McIntosh v. Milano (1979)

Superior Court of New Jersey

403 A. 2d 500

Nature of Case

Whether a therapist in New Jersey has a duty to warn or protect an intended or potential victim, from a therapy patient.

Facts of Case

The defendant, Michael Milano, M.D. was a board-certified psychiatrist, and was a licensed practitioner in New Jersey. His patient, Lee Morgenstein, was 15 years old in 1973, and was seen by Dr. Milano for two years. Morgenstein allegedly had a relationship with his next-door neighbor, Kimberly McIntosh, who was 20 years old in 1973. Following the dissolution of the alleged relationship, Morgenstein became jealous of her new dating relationships, and fired a B.B. gun at either her or her boyfriend’s car.

During a therapy session, Morgenstein divulged to Dr. Milano that he carried a knife and showed this to his psychiatrist, and said he used it to scare people away. He also endorsed thoughts about hoping McIntosh would “suffer,” and was upset he did not have contact with her any longer. He mentioned that he was not in possession of her new phone number, since she moved out of her parents’ residence. According to Dr. Milano, Morgenstein never made any explicit threats to harm or kill McIntosh; however, he endorsed fantasies of violence and retaliation. Additionally, Morgenstein had a problem with substance abuse, and had abused Seconal in the past. Dr. Milano had prescribed Morgenstein Seconal, but had told him to only take the medication on school nights, when he was having trouble sleeping. On July 8, 1975, Morgenstein stole a prescription form from Dr. Milano and tried to have it filled for Seconal at a pharmacy, but was unsuccessful. He then left the pharmacy, and was very upset. He went to his home, obtained a pistol he had hidden, waited for McIntosh to visit her parents, took her to a local park, and fatally shot her in the back. It is unknown if she went to the park with Morgenstein willingly, or if she was forced to go there at gun-point.

During Morgenstein’s criminal case, Dr. Milano testified about his client’s substance abuse history and violent fantasies. The McIntosh family later brought a wrongful death suit against Milano for his failure to contact the family and warn them of the danger of his patient to Miss McIntosh. They said he had a “duty to warn Kimberly McIntosh, her parents or appropriate authorities that Morgenstein posed a physical threat or danger to decedent,” and asserted he breached that duty. Milano argued that no duty existed in the state of New Jersey, and the court should neither create one, nor allow one, such as the Tarasoff II, to be asserted. He argued the duty was “unworkable,” due to predictions of dangerousness being unreliable, and further asserted breaking confidentiality could interfere with effective treatment, it could deter therapists from treating violent patients, and would result in increased commitments of patients. The defendant, Milano, sought summary judgment.



Did the psychiatrist have a duty to warn or protect the third-party victim from his patient? Do factual questions remain, or can summary judgment be granted?



The Court held that “a psychiatrist or therapist may have a duty to take whatever steps are reasonably necessary to protect an intended or potential victim of his patient when he determines, or should determine, in the appropriate factual setting and in accordance with the standards of his profession….that the patient is or may present a probability of danger to that person.” The court denied summary judgment in favor of the defendant, and decided factual questions remained concerning whether the psychiatrist breached the appropriate duty. The court stated that the case should be presented to a jury to decide, based on expert testimony, whether the duty was in fact breached.


The Court concluded that even though some therapists may not accept potentially dangerous clients into their therapy practice, because of the duties imposed, the court still believed this was preferable to leaving the victims without “any remedy whatsoever.” Further, the court did not agree that the duties would result in increased civil commitments, simply because the therapist would not want to risk civil lawsuits. Therefore, the court decided that a jury could review the case and make a determination concerning breach of duty.