Suppose that you are a psychotherapist3 and your patient confides to you that he has AIDS, and that he is planning to make love to his new girlfriend. Do you have a duty to warn your client’s girlfriend? In Tarasoff v. Regents of the University of California, certainly the most celebrated tort case involving a "special relation" between an outpatient and his psychotherapist, the controversy concerned whether the psychotherapist had a duty to warn his patient’s victim, a former girlfriend, of the lethal threats against her.4 By contrast, the psychiatrist in Morgan acted affirmatively by discontinuing medication used to treat Matt Morgan’s schizophrenia.5 Over a nine month period, Matt’s mental condition deteriorated.6 The tragic outcome was Matt’s fatal shooting of his parents and seriously injuring his sister.7

This Note examines the Ohio Supreme Court’s reasoning in Morgan and the legal obligations of the psychotherapist. Section II delineates the background in this area of the law. Section III presents the statement of the case. Finally, Section IV analyzes the Court’s decision. Essentially, the questions to be discussed are (1) whether a duty is owed; (2) if so, to whom that duty is owed; (3) how to discharge that duty; (4) what is the applicable standard of care; and (5) why is it fair (or not) to hold the psychotherapist responsible for consequences that only indirectly affect the patient? The answer to these questions parallel the elements of an action in tort for negligence.8


  1. The Special Relation Exception to the "No Duty" Rule

In order to establish tort liability in negligence, it is necessary to determine whether a duty is owed as between two parties.9 Common threads in the evolution of duty are the twin concepts of a relationship between parties and the foreseeability of injury to one of those parties.10 Traditionally, absent risky conduct by one party and a foreseeable injury to another, the "no duty" rule, as stated in 314 of the Restatement of Torts applies.11 While the "no duty" rule, as exemplified by Yania v. Bigan12 is a persisting view, California, situs for the Tarasoff case, expanded the duty concept based on the golden rule, "do unto others what you would have them do unto you."13 More recently, an "easy rescue" rule has been applied in California14 and advocated by authorities.15 Bridging the gap between the traditional distinction of misfeasance and nonfeasance16 is the "special relation" exception of the Restatement of Torts.17 A "special relation" is a relationship between the actor and a third person which imposes on the actor an obligation to control (the third person) or to protect others (for their benefit).18

According to the Restatement, a "special relation" may exist when the actor (1) has control over a third person’s conduct;19 (2) has created a risk of harm to others;20 (3) has intervened to increase a risk of harm;21 or (4) has simply committed to rendering services relied on by others.22 The "taking charge" and "ability to control," under 319, corresponds to the hospitalized patient, while other sections of the Restatement correspond to an outpatient setting where control of the patient with violent propensities is inherently more difficult.23

B. Duty: Balancing and the Foreseeability of Harm

Both the Tarasoff and Morgan Courts quote Dean Keeton who wrote, "duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection."24 The Tarasoff Court considered "foreseeability" the most important of those considerations.25 The Ohio Supreme Court regarded even a danger "closely related" to the plaintiff’s conduct as within the scope of a "foreseeable risk."26

C. The Traditional "Reasonable Care" Standard

The duty to control or protect third parties imposed under common law by the Restatement of Tort’s exceptions to the "no duty" rule generally requires "reasonable care."27 Traditionally, the physician who assumes the care of a patient must display the minimum common skill and knowledge which all "members of the profession in good standing" have or should have acquired.28 The physician who holds himself out to be a specialist must display the minimum attributes of a "reasonable specialist."29

The oath of Hippocrates, which all graduating medical students recite, speaks to performing professional obligations according to one’s "ability and judgment."30 Both the Tarasoff and Morgan Courts concur with Dean Keeton who explains that the physician is not liable for "mere mistakes of judgment."31 Therefore, there is a traditional distinction within the standard of care imposed on the specialist in the decision-making process as opposed to the correctness of the physician’s actual decision.

