Tarasoff and the Duty to Warn

Bioethics for the People

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On this episode, we delve into one of the most influential cases in bioethics, mental health to discover whether healthcare providers have a “duty to warn” patients of potential violence. Devan and Tyler explore the Tarasoff case's historical context, legal significance, and the enduring ethical and practical implications it holds for the field of psychology, mental health, and the broader legal system.

Transcript

0:00

Hey listeners, just a heads up, the case that we talked about today involves interpersonal violence and maybe distressing to some listeners.Come to another episode of Bioethics for the People.I'm joined by my Co host Doctor Devin Stahl, who according to her student reviews should be cloned and teach all of the bioethics.

0:24

And he's Tyler Gibb, who, according to his students, is best described as the goat of bioethics.Hello Devin.Hello, Tyler.Good morning.Good morning.So I've got a case to talk about today.

0:41

Awesome.You're up.So what's the case, Tyler?OK, so here's a question.When we're thinking about kind of the big cases in bioethics, there's one that has to do with confidentiality, right?And I think that that's one that we're going to talk about today.

0:57

So can you name the case that is kind of the Seminole bioethics case dealing with confidentiality?So I think of Tarasov.Yep, Tarasoff.Good, I I should get a prize.I get AT shirt.

1:14

So what do you remember about Tarasoff?OK, it's kind of a fun last name.Yeah, and and a very unfun case.So not a fun case.Yeah, I it's not 1 I teach on, so it's not one that I'm super familiar with.From what I remember, it's about a young woman who is murdered by a young man.

1:36

I think they're both in college.And he had at some point told, I don't know if it was a therapist or a school counselor that he was.I don't know if they had dated or if he was just sort of infatuated with her.But he had made insinuations that he would harm her.

1:53

And he did.And he killed her and her family, I think, sued the college or the therapist.Wow.OK.I apparently don't know a lot about this case, but saying that, no, you're doing great.You're doing great.That's that's all of those things are.

2:08

Mostly true, which I think is is pretty good for somebody who doesn't teach on the case.OK, so you're right.So it's the the case about a young gentleman named Prozenjit Podar.So that's how I'm going to say his name.

2:25

I know that's probably not right, but Podar so he was a graduate student at the University of Berkeley in 19686768 Ish.So that's the time frame, right?So I can imagine being a college student at Berkeley in 1960.

2:41

Seven 1968 may have been a different experience than I.Probably at BYU, I'm thinking, yeah, yeah, so I'm sure that we had, we we had good times in college, but just probably a little bit different.So Padar is a graduate, a student in, I'm not exactly sure, his field something about electrical engineering or electrical design, something like that in the STEM fields.

3:05

He is living in the International House because he's from India.And it meets, becomes, you know, crosses paths with another student who is an undergrad and her name is Tatiana Terasov.Sometimes she's referred to as Tanya, but Terasov.

3:20

So they meet in a folk dancing class in Berkeley in 1968.Ish.OK, so you're right.He becomes infatuated with her, and there's a little bit of, you know, maybe disagreement.We're not quite sure exactly whether there were feelings on both sides or whatever, but over the course of the semester leading into the winter break, they interacted more during this class, maybe saw each other socially.

3:46

He definitely thought that there was more to the relationship than she did.This all comes to head and for some weird reason, what happened at New Year's Eve gets referenced in almost every account of what happened.As if it's like this little golden nugget that explains everything else that happened.Which obviously isn't the case.

4:02

But New Year's Eve?They shared a kiss.OK, so this was fuel to Podar's infatuation.He thinks that they are in relationship now.She is continuing to date other people and rebuffing his advances for more intimate relationship.

4:20

So yeah, so he thinks that this kiss is a big deal.She does not.There's hurt feelings, Yeah.And I think that it's important to note how interesting intercultural communication can be, particularly in situations where there are, you know, intimate romantic relationships like the cross coding that has to happen interculturally is just, I mean, it's almost impossible to not screw up in really important ways.

