Some time ago, the State Bar of Michigan Listserv discussed whether lawyers who receive information from a client that communicates a credible threat of danger to an identifiable third party have a duty to communicate the threat to the third party and/or to law enforcement agencies. That common law duty to warn arose in Tarasoff v Regents of Univ of California, 17 Cal 3d 425; 551 P2d 334 (1976) and it was in that context that we discussed it.
A new Michigan Court of Appeals case makes a lawyer’s concern about common law duties to third parties even more compelling.
The Michigan COA has just ruled that a statute enacted specifically to limit liability of mental health workers from liability in this type of situation abrogated their common law duty to warn. Thus, unless the injured party can fit within the statute, they are just plain out of luck, no matter how injured (or dead). See Dawes v Reuvan Bar-Levav & Assoc. P.C., et al. [Docket No. 269147 For Publication, decided July 10, 2008]
What this means is that the legislature has, true to form, created a broad grant of immunity to the medical community. Good old tort reform! But lawyers have no similar protective statute. So where does that leave lawyers – professionals with a “special relationship” with the client -- when a threat is made by the client against an identifiable person – creating the possibility of a foreseeable injury? [Remember one of the first lessons in Torts was about “foreseeability.”]
Now stay with me here. I’m going to discuss the Dawes case and its application as to mental health workers, and then I’m going to discuss the special concerns this decision should raise for family lawyers who often deal in high-conflict divorce or custody cases where the potential for domestic violence can be very, very real.
Discussion - Dawes v Reuvan Bar-Levav & Assoc. P.C. et al.
A Michigan statute [MCL 330.1946] setting forth a mental health professional’s duty to third persons applies to third persons who are members of the public at large, as well as to third persons who are also the psychiatrist’s patient. However, the court of appeals ruled in Dawes that the statute, enacted shortly after the Michigan supreme court reversed a “failure to warn” case against a mental health professional in Davis v Lhim, [fn1 below], abrogates any common law duty that the professional might have toward third parties and that unless the injured party can fit squarely within the statute, there is no common law duty to warn on the part of the mental health worker.
Facts and disposition of Dawes. On June 11, 1999, Joseph Brooks, a former patient of psychiatrist Dr. Reuvan, came to his office (having recently been discharged from treatment), shot and killed Dr. Reuvan and then burst into a group therapy session where he shot several other patients, killing one and injuring several others, before committing suicide.
Dawes, one of those injured, sued. She alleged that Brooks had made threatening statements to Dr. Reuvan’s staff, indicated that he fantasized about committing murder, and demonstrated his ability to carry out threats by showing up at the doctor’s office with a handgun.
Dawes also alleged that Brooks had delivered a writing to the doctor that could be reasonably construed as a threat of violence against other participants in his group therapy sessions, including Dawes. She alleged that the defendants were liable for failure to comply with a statutory and a common law duty to warn.
The doctors filed a motion for summary disposition, claiming that there was no evidence that Brooks had expressed a threat to them concerning Dawes specifically. Dawes argued against dismissal, claiming that the relevant statute addressed only the duty that arises from the relationship between a psychiatrist and a dangerous patient while specifically preserving other duties and, therefore, did not abrogate or modify every common law duty that a mental health professional may have to protect that professional’s other patients, including by way of providing a safe clinical environment for them.
The defendants’ motion was denied. After a 6-day trial, the jury returned a verdict in favor of Dawes. The court of appeals reversed and remanded for dismissal.
The doctors argued that the only duty that a psychiatrist has to protect others from a patient is the duty imposed by MCL 330.1946, and that the Legislature abrogated all other common law duties to protect third persons when it enacted MCL 330.1946. The COA agreed. According to the COA, the trial court’s denial of the motion to dismiss was erroneous. The court held that because the pertinent statute explicitly governs a mental health professional’s duty when a patient communicates a threat of violence against a reasonably identifiable third person, it is clear that the Legislature intended to modify a mental health professional’s common law duty to warn or protect those third persons. Accordingly, the COA held that there is no common law duty. Only if the plaintiff can fit within the statute may he or she recover damages.
Because Dawes could not come within the strict parameters of the statute, the COA reversed and remanded for dismissal.
Judge Smolenski dissented. And this is where it gets interesting from the perspective of a family lawyer. Judge Smolenski stated that the common law imposes on all persons a general obligation to refrain from engaging in negligent conduct—to act reasonably in light of the apparent risk to others. While the common law doesn’t normally obligate one person to protect another from third parties, a duty to protect another from harms caused by a third person may arise from “a ‘special relationship’ either between the defendant and the victim, or the defendant and the third party who caused the injury." That was the holding of the Tarasoff court.
One such special relationship, said Judge Smolenski, is the one between a psychiatrist and patient, which gives rise to “a duty of reasonable care to a person who is foreseeability endangered by [the psychiatrist’s] patient.” [Citing Davis] Judge Smolenski would have affirmed on the grounds that under the common law, “when a psychiatrist determines or, pursuant to the standard of care of his profession, should determine that his patient poses a serious danger of violence to a readily identifiable person, the psychiatrist has a duty to use reasonable care to protect that individual against danger.”
Query. Where does that leave the family lawyer who has a common law duty to an identifiable third party where there is a “special relationship” with the lawyer’s client?
What if the lawyer is told by his or her client something like this?
- I intend to kidnap the children belonging to my husband and me and hide them from him.
- I’d like to kill my wife/husband and I’ve been thinking about ways to do it.
- Gee, I sure wish that I could find a hit-man to take care of my problems.
I’d like to think that all lawyers who receive this kind of information would warn the intended victim. And given the fact that the legislature has seen fit to protect the medical community only, either (a) lawyers are going to have to take care of their own potential liability or (b) lawyers are going to have to lobby for the same protection.
What do you think? Leave a comment below.
You may read Dawes v Reuvan Bar-Levav & Assoc. P.C. et al. here.
You may read Judge Smolenski's dissent in Dawes v Reuvan Bar-Levav & Assoc. P.C. et al. here.
Fn 1 Davis v Lhim, 124 Mich App 291, 301; 335 NW2d 481 (1983), rev’d on other grounds sub nom Canon v Thumudo, 430 Mich 326; 422 NW2d 688 (1988). The grounds for reversal was governmental immunity and the David Court never reached the issue of whether the professional(s) involved had a common law duty to warn the victims.