D. Tarasoff v. Regents of the University of California: Duty to Protect Others

The landmark decision by the California Supreme Court in Tarasoff concerned the legal obligations of a psychotherapist to protect a victim from an outpatient with violent propensities.32 The Court reversed both lower court rulings, holding that both the doctors and police might be liable for failure to warn either the victim or her family.33 In a rehearing two years later, the police were found to have no special relationship to the defendants and were granted statutory immunity.34 As a result, the Court held that the [psycho]therapist has the duty to protect "intended victims" and "to take whatever other steps are reasonably necessary under the circumstances."35

E. Littleton and Ohio’s Professional Judgment Rule

In Littleton v. Good Samaritan Hospital and Health Center, the Ohio Supreme Court enunciated a "new standard," the professional judgment rule, in regards to the "violent acts of a voluntarily hospitalized mental patient subsequent to the patient’s discharge."36 In predicting whether a patient has violent propensities, "a psychiatrist must exercise [a] good faith judgment based on a thorough evaluation of all relevant factors. Professional standards will be used to determine which factors are relevant and whether an evaluation was thorough."37 If the psychotherapist meets these criteria, he will not be liable for good faith judgments, including "premature discharge" and "failure to warn" (a patient’s victims).38



A. Statement of Facts

Matt Morgan began to have problems as a senior in high school, both in school and socially.39 In January of 1990, at the age of twenty-three, he was removed from his parent’s home after threatening his father.40 Matt "drifted" until presenting to Thomas Jefferson University Hospital in March of 1990.41 His admitting diagnosis to an affiliated mental health facility was schizophreniform disorder and he was placed on Navane, a medication used to treat schizophrenia.42 After twelve weeks of therapy, Matt’s parents took him home. At that time, he was referred to the Fairfield Family Counseling Center (F.F.C.C.).43 The psychiatrist thought there was a strong suspicion of malingering and discontinued Matt’s medication without thoroughly reviewing past medical records in his possession.44 Subsequently, Matt’s mother communicated to the vocational counselor that her son was becoming "moody and withdrawn" and eating poorly. However, she was thought to be "overprotective" and could have been "exaggerating" Matt’s problem.45 Matt’s parents were fearful of him as he became verbally abusive, threatened to punch his father, and was seen on one occasion to repetitively strike a telephone pole with a baseball bat.46 The vocational counselor concluded, after each of two emergency assessments of Matt for involuntary commitment, May 30 and July 3, 1991, that he did not satisfy the criteria established under O.R.C. 5122.01(B).47 Matt’s parents attempted to initiate involuntary commitment proceedings, but were told by the probate court that they would need the vocational counselor’s approval.48 On July 25, 1991, while playing cards with his parents and sister, Matt went up to his room to retrieve a hidden handgun and proceeded to shoot each family member present on the basis of a command hallucination.49

B. Procedural History

A common pleas court summary jury trial awarded the plaintiffs 2.8 million dollars.50 However, the same trial court entered summary judgment in favor of all the defendants.51 The court of appeals reversed as to the psychiatrist and affirmed as to F.F.C.C. and its employees.52 The Ohio Supreme Court affirmed in part as to the psychiatrist and reversed in part as to F.F.C.C. and its employees.53

C. Reasoning of the Majority

The basic issues before the Ohio Supreme Court were (1) the existence and (2) extent of any duty owed by the psychotherapist to the patient; (3) the applicable standard of care to apply; (4) whether the defendants are entitled to qualified immunity or the equivalent under the professional judgment rule; and (5) the fairness of holding the psychiatrist responsible for events occurring nine months after having last seen the patient. In Justice Alice Robie Resnick's majority opinion, the Ohio Supreme Court held that "when a psychotherapist knows or should know that his or her outpatient represents a substantial risk of harm to others, the therapist is under a duty to exercise his or her best professional judgment to prevent such harm from occurring."54