4:43

Right.Oh, so is is he from?Yeah.So he's from India.Yeah.So he's a international graduate student on a on A student visa.There are references in some of the some of the stuff that I read in prep for this that references like what cast he's from or what part of Delhi his family is, what village he's from, as if that was also kind of explanatory in some almost racist kind of way.

5:04

But yeah, so he is an international graduate student and meets this woman, falls in love with her.She's not reciprocating it.So now we're in, you know, January ish.He continues to kind of obsess about her and says some concerning things to his roommate.

5:20

And his roommate recommends that he seeks out treatment or counseling or get in touch with the healthcare system in some way.That's pretty amazing for the 60s.I don't know what's going on with therapy in the 60s, but that seems like a pretty like savvy on his roommate's part.I I think that we would be impressed with that response from a roommate right now, right?

5:40

Yeah, no offense to college kids.It was a good move on the roommates part.At the same time, we find out later that PODAR was stalking.I think is a fair description of Tanya contriving ways in which their paths would cross and they'd talk and and he would actually, I'm not.

5:55

I'm not sure the technology at this point in the 1960s, but he was secretly recording some of their conversations and then obsessively playing them back like at night and trying to figure out why, what he could have done differently to make her fall in love with him.Or maybe she was giving sub subtextual cues that he should be picking up on.

6:15

Right.So kind of not a dark not great.So he does, which again this is, this is AI think probably an unusual set of circumstances in this time frame.But not only does the roommate recognize there's some mental health issues but and recommends that he go see somebody about it.

6:32

But he does do that.He goes and seeks out treatment and starts being seen at the, I think, the student Health Center by a Doctor Moore, who's a psychologist, and he diagnosis him for the first time as having paranoid acute schizophrenic reaction to to this thing.

6:49

So seems like an appropriate diagnosis.And this is where I think the case is really interesting.So Tarasoff is a kind of a 12 Tarasoff 1, Tarasoff 2 case in the ways that they're taught.But that's kind of more of a quirk in our legal system rather than a difference of kind of doctrine that comes out of this.

7:08

OK.All right.So far so good.You with us.OK.So I think everything that you described kind of alliance with kind of the more more details that I'm fleshing out.So.So PODAR is involved in treatment with Doctor Moore, OK.And this is important because Doctor Moore gives him his diagnosis and also towards the end of their, I don't know if it was like 6 weeks of weekly therapy or what their kind of treatment protocol was.

7:33

But towards the end of that Podar expresses to Doctor Moore that he has feelings of violence and wanting to kill somebody And because they had been seeing, seeing each other.It's an it's interesting that this is also something that's really emphasized in in some of the really detailed analysis of the case is that in the session where he expressed the violence, the violent urges or the intention to do violence towards Tarasov, that he actually doesn't name her.

8:02

But Doctor Moore, because they had seen each other for a period of time, is able very quickly to identify that he's talking about Tarasov.A lot of the kind of off the cuff, really quick and dirty summaries of the case paint Doctor Moore in kind of I think in an unnecessarily negative light.

8:21

So a lot of them will kind of tell the story of well, tear us off as the case of a psychologist was told about this violent urges or intent to do violence did nothing patient.The client or the patient goes out and and actually does the thing that they said they were going to do.

8:37

Isn't it terrible?The doctor should have done something right.So that's kind of the basically.Yeah, that's that's how I usually hear it, right?Like he should have.He should have tried to intervene and he didn't.Like a lot of these cases, as we start to get into the the details, into the weeds a little bit, it's not really quite the story, it's a little bit of a different story.

8:55

So Doctor Moore actually recognized that this person was in danger.And at the time the tools available to him were a petition insert or a 5150 is what they call it in California.So what do you know about that?Is that a hold?

