Sherer v. Sarma , 2014 IL App (5th) 130207 ( 2014 )

Illinois Official Reports
Appellate Court
Sherer v. Sarma, 2014 IL App (5th) 130207
Appellate Court JANICE SHERER, Individually and as Administrator of the Estate of
Caption Sara Sherer Ott, Deceased, Plaintiff-Appellant, v. JAY SARMA,
Defendant-Appellee (Jacob Ott, Montgomery County Mental Health
Department, Martha Benning, and Psychiatric Associates of Central
Illinois, Defendants).
District & No. Fifth District
Docket No. 5-13-0207
Filed September 5, 2014
Held The trial court properly entered summary judgment for defendant
(Note: This syllabus psychiatrist in the wrongful death and survival actions filed by the
constitutes no part of the mother and administrator of the estate of one of defendant’s patients
opinion of the court but who was stabbed to death by her husband, another patient of
has been prepared by the defendant, notwithstanding the fact that there was a direct
Reporter of Decisions physician-patient relationship between defendant and the victim, since
for the convenience of defendant had no duty to protect or warn decedent in the absence of
the reader.) any evidence that her husband ever made any specific threats to harm
her, especially when imposing such a duty on defendant would be
contrary to case law and public policy and would be destructive of the
patient-therapist relationship.
Decision Under Appeal from the Circuit Court of Montgomery County, No. 05-L-5;
Review the Hon. Allan F. Lolie, Judge, presiding.
Judgment Affirmed.
Counsel on Kenneth James Hogan, of Kenneth James Hogan, P.C., of Galesburg,
Appeal and James C. Brandenburg, of Brandenburg-Rees & Rees, of
Carlinville, for appellant.
Christian D. Biswell, of Drake, Narup & Mead, P.C., of Springfield,
for appellee.
Panel JUSTICE SCHWARM delivered the judgment of the court, with
opinion.
Presiding Justice Welch and Justice Chapman concurred in the
judgment and opinion.
OPINION
¶1 In the circuit court of Montgomery County, the plaintiff, Janice Sherer, individually and
as administrator of the estate of her deceased daughter, Sara Sherer Ott, brought wrongful
death and survival actions against the defendant, Jay Sarma, M.D., alleging that Sarma had
been negligent in her care and treatment of Sara and Sara’s husband, Jacob Ott. The plaintiff
appeals from the circuit court’s order granting Sarma’s motion for summary judgment on all
counts against her. For the reasons that follow, we affirm.
¶2 BACKGROUND
¶3 Defendant Sarma is a psychiatrist licensed to practice in Illinois. In 2003, her
employment with Psychiatric Associates of Central Illinois included providing services to
patients of the Montgomery County Mental Health Department in Hillsboro (the health
department). Jacob and Sara were two of Sarma’s patients.
¶4 In 1997, when Jacob was a teenager, he began experiencing delusions and auditory
hallucinations and was admitted to a psychiatric hospital in Springfield. During his
hospitalization, Jacob was diagnosed with paranoid schizophrenia and depression, and he
was violent until his schizophrenia was stabilized with Clozaril. He was also prescribed
Zoloft for his depression. Following his hospitalization, Jacob was treated and medicated by
a psychiatrist in Springfield until August 2003, when he and Sara married and his care was
transferred to the health department.
¶5 On September 9, 2003, Jacob saw Sarma for the first time. Jacob also met with his
assigned case manager, Martha Benning. Sarma noted that Jacob was doing well and that he
and Sara had recently gotten married and were looking for an apartment. Jacob advised that
he was stable on his medications, and he denied experiencing hallucinations or psychotic
symptoms. The agreed treatment plan for Jacob was that he continue taking his prescribed
medications and return in three months.
¶6 On December 9, 2003, Jacob saw Sarma and Benning again. Benning noted that Jacob
was in a good mood, and he denied having any psychotic symptoms. Jacob indicated that he
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was compliant with his prescribed medications. Jacob further indicated that he was happy in
his marriage. Sarma noted that Jacob had seemed preoccupied, but he reported that he was
doing well. Sarma recommended that Jacob continue taking Clozaril and Zoloft.
¶7 On December 24 or 25, 2003, Jacob became upset about a gift of money that his father
had given Sara for Christmas. Jacob subsequently took the money after telling Sara that she
could not keep it.
