A Pluralistic Analysis of the Therapist/Physician Duties to Warn Third Parties

Abstract

Following Tarasoff v. Regents of the University of California and a majority of jurisdictions, section 41 of the Restatement (Third) of Torts: Liability for Physical Harm imposes a duty on mental-health professionals (“therapists”) to warn foreseeable victims of a risk posed by one of their patients. The Restatement (Third) “takes no position,” however, as to whether a non-mental-health physician owes a similar duty to warn foreseeable third parties of a risk, for example, of communicating disease, posed by one of the physician's patients. This brief Article explores both the accuracy and the viability of this distinction and its theoretical underpinnings. Specifically, the Article takes three positions: (1) as a purely descriptive matter, the Restatement (Third) ought to recognize a physician's duty to warn foreseeable third parties, (2) as a normative matter, the question is more nuanced perhaps even than the courts and the Restatement (Third) recognize, and (3) the courts' and the Restatement (Third)'s analysis of the issue is best captured by a pluralistic understanding of tort law.

Keywords: duty, torts, third parties, physician, doctor, psychologist, warn