9:11

Is that where you like, can hold somebody involuntarily?Yes, exactly.So it's an involuntary commitment or involuntary hold of a person for psychiatric reasons.So usually they're in some sort of psychiatric emergency, and the general civil liberties that we all enjoy are suspended for a discrete period of time in order for this, to this person to be made safe.

9:37

Yeah.So that's a big deal, right.So he, when he said this, the the psychologist said that is such a audacious claim or you're clearly in some sort of emergency situation.So, so much so that I'm going to commit you against your will, right to a hospital setting.Another interesting detail that is often overlooked is that tear us off at this time during this week or, you know, maybe it's spring break.

10:00

I don't know.But she is actually on vacation.Doctor Moore knows this.They talked about this, I think because Podar had had told her that she's on vacation in Brazil and won't return for a period of time.So she's out of the country.And, you know, if we're jumping into Doctor Moore's mind, he has a patient who is clearly not doing well.

10:20

He has the tools available to commit him and the person who's most at risk is in a different country.So Doctor Moore, what he does is he writes out a report, writes out a letter, sends it to the campus police and says this is the patient, this is the name, this is the threat that they made.

10:37

This is how I'm interpreting it.Please pick him up and we'll do this petition insert and you know things will be good, reasonable.Reasonable.So he doesn't commit him when he says the thing, so he lets him leave and then says later No, I think that was such a big.

10:53

Scary statement that I need to have him committed.The wrinkle there was so he lets him leave the hospital and then Doctor Moore, who I think was at a quite junior healthcare provider, talks to his supervisor and the supervisor informs him of may, maybe his obligations or ways to think about it.

11:13

And then he sends a letter to the police asking them to go pick him up.I see.OK, And this is actually, I think it's a Friday leading into the weekend.But again, Tanya's out of the country, so direct threat is probably mitigated in the minds of Moore, right?

11:29

Oh, also in the letter, Doctor Moore says that Podar actually is really sophisticated in in masking his symptoms.So he actually says in the letter to the police, he's going to seem very rational, very reasonable, right.

11:46

But that's just part of his kind of pathology.So he gives him a heads up like he's going to seem OK, but I need you to know that he's not OK.He's made these threats.I need you to We need to do this again.I feel like this doctor's kind of nailing it, right?Yeah, yeah, seems appropriate.

12:02

Police go.They make contact with Podar and just as the doctor described he's very reasonable makes good explanations about what he said and how it wasn't that big of a deal promises to to not make any contact with her.So they actually, I think they bring him into the the campus police office and question him and interrogate him and he is able to satisfy the police officers that he's that he's OK that he recognizes that it was he shouldn't have said that he doesn't really believe that so he so he talks his way out of this and the police let him go.

12:36

Oh no.So is that in their authority?I guess I don't understand how these things work, but gosh, you'd think that.They should just commit him because that's the thing that they were instructed to do.But maybe they have the authority.Yeah, I think that they had, they have some professional prerogative too, right.

12:52

I mean, they can say, you know, I don't think that this guy's actually described, you know, he's not presenting in the way that he's being described or you know, I don't, I don't know the details.Yeah, but they're not psychiatrist.Come on, come on.Police.So that's what happened.Doctor Moore probably heard later that the police picked him up and didn't commit him, obviously, or didn't bring him in for the petition insert.

13:15

I can understand if he had some feelings about that, particularly because when Tanya comes home from vacation, Podar finds out that she's home.He actually had made friends with her brother in order to keep tabs on her and so he knows that she's back.They have a the Tarasov's own, a house outside of Berkeley someplace.

13:35

He knows where it is through the brother and goes.Tarasov's mom is there and knows about Podar and knows that he is a threat, tells him to go away.He leaves, gets a weapon, comes back later when Tarasov is there and ends up murdering her.Yeah.He is distraught, calls the police confesses and you know is taken into custody and charged.

