Just a few days ago the Illinois Court of Appeals issued an opinion in a case called Sherer v. Sarma in which it once again followed the state's policy that rejects the imposition of a duty to warn on a psychotherapist made famous by the Surpeme Court of California in Tarasoff v Regents of the University of California. You can read the opinion here.
As you probably remember from your days in law school, in Tarasoff the court was asked to decide whether a therapist has a duty to warn an unsuspecting possible victim of the expressed intent of a patient to cause her harm. The court found that even though the therapist did not have a relationship with the victim, he did owe her a duty to warn. The court opined that the benefit of having the therapist help prevent an injury to someone who did not know was in danger is more important that the duty of confidentiality owed to the patient and than the possible negative effects on the process of therapy itself.
Meanwhile, in Illinois, the courts have considered the same questions and have decided to take the opposite approach, finding that not recognizing a duty to warn advances the goals of protecting the confidentiality of the medical treatment, which itself promotes better opportunities for treatment.
One can disagree whether it is better to adopt or to reject Tarasoff, but the fact of the matter is that courts in Illinois have rejected it, ... for the most part.
Now, I have to say "for the most part" because in an unnecessary attempt to qualify the ruling the opinions would recognize a duty to warn if: (1) the patient made specific threats of violence, (2) the threats of
violence were directed against a specific and readily identifiable victim, and (3)
there is a direct physician-patient relationship between the defendant and the
victim or a special relationship between the patient and the victim.
This third element is the one that is difficult to understand. If the question was limited to the first two then Illinois would be applying Tarasoff. But it is by requiring the third one that Illinois rejects it.
Also, and more interestingly, the last part of the third requirement is the strange one. Illinois would recognize a duty to warn if the patient (the one threatening to harm another) and the intended victim had "a special relationship." But what does that mean?
In Sherer v Sarma, the actor and the victim were both patients of the defendant and they were husband and wife. Yet the court did not find those relationships (between patients and doctor, and husband and wife) to be special relationships for purposes of the doctrine. So if that is not special enough, what would qualify?, you ask...
Well, here is the thing. When the court talks about a special relationship, it is not really talking about a relationship, but about another concept - a concept that is unique to Illinois and, in my opinion, makes no sense. The concept of "transferred negligence." This was a concept invented in Illinois to cover a completely different issue - whether we should recognize a cause of action for pre-conception torts in a case that involved a plaintiff who had been exposed to injury while in utero. Looking at the issue from the perspective of whether the defendant had a duty to a person who was not a patient, the court found that because the defendant had a duty to the mother, the negligence "transferred" to cover the injury to the fetus because of the "special relationship between mother and fetus."
It would be so much easier to understand the law in Illinois if the court had just stated the public policy related to protecting the benefits of confidentiality and the therapeutic process itself. Again, you can disagree with the value placed on the competing policies but the analysis makes sense. As it is now, however, the analysis is complicated by the unnecessary and largely incomprehensible notion of "transferred negligence" which doesn't.
If we are to apply the concept to the third requirement in Illinois, other than a pregnant patient who threatens to harm herself, then, under what circumstances would Illinois recognize a duty to warn? And, even in that scenario, who could the doctor warn?