xxAACP Newsletter, Volume 11, Number 3, Summer 1997
Morgan vs. Fairfield:
Ohio Supreme Court Expands Tarasoff Duty
July 25, 1991, Matt Morgan was playing cards with his parents and sister. He excused himself from the table, returned with a gun, shot and killed his parents and seriously wounded his sister. During the previous year, Matt had been under the care of the staff of Fairfield Family Counseling Center (FFCC).
In January 1990, Matt was removed from his parents' home in Ohio by police after making aggressive threats against his father. He made his way to Philadelphia, where in the spring he was hosptialized in a psychiatric facility and responded to antipsychotic medications, having been diagnosed with a Schizophreniform Disorder. At discharge, arrangements were made for Matt to return to his family and receive follow-up care locally. In July 1990, Dr. Harold Brown, a psychiatrist consultant to FFCC performed a 30-minute evaluation and continued Matt's medication; however in October 1990, Dr. Brown discontinued medication, apparently without ever having reviewed the Philadelphia hospital records or speaking with his prior therapist.
Matt continued under the care of a vocational counselor at FFCC. Between October 1990 and January 1991, Matt's mother repeatedly informed staff that she feared his condition was deteriorating; over the next several months she expressed increased concerns that he had become verbally abusive and was wanting to fight with his father again. In spite these concerns, Matt's counselor indicated to Mrs. Morgan that Matt was not probatable. In May 1991 Matt's counselor scheduled him for an appointment with Dr. Brown, which Matt failed to keep. On May 30, the counselor conducted an emergency assessment and again concluded that he was not a candidate for commitment. Mr. and Mrs. Morgan wrote to the counselor's supervisor seeking help, and were informed that the agency was unable to assist or recommend involuntary hospitalization. They were informed of this decision on July 25, the same day on which Matt later shot and killed them.
A lawsuit for wrongful death and negligence was filed against FFCC and Dr. Brown on behalf of the Morgan estate. The plaintiffs' psychiatric experts testified that DR. Brown failed to obtain an adequate history and review past records, improperly discontinued Matt's medication, and failed to monitor his condition. The vocational counselor was criticized for making decisions about involuntary commitment.
The trail court granted summary judgment to all defendants, holding that Dr. Brown did not have a duty to Matt following his decision to terminate his medications, and that the deaths were not reasonably foreseeable consequences of his actions nine months previously. The court also held that FFCC was entitled to immunity under Ohio revised code 5122.34, which states that if acting in "good faith" upon information brought by reliable sources, "no person shall be liable for any harm that results to any person as a result of failing to disclose confidential information about a mental health client, or failing otherwise to attempt to protect such other person from harm by such client."
The plaintiffs appealed, and in appeal the judgment was reversed with respect to Dr. Brown but upheald with respect to the agency. Both plaintiffs and defendants then appealed to the Ohio Supreme Court, which upheld the decision against Dr. Brown, and reversed the court of appeals' decision with respect to the agency's immunity.
At issue is (1) whether an Ohio psychotherapist has a Tarasoff "duty to protect" against an outpatient's violent propensities; and (2) the breadth and significance of the 1988 Ohio Tarasoff immunity provision. In general, there are four elements of malpractice: Duty, Dereliction, Damages and Direct Causation. In Littleton v. Good Samaritan (39 Ohio St. 3d 86, 1988) the court found that a special relationship (Duty) exists between an inpatient and a psychiatrist, but when one makes a "medically driven decision" based on reviewing all of the relevant information, professional judgment should be upheld. Littleton did not specifically address the outpatient setting; whereas in Morgan the court not only extended the duty to this settting, but also extended the duty to all "psychotherapists." Further, under Tarasoff rules, the duty to protect is limited to an identified or identifiable victim. Under Morgan the court held that a specific victim is not required, rather that the psychotherapist must assess "zone of dangerousness" extending "outside the readily identifiable sphere but still within the forseeable zone of danger."
In the facts of the case, the Court decided that reasonable jurors could conclude that Dr. Brown's failure to review past records or to contact the previous therapist fell below professional stardards. The case was remanded to the trial court for further proceedings. The dissent suggested that this decision would imply that mental health professionals have statutory immunity for choosing to involuntarily commit, but full liability for a judgment to recommend against commitment. In this case, they are completely liable to the patients themselves as well as to anyone else the patient may injure.
This is the first Ohio Supreme Court case to directly address whether Ohio clinicians have a Tarasoff duty. It further extends Tarasoff from an identifiable victim to non-identifiable victims, and adds a special provision that the stardard will be the professional judgment rule rather than ordinary malpractice. Thus, the 1988 Tarasoff immunity provision provides the clinician virtually no protection from liability for a decision NOT to involuntarily hospitalize. Implications for community providers and others who must make clinical judgments in high intensity, high turnover settings, often with limited outside information, are significant; as is the rejuvenated conflict between clients' rights and clinicians risk.