13:58

So what what happens in the criminal process And so he so as an international you know someone who is here studying on an international student visa there's all types of interesting well maybe not that interesting.It wrinkles about as far as like immigration status and and you know, charging.

14:15

Sure.Interesting to another kind of podcast, but maybe not so much to our.I think it's kind of interesting.We'll move on.One of the interesting things that happens is that he gets charged criminally right and actually enters into a plea deal.And part of the plea deal is that he gets deported and can never come back.

14:33

And it's kind of a mess how justice kind of fell on its face in prosecuting him.So they deport him, presumably so he can be tried in India or just just get him out of the country.Part of the plea deal and we don't know the details of the plea deal, but part of it is that, you know, he can never return to the United States.

14:52

If he does, he will be.So basically they put on suspension around the hiatus, suspended the charges.If he ever comes back to the United States, then they charge him.OK, well, that seems like, yeah, a miscarriage of justice there because he murdered someone.Yeah.So he's initially charged with Murder 2, murder in the second degree, which is kind of like more like the it's not premeditated.

15:13

It's more like a crime of passion type of situation that actually got downgraded to manslaughter and then yeah.What?I mean, he made threats against her and then got a weapon and then killed her and that's not premeditated.I don't know.Maybe there's it's stickier in the case itself, but I don't know.

15:29

I'm not going to sit here and try to defend that one.That's what happened.You represent the law, Tyler, Don't you represent?Because I'm fascinated by it does not mean I am in the position to defend it.Fair enough.Fair enough.Understandably, Tarasov's parents are upset about this whole situation.

15:45

OK, And so when they find out that not only did Podar see a psychiatrist, but he actually told her psychologist he actually told them of the threat.And then still there was no no protection that your daughter still died, despite him saying what he was going to do, right?

16:02

So they file a lawsuit against the healthcare providers, claiming that they actually were negligent in not adequately taking this information and doing something about it, even though even though Doctor Moore did really right.Yeah, but he didn't inform them is is that what they would have wanted?

16:20

Right.So this is the question of confidentiality is, you know, he's bodar was his patient, so he has to keep that information, you know, their conversations confidential presumably.Would this be an exception?At the time, I presumed that there's there's no precedent for this.

16:35

So you are supposed to keep those things confidential.And they're saying no, you should have informed us so that we could have protected her or her, so she could have protected herself.And so this is so this is where the the bioethics gets really kind of interesting about this.So we have this ethical obligation or professional obligation to not only be the type of person who is able to be worthy of the trust of our patients, right?

17:00

But also to protect the things that are said in those type of intimate, some people would say, like sacred relationships, right?So there's a couple of other types of relationships that we recognize as being sacred.And without really, really good justification, we can't violate that confidential kind of cone of silence, right?

17:22

Yeah, like priests, right?So you confess something in the confessional booth.The police can't then go.Oh, you have to tell us what they said or, you know, I can be confident that if I tell my priest that I, you know, did something wrong and I want, you know, religious absolution for it, that he's not going to also go and tell, you know, my neighbor or the police or the newspaper.

17:42

Right.So.So he has some professional obligations as part of his duty.And I, as a patron or a client of that, can rely upon that confidence in order to achieve some other greater good, right?Right.So we wouldn't tell our psychiatrist or psychologists things if we thought that they were going to use it against us.

18:03

So it it sort of opens up space to have real conversations otherwise that therapeutic relationship.Yeah.And so that applies to mental health professionals as well as it applies to to physicians and nurses and people who are in that type of care relationship as well.But there's not a whole lot of those relationships that are kind of by public policy or by statute in some situations to be protected.

18:26

So we think of patron or a parishioner, priest, parishioner, clergyman, right.So the sanctity of the clergy, Dr. patient relationships and then lawyer client relationships is another one, right?But outside of those, there's not really a whole lot of situations in which we can really be confident that our conversations are or going to be held private.