The Court advanced four main reasons for its positions. First, "[i]n Ohio, the existence of a duty depends on the foreseeability of the injury."55 However, "there is no duty to act affirmatively for another’s aid or protection absent some ‘special relation,’ which justifies the imposition of a duty."56 According to the Court, the defendant must have the ability to control the third person’s conduct."57 Secondly, the Court was unwilling to limit a duty (to warn) only to "readily identifiable" victims, as the patient who will "kill wildly . . . is the one in the most need of confinement."58 Instead, the duty to control third parties extended to potential victims "outside of the readily identifiable sphere but still within the foreseeable zone of danger."59 Third, the Court determined that the qualified immunity of O.R.C. 5122.34 applied only to "assisting" involuntary commitment proceedings or inpatient discharge and determination of placement.60 Significantly, the defendants did not fall under O.R.C. 5122.34 when they decided Matt was not committable.61 However, they were entitled to the equivalent of a qualified immunity under the professional judgment rule.62 Finally, the issue of proximate cause was resolved by the Court. Contrary to arguments by attorneys for the psychiatrist, the Court asserted that his duty did not end after his third and final office visit with his patient.63 Neither "physical or temporal remoteness" nor the "relinquishment" of care of his patient to F.F.C.C. was by itself enough to relieve the defendant from being the legal cause of the events sub judice.64


D. Reasoning of the Dissent

The dissent argued that a "special relation" does not generally exist in an outpatient setting because there is no "ability to control."65 However, the requisite "taking charge," as stated in 319 of the Restatement of Torts, might be satisfied if the outpatient treatment is "intensive and controlled."66 In a second dissenting opinion, Justice Stratton wondered whether holding the psychiatrist responsible nine months after Matt’s last therapy session created a "perpetual duty and strict liability."67 Additionally, Justice Stratton argued that F.F.C.C. and its employees met the two requirements for qualified immunity under O.R.C. 5122.34.68


A. The "Special Relation" Exception Is Adopted in an Outpatient Setting

The Ohio Supreme Court applied the "special relation" exception to the "no duty" rule in the setting of the mentally ill inpatient69 A precedential effect of Morgan is the Court's reliance on Tarasoff to find "sufficient control" to establish a duty to protect others from the violent propensities of the mentally ill outpatient.70 Both courts that have imposed a duty on the psychotherapist and those that have not, rely almost uniformly on an implicit "ability [or lack thereof] to control" the patient with violent propensities.71 The psychiatrist who treats the hospitalized patient benefits from a trained staff providing around-the-clock intensive care and supervision. However, there are difficulties inherent in attempting to control the mentally ill outpatient. The patient may forget or refuse to take medications as prescribed or fail to keep scheduled appointments. These problems are common in patients with only physical ailments, but are compounded by those whose illness may affect their mental capabilities. Instead, the "ability to control" in a doctor-outpatient relationship often hinges on the expertise of the doctor and the ability to effectively communicate that knowledge to the patient. In Morgan, a basis for the psychiatrist's liability in relation to Matt Morgan was a "risky affirmative act."72 The psychiatrist withdrew medication used to treat schizophrenia without an adequate review of the chart and without continuing to supervise the patient.73 Yet no such relationship existed between the psychiatrist and the patient's family. However, under common law, the Restatement of Torts allows a number of ways to establish a psychotherapist's duty to protect others without a direct professional relationship. A "special relation" can be established if the psychotherapist (1) "takes charge," under 319 of the Restatement of Torts, as when the psychiatrist has the "ability to control" the inpatient; (2) creates a risk, under 321, when the psychiatrist discontinued Matt's medication; (3) intervenes and worsens the risk of harm, under 324 A cmt. a, when the mental health care team followed Matt during the nine months after his medications were discontinued and his mental condition deteriorated; or (4) commits to render medical services, under 324 A cmt. c, which imposes liability if "the harm is suffered because of reliance of the other or the third person upon the undertaking," as Matt's parents relied on the expertise of the mental health care team.74 Under this approach, the foundation for the common law liability of the psychotherapist's duty to protect others does not depend on the legal fiction of an "ability to control."

