4th DCA Affirms Mental Healthcare Providers Owe No Legal Duty to Warn Unidentifiable Potential Victims
The Fourth District Court of Appeal issued its opinion in Pollack v. Cruz on May 27, 2020. In joining its sister district courts of appeal, the Court reaffirmed that, in Florida, mental healthcare providers owe no legal duty to their patients’ third party victims where mental health patients made only generalized threats to unidentified individuals.
In the aftermath of the tragic events that unfolded in Parkland, Florida, on February 13, 2018, survivors and victims’ representatives of the Marjory Stoneman Douglas High School shooting filed lawsuits against many parties they believed were responsible for failing to stop the mass shooting. Among those parties was Henderson Behavioral Health, Inc., which periodically provided outpatient mental health services to gunman Nikolas Cruz, who is awaiting trial for the murder of fourteen students and three members of the high school’s staff.
Henderson had participated in meetings that discussed enrolling Cruz into the public school system. Following these meetings, the School Board of Broward County decided to allow Cruz to enroll at Marjory Stoneman Douglas in January 2016. It would not be until September 2016 that Henderson would involve itself with Cruz’s treatment. Therapy started at the request of both Cruz’s mother and the school guidance counselor, after they told Henderson that they were concerned Cruz was going to hurt himself or others following a fight for which he was suspended from school. Henderson had no further contact with Cruz after he requested to end his therapy sessions in December 2016.
Co-representatives of the estate of one of Cruz’s victims sued Henderson in 2019. Among other claims, the plaintiffs accused Henderson of negligently “failing to prevent Cruz from being mainstreamed into the public school system and failing to warn of Cruz’s dangerous propensities.” Ultimately, Henderson successfully moved to dismiss the case against it, arguing that Florida law does not require mental health care providers to warn or protect others from possible harm that may come by an outpatient receiving mental health services. The plaintiffs appealed.
In an opinion penned by Judge Robert Gross, the trial court’s dismissal was affirmed and found that “Henderson violated no legal duty that extended to cover the victims in the shooting.” In finding as it did, the Fourth DCA joined the majority of its sister courts in finding that mental health providers owe no legal duty to warn their patients’ potential victims because “the unpredictable nature of . . . mental health patient[s’] future behavior” makes it nearly impossible for mental health care providers to foresee potential harm against others, control the risk, and identify individual potential victims, the elements one must satisfy to establish a legal duty.
While Henderson’s position on appeal was that it had no legal duty to warn or protect others from possible harm because Henderson provided Cruz with outpatient mental health services, the court went further and held that, where mental health patients make general threats to harm others, health care providers have no legal duty to warn potential victims. This seemingly minor change expanded protections against a legal duty to warn from outpatients to all patients. By doing so, the court protected the efficacy of patient-therapist relationships—holding otherwise would have likely discouraged those in need of mental health care from seeking help and health care providers from providing services to those similarly situated to Cruz for they could be held liable for unforeseeable crimes their patients commit against third parties.
The court rejected the appellants’ argument that healthcare providers owe a legal duty to warn their patients’ potential victims, just as physicians owe a legal duty of care to warn their patients’ children about genetic disorders they may have inherited. The appellants’ argument hinged on the Florida Supreme Court’s decision in Pate v. Threlkel, which the Fourth DCA distinguished by noting that, unlike a physician’s patient’s child, “whose existence is known to the physician[,]” the victims of mental health patients are unknowable unless specifically identified by the patient. Instead, the Court relied on the Third District Court of Appeal’s decision in Boynton v. Burglass, which refused to recognize that a psychiatrist owed a legal duty to warn third parties of his patient’s future dangerousness because “such predictions are fraught with uncertainty . . . and it would be fundamentally unfair to charge a psychiatrist with the duty to warn.”
The court found the following:
- Given how unpredictable mental health patients’ future behavior is, it would be improper to impose a duty upon mental health care providers to warn their patients’ unidentifiable third party victims where only general threats to harm others are made.
- Florida’s undertaker doctrine does not impose a duty to warn on mental health care providers, even if they played a key role in rendering services to another.
- Public policy considerations dictate that holding mental health care providers liable for the crimes committed by their patients against third parties only serves to weaken the patient-therapist relationship and would discourage mental health professionals from effectively rendering mental health care service.
- Florida Statutes, even as amended following the Parkland shooting, do not create an enforceable duty to warn on psychiatrists.
Following Pollack, mental healthcare providers do not have a legal duty to warn their patients’ potential victims when those potential victims are not readily identifiable. Moreover, Florida Statutes do not impose any liability on mental health providers for failing to warn identifiable victims as long as law enforcement is notified about the specific threat. Nevertheless, it remains possible that a court considering similar facts and issues may conclude that mental health care providers owe a common law duty to warn individuals whom their patients specifically identify; this remains to be seen.
For now, the trend remains that Florida courts will not impose a legal duty to warn third party victims upon mental health care professionals. Moreover, as noted by Judge Jonathan Gerber in his concurrence, the Florida Legislature does not impose an affirmative duty on psychiatrists to warn unidentified third parties of their patients’ future crimes. As it stands, section 456.059, Florida Statutes, states that psychiatrists may choose to warn potential victims, but they do not have a duty to do so; psychiatrists need only disclose patient communications to law enforcement when the patient has made specific threats to an identified or readily available person and intends and has the ability to “imminently or immediately carry out such threat.”
To review the Fourth DCA’s opinion in Pollack in its entirety, click here.
*Article was co-authored by Jose Espinosa, Summer Associate 2020