18:50

Right.So that's like the Holy Trinity of confidentiality there.But right, If our students tell us they committed a crime, I might be responsible for reporting that, in fact.And not only would you have, like an an ethical or a professional obligation to do that, in in many states if you didn't do that, you could be punished for it.

19:09

You could be sometimes criminally punished for not having done that.Yeah, yeah that's true in Texas about anything involving and sometimes it's identified as like against children or against elderly for example, elderly folks.But it's a so mandatory reporter is the the term that we use often.

19:27

OK, so that so this is the question.So we have these ethical obligation that is in intention at least maybe not in direct conflict with a a public good, a benefit of, you know, something in society that we want to protect which is avoid violence against vulnerable people.

19:45

So we have this tension.And so the the ethical question, you know, in my mind is what are the limits of that professional obligation?OK, Is it always and forever and there shall not be any violation of this ethical principle?I don't know.

20:00

Those are tough to justify in most cases, right?There's usually exceptions at some end of the spectrum.But this is really a question of where do we draw the line.Yeah, you have to drop somewhere.Like I can't imagine anyone saying, like if I, if I had a patient who was admitting to, like, harming their own child, right, continually, I don't think I could stand by and, you know, continue to let that happen because I have a professional obligation to that patient.

20:28

I mean, at some level you have to protect other third parties.But, but, but it's this balancing act, right?And so part of this case was the.The fundamental question in my mind was.Is this type of threat against this person said in this way and in this context is that something that not only is it OK if you do it, if you if you disclose that, but in this situation you must and to not do that would put would mean that you did something wrong and you could be punished for it, right.

21:03

So that's where it switches from a a recommendation or it's permissible.It's OK if you do this to.Thou shalt do it.And if thou doesn't, thou shalt be punished.Right.Right.And and so, like in my clinical practice, that's the difference of, you know, if you do this, like if you report that your elderly patient with dementia shouldn't be driving you, the law will protect you from somebody counter suing you for reporting that, right?

21:28

So like you are legally protected if somebody comes back and sues you for that disclosure versus if you don't disclose that to legal, you know parties, you will be prosecuted.So like the, it's either a protection from the law or like a mandatory reporting obligation.

21:45

And those are pretty different.And and that and that's exactly right.That is where the kind of the crux of this case, or at least where the the Teresa family, that's what they were claiming is that Doctor Moore, even though he did some a lot more things than we kind of give him credit for that he didn't do enough that he actually had a duty.

22:05

Not just to do all these other things that he did, but he actually had a duty to warn the potential victim.And so that's where that term, duty to warn comes is from this case, Yeah.Yeah.And So what are the parameters of that?Because it, you know, yeah.

22:21

So I'm sure you'll get into this.But when do you have a duty to warn?How specific does the you know claim need to be?How do you born?So this case was decided in 1974.OK, so this is what we call Tarasoff one, which implies that there's going to be a follow up and the waters are just going to get muddier.

22:42

But we'll we'll wade through them together.So Tarasoff one decided that yes.So the District Court dismissed the Tarasoffs and said no, there's no that this was not a case of negligence.The Doctor did enough.Maybe he didn't do everything he could have, but he did enough.

23:00

He discharged whatever obligation he had and not disclosing this other information was not he was not liable for that or the damages that occurred because of that failure.Blah, blah, blah blah.OK, so so the District Court that's that was their finding.

23:16

They found against.They decided against the terrace offs.They appealed it to the appeals court.They decided against to terrace offs.But they, you know, gosh darn it, they are nothing but persistent.And they appealed it to the Supreme Court of California.The Supreme Court of California ruled in favor of the Tara Sauce.

23:34

And they said yes, Not only so he, Doctor Moore may have done all of these other things, but you're right, he had a duty to warn the potential victim because the person was easily identifiable.And so he gave a a list of kind of criteria that must be satisfied in order for this duty to apply.

