2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

In Emerich v. Philadelphia Center for Human Development., Inc., 720 A.2d 1032 (Pa.1998), a case of first impression, the Pennsylvania Supreme Court held that, under certainlimited circumstances, mental health professionals have a duty to warn third parties of seriousbodily threats made by their patients. The court discussed certain parameters of the MHPA andcarefully reviewed policy issues related to mental health care.Writing for the majority, Justice Cappy set forth the limitations for the duty to warn:Emerich, 720 A.2d at 1043.In summary, find that in Pennsylvania, based upon the specialrelationship between a mental health professional and his patient,when the patient has communicated to the professional a specificand immediate threat of serious bodily injury against a specificallyidentified or readily identifiable third party, and when theprofessional determines, or should determine under the standardsof the mental health profession, that his patient presents a seriousdanger of violence to the third party, then the professional bears aduty to exercise reasonable care to protect by warning the thirdparty against such danger.In the instant case, the Pennsylvania Supreme Court concluded that the requisitepsychiatrist-patient relationship existed and that the psychiatrist had a duty to warn the thirdparty non-patient of any potential harm that his patient posed to the third party based on seriousthreats made by the patient.The court found that Defendant psychiatrist discharged this duty when he warned thenon-patient third party to not return to the patient’s apartment after the patient told thepsychiatrist earlier that day of his specific intent to kill the third party if she returned to theapartment. Although the third party disregarded the psychiatrist’s advice and was shot by thepatient when she went to the apartment, the psychiatrist was not deemed liable as he fulfilled hisobligation to protect another by warning the intended victim of possible danger.In a footnote, the court noted that the MHPA applies to “all involuntary treatment ofmentally ill persons, whether inpatient or outpatient, and [to] all voluntary inpatient treatment ofmentally ill persons.” It further noted that it was unclear whether the patient at issue had beentreated as an involuntary outpatient, but that if he had, and the MHPA was therefore applicable,“[a]ppellant [third party] may have the additional hurdle of the MHPA’s immunity provisionwhich permits liability only for willful misconduct or gross negligence.” Id. at 1038, n.7.Duty to a third party non-patient recently was addressed in again in DeJesus v. UnitedStates Department of Veterans Affairs, 479 F. 3d 271 (3d Cir. 2007). Plaintiffs, the wife of thedecedent and mother of the two children and the parents of the neighborhood children, filed suitafter Decedent killed his two children, two neighborhood children, and then himself. Decedenthad voluntarily entered the Veteran Affairs Domiciliary Program, where he was diagnosed ashaving intermittent explosive disorder. He had a history of domestic violence and hadpreviously attempted to hang himself multiple times. Decedent received various mental health79