by: David G. Jensen, JD
former Staff Attorney
The Therapist
(November/December 2005)
Reviewed Nov. 2022 by Michael Griffin, JD, CAMFT Staff Attorney  

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With college and professional football seasons in full swing, it seems an opportune time to consider the issue of fumbling. For non-football fans, a fumble is a type of mistake that results in the opposing team acquiring control of the football. For football teams, fumbles can mean the difference between winning and losing a game. Because fumbling involves some sort of mistake, it serves as an apt metaphor for other mistakes occurring in life. Although not a football player, a therapist can fumble too. 

For instance, a therapist may “fumble the ball” by doing a poor job of assessing a patient during an initial session; a therapist may “fumble the ball” by failing to keep treatment records or failing to monitor or amend a patient’s treatment plan; or, a therapist may “fumble the ball” by forgetting to report child, elder, or dependent adult abuse. Moreover, a therapist may “fumble the ball” by mishandling patient information. It is this last type of fumble, i.e., the mishandling of patient information, especially a patient’s suicidal tendencies, that is the focus of this article.

The CAMFT website contains various resources related to the topic of suicide, including a collection of training videos entitled “Suicide Prevention Package,” which is available in the CAMFT “On Demand” learning library. 

As of January 1, 2021, existing licensees and applicants for licensure must have completed a minimum of six hours of coursework or applied experience under supervision in suicide risk management and intervention.  

The Case of the Fumbled Hand-Off
The case of Gross v. Allen¹ involves a female patient with a history of suicide attempts. This case ended tragically, an outcome that probably could have been averted had certain information been passed along from practitioner to practitioner. 

In Gross, the patient, Karen Joy Scancarello, had a history of depression and attempted suicide. In 1982, her psychotherapist referred her to Dr. Robert Allen and Dr. Ferris Pitts, two psychiatrists, for medication and medication management. 

However, in 1985, Ms. Scancarello was still having problems with depression and suicidal ideation. On February 27, 1985, after driving her car into a tree and telling the emergency room doctor that she wanted to kill herself, she was admitted into U.S.C. Medical Center. While in U.S.C. Medical Center, she attempted to strangle herself. Moreover, on May 16, 1985, Ms. Scancarello ingested fifty Halcion tablets, although she survived the overdose. 

Obviously, Ms. Scancarello was a very troubled woman and her medical history indicated a clear history of suicide attempts and suicidal tendencies. 

Prior to June 24, 1985, Ms. Scancarello had discussed with Dr. Pitts, on two separate occasions, her intent to enroll as an in-patient in the eating disorder program at Northridge Hospital. Dr. Pitts was against the idea because he felt her “illness was too severe to be handled in a hospital on an open unit;” in fact, he forbade her from entering the program.

However, on June 24, 1985, barely one month removed from her last suicide attempt, Ms. Scancarello met with Dr. Michael Gross, the admitting psychiatrist for Northridge’s eating disorder program. Dr. Gross interviewed Ms. Scancarello and admitted her into the program. However, she did not tell Dr. Gross about her suicide attempts. The facts of Gross do not tell us whether Dr. Gross inquired about such attempts, however. On June 25, 1985, Dr. Gross telephoned Dr. Allen and informed him that Ms. Scancarello had entered Northridge’s eating disorder program. Although Dr. Gross inquired about her psychiatric history, Dr. Allen did not tell Dr. Gross about her suicide attempts, an omission of information constituting a fumble of significant information. 

On the morning of June 26, 1985, Dr. Gross was informed that Ms. Scancarello was drowsy and not responding to directions to get out of bed. Unbeknownst to anyone, she had taken an overdose of Nardil, which had been prescribed by Dr. Allen and Dr. Pitts. It is not clear how she got access to so much Nardil but she did. Dr. Gross sent her to the emergency room, where she went into a coma. She remained comatose for five weeks. Because of her overdose, she suffered severe neurological damage. 

