Emphasis added).
84
Interpreting its statute, Colorado courts have held that a health care provider had no duty to
warn where a patient reported suicidal thoughts and ultimately committed suicide
85
and a
patient’s communicating of thoughts and homicidal fantasies without stating an intent to act did
not constitute to a threat.
86
The court did find that the “imminent threat” requirement was
satisfied when a patient called his psychologist in the middle of the night, and told him about his
strong negative feelings toward his supervisor and expressed concern that he might not be able
to control his anger.
87
Similarly, a California court held that a psychotherapist had no duty to
warn, in the absence of concrete threats of violence, victims who were injured during a shooting
spree by a deranged gunman who subsequently committed suicide.
88
In Texas, a state with a permissive-type Tarasoff statute, the Supreme Court refused to impose a
common-law duty on mental health professionals to warn third parties of their patient’s threat.
89
In reaching its conclusion, the court considered the Legislature’s intent to protect from
disclosure communications during the course of mental health treatment, except in the narrow
79
Cal.Civ.Code § 43.92 (West).
80
See, e.g., Colo. Rev. Stat. Ann. § 13-21-117 (West)(Colorado); Cal. Civ. Code Ann. § 43.92 (California);
M.C.L.A 330.1946 (Michigan); N.H. Rev. Stat. § 329-B:29 (New Hampshire).
81
See, e.g., V.T.C.A, Health & Safety Code § 611.004(a)(2)(Texas); 740 ILCS 110/11 (Illinois).
82
Herbert & Young, Tarasoff at Twenty-Five, J Am Acad Psychiatry Law 30:275-81 (2002)
83
Nasser v. Parker, 249 Va. 172 (1995)(Absent control, there is no duty to warn a victim of possible harm),
distinguished by Delk v. Columbia/HCA HealthCare Corp. 259 Va. 125 (2000).
84
Colo. Rev. Stat. Ann. § 13-21-117 (West).
85
Sheron v. Lutheran Medical Ctr., 18 P.3d 796, 800 (Colo.App. 2000)(The statute applies only to threats directed
to third persons).
86
Fredericks v. Koehn, No. 06-CV-00957-MSK-KLM, 2009 WL 765876, at *4 (D. Colo. Mar. 20, 2009) aff'd sub
nom. Fredericks v. Jonsson, 609 F.3d 1096 (10th Cir. 2010)
87
McCarty v. Kaiser-Hill Co., 15 P.3d 1122, 1125 (Colo.App. 2000); see also, People v. Kailey, 333 P.3d 89, 98
(2014)(Non-threatening statements remain privileged).
88
Calderon v. Glick, 131 Cal.App.4
th
224 (2005)
89
Thapar v. Zezulka, 994 S.W.2d 635, 640 (Tex. 1999).