23:54

But you know, that was the that was the decision that, yes, Doctor Moore did not do enough.He actually had a duty to warn the potential victim.OK, so so tear us off herself.Yes.He should have tried to get in touch with her.Yep.And if and failing that, then he should have done something, You know, contact her parents or roommates or whatever, you know, done something more to warn her, OK?

24:17

So this case actually gets, it gets a little muddy and way too much in the the the legal weeds of it, but actually gets there's a rehearing of this case, so it gets remanded and then there's a rehearing.And so in 1976 it comes back up through the system, back to the Supreme Court and kind of a a redo of the original 1974 case.

24:38

So this is Tarasov 2.OK.The the remix.The remix two point O.And they they rule again, they find in favor of the terrace offs that there was a duty, but they kind of tweak the duty a little bit.

24:55

So they don't say that the doctor had a duty to warn.It actually says there's a a little bit broader duty, which we're going to call a duty to protect and war and warning somebody can be part of protecting, but also identifying the police officer can be part of protecting.

25:12

Does that make sense?That OK warning somebody is part of is 1 component of a broader duty to warn or to protect somebody.So does that mean so just so I'm clear that he had more obligations in tears of two or less, meaning like warning her would have satisfied the criteria to protect.

25:36

So there could have been multiple ways to protect Warren, might have been one of them.Or Warning was not quite enough to protect her.Great question.What the court decided was that they're they're kind of setting aside the, the Warren aspect and they said doctors in these situations, physicians, healthcare providers have a duty to protect the potential victim.

26:00

There's a lot of different ways in which we can protect somebody.So we can call the police, we can do involuntary commitment, we can do maybe a couple other things.Or also, part of protecting would be to warn the potential victim so they could actually make decisions about how to protect themselves further.

26:17

So what Doctor Moore failed to do, so he had an obligation to protect the potential victim.He could have discharged that duty by warning her, or by talking to the police.Or maybe talking to the police and warning.OK, that makes sense.

26:32

Yeah.Yeah.But he he it sounds like he did satisfy that if he tried to commit him and told the police to go get him right, isn't that that wasn't enough?Right.Yeah.So it was enough.So, you know, again, this kind of gets into the weeds of the league, the legal technicalities of it, But they found that there was this duty and so they created this legal precedent that there was this duty.

26:54

And then whether or not he actually satisfied it or not, kind of got remanded.And then there was an out of court settlement and other stuff but the legal doctrine of a duty to warn.Had been established in 1974 Terasov one and then it got slightly modified into a duty to protect in 1976 in Terasov 2.

27:17

OK.I've never heard of a duty to protect just to say like I've heard of this duty to warn.Right.So that that's the one that sticks in my mind.I've never heard of a duty to protect that one didn't didn't have the sticking power, at least to my mind.Is that.Do you think that's right?Kind of.

27:32

But what also gets happened is they they get muddled together and they start to be described as the same thing, whereas they're actually a little bit different, you know, one's kind of a subset of the other one.But sometimes it gets bought into a duty to protect slash warn or protect and warn or warn and protect right.

27:51

And also what also confuses this a little bit is that each state again, this is a Supreme Court of California case, not AUS Supreme Court case.So it's just making precedent for the state of California.Lots of other supreme courts, state supreme courts will look to their peers and if there's a good rule or a precedent, then they can kind of adopt it as persuasive.

28:17

Maybe they don't have to follow that precedent, but they can say, you know, look, California is doing it this way.We are reasonable.They're reasonable.Maybe we should do something similar to them, right?Because you don't want to have to wait until something similar happens in your state in order to say like this is a good rule, or is that the case?

28:33

Or they.I I The way that I would describe it is that Supreme Court cases or Supreme courts, and usually their clerks are a little bit lazy and if somebody has already done the legwork, they're not going to reinvent the wheel, right?OK, OK.So if they're able to do to kind of buy in corporation coast off of the, you know, drag off the the coattails of California who had had to go through this for the first time, then they're going to do that, OK.