B. A Balancing Approach to Determine the Duty to Protect Others

As a second part of a duty analysis, both the Tarasoff and Morgan courts have used a balancing approach and stressed the importance of the "foreseeability of harm" in order to create legal obligations between parties.75 According to the Ohio Supreme Court, the factors to be weighed include the (1) "ability to control" the patient with violent propensities; (2) public safety interest; (3) difficulty of predicting violent behavior; (4) placing the patient in the least restrictive environment and avoiding unnecessary confinement; and (5) keeping confidences as important as social policy concerns (and successful treatment).76

The outpatient without insight into his illness may be resistant to treatment and difficult to control, even for the experienced psychotherapist.77 It is often essential to involve family or friends and may be necessary to threaten or even initiate involuntary commitment proceedings.78 The events of Morgan reveal how difficult coordinating efforts between the patient’s family and the mental health care team can be. The justice system seemingly relied on a vocational counselor to give the critical approval for initiating involuntary commitment proceedings.79 The family's apparent understanding was that the F.F.C.C. would not approve involuntary commitment because Matt did not meet the statutory requirements under R.C. 5122.01(B).80 Numerous authorities speak to the difficulty of predicting violent behavior, as substantiated by the facts of Morgan.81 Matt was verbally abusive and even threatening to his parents while unmedicated, but the only documented prior act of violence was his hitting a telephone pole with a baseball bat.82 Yet, it is hard to imagine the agony of parents who watch their son turn into a frightening stranger. Undoubtedly, Matt's parents felt helpless in their attempts to reinstitute medication for his schizophrenia in the face of an expert who withdrew it and a mental health care team that did not believe, as frightening as the situation appeared to Matt's family, that he met the statutory requirements for involuntary commitment. Psychiatrists regularly predict "long-term dangerousness" in both civil involuntary commitment and capital punishment cases.83 Correspondingly, it is not surprising that psychotherapists are now being held accountable in "failure to warn" and "failure to commit" cases.84

The Morgan court focused on the patient's rights in weighing the need (and a goal of modern psychotherapy) to place the patient in the least restrictive environment and avoid unnecessary confinement.85 Possible rationales include personal autonomy and self-reliance as important to successful treatment. In Morgan, Matt's mother contacted the vocational worker several times during May, 1991 to report his weight loss, paranoia, somatic delusions, and auditory hallucinations.86 Knowledge that Matt's physical and mental condition worsened weighed heavily in favor of hospitalization.87 In a leading Ohio case, the Ohio Supreme Court used a "totality of the circumstances test"88 to assess the risk to the patient or others of continued treatment as an outpatient. Along these lines, the Court, in Morgan held that duty to lie with the psychotherapist.89

A final factor is that successful treatment of the patient may depend on trust and confidentiality to an even greater extent in the mental health setting, partly due to the reliance by the psychotherapist on the patient's "inner" thoughts and feelings.90 In Ohio, the privilege of confidentiality is based on both fiduciary and contract obligations.91 However, physicians,92 similar to attorneys,93 have a conditional privilege to reveal confidences to the extent necessary to prevent an imminent threat of harm to others. Moreover, physicians have a statutory duty in Ohio to report certain vital information, such as violent felonies, child and elder abuse, and certain contagious diseases.94 Limited disclosure of necessary information not only protects the family,95 but also promotes successful therapy.96

C. Ohio Adopts the "Readily Identifiable" and the "Forseeably Endangered"

Victims Rule

The Ohio Supreme Court has followed the lead of other courts by distinguishing the duty to warn if potential victims are "readily identifiable" from the duty to commit if they are not "readily identifiable," but are within the "foreseeable zone of danger."97 In this regard, the Court examined the "specific threats to specific victims" rule enunciated in Brady v. Hopper and rejected it as inconsistent with Ohio law.98 Other jurisdictions have protected a class of (unknown) persons who are "foreseeably endangered";99 whereas California has extended protection to bystanders,100 and even to property.101

