Chapter 29 Physicians
DUTY TO WARN THE PATIENT………….. 29:1
PHYSICIANS DUTY TO WARN THIRD PARTIES 29:2
In Nevada, a physicians duty to warn is based on legislative statutes and common law concepts. There are two basic instances where a physicians duty to warn arises. First, there is a duty to warn a patient of significant risks involved in specific medical procedures. This duty corresponds to the physician’s obligation to obtain informed consent prior to performing a procedure. Second, physicians may have a duty to warn third parties when the physician has knowledge that his patient presents a foreseeable danger to a third party. The Nevada legislature defines “patient” for purposes of the physician‑ patient privilege (relationship) as “a person who consults or is examined or interviewed by a physician for purposes of diagnosis or treatment. Consequently, this definition contemplates not only the traditional patient seeking treatment or care, but also those seen by a physician for other reasons such as examinations to determine fitness for employment.
DUTY TO WARN THE PATIENT
The Nevada Legislature has recognized and codified a physician’s obligation to inform patients of significant medical risks involved in medical procedures. NRS 449.710. (This duty is detailed in the preceding chapter entitled “Consent.”) This “informed consent” can only be given, if the patient is aware of the risks involved. A physician’s failure to adequately advise the patient may result in an action for professional negligence for failure to obtain informed consent. Apart from the need to protect himself from legal action, the physician must be concerned for the patient and the strength of the physician-patient relationship. The degree to which a patient trusts his physician will be directly related to the extent to which the physician provides honest, accurate information concerning treatment and risks.
Prior to obtaining informed consent, a physician has an obligation to warn the patient of significant risks involved in a specific medical treatment or procedure. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204, (1991). The extent to which a given procedure or treatment constitutes a significant medical risk is determined by the “professional” standard. Under this standard the physician has a duty to disclose information that a reasonable practitioner in the same field of practice would disclose. In addition, the physician has a duty to inform the patient of alternative medical procedures if the patient requests. NRS 449.710 (6)(b).
It is important to note that the Nevada Legislature has exempted emergency treatment and procedures from a physicians duty to warn of risks. This does not mean, however, that no duty arises in a situation that began as an emergency. Once the emergency has been abated, the physicians duty to warn, provide information, and obtain consent before proceeding further with treatment remains unabated.
PHYSICIANS DUTY TO WARN THIRD PARTIES
The obligation to warn third parties of potential physical threats by a patient is based on common law, that is, judicially (court) created law. Generally, the physician-patient privilege does not permit a physician to divulge a patients confidential information to a third party. NRS 49.225. However, in many states such as California (to which Nevada courts often look), common law has carved out an exception to the physician-patient privilege when the physician has knowledge that a patient threatens foreseeable harm to an identifiable third party. Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 551 P.2d 334. Although the Nevada courts have never specifically addressed the issue presented in Tarasoff, the duty to warn established by that case is recognized in many, if not most, jurisdictions. Nevada physicians must be aware of the potential liability that exists under Tarasoff.
In Tarasoff, the patient informed his psychotherapist that he intended to kill a woman who was readily identifiable to the psychotherapist. The court held that the psychotherapists failure to warn the woman, law enforcement officials, or relatives of the woman was a breach of his fiduciary duty to his patient.
The court identified two elements that create a physicians duty to inform a third party. First, the physician must have knowledge of a foreseeable harm. Knowledge may be based on the patients communication or from the physicians professional expertise based on the facts known to him or her. Second, the third party must be known or readily identifiable to the physician. Thus, a patients threat of a desire to harm people in general does not give rise to a physicians duty to warn the public. However, if the victim is readily identifiable, the physician may have a duty to warn if the victim is within a small class of people. Though the term small class of people has not been clearly defined, courts have held that a neighborhood is not a small class.
Once a duty to warn arises, physicians have an obligation make reasonable efforts to communicate the seriousness of the danger to the third party. Due to the strict regulations imposed by physician-patient privacy acts, physicians would be well advised to consult their personal attorney, the state medical authorities,and liability carrier for guidance prior to disclosing confidential information to a third party, assuming that sufficient time exists between the patient’s disclosure and the threatened act. The law in Nevada is clear with regard to privilege, and the violation of that privilege. Physicians must understand both concepts (privilege and the duty to warn) before proceeding.
The duty to warn is analogous to the duty to obtain consent. In general, if a physician complies with the consent statutes and procedures, the duty to warn is adequately addressed. The exception to physician-patient privilege carved out in cases such as Tarasoff is somewhat difficult to implement as it involves maintaining a balance between the physician’s duty to his patient and a duty to a third person. The exception is based on weighing or assessing the greater good, and physicians should carefully consider, preferably with the advice of an attorney, the various rights and duties involved before making a decision to warn (or to not warn) a third party.