28:59

So each state deals with this a little bit differently and depending on the way that the the cases came about in those other states, sometimes it's more emphasis on the 74 decision on tariffs off 1.So it's more like a duty to warn.Sometimes it's more like a duty to protect.

29:17

Some states have said, you know what, both of those things don't really make sense in this context.We're going to do something else.And so they don't follow tariffs off at all.Sometimes they've made the Tarasov duty to protect things a lot bigger, a lot more onerous, a bigger duty.

29:34

Sometimes some states have made it even more narrow, right?So it really depends on what state individual practitioners are are are practicing.But that is kind of what fell out of the Tarasov cases.OK, so not all states then have this duty to protect?

29:50

Well, let's call it the duty to warn and or protect slash and or, OK.Asterisk, OK.But this is, it's interesting from I think from an ethics perspective, particularly from a bioethics perspective, like we think confidentiality is a good thing, right?

30:08

We we we want to protect that and we want doctors to know when to violate that and when not to violate that, right?All right.And it seems like there should be some rules about that that are clear.At the same time, cases are really particular.

30:25

And so you want to like leave some leeway that will protect physicians who are just trying to do their best.I I when I hear about this case, I'm really conflicted actually, OK, just to say, I mean what happened was so terrible.So I I don't in any way want to say like, no, he was fine.

30:41

Everything happened as it should have.Like clearly that's not the case.Would warning have made any difference?I actually don't know if it would have or not, but I I do want to protect this.You know, I don't want people to be scared to tell their doctors things, right?

30:56

I think there needs to be a really strict confidentiality.I do think that doctors have some obligation to protect like identifiable third parties who might be harmed.But like I'm not sure where that line is.Like how specific do you need to be?Can we use professional judgement?

31:11

Should it be some sort of mandatory reporting?And if So, what are the exact rules about that?I I don't, I almost want to.I want to leave some discretion up to psychologists, psychiatrists, you know, people in therapeutic relationships without leaving it totally up to them.So I just, I think the lines are really blurry for me.

31:28

Do you have AI mean?How do you feel?Well, you know, the courts have kind of wrestled with this a little bit.And I mean the the definition or the explanation is that physicians must use their best judgement.Healthcare providers must.

31:45

Do what a reasonable physician should do in that situation and that your students always it's it's pretty entertaining teaching medical students kind of these legal cases because it's funny because they think that I am going to be here and like defend all of the cases, right.

32:05

Or defend the court.Or, you know, but I.Or not.But often it gets into this situation where it's the the the students are like, well, it's then it just becomes, he said, she said.Right.It just becomes a a, a disagreement of like how do you ever prove whether somebody said something or didn't say something and they think it's like this gotcha question like, Oh well, you know, I could just, I don't have to document anything.

32:27

I just have to remember that.You know, just say that I that I had this conversation and who's going to prove me otherwise, right?Oh yeah, except that you do have to document it or else it doesn't count.That's what we always say in clinical ethics.Like if you had the conversation but you didn't write it down in the chart, then you basically didn't have the conversation.

32:44

It's hard to prove the conversation didn't exist, ever existed.But what's what's?I think an interesting way to to take A, to take a different perspective, is that actually we vote on it.We vote on whether we think that you did the thing that you were accused of or not.And they're like, well, we don't vote on it.

32:59

I'm like what?Actually we do.Listen, so we have a disagreement between two people.So we'll say you and I have a contract, I violate the contract, You bring a lawsuit against me and I say, no, I didn't.We didn't.And there was an oral contract, a verbal contract.

33:15

And you know, we're in in dispute.We as a society vote on whether or not we believe Devin or we believe Tyler.And the way that we do that is we have this really complicated lottery system that everybody has to be a part participant in and your name might randomly get drawn and then you and 11 of you other randomly chosen people through this lottery are presented the evidence both sides get to to say their say and you guys get to vote on what the facts are, right.