Table 1. How the Duty to Protect Others Might Be Discharged





"Readily Identifiable"



Endangered" Victims

Outpatient Setting

Duty to Warn

Duty to Commit

Inpatient Setting

Duty to Continue Commitment plus Duty to Warn

Duty to

Continue Commitment

The duty to protect others is a continuum which depends on the circumstances.102 The Ohio Supreme Court explained in Morgan that it is a "single duty."103 A review of Table One reveals a "duty to warn" is warranted when a "readily identifiable" victim is ascertainable by the psychotherapist. This is consistent with the policy objectives outlined by the Court in order to avoid unnecessary confinement of the patient while protecting the public.104 In the inpatient setting, the psychiatrist must determine whether the patient can be safely released and also has a duty to warn any "readily identifiable" potential victims who are threatened.

The most difficult scenario is the outpatient with violent propensities who has not threatened anyone in particular. In Tarasoff, the attempt to involuntarily commit a paranoid schizophrenic105 patient was ineffective; yet the victim was "readily identifiable" and a warning to her or her family by the psychotherapist may have been effective.106 Whereas in Morgan, a patient with paranoid schizophrenia had not specifically threatened anyone, but contrary to the Court's holding, emergency evaluations were not conducted by a psychotherapist.107 A proper line of decision-making may have facilitated the family's repeated attempts to restart their son's medication or involuntarily commit him for this purpose.108 Legislatures have attempted to clarify the issue of "foreseeability" and to correspondingly limit the psychotherapist's liability.109 A decision to initiate involuntary commitment may be facilitated by using a team approach110 that includes family or friends. However, it is the psychotherapist who must make the decision, according to Morgan .111

  1. Ohio Adopts the Professional Judgment Rule in an Outpatient Setting

The Ohio Supreme Court made a distinction by first, objectively, requiring the psychotherapist to weigh all relevant factors in order to determine a patient's propensity for violence.112 Professional standards exist for the medical expert to assess the thoroughness and competency of the psychotherapist's evaluation.113 Second, having made or should have made that determination, the duty to protect others is now governed, subjectively, by a "good faith" professional judgment rule.114 The Ohio Supreme Court's definition of "good faith" encompasses the usual meaning of "good faith," that is "honesty" and "doing one's duty."115 Additional factors to determine "good faith" include how promptly and thoroughly the evaluation is carried out and whether further consultation is obtained.116

It is noteworthy that physician ethical standards117 and case law do not generally make the medical professional responsible for a "mere error of judgment."118 Both Tarasoff and Morgan are consistent in this regard.119 However, the Tarasoff Court held that the psychotherapist must take whatever "reasonable steps are necessary" in order to discharge the duty to protect others.120 Both Tarasoff and Morgan illustrate that protecting potential victims may often prove more difficult than assessing the patient's violent propensities. The expertise of the medical expert may not reach the issue of how to protect potential victims. The approach in both Tarasoff and Morgan allows the medical expert to determine whether the patient meets objective standards of care. The two jurisdictions are inconsistent. If the psychotherapist determines that a duty to protect others exists, the psychotherapist must then discharge that duty by using "reasonable care" in California and "best judgment" in Ohio. However, there may be less of a divergence in practice in Ohio as its courts look to objective "traditional" standards where the expert can determine them, and to more subjective "best judgment" standards where the expert cannot reliably do so.121

The Ohio Supreme Court also decided that the defendants would not fall under the qualified immunity of O.R.C. 5122.34, but would be given the equivalent under the professional judgment rule.122 The majority's reasoning was that O.R.C. 5122.34 applied only to affirmatively assisting in civil commitment proceedings or determination of placement at the time of inpatient discharge, but didn't apply if the psychotherapist decided against it.123 The wording of O.R.C. 5122.34 is squarely in line with the majority's interpretation, which immunizes the mental health professional against "liability to the person hospitalized or to any other person."124 A case on point, Daniels v. State Board of Mental Health, supports the Morgan majority's interpretation of O.R.C. 5122.34 as not applying to "medical decisions made in the course of treatment."125