The Resulting Lawsuit
On June 20, 1986, almost one year later, Ms. Scancarello filed a lawsuit against Northridge Hospital, Dr. Gross, and several other doctors from Northridge Hospital. She did not name Dr. Allen or Dr. Pitts as defendants, however. Her case settled before it went to trial, with Northridge Hospital agreeing to pay her $30,000 and Dr. Gross agreeing to pay her $399,008. 

Before the case went to trial, Dr. Gross made a tactical legal maneuver concerning Dr. Allen and Dr. Pitts. Since Ms. Scancarello had not named Dr. Allen or Dr. Pitts as defendants in her lawsuit, Dr. Gross cross-complained against them and brought them into the Scancarello lawsuit on a theory of law called equitable indemnity. This theory allows one person, out of fairness, to shift a loss or part of a loss to another person who is also responsible for injuring the plaintiff. Basically, Dr. Gross claimed that Dr. Pitts and Dr. Allen were also responsible for Ms. Scancarello’s injuries and, consequently, they should have to pay part of her settlement. The jury agreed and concluded that Dr. Gross was seventy-five percent responsible; that Dr. Pitts was nineteen percent responsible; and, that Dr. Allen was six percent responsible for her injuries. 

A key issue in the trial between Dr. Gross and Dr. Pitts/Dr. Allen was how were Dr. Pitts and Dr. Allen negligent? Unfortunately, although the case tells us conclusively that Dr. Pitts was negligent, it does not give us the details of his negligence. The Gross case does, however, address Dr. Allen’s negligence. The case states: 

“Dr. Gross presented evidence that Dr. Allen was negligent in several respects. We need consider only one: his failure on June 25, 1985, to inform Dr. Gross of Ms. Scancarello’s past suicide attempts and present suicide risk. Dr. Allen contends he had no duty to so inform Dr. Gross. We disagree.” 

Thus, the Court of Appeal affirmed the jury’s verdict that Dr. Allen was negligent by failing to inform Dr. Gross of Ms. Scancarello’s past suicide attempts and present suicide risk. In fact, the Court of Appeal in Gross concluded that Dr. Allen had a duty to do so, meaning an obligation to disclose such information. 

Analysis of the Case
In Gross, the Court of Appeal affirmed the jury’s verdict that Dr. Allen had been negligent by failing to disclose certain information to Dr. Gross. The Court of Appeal reached this conclusion by examining the case through the lens of the “special relationship” that a psychiatrist has with his or her patients. This “special relationship” requires a psychiatrist, or any psychotherapist for that matter, to take “appropriate preventive measures” when a patient is suicidal.² At trial, Dr. Allen claimed he had no duty to communicate Ms. Scancarello’s past suicide attempts and present suicide risk to Dr. Gross because, applying the reasoning from Tarasoff,³ she was only a danger to herself, but not to a third party. Regarding Dr. Allen’s reliance on Tarasoff, the Court of Appeal stated:

“Dr. Allen correctly but irrelevantly argues that Tarasoff imposed no such duty (to communicate past suicide attempts and present risk of suicide) because Ms. Scancarello, unlike the patient in Tarasoff, posed no threat to a third person, only to herself. 

But Tarasoff does not state, as Dr. Allen implies, that a therapist may be silent when to speak may save the life of his patient. To the contrary, to the extent Tarasoff considers the matter, it finds a duty to speak.”

Dr. Allen also attempted to rely on Bellah v. Greenson⁴ for the proposition that he had no duty to inform Dr. Gross of Ms. Scancarello’s history of suicide attempts and present risk of suicide. Regarding Dr. Allen’s reliance on Bellah, the Court of Appeal concluded that his reliance was misplaced. The Court of Appeal reasoned that simply informing Dr. Gross of Ms. Scancarello’s suicide attempts and present suicide risk was an “appropriate preventive measure” that should have been taken by Dr. Allen. 

