Shaw v. Glickman

Gilbert, C. J., delivered the opinion of the Court. This case concerns a new strand to an old yarn, the eternal ⁷¹⁹ triangle. 1 It is new in that in addition to the usual cast, le mari, la femme, et 1’amant (the husband, the wife, and the lover), new characters, the husband’s "psychiatric team,” have been joined as parties. In fact, the "team” has been sued for the injuries inflicted on 1’amant by le mari. The appellant, Dr. Daniel Shaw, a dentist, the husband, Leonard Billian, and Mr. Billian’s former wife, Mary Ann Billian, 2 were all under the psychiatric care of the late Dr. Leonard J. Gallant, a psychiatric nurse known professionally as Patricia Hencke, but privately as Mrs. Gallant, and Mr. Joseph Napora, a psychologist.

Sometime during the course of her therapy in 1974, the then Mrs. Billian left her husband. Subsequently, she "had two ... [sessions] with Ms. Hencke along with .. . [Mr. Billian], which were more or less marriage counselling type appointments where she was talking to both of. .. [them].” At the first meeting of herself, her then husband, and Ms. Hencke, Mrs. Billian "told him [, Mr. Billian,] there was somebody. He did not seem terribly distraught about that.” According to Mrs. Billian, Ms. Hencke informed the husband of the identity of the person in whom his wife was interested, Dr. Shaw. Mrs. Billian continued to see Dr. Shaw and they conversed by telephone.

The record is not clear as to the frequency of those events. On April 26, 1974, the day following the last group therapy session that Dr. Shaw and Mrs. Billian attended that was conducted by Ms. Hencke, "Leonard Billian broke into Dr. Shaw’s home at 2:00 A.M.” At that time Dr. Shaw and Mrs. Billian were asleep in the same bed. Both were nude. Mr. Billian, obviously believing he had been cuckolded, 3 discharged five bullets into the body of Dr. ⁷²⁰ Shaw. 4 Either Mr. Billian was a poor shot or an excellent one, because none of the wounds were fatal. 5 From the depositions that constitute a large part of the record in this case, we learn that on the evening of April 26, 1974, a Friday, Dr. Shaw left his office at about 5:30 p.m., went to his residence in Cross Keys, "changed clothes [and] went over to Mary Ann’s mother’s house and picked her [Mary Ann] up.” From there they journeyed to Curtis Bay "and went to the wedding of a girl who worked for ... [Shaw].” The dentist said that on the way back to "Mary Ann’s mother’s house,” at about 1 a.m. that night, he fell asleep at the wheel.

Dr. Shaw attributed that to his having been up from 5 a.m. the preceding day. Shaw said that he told Mrs. Billian that he could manage to drive her to her mother’s, but he did not see how he was "going to stay awake driving back from ... [the] mother’s house ... to Cross Keys.” Consequently, at Pimlico, on Northern Parkway, he "turned around and went back to ... [his] apartment, and went to bed, and a very few moments after we put out the lights to go to sleep, somebody entered the apartment and shot me.” Sometime earlier in the evening of the shooting, Mrs. Billian had spoken to her son, Michael. That conversation, ⁷²¹ related to Dr. Shaw, was to the effect that "Leonard Billian was acting in a bizarre way, and he was walking around with a pistol, with a gun belt and a pistol.” That fact, however, did not alarm Shaw because Shaw "had no notion he [Billian] would be prowling around at 2 o’clock in the morning.” Dr. Shaw, in his deposition, said that he had, "at the beginning of either the session [with Dr. Gallant] before the shooting or the week before that when we began our session, .. . [expressed] some concern about the possibility — this is a paraphrase — of violence from Leonard Billian.” Shaw stated that Dr. Gallant was concerned that Shaw "appeared to be developing a relationship” with an immature person. Dr. Gallant, according to Shaw, "brushed aside ... [Shaw’s] expression of concern” relative to Mr. Billian with the remark that " We have got to get on to other things.

We don’t have to be concerned about that.’ ” Shaw’s suit against the "psychiatric team” 6 was grounded on the theory of their negligence in failing to warn Shaw of Billian’s "unstable and violent condition and the foreseeable and immediate danger that it presented to” Shaw. The suit was met by the usual general issue pleas. Discovery followed. Ultimately, the psychiatric trio moved for a summary judgment.