¶8 On January 4, 2004, Jacob and Sara went to the plaintiff’s house, and Jacob confronted
the plaintiff about her attempts to convince Sara to move back home with her. Jacob was
angry and aggressive and wanted to fight the plaintiff. The plaintiff called Jacob’s father
during the encounter, but Jacob and Sara left before his father arrived. Thereafter, Jacob’s
family started checking up on him several times a day.
¶9 On January 6, 2004, Jacob’s mother called Benning at the health department and advised
that Jacob had stopped taking his prescribed medications. She further advised that he had not
been making threatening statements and that she did not believe that he was a danger to
himself or others. Benning told Jacob’s mother that he needed to restart his medications
immediately and that voluntary hospitalization was an available option.
¶ 10 On January 7, 2004, Jacob’s mother took him to see Dr. Doug Byers in Springfield.
Byers was told that Jacob had stopped taking his Clozaril as prescribed. Jacob made no
threats and had not presented himself as a danger to anyone. Jacob told Byers that he had
decreased his Clozaril intake to one pill a day because the medicine made him feel sluggish
and affected his hearing. Jacob admitted, however, that he was now more irritable, was not
sleeping very well, and was not “getting along very well.” Jacob agreed to increase his
Clozaril intake until he could meet with Dr. Sarma again.
¶ 11 On January 8, 2004, Jacob and Sara attended a scheduled appointment at the health
department. The plaintiff was initially present, but Jacob ordered her away, stating that the
“problem” was between him and Sara. Minutes later, Sara left the appointment crying, and
Sara indicated that Jacob had told her to leave. When Jacob met with Benning the same day,
he told her that he had been off of his medications for four to six weeks but had restarted
taking his Clozaril the previous night. Jacob reported that he was irritable and could not be
around people. Benning noted that Jacob was psychotic and very fixed on his delusional
beliefs, but he was neither aggressive nor combative. Jacob never threatened to harm Sara or
anyone else, and Benning did not believe that he was a danger to himself or others. Dr.
Sarma was not at the health department that day, and no one advised her that Jacob had
stopped taking his Clozaril. Benning noted that Jacob had an appointment to see Sarma the
following week. On the evening of January 8, 2004, Jacob and Sara went to Jacob’s mother’s
house for dinner and then went back to their apartment.
¶ 12 On the morning of January 9, 2004, Sara went to the plaintiff’s house to borrow some
laundry detergent and then returned home. Jacob’s mother stopped by the couple’s apartment
at least twice that day to make sure that Jacob was still taking his Clozaril and things were
“pleasant and normal between Jacob and Sara.” That night, the plaintiff and her husband
went to the apartment to check on Sara, and Jacob’s father and stepmother were there, too.
Jacob and Sara seemed fine. Hours later, Jacob stabbed Sara to death. The following week,
Sarma learned what had happened.
¶ 13 On January 6, 2005, the plaintiff filed her initial complaint setting forth her wrongful
death and survival actions arising from Sara’s murder. Sarma was named one of the
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numerous defendants in the cause, and six amended complaints followed. The plaintiff filed
her sixth amended complaint on September 17, 2008. In counts I, II, III, IV, V, VI, and IX of
her sixth amended complaint, the plaintiff collectively alleged, among other things, that
Sarma had been negligent in her treatment of Sara by failing to warn her of the threat that
Jacob posed and that Sarma had also been negligent in her treatment of Jacob.
¶ 14 On November 16, 2012, Sarma filed a motion for summary judgment with a supporting
memorandum. Sarma alleged that she was entitled to summary judgment on all of the
plaintiff’s counts against her because the plaintiff could not maintain a negligence action
based on Jacob’s physician-patient relationship and because there was no evidence that Jacob
had ever made any specific threats that would give rise to a duty to warn Sara.
¶ 15 On December 18, 2012, the plaintiff filed a response to Sarma’s motion for summary
judgment with a supporting memorandum. The plaintiff maintained that because Sara and
Jacob were both Sarma’s patients, Sarma’s treatment of Jacob was actionable by Sara, and
Sara was not a “third party” for purposes of Sarma’s duty to warn.
¶ 16 On February 6, 2013, the cause proceeded to a hearing on Sarma’s motion for summary
judgment. After both parties argued their respective positions, the circuit court took the
matter under advisement.
