Will U of Colorado Face Duty-to-Warn Suits re Off-Campus Movie Theater Shooting Spree?
Posted Aug 3, 2012 10:17 AM CST
By Martha Neil
There are unconfirmed reports that a University of Colorado psychiatrist warned in June she was concerned graduate student James Holmes potentially posed a threat. Now observers are wondering whether enough was done to pursue the issue before he allegedly shot dozens of people at a Colorado movie theater last month.
Dr. Lynne Fenton treated Holmes in the spring. She called several members of the university's Behavioral Evaluation and Threat Assessment (BETA) team, of which she is also a member, in early June, about six weeks before the Aurora shooting spree, reports ABC affiliate KMGH, relying on unidentified sources.
It isn't clear what was said, or what sparked Fenton's apparent concern. However, sources said the BETA team did not pursue the issue further after Holmes withdrew from his neuroscience graduate program around June 12, because the university no longer had any control over him, the station reports.
That wasn't necessarily a good reason to conclude an inquiry, if one was ongoing, according to threat assessment expert Barry Spodak. Holmes' decision to leave the university, "is the signal that you should intensify your efforts–not walk away," he told ABC News. "Under those circumstances, most well-trained assessment teams would have gone into action."
Ordinarily, psychiatrists have a duty of confidentiality to a patient. But, depending on the circumstances, psychiatrists also can be found to have a legal duty to warn identifiable third parties and appropriate law enforcement agencies of a potentially dangerous patient. Two California Supreme Court decisions, commonly known as Tarasoff I and Tarasoff II, form the basis for legal analysis in other court rulings throughout the country that discuss the duty to warn, as a CNN article notes.
(Under the same legal theory, a Florida lawyer was named as a defendant in a federal duty-to-warn lawsuit concerning an elderly client's attack on two women in another state. The claims against the attorney were eventually dismissed.)
Like Spodak, an expert interviewed by CNN said a student's decision to drop out shouldn't automatically conclude the school's response to a psychiatrist's warning, although he pointed out that the facts of the Colorado situation aren't known.
"The decision to close a case is made based on assessment that the person no longer poses a threat of violence or significant disruption to the campus or to any other identifiable target," said Gene Deisinger. A former clinical psychologist, he is currently Virginia Tech's deputy chief of police, as well as in charge of the school's threat assessment team.
Officials at the University of Colorado are restricted by a judge's gag order as to what they can say about matters related to Holmes.
Citing the gag order, a university spokeswoman declined a KMGH request for comment concerning Fenton and the BETA team's response.
At a news conference last week, Chancellor Don Elliman defended the school. “To the best of our knowledge at this point we did everything that we think we should have done,” he said.
The chairman of the university's board of regents, Michael Carrigan, said he didn't know whether the BETA team had discussed Holmes. When KMGH reporters said it had, Carrigan told them their conversation was "the first I'm hearing about this."
A lengthy Bloomberg article does not address the duty-to-warn issue but discusses other potential theories of liability with experts. They said lawsuits over the movie theater shooting against anyone other than Holmes himself will be difficult to win because the causal connection is tenuous. Additionally, the university, as a state institution, may be protected by sovereign immunity from any viable claim.
The Christian Science Monitor does discuss the duty-to-warn theory in detail. The experts interviewed said lawsuits probably will be filed by families of shooting victims against the university for failing to prevent a criminal act.
While winning may be an uphill legal battle, the plaintiffs and slain victims would likely be very sympathetic to jurors.
Virginia Tech, when faced with a similar situation, albeit on campus, where its duty to students was more clearcut, opted to settle quickly rather than defend such litigation. And the University of Colorado may do so, too, predicts partner Barry Pollack of Miller & Chevalier.
Additional and related coverage:
ABAJournal.com: "The New Tarasoff? 6th Circuit OKs Hospital Suit Over Ax-Wielding Ex-Patient"
ABAJournal.com: "Judge OKs Duty-to-Warn Suits in Va. Tech Shootings, Nixes Immunity Claim"
CNN Justice: "Report: Holmes' psychiatrist reported behavior to colleagues"
Philadelphia Inquirer (op-ed): "What should a doctor do with a patient like James Holmes?"