They asserted that "there is no duty in the State imposed upon psychiatrists or psychotherapists to warn a potential victim of the violent propensities of any person, whether a patient or otherwise, of that psychiatrist or psychotherapist.” Moreover, the "team” maintained even if such a duty existed, Dr. Shaw "assumed the risk of being assaulted by Leonard Billian and was contributorily negligent [as matter of law] in taking off his clothes and going to bed with [the equally nude] Mrs. Billian on April 27, 1974.” Judge Grady, as we have previously stated, granted the ⁷²² motion for summary judgment because Shaw "assumed the risk of the injury. The Court conc!ude[d] that immediately before ... [Shaw] was injured he voluntarily placed himself in a situation involving a danger to himself which was so obvious and apparent that... [Shaw] either knew or should have known of the danger involved----” Patently aggrieved at the decision of the Superior Court of Baltimore City, Shaw has carried his cause here where he contends: "I. A psychiatrist, who determines or should determine that a person presents a foreseeable danger of violence to one of his patients, incurs a duty to exercise reasonable care to prevent the threatened violence.

II

When a psychiatrist, who determines or should determine that a person presents a foreseeable danger of violence to one of his patients, incurs a duty to exercise reasonable care to prevent the threatened violence, the rule of privileged communications does not bar him from taking protective measures.

III

When a psychiatrist, who determines or should determine that a person presents a foreseeable danger of violence to one of his patients, incurs a duty to exercise reasonable care to prevent the threatened violence, the failure to exercise such reasonable care is the proximate cause of the injuries.

IV

A victim of criminal activity, who voluntarily places himself in his bed with the assailant’s wife, does not assume the risk of injury at the hands of the assailant and is not barred from recovering for such injury.” We think that the four issues framed by Shaw should be rephrased into one, and that is, did the Superior Court err in granting a summary judgment for the appellees? We think the court did err. Nevertheless, the error will avail Shaw of ⁷²³ naught except a return to the Superior Court where his case will be dismissed because under the peculiar circumstances out of which this matter arises, no cause of action against the three appellees exists. In short, while we think the hearing judge was wrong in his reasons, he was right in his ultimate result.

Shaw points to Tarasoff v. Regents of the University of California, 17 Cal. 3rd 425, 131 Cal. Rptr. 14 , 551 P.2d 334 (1976), as authority for the proposition that the psychotherapist-patient relationship imposes on the therapists a duty to control his patient and the concomitant duty to protect the patient’s would-be victim. In Tarasoff , the facts were that Prosenjit Poddar 7 killed Tatiana Tarasoff. Tatiana’s parents sued a number of persons 8 as well as the Regents of the University of California, alleging that Poddar had confided his intent to slay Tatiana to a Dr. Moore, a psychologist employed by the Cowell Memorial Hospital at the University of California at Berkeley.

Moore contacted the campus police who detained Poddar briefly. Because he appeared rational, the police released him. No one warned Tatiana of Poddar’s threats. The slaying of Tatiana occurred approximately 67 days after Poddar had confided to Moore that he would kill her.

The Superior Court, Alameda County, sustained, on behalf of all defendants, a demurrer without leave to amend. The complaint consisted of four parts. The first was called "Failure to Detain a Dangerous Patient”; the second was entitled "Failure to Warn On a Dangerous Patient”; the third was named "Abandonment of a Dangerous Patient”; the fourth was styled "Breach of Primary Duty to Patient and the Public.” The first and fourth "causes of action” were, in the words of the Supreme Court of California, "legally indistinguishable.” The first and fourth causes failed to penetrate the invisible shield of sovereign immunity. The third cause fell victim to the California appellate decisions ⁷²⁴ precluding exemplary damages in wrongful death cases.

The Tarasoff Court, in a split decision held that: "[T]he special relation that arises between a patient and his doctor or psychotherapist . . . may support affirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons. A doctor must also warn a patient if the patient’s condition or medication renders certain conduct, such as driving a car, dangerous to others.” (Footnotes omitted.) 17 Cal. 3rd at 436, 131 Cal. Rptr. at 23-24 , 551 P.2d at 343-44 .

Aside from Tarasoff , there is authority to the effect that "the therapist becomes sufficiently involved to assume some responsibility for the safety, not only of the patient himself, but also of any third person whom the doctor knows to be threatened by the