Most states have laws either requiring or permitting mental health professionals to disclose information about patients who may become violent. These voluntary or mandatory reporting laws require a balancing of the confidentiality of information disclosed within the doctor-patient relationship and public safety. These reporting laws provide exceptions for health professionals who might otherwise be liable for breaching their patient’s confidentiality.

On December 22, 2016, the Washington Supreme Court issued its decision in Volk v. DeMeerleer, No. 91387-1, 2016 Wash. LEXIS 1374, in which it expanded the duty of physicians to protect third parties who might be victims of violence, even in the absence of actual threats against identifiable targets and even where the physician-patient relationship is limited to out-patient treatment. The ruling increases physicians’ potential legal liability by expanding the group of individuals to whom he or she may owe a duty of care, and by increasing what is required for the physician meet the standard of care by requiring providers to delve further into patient statements regarding violence in order to reveal potential threats.

In Volk, Beverly Volk, the mother of Rebecca Schiering, and Schiering’s oldest son (collectively, Volk) sued psychiatrist Howard Ashby and Spokane Psychiatric Clinic PS (the clinic) for medical malpractice and medical negligence after DeMeerleer murdered Schiering and her nine-year-old son and attempted to murder her oldest son.

Prior to the attack, DeMeerleer had been an outpatient of psychiatrist Howard Ashby for nine years, during which time he was treated for bipolar and associated disorders. He had expressed suicidal and homicidal ideations, but never named Schiering or her children as potential victims. DeMeerleer began a serious relationship with Schiering in 2005. Before breaking up in 2009, Schiering and DeMeerleer were living together with Schiering’s three children.

DeMeerleer met with Ashby in April 2010, for what would be the final time. Ashby noted that DeMeerleer’s mood was unstable and that he had suicidal ideations, but that DeMeerleer had promised not to act on them. Ashby continued DeMeerleer on his existing medication regime.

Schiering and DeMeerleer briefly mended their relationship, but on July 16, 2010, Schiering ended their relationship for good. On the night of July 17, or the early morning of July 18, 2010, DeMeerleer entered Schiering’s home and killed her and her nine-year-old son. Schiering’s older son was able to escape. DeMeerleer returned to his home and took his life.

Volk alleged that Ashby and the clinic breached their duty under Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983), which held that once a special relationship exists between a mental health professional and his or her patient, the mental health professional owes a duty of reasonable care to any foreseeable victim of the patient (the Petersen duty).1 Ashby and the clinic moved for summary judgment on the basis that the attack was not foreseeable and that Ashby did not owe DeMeerleer’s victims a duty of care. Despite acknowledging a special relationship between himself and DeMeerleer, Ashby and the clinic argued that they had no duty to warn Schiering because DeMeerleer “never communicated an ‘actual threat of physical violence against a reasonably identifiable victim or victims.’”

In opposing summary judgment, Volk’s expert psychiatrist opined that Ashby had breached the standard of care “by failing to inquire into DeMeerleer’s suicidal thoughts and instead relying on [his] self-reporting.” The expert opined that further “inquiry into DeMeerleer’s mental state … may have revealed the threat so that further action could have been taken to prevent harm to Schiering and her sons.”

The Washington Supreme Court overturned the trial court’s grant of summary judgment in favor of Ashby and the clinic. The court held that the Petersen duty exists in the outpatient setting, without regard to the ability of the psychiatrist to exert actual control over his or her patient. In so holding, the court held that the duty to act with reasonable care toward third parties is “informed by the standards and ethical considerations of the mental health profession” in identifying and mitigating the dangerousness of psychiatric patients. The court held that the “duty imposed by reasonable care depends on the circumstances,” which could require “providing appropriate treatment, warning others of the risks posed by the patient, seeking the patient’s agreement to a voluntary commitment, making efforts to commit the patient involuntarily, or taking other steps to ameliorate the risk posed by the patient.”

In applying the holding to the facts of this case, the court found that there was a question of fact for the jury to determine as to whether DeMeerleer’s actions were foreseeable. Because DeMeerleer had “negative fantasies [that] were directed at his ex-wife and her lover” during a prior divorce, Volk’s expert opined that “inquiry into DeMeerleer’s state of mind prior to the attack may have revealed similar thoughts directed at Schiering and her children.”

This case potentially has ramifications for many first-level providers, in addition to psychiatrists and psychologists, including emergency medicine physicians and primary care physicians. This decision could also be used as a basis for expanding the duty of care owed to victims and potential victims outside of the health care field to encompass employers and family members who are aware of potentially threatening behaviors exhibited by those close to them.

For physicians and their insurers, this ruling increases their potential legal liability by expanding the breadth of individuals to whom a physician may owe a duty of care, and by augmenting what is required to meet the standard of care by requiring providers to delve further into patient statements regarding violence in order to reveal potential threats.