But, wait a second; didn’t Bellah announce a rule that said a psychiatrist is not required to disclose confidential information from a patient if the harm to be prevented is self-inflicted harm? If so, doesn’t the rule from Bellah, which essentially says there is no duty to speak, conflict with the rule from Gross, which essentially says that a therapist has a duty to speak? In other words, how can I speak but not speak at the same time? 

The way out of this legal quagmire is to realize that the question poses a false dilemma. The question implies that by necessity either Bellah is true and Gross is not, or that Gross is true and Bellah is not. Legally, however, both rules can be true and a prudent practitioner needs to keep both rules in mind when dealing with a suicidal patient. The reason both rules can be true is because of the different factual circumstances underlying each case. Basically, the rules govern different situations. 

In Bellah, the mother and father of a patient who committed suicide sued the deceased patient’s psychotherapist, claiming that such therapist had a duty to warn the mother and father of the patient’s risk of suicide. However, the California Supreme Court disagreed and found no such duty. The Court stated: 

“We conclude that Tarasoff requires only that a therapist disclose the contents of a confidential communication where the risk to be prevented thereby is the danger of violent assault, and not where the risk of harm is self-inflicted harm or mere property damage.” 

In reaching its decision in Bellah, the California Supreme Court was very concerned about maintaining the confidentiality of patient communications. The Court did not want to create another mandated exception to confidentiality because it believed the exception could impede access to mental health services. Regarding this issue, the California Supreme Court stated: 

“The imposition of a duty upon a psychiatrist to disclose to others vague or even specific manifestations of suicidal tendencies on the part of a patient who is being treated in an outpatient setting could well inhibit psychiatric treatment. Intimate privacy is a virtual necessity for successful treatment. Were it not for the assurance of confidentiality in the psychotherapist- patient relationship, many in need of treatment would be reluctant to seek help. Even those who do seek help under such circumstances may be deterred from fully disclosing their problems. An element usually assumed essential is the patient’s trust that matters disclosed in therapy will be held in strict confidence.” 

Although maintaining confidentiality was and is important to the California Supreme Court, in a footnote, the Court expressly stated that a psychiatrist is permitted to disclose otherwise confidential information when the practitioner reasonably believes that a patient is dangerous to himself or herself.5 Permitted in this sense means that the law allows, sanctions, or authorizes the disclosure under a given set of circumstances. The permitted disclosure of otherwise confidential information is best thought of as a tool, like a scalpel, a wrench, or a Phillips-head screwdriver, that is to be used to accomplish a specific purpose, which in this case would be to prevent a patient from harming herself or himself. 

The factual situation in Gross, however, is very different from that in Bellah.

In Gross, the issue was whether one psychiatrist had given incomplete information concerning a patient to another psychiatrist. Since Dr. Gross was responsible for admitting Ms. Scancarello into the eating disorder program, Ms. Scancarello had probably signed a release authorizing him to communicate with Dr. Allen, but even if she had not signed a release the physicians would have been able to communicate with one another for diagnosis and treatment purposes.6 Hence, there would have been no breach of Ms. Scancarello’s confidentiality. 

The information concerning Ms. Scancarello’s psychiatric history was critical because it had the capacity of dramatically affecting decisions regarding her care. The goal, after all, is to provide patients with the right care at the right time, and, given her history, the eating disorder program was probably the right care at the wrong time. It is possible that had Dr. Allen informed Dr. Gross of Ms. Scancarello’s psychiatric history, Dr. Gross would have had her removed from the eating disorder program or had her supervised more closely while in the program, thereby forestalling her suicide attempt. Of course, we will never know. It is possible that she may have attempted suicide at home after discharge from the program, but such an event would have occurred on someone else’s watch. 

But, isn’t Gross limited just to psychiatrists?
Since Gross involves the conduct of psychiatrists, a logical question concerns the applicability of the case to psychotherapists? Four reasons dictate that all psychotherapists, and not just psychiatrists, should follow the rule from Gross. 