33:46

I mean, that's our jury process system and so.It's.I don't know.I think it's interesting.I I love teaching this case, so I actually make my 4th year students do a mock malpractice trial and the facts of the case are are kind of patterned off of this.

34:01

So if there's any up and coming 4th year students stop listening because it's going to ruin the mock trial this year.Yeah, I mean, so do you think that the the judgement was correct?I mean either intercept one or two.It depends.

34:18

That's our technique.It depends, you know.Who I'd really like to get their opinion on about.This is Doctor Michael J Redinger, MDM, University of Notre Dame Class of 20 or 2004.No, 2007 and And why would we care what Doctor Redinger thinks?

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Well, I don't really care what Doctor Redinger said said he couldn't be with us today, but.He he's one of our colleagues and he promised me a free round of golf every time I mentioned him on the podcast.Oh geez, you guys and your golf.So, Doctor Michael J Reddinger, MDMA, University of Notre Dame, Class of 2007.

34:59

Do you get extra for all the name dropping all of his universities?Well, it's it's just part of the the deal, part of the deal.Yeah.So that's Tarasoff.I think it's an interesting case that, oh, your question was about the whether I thought it was right.

35:16

I think that it does a good job insofar as it does a good job at anything of articulating that there is this limit to confidentiality.And we we can kind of go through the process of figuring out where that line is.But that there is an exception and it's a it's an obligation in some situations.

35:35

I think I think it's right.I think that that tracks.How about you?I think so.I it has.There has to be limits and I think sometimes there has to be a positive obligation to reveal confidential information between a a physician and their patient.Yeah.

35:52

And so in clinical ethics which you and I spend a lot of our time doing, obviously we get presented with cases where the question about confidentiality that line.Is in question, right?And so there's questions about, OK, maybe my patient doesn't have, for example, my my elderly patient doesn't.

36:12

Her family doesn't want her to know a particular diagnosis.For example, maybe she's got cancer and they think that if we tell her she has cancer, then she's going to lose hope and the the few remaining months of her life are going to be miserable and we can protect her from that, right?

36:29

So maybe some really laudable goals of not telling her.You know we we have an obligation to be to maintain confidentiality but is this a situation where we would maintain it or break it or maybe break it in certain situations but on others.So yeah sometimes called the therapeutic exception like if we think revealing some information to a patient would be so detrimental to their health that we it would actually be worse for them to know than not know.

36:56

Maybe.Although I think generally I teach that is like that is a huge exception, like that is the minor.It has to be like a really dire situation in order for that.Like somebody would have to tell a very convincing story about, you know, somebody said, oh, if I ever learned that I had cancer, I, you know, I would kill myself like it have to be really strong like that for me to say that that we would not disclose that information.

37:20

Yeah, yeah, I agree with that.So, all right, tear us off.Tear us off.One and two.Yeah.Well, thanks, Tyler.Another kind of depressing case that you helped bring to life.Well, hopefully the I I think the context and the the details, particularly about Doctor Moore, who ended up losing his job by the way.

37:41

Yeah.Because of this, I think it helps kind of flesh out kind of what the court was thinking, which that's right.Helps.Yeah.And that's more complicated than it gets taught.So that's.It's helpful to know.Yeah.All right.Thanks, Tyler.Thanks for listening to this episode of Bioethics for the People.

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We can't do this podcast by ourselves.We've tried and it's not pretty.Our team includes our research interns, Michaela Kim, Madison Foley and Macy Hutto.Special thanks to Helen Webster for social media and production support.Our theme music was created and performed by the talented Chris Wright, friend to all, dad to two, and husband to one Podcast Art was created by Darian Golden Stall.

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You can find more of her work at Darian Golden stall.com.You can find more information about this episode and all of our previous seasons at bioethicsforthepeople.com.We love to connect with our listeners.All of our episodes can be found wherever you listen to podcasts.

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