¶ 17 On February 8, 2013, the circuit court entered a written order granting Sarma’s motion
for summary judgment “with prejudice.” Citing Eckhardt v. Kirts, 179 Ill. App. 3d 863
(1989), the court held that because there was no evidence that Jacob had ever made any
specific threats to harm Sara, Sarma had no duty to warn Sara that Jacob was a possible
threat. The court further held that the fact that Sara was also Sarma’s patient did “not change
the duty owed her” and that to expand Sarma’s duty as the plaintiff suggested “would clearly
be contrary to case law and public policy.” Following the circuit court’s denial of her motion
to reconsider, the plaintiff filed a timely notice of appeal.
¶ 18 ANALYSIS
¶ 19 “A motion for summary judgment should only be granted when the pleadings,
depositions, and affidavits demonstrate that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law.” Jackson v. TLC Associates, Inc.,
185 Ill. 2d 418, 423 (1998). “Summary judgment is a drastic measure and should only be
granted if the movant’s right to judgment is clear and free from doubt.” Outboard Marine
Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Our review of a circuit
court’s order granting summary judgment is de novo. Id.
¶ 20 “To recover damages based upon negligence, a plaintiff must prove that the defendant
owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was
the proximate cause of the plaintiff’s injury.” Krywin v. Chicago Transit Authority, 238 Ill. 2d
215, 225 (2010). “The existence of a duty under a particular set of circumstances is a
question of law for the court to decide.” Choate v. Indiana Harbor Belt R.R. Co., 2012 IL
112948, ¶ 22. “Absent a duty, ‘no recovery by the plaintiff is possible as a matter of law.’ ”
Id. (quoting Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 411 (1991)).
¶ 21 When determining whether a legal duty exists, a court must “ask whether a plaintiff and a
defendant stood in such a relationship to one another that the law imposed upon the
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defendant an obligation of reasonable conduct for the benefit of the plaintiff.” Marshall v.
Burger King Corp., 222 Ill. 2d 422, 436 (2006).
“The ‘relationship’ referred to in this context acts as a shorthand description for the
sum of four factors: (1) the reasonable foreseeability of the injury, (2) the likelihood
of the injury, (3) the magnitude of the burden of guarding against the injury, and (4)
the consequences of placing that burden on the defendant.” Simpkins v. CSX
Transportation, Inc., 2012 IL 110662, ¶ 18.
“Any analysis of the duty element turns on the policy considerations inherent in the above
factors, and the weight accorded each of the factors depends on the circumstances of the
particular case.” Doe-3 v. McLean County Unit District No. 5 Board of Directors, 2012 IL
112479, ¶ 22.
¶ 22 In Tarasoff v. Regents of the University of California, 551 P.2d 334, 339-41 (Cal. 1976),
after announcing his intention to do so in a therapeutic setting, the defendant doctors’ patient
killed a “readily identifiable” woman who had rejected his advances. When the victim’s
parents later sued the doctors for failing to warn the victim of the impending danger that the
patient posed, the doctors maintained that they owed no duty to the victim, because she was
not one of their patients. Id. at 340-42. Recognizing the “public importance of safeguarding
the confidential character of psychotherapeutic communication,” the California Supreme
Court nevertheless held that “the public policy favoring protection of the confidential
character of patient-psychotherapist communications must yield to the extent to which
disclosure is essential to avert danger to others.” Id. at 346-47. The court thus determined that
under the circumstances, the doctors had a duty to protect and warn the victim, even though
she was not one of their patients. Id. at 347-51. The court explained:
“We realize that the open and confidential character of psychotherapeutic
dialogue encourages patients to express threats of violence, few of which are ever
executed. Certainly a therapist should not be encouraged routinely to reveal such
threats; such disclosures could seriously disrupt the patient’s relationship with his
therapist and with the persons threatened. To the contrary, the therapist’s obligations
to his patient require that he not disclose a confidence unless such disclosure is
necessary to avert danger to others, and even then that he do so discreetly, and in a
fashion that would preserve the privacy of his patient to the fullest extent compatible
with the prevention of the threatened danger.” Id. at 347.
