An area of 'duty to third party' law with more limited application to emergency physicians involves the duty to warn intended victims of violent crimes. These cases generally involve psychiatric patients who manifest violent intentions toward an individual or a potential group of individuals, and a psychotherapist with an alleged duty to warn. While it is hard to imagine a court imposing liability on a physician who deals with mentally unstable patients only on an 'urgent' or 'emergent' basis, it is possible, when looking at relevant case law and the specific circumstances, that a court could find that an emergency physician had a duty to warn, or report to the appropriate authorities. There are presently no 'emergency medicine duty to warn intended victims of violent crime' cases in the legal literature.

The seminal case regarding duty to warn third parties is Tarasoff v. Regents of University of California. In Tarasoff, Prosenjit Poddar, a psychiatric outpatient at a University of California hospital, killed Tatiana Tarasoff. Tatiana's parents, the plaintiffs, alleged that two months prior to their daughter's death, Poddar informed his therapist that he intended to kill a young woman fitting Tatiana's description. Although Poddar did not specifically name Tatiana as his intended victim, the complaints alleged that the defendant therapist could have readily identified the endangered person as Tatiana. Tarasoff's parents alleged that the defendant negligently failed to protect their daughter from Poddar. The defendant contended on appeal that it was under no duty to ensure the safety of Ms. Tarasoff.

In analyzing the defendant's claim, the California Supreme Court began: "As a general principle, a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous." The Court noted that under the common law, no one owes any duty to protect an individual who is endangered by a third person unless he has some special relationship with either the dangerous person or the potential victim. The California court found that a psychiatrist has such a "special relationship" to his patient.

The Court also noted that the discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.

In Thompson v. City of Alameda , the plaintiff sued the County for failing to warn the local police, or "parents of young children within the immediate vicinity" that a juvenile offender had been released with extremely dangerous and violent propensities regarding young children and who had indicated that he would, if released, take the life of a young child residing in the neighborhood. He did, in fact, take the life of a young child soon after his release. The court pointed to Tarasoff in noting that although the intended victim need not be specifically named, he or she must be readily identifiable. In Thompson no particular victim was readily identifiable. The court also noted the lack of a direct and continuing relationship between the therapist and patient. The court declined to impose liability on the defendant to warn the community.

The Court further noted that because some mental patients commonly make generalized threats, notifying the public of each threat would "produce a cacophony of warnings that by reason of their sheer volume would add little to the effective protection of the public". The only person likely to heed a warning is one that is personally threatened.

Case # 4

This case is fashioned after the case of Naidu v. Laird, in which the plaintiff, Mrs. Laird, sued the defendants who were psychiatrists employed at the Delaware State Hospital. Mrs. Laird's husband was killed when his vehicle collided with one driven by Mr. Putney, who had a long history of mental illness and apparently drove his car deliberately into Mr. Laird's vehicle. Mrs. Laird alleged that the defendants were grossly negligent and owed a duty to prevent the patient from causing injury to members of the public at large.

The Supreme Court of Delaware held the psychiatrists did indeed have a duty because they knew or should have known that the patient's dangerous propensities presented an unreasonable risk of harm to others. This duty requires the mental health professional initiate whatever precautions are reasonably necessary to protect potential victims of the patient. To that end, the court noted that a psychiatrist may have a duty to warn potential victims or a class of potential victims and/or control, to some appropriate degree, the actions of the patient. This represents a significant extension from Tarasoff. The Court held there was a duty to a group of potential victims, the victim need not be readily identifiable.

The Courts have not created a similar duty for emergency physicians. There is no case law establishing the emergency physician’s duty to warn intended victims or a potential class of victims of a violent crime. No case has extended the duty beyond psychotherapists with an established physician patient relationship.

However, the emergency department certainly represents a high risk area, frequently caring for mentally ill patients with dangerous propensities. It is not outside the realm of possibility that a court could impose a duty upon an emergency physician, where there is a negligent release of a patient with clear homicidal intentions toward an identifiable victim, and subsequent injury or death. This would represent a significant departure from existing case law. However, remember that the court makes the law and "changing societal conditions lead constantly to the recognition of new duties."

Case # 3 is fictitious, and necessarily so, because there are no relevant cases involving emergency physicians in the legal literature. This patient had clear homicidal ideation, but there was no identifiable victim. Also, the case does not involve a psychotherapist. Based on legal precedent, liability is unlikely. However, if a patient is homicidal, and wants to abscond, the emergency physician may have an obligation to restrain. Whether there is an identifiable victim or not, someone is at risk. If the facts are right, it would not be surprising to find a plaintiff’s attorney brining a ‘duty to third party’ negligence action against an emergency physician for failure to restrain.