E. Proximate Cause: An Issue of Fairness

The question of duty and proximate cause often mesh into a single question of whether a duty is owed as between the parties.126 Resolving the issue of proximate cause in the case sub judice necessitates consideration of whether liability is precluded by the (1) disputable absence of a "foreseeable risk"; (2) lapse of nine months time between the psychiatrist's decision to discontinue Matt's medication and the shootings; (3) actual perpetration of the shootings, not by the psychiatrist, but by his patient; and (4) "risky" conduct by Matt's father leaving guns and ammunition in the house during the period that Matt's mental condition deteriorated. The first question can be answered by realizing, that a "foreseeable risk" exists. As recognized in this case, the psychiatrist referred Matt to F.F.C.C. because Matt's mental condition might worsen by discontinuing his medication.127 The second question involves the knowledge that after medication is discontinued for schizophrenia, the time frame for a return to the patient's premedicated state might be prolonged.128 Third, Matt was not held legally responsible for his actions,129 whereas Justice Resnick asserted that a "genuine issue of material fact" remained as to whether the psychiatrist's "alleged negligence in treating Matt was a substantial factor" in subsequent events.130 Finally, any contributory fault by the father, a hunter, in keeping unsecured guns and ammunition in the house in the face of Matt's frightening behavior, is a factual question which does not lend itself to summary judgment.131

F. Critique of the Court's Rationale

The strength of the Morgan Court's rationale lies in its blending of traditional tort law accountability with the professional judgment rule, an acknowledgment of the difficulties inherent in predicting human behavior. An essential ingredient is the expertise of the psychotherapist, a specialist, who is responsible for assessing a patient's violent propensities. The professional judgment rule is also an acknowledgment by the Court of the difficulty of determining who may need protection and how best to provide it. The wisdom of the Court's rationale is also demonstrated by studies revealing how the Tarasoff doctrine's duty to protect others has affected the practice of psychotherapists.132 Seemingly, psychotherapists are now more careful, thorough, and consult with other professionals more often with respect to their patients' threatened violence against others.133

A weakness of the Court's rationale is its reliance on the "ability to control" the outpatient instead of considering other common law means of establishing a "special relation" exception to the "no duty" rule. An ambiguity that remains is a definition of the "readily identifiable" or "foreseeably endangered" victim. Further needing clarification is the precise role of the medical expert, whose expertise may not reach the actual decision-making as to how best protect others against a patient's violent propensities.


In Morgan, the Ohio Supreme Court extended the reach of the psychotherapist's duty to protect others against a patient's violent propensities from an inpatient to an outpatient setting.134 Similar to Tarasoff, the Morgan court found "sufficient control" to establish a "special relation" in the outpatient psychotherapeutic relationship.135 However, under the Restatement of Torts, a "special relation" may not only be established if the psychotherapist has the "ability to control," as in the inpatient setting, but also if he or she has created a risk of harm, or intervened to make a risk worse, or simply made a commitment to render medical services that was relied on by others.136 Applying the Restatement to Morgan, an outpatient mental health care team accepted a referral from another mental health care facility in order to treat Matt Morgan.137 The psychiatrist discontinued medication used to treat schizophrenia without a thorough review of medical records and without continuing to supervise his care.138 The outcome was tragic.139

Also similar to Tarasoff, a balancing approach was used to determine and define the scope of the psychotherapist's duty.140 Essentially, the psychotherapist must weigh those interests inherent in the successful treatment of the patient as against the safety interests of the public.141 Further, the duty to protect others extends to "readily identifiable" and to "forseeably endangered" victims, depending on the circumstances.142 The discharge of this duty is to be governed by a "good faith" professional judgment rule.143 This is not a radical departure from prior law, but merely an emphasis by the Ohio Supreme Court on the difficulties inherent in both the prediction of violent behavior and the protection of others threatened by the patient with violent propensities.