Illinois Supreme Court Finds No Duty to Warn

Facts of the Case

Richard Street was hospitalized at Doctors Hospital in Springfield, Illinois, from May 13 to 16, 2003, with symptoms of paranoia, suicidality, and homicidality. He was discharged with a diagnosis of “major depression with mild psychotic features” and instructed to follow up with the Community Resource Center (CRC). A counselor at the CRC conducted an initial evaluation of Mr. Street on May 20, 2003, and a comprehensive assessment two weeks later.

On June 6, 2003, Mr. Street was accompanied to the CRC by his mother. He was in crisis and was evaluated by a licensed clinical social worker. He stated that he was going to kill his wife. He initially agreed to voluntary hospitalization; however, during the process of arranging for the hospital admission, he changed his mind and rejected voluntary hospitalization. The social worker secured an appointment for later that day with Mr. Street's family physician. Mr. Street left the clinic with his mother. After he left, his wife arrived at the clinic and met with the social worker who provided her with the crisis line telephone number. Mrs. Street agreed to call the crisis line or police in case of an emergency. Later that day Mr. Street, his mother, and his wife met with the family physician, who evaluated Mr. Street and noted that he was paranoid. Mr. Street denied suicidal ideation and any intent to hurt his wife. (Mrs. Street expressed her concern that Mr. Street might hurt her because he believed she was having an affair.) The family physician prescribed alprazolam and olanzapine and recommended psychiatric care.

On June 9, 2003, three days after meeting with the family physician, Mr. Street, having overdosed on medication, was found lying over the lifeless body of his wife, who had been strangled. He pleaded guilty to second-degree murder in her death and was sentenced to 18 years in prison.

The plaintiffs (the estates of Mrs. Street and her children), filed a wrongful death and survival action in the circuit court of Marion County against the CRC, the mental health providers, and the family physician, alleging that they had breached their duties to warn and protect Mrs. Street from foreseeable violent acts of her husband. The circuit court ruled that the plaintiffs failed to allege a recognized duty of care owed by any named defendant to Mrs. Street or grounds to allow transfer of duty to care to her. The appellate court held that the third amended complaint set forth sufficient factual allegations to establish a cause of action based on the theories of voluntary undertaking and transferred negligence, and reversed the circuit court's findings.

Ruling and Reasoning

The Illinois Supreme Court decided the case on the legal sufficiency of the third amended complaint by plaintiffs which alleged that the CRC and mental health providers afforded substandard care by failing to diagnose, treat, and monitor the condition of Mr. Street properly; failed to warn Mrs. Street and the police; and failed to hospitalize or otherwise control Mr. Street. The plaintiffs argued that the voluntary undertaking of the treatment of Mr. Street by CRC and mental health providers created a duty to warn and to protect Mrs. Street, although there was no patient-physician relationship or a special relationship between the patient and a third party, pursuant to the Restatement (Second) of Torts § 324A (1965). The appellate court agreed and relied on Siklas v. Ecker Center for Mental Health, Inc., 617 N.E.2d 507 (Ill. App. Ct. 1993) to support its reasoning. The Illinois Supreme Court noted that Siklas was decided, in fact, under a different section of the Restatement (Second) of Torts § 323, which speaks to the liability of an actor to the one whom he has undertaken to treat, and that it does not extend liability of the actor to third parties.

The Illinois Supreme Court cited two cases: Kirk v. Michael Reese Hospital and Medical Center, 513 N.E.2d 387 (Ill. 1987), and Doe v. McKay, 700 N.E.2d 1018 (Ill. 1998). In Kirk, the court held that a plaintiff cannot claim medical malpractice unless there is a direct doctor/patient relationship. In Doe v. McKay, the court ruled that providers have a duty of care only to the patient. The court wrote that the well-established principles found in Kirk and Doe v. McKay made it clear that the defendants did not have a duty to a third party, including the duty to warn.

The plaintiffs also made the claim of transferred negligence, citing Renslow v. Mennonite Hospital, 367 N.E.2d 1250 (Ill. 1977). In Renslow, the court determined that the defendant's duty of care to a patient extended to her infant daughter because of a special relationship and because the injury to the infant was a direct result of the negligent treatment of her mother. The Illinois Supreme Court wrote that the crux of the Renslow case was the relationship between mother and fetus which is “perhaps singular and unique.” The marital relationship did not equate to the relationship between a mother and a fetus; therefore, the marriage did not qualify to allow third parties to extend a doctor's duty of care beyond a direct patient-physician relationship.

Discussion

In Tedrick, the Illinois Supreme Court did not cite either of the two Illinois statutes describing mental health professionals' duty to warn third parties. One appears to create an affirmative duty, and the other allows clinicians to use their judgment. The first, the Miscellaneous Provisions Chapter of the Mental Health and Developmental Disabilities Code (405 Ill. Comp. Stat. 5/6-103 (1979)), states that there shall be no liability on the part of the provider for failure to warn and protect, except when an individual has communicated to the provider a serious threat of physical violence against a reasonably identifiable victim or victims. The duty is discharged by making a reasonable effort to communicate the threat to the victim and to a law enforcement agency or by a reasonable effort to hospitalize the potentially violent individual. The statute was written in the wake of Tarasoff (Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976)), with the assumption that Illinois courts would establish a duty to warn, and was intended to limit rather than broaden the duty to warn required of providers. The second statute, the Mental Health and Developmental Disabilities Confidentiality Act (740 Ill. Comp. Stat. 110/11 (1979)), allows clinicians to use their judgment to determine appropriate disclosure when working with a potentially violent patient. This statute was enacted to protect mental health providers when disclosing information if a duty to warn exists.

Kachigian and Felthous (J Am Acad Psychiatry Law 32:263–73, 2004) reviewed how different states have codified the duty to warn. They found 23 states with duty-to-warn laws, and they divided them into four categories: 5 states have explicitly established a duty, 12 states prohibit liability except under specified circumstances, 2 states seem to be permissive, and 4 states fall into an “other” category.

While awareness of duty-to-warn state statutes is useful, Kachigian and Felthous found that courts rarely respect the legislative standard. In Tedrick, the Illinois Supreme Court did not reference either of Illinois' statutes relating to duty to warn, but relied on case law. The court's apparent disregard of the duty-to-warn statutes may result from an effort to demonstrate control over the establishment of this type of duty despite legislative action, the failure of lawyers to reference the statute in their arguments, or a lack of awareness of the existence of the statutes.

Soulier et al. (J Am Acad Psychiatry Law 38:457–73, 2010) examined duty-to-warn statutes and Tarasoff-related cases from 1985 to 2006, to determine to what extent courts found defendant psychiatrists and others liable for breach of duty to protect. They found that 28 states had affirmative duty-to-warn statutes, 10 jurisdictions (including the District of Columbia) had permissive duty-to-warn statutes, and 13 states had no statutes addressing the duty to warn. Their analysis of cases found that defendants were rarely found negligent on the grounds of not fulfilling a duty to warn or protect. Their findings suggest that statutes that mandate warning a third party may be the most protective of clinicians. It appears that permissive statutes may increase the liability for clinicians more than a mandatory statute or no statute relating to a duty to warn. The authors conclude that there is little basis for concern of being successfully sued for a bad outcome if reasonable clinical practice has been exercised.

The legal standard of the practitioner's duty to warn is a moving target and often lacks clarity. Clinicians would be well served by coupling good clinical judgment with awareness of the statutes and case law relevant in the jurisdiction in which they practice.