One, the emphasis in Gross is on the special relationship that a psychiatrist has with his or her patients. However, all psychotherapists, whether the therapist is a psychiatrist, a psychologist, an LCSW, or an LMFT, have such a relationship with their clients. This special relationship is derived from the trust that patients invest in their therapists and the vulnerability that arises from sharing one’s most personal information with a therapist.⁷ Moreover, the law classifies s, LCSWs, psychologists, and psychiatrists all as psychotherapists.⁸ 

Two, at its most basic level, the Gross case is not about being a psychiatrist or not being a psychiatrist; rather, it is about disseminating important information about patients under a given set of circumstances. In today’s world, it is entirely possible that an MFT is performing work similar to that performed by Dr. Gross. In today’s mental health environment, s are being utilized to screen candidates for all sorts of programs and procedures, including eating disorder programs, substance abuse programs, and bariatric surgeries. Moreover, s counsel depressed patients; consequently, s regularly work with patients with psychiatric histories similar to Ms. Scancarello’s. Thus, in today’s mental health milieu, it is possible that an LMFT could be on the giving and receiving end of such information.

Three, the Gross case has nothing to do with medication or medication management, which are topics clearly within the exclusive purview of psychiatrists. The information at issue in Gross was information concerning a patient’s history of suicide attempts and the patient’s present level of functioning. LMFTs possess such information in their case files. 

Four, information concerning a patient’s history of suicide attempts and present risk of suicide is extremely valuable information. It goes to the heart of effective treatment planning and decision-making, whether the patient is being treated in-patient or outpatient. For instance, suppose a therapist refers a patient with a high risk of lethality to a colleague because the therapist does not believe that he or she has the competence to counsel the patient effectively. However, the referring therapist fails to convey the risk of suicide to the receiving therapist. The receiving therapist may wait days or even a week or more before scheduling an appointment, not realizing that the situation is acute. In the intervening time, the patient may harm himself or herself. In such a case, the receiving therapist, if sued by the patient or the patient’s family, would rely on Gross for the proposition that the patient’s risk of suicide should have been conveyed to him or her by the therapist who made the referral because, had the receiving therapist known about the risk, he or she would have made arrangements to see the patient immediately. 

Moreover, with the passage of Proposition 63, especially in the public health system, mental health services are going to be provided in a more coordinated way among a team of providers, all of whom will need to know a patient’s complete psychiatric history to make effective treatment planning decisions. The bottom line is that information concerning a patient’s past suicide attempts and present risk of suicide are crucial pieces of information that need to be conveyed from psychotherapist to psychotherapist. This information is too important to be fumbled! 

Implications of Gross

Although the facts of Gross involve one psychiatrist failing to disclose crucial patient information to another psychiatrist who inquired about the patient’s psychiatric history, the rule fashioned by the Court of Appeal has broader implications than that limited factual situation. Gross deals with information concerning a patient’s suicidal tendencies, but the case could probably be used as authority for the proposition that, for example, a patient’s risk of violent or dangerous tendencies should also be communicated from provider to provider. This is also extremely important information in terms of treatment planning and decision making. In fact, one court has concluded that a psychotherapist has an obligation to get treatment records of a patient from the patient’s previous providers if the patient discloses instances of violence^.9    

 

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REFERENCES

¹ Gross v. Allen (1994) 22 Cal. App. 4th 354
² Bellah v. Greenson (1978) 81 Cal. App. 3d 614
³ Tarasoff v. Regents of the University of California (1976) 17 Cal. 3d 425
⁴ Bellah v. Greenson (1978) 81 Cal. App. 3d 614
⁵ Bellah v. Greenson (1978) 81 Cal. App. 3d 614, 622 and California Evidence Code, §1024
⁶ California Civil Code, §56.10(c)(1)
⁷ Kockelman v. Segal (1998) 61 Cal. App. 4th 491
⁸ California Evidence Code, §1010
⁹  Jablonski v. United States (1983) 712 F.2d 391 (Notwithstanding this case, under California law, a therapist does not have a duty to predict a patient’s dangerousness.)