Professor John Banzhaf noted immediately following the initial revelation about the notebook that, if it was mailed to a professor who was a psychiatrist treating James Holmes as a patient, it triggered a much higher legal duty than if it were mailed to the psychiatrist in his capacity as a professor assisting Holmes as a graduate student. The psychiatrist's role at that point wasn't clear.
However, now that the defense has revealed in a motion that Holmes mailed the incriminating notebook in an effort to communicate with a psychiatrist treating him for a mental illness or problem, the legal duty under the so-called Tarasoff doctrine comes into play.
The law imposes a special legal obligation upon psychiatrists to take reasonable steps to prevent harm to third parties if they can - or should - foresee that a patient has specific plans to cause such harm.
As the California court articulated this new duty in the famous Tarasoff case, "when a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger."
If, in seeing students in the university's psychiatry outpatient facility, the psychiatrist is deemed to be an employee of the university rather than an "independent contractor,"
Moreover, since the duty applies if the psychiatrist "should" have foreseen the potential danger - even if in fact he didn't - the university's apparent delay in delivering the package for several days could well constitute the requisite negligence to provide an even stronger basis for its legal liability.
Here, Banzhaf notes, the university denies that it delayed in delivering the package. But Fox News, which first made that claim, is stranding by its source(s) in maintaining that the package was delivered days before the shooting, and was not delivered in a timely fashion. http://www.denverpost.com/
In short, had the university simply delivered the package promptly, it appears that the massacre would not have occurred, and no lives would have been lost, argues Banzhaf. He suggests that a university has a stronger duty to deliver a package on time to a psychiatrist treating mentally ill patients that to most other professors, because it is far more foreseeable that a mentally ill patient would mail material showing that he presents a serious danger to himself or others than would students of professors teaching physics, chemistry, or economics.
Banzhaf previously outlined other legal theories under which the university could be held liable, even if the notebook was not mailed to a treating psychiatrist, and explained which such a suit was likely even in the absence of this afternoon's new revelation. http://www.pr-
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418