University Psychiatrist Could Be Sued Over "Joker" Shootings in Colorado

July 25, 2012 - PRLog -- A University of Colorado psychiatrist who was mailed a notebook "full of details about how he was going to kill people" by alleged "Joker" killer James Holmes may be sued for negligent failure to take appropriate steps to prevent the rampage under the well known Tarasoff doctrine which is law in Colorado, suggests public interest law professor John Banzhaf.

In the Tarasoff case, a university psychologist was told by a graduate student that he was going to get a gun and shoot his "girlfriend" Tatiana Tarasoff.  Although the psychologist did warn the campus police, the grad student subsequently stabbed Tarasoff o death.  A law suit by Tarasoff's heirs against the doctor was initially dismissed, based upon patient-client privilege.

However, California's highest court reversed, holding that the specific threat outweighed considerations of confidentiality, and saying that a “therapist bears a duty to use reasonable care to give threatened persons warnings as are essential to avert foreseeable danger.”

After objections from the medical community, the court issued a second opinion with a slightly different emphasis, saying now that “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.”

Such a law suit, by a victim against the psychiatrist individually and/or his university employer, would face at least two major obstacles, says Prof. Banzhaf.

First, many Tarasoff rulings, including an influential one in Colorado, seem to hold that "It is this requirement of foreseeability which has led numerous courts to conclude that a therapist or others cannot be held liable for injuries inflicted upon third persons absent specific threats to a readily identifiable victim."

Thus a victim of the "Joker" shooting would have to argue that the threat was specific enough - e.g., to open fire in a crowded movie theater - to meet the requirement of a readily identified victim, even though the precise identify of the victims could of course not be known.  This might depend upon the specificity of the details spelled out it in notebook - something yet to be determined.

The second hurdle would be that the psychiatrist never saw the notebook because it allegedly sat undelivered in the university mail room until well after the shooting occurred.  However, it could be argued that it is negligence to fail to promptly deliver mail to someone whose very job is to help people who may present serious dangers to themselves or others.

As one Colorado court put it, the duty applies when ever a therapist should determine "pursuant to the standards of his profession" that a serious danger of violence to another exists.  Experts would have to testify as to whether the standards of the profession require that mail from possible disturbed patients be opened and evaluated promptly and without unreasonable delay.

Banzhaf suggests that, despite these two obstacles, a court could still find liability if it comes to believe that this entire deadly outrage - one of the worst in our country's history - could have been prevented if only mail had been promptly delivered, and the therapist had acted on it as the Tarasoff doctrine apparently obligates him to do.

Even if such a result is unlikely, plaintiffs may nevertheless file such a law suit, hoping that the chance of having some liability imposed, and the risk of serious adverse publicity, might pressure the university into making a reasonable settlement offer.

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
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