Nature of Case
Whether psychologists in Missouri have a duty to warn.
Facts of Case
Kelly Pope, a minor child, was allegedly sexually abused by her step-father, Lester Pope, from 1980-1989. Kelly was allegedly abused from the time she was four years old until she was 13 years old. Kelly’s’ mother, Nancy Kopin, became aware of the abuse and allegedly arranged for Lester Pope to receive psychological services from psychologists at a private practice in Columbia, Missouri. Dr. Ray and Dr. Strnad were psychologists who met with Mr. Pope in 1988 for counseling, but counseling was terminated shortly thereafter.
The psychologists were allegedly aware that Mr. Pope was abusing Kelly, but did not report the abuse to any law enforcement authorities. In a suit filed on Kelly’s behalf, it was alleged that the psychologists were aware of the abuse and should have reported the abuse as required by the Child Abuse Reporting Act. It is alleged that Kelly continued to be abused, due to their failure to report the abuse. The plaintiff stated a claim on the following grounds: 1) aiding and abetting an intentional child abuse tort, 2) common law negligence for failing to warn appropriate officials, 3) a private cause of action and negligence per se based on the violation of the Child Abuse Reporting Act, and 4) prima facie tort. The plaintiff argued that Dr. Strnad’s widow, Donna Strnad as a defendant ad litem was prejudicial.
The Circuit Court of Boone County dismissed the plaintiff’s complaint against the psychologists, for failure to state a claim, and based on the absence of a duty owed to Kelly. The plaintiff appealed the order of dismissal.
Did the psychologists in Missouri have a common law duty to warn readily identifiable victims of the violent intentions of a psychotherapist’s patient?
The court affirmed the dismissal of all allegations, with the exception of the count alleging common law negligence for failure to warn. The court reversed and remanded the dismissal, stating that the defendants had a duty to warn appropriate authorities of the possible risk of future harm. The court recognized the “right to sue only for failure to warn of specific risks of future harm to readily identifiable victims.” The court said that a duty of action only exists if the parties are in a “special relationship,” and explained that a “private person has no duty to protect another from deliberate criminal attacks by a third person.” The court also recognized that the “touchstone for the creation of a duty is foreseeability.” The court held that the defendants should have reasonably foreseen that their patient posed a threat of serious harm to Kelly. The state of Missouri adopted Tarasoff, and imposed the duty to warn in their holding:
Specifically, we hold that when a psychologist or other healthcare professional knows or pursuant to the standards of his profession should have known that a patient presents a serious danger of future violence to a readily identifiable victim the psychologist has a duty under Missouri common law to warn the intended victim or communicate the existence of such danger to those likely to warn the victim including notifying appropriate enforcement authorities.
The Court concluded that “the social consensus of Missouri favors protection against the kind of injury alleged to have been suffered in this case. The State of Missouri joined this battle against abuse by enacting the Child Abuse Reporting Act which requires individuals, such as the defendants in this case, to report child abuse to the Division of Family Services.” The Court determined that the defendants were already under “legal obligation; to warn the Department of Family Services of the suspected abuse, and further stated, “the duty that we recognize today thus does not impose any additional obligation to that which is already imposed on defendants under Missouri law. Indeed the duty we recognize today is far narrower than is section 210.115, which requires reporting of all past or suspected future child abuse.”