Emerich v. Philadelphia Center for Human Development, Inc.

ZAPPALA, Justice,

concurring.

I agree that judgment on the pleadings in favor of these defendants was appropriate, and thus I concur in the result. However, I do not agree that we should impose a legal duty on *236 mental health care professionals to warn a third party of a patient’s threat of harm.

At the outset, I would suggest that the Opinion of the Court, notwithstanding its scholarly survey of cases from our own courts and other jurisdictions, might well be viewed as an extensive exercise in obiter dictum. Contrary to the assertion that “we must determine” this issue, Slip Opinion at 6, the ultimate resolution indicates that we need not decide the issue at all in order to resolve this case. The result is the same whether we recognize a duty or not; thus this case is simply a vehicle for expounding on what the law should be without necessity of referring to the facts at hand.

Even if it were necessary to decide the issue of a mental health professional’s duty to warn a third party of threats by a patient in order to resolve this case, I would not join in recognizing such a duty. I disagree with the assertion that doing so is analogous to or consistent with cases such as DiMarco v. Lynch Homes-Chester County, Inc., 525 Pa. 558 , 583 A.2d 422 (Pa.1990). There, physicians advised a patient who had been exposed to hepatitis that if she had shown no symptoms within six weeks, she had not contracted the disease. The patient refrained from sexual relations for eight weeks. Approximately one month later, she was diagnosed with hepatitis B and a few months later her sexual partner was similarly diagnosed. The partner sued the physicians, alleging that they were negligent in not advising the patient to refrain from having sexual relations for six months. Although our Court held that the physicians in that case could be subject to liability to persons other than their patient, the duty, properly speaking, remained a duty regarding their treatment of the patient, i.e., to exercise reasonable care in the giving of medical advice to the patient. Harm to the third party was determined to be “within the foreseeable orbit of risk” of giving the patient erroneous advice, and thus the physicians were subject to liability for that harm. We did not hold that the physicians had a duty directly to the third party, which would be the more precise analogy to the holding here.

*237 Likewise, I do not agree that finding a duty to protect by warning is consistent with cases such as Goryeb v. Commonwealth, Department of Public Welfare, 525 Pa. 70 , 575 A.2d 545 (Pa.1990). In that case, a person who had been subjected to involuntary commitment at a state hospital was discharged within 120 hours, as required by the Mental Health Procedures Act where no certification for extended involuntary emergency treatment has been filed with the common pleas court. See 50 P.S. §§ 7302 and 7303. A week after his release, he shot his former girlfriend, her boyfriend, and another man, seriously wounding the first two and killing the last. He then shot and killed himself. In an action against the hospital and one of the doctors brought by or on behalf of the victims, we held that those involved in the decision could be liable for harm to a third party resulting from a decision to discharge a mental patient which was made through willful misconduct or gross negligence. Again, the duty involved a treatment decision with respect to the patient and the foreseeable consequences if that decision were made with less than due care. 1 It did not involve a direct duty to act with respect to third parties, only a duty to treat the patient in such a way as not to subject third parties to harm.

Finally, I fail to see the logical connection between the “special relationship” the mental health professional has with the patient and the duty to warn. Although such a relationship might make it more likely that a mental health professional would become aware of threats of harm than would other citizens, mere knowledge of the threats does not seem to be the basis for the imposition of the duty. What of other “special relationships” within which a person might feel free enough to reveal an intention to do harm? And how can the duty be limited to mental health patients and mental health professionals? If threats are specific and immediate and the person to whom the threats are revealed knows or reasonably *238 should know that there is a serious risk of harm, why would not the duty extend to them as well? To be sure, what would be considered reasonable for a mental health professional to know might differ from what would be considered reasonable for someone without specialized training to know, but a difference in what is reasonable for particular parties does not impact on the question of whether a duty should be recognized in the first instance.

The majority, in essence, imposes a legal duty on mental health professionals to use their specialized training to intercede for the benefit of third parties and subjects them to liability for failing to do so. This represents a great leap from our common law tradition that legal liability does not attach for a failure to render aid. I regret that the majority has seemingly overlooked the possible consequences before making that leap.

Justice CASTILLE joins this Concurring Opinion.

. I would also note that both the duty and the willful misconduct or gross negligence standard involved in Goryeb , represented a legislative judgment made law as part of the Mental Health Procedures Act, 50 P.S. § 7101 et seq. rather than an extension of the common law of negligence.