¶ 23 In Renslow v. Mennonite Hospital, 67 Ill. 2d 348, 349-50 (1977), a mother was given a
blood transfusion that years later caused her daughter to be born with “permanent damage to
various organs, her brain, and her nervous system.” When the mother brought a negligence
action against the hospital on behalf of herself and her daughter, the circuit court dismissed
the portion of the complaint that sought damages for the daughter for failure to state a cause
of action. Id. After noting that “[h]istorically, negligence could not be founded upon the
breach of a duty owed only to some person other than the plaintiff,” our supreme court held
that the daughter could seek damages for her injuries under a limited theory of transferred
negligence. Id. at 355-57. The court thus found that under the circumstances, the hospital’s
duty of care to the mother extended to the daughter, because of the special relationship
between the mother and daughter. Id.
¶ 24 In Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 514 (1987), the
plaintiff, a passenger in a car driven by a medicated patient who had recently been released
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from the defendant hospital, was injured when the patient crashed the car into a tree. The
plaintiff sought to recover damages from the hospital and two of its doctors for the injuries he
sustained as a result of the accident, alleging that the patient should have been warned of the
side effects of the medications the doctors had administered. Id. at 514-15. Stating that “[t]he
transfer of duty is limited by a court’s policy decision that the duty to act with reasonable
care should be transferred to the third-party plaintiff,” our supreme court affirmed the circuit
court’s dismissal of the plaintiff’s claims, holding that “a plaintiff cannot maintain a medical
malpractice action absent a direct physician-patient relationship between the doctor and
plaintiff or a special relationship, as present in Renslow, between the patient and the
plaintiff.” Id. at 528, 531. The court explained that “[h]olding the hospital liable for all
harmful acts committed by patients who have been released would be an unreasonable
burden on the institution” and that as a matter of public policy, a hospital’s duty to warn a
patient of the dangers of using a prescribed drug should not be “extended to third-party
nonpatients who have no patient-hospital relationship or a special relationship with a
patient.” Id. at 526-27. “Such a broad duty extended to the general public would expand the
physician’s duty of care to an indeterminate class of potential plaintiffs.” Id. at 532.
¶ 25 In Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 499-500 (1988), an
informally admitted psychiatric patient escaped from the defendant hospital and struck the
plaintiff’s decedent’s car during an ensuing police chase. After the decedent died from her
resulting injuries, the plaintiff filed wrongful death and survivor claims against the hospital,
alleging, among other things, that the hospital “either knew or should have known that [the
patient] suffered from mental disorders, drug addiction, and had a propensity toward violence
and flight from authorities.” Id. at 500. Noting that “[i]n general, one has no duty to control
the conduct of another to prevent him from causing harm to a third party,” our supreme court
rejected the plaintiff’s contention that the hospital owed a third-party duty to the decedent.
Id. at 503-10. In reaching its conclusion, the court discussed and distinguished Renslow,
stating that the plaintiff’s reliance on that case was “misplaced.” Id. at 509. The court also
discussed Kirk and noted that in that case, it had “rejected the plaintiff’s contention that the
defendants’ alleged failure to warn the patient of the drugs’ side effects created a duty that
extended to third-party nonpatients.” Id.
¶ 26 In Eckhardt, 179 Ill. App. 3d at 864-65, after the defendant doctor’s psychiatric patient
shot and killed her husband, the plaintiff, the deceased husband’s estate, filed a malpractice
action alleging that the death was the result of the doctor’s negligent treatment of the
deceased’s wife. The plaintiff’s claims included an allegation that the doctor was negligent
for failing to warn the couple of the attendant dangers of the wife’s mental health disabilities.
Id. at 866. Arguing that the plaintiff could not establish that the defendant owed the deceased
a duty of care, the defendant filed a motion for summary judgment, which the circuit court
granted. Id. at 865-66. When affirming the circuit court’s judgment, the appellate court
discussed Kirk and Condell and further considered cases from other jurisdictions that had
“concluded that a therapist cannot be held liable for injuries inflicted upon third persons
absent specific threats to a readily identifiable victim.” Id. at 871. The Eckhardt court also
noted that the California Supreme Court had later explained that “Tarasoff involved an
exception to the general rule that one owes no duty to control the conduct of another and that
the therapist’s duty to warn or protect another in Tarasoff arose because the decedent was the
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known, specifically foreseeable and identifiable victim of the patient’s threats.” Id. at 872.
The Eckhardt court ultimately held as follows:
“Based upon the prior discussion of the law, we believe the plaintiff must
establish the following elements relating to the alleged duty owed in order to sustain
her cause of action. First, the patient must make specific threat(s) of violence; second,
the threat(s) must be directed at a specific and identified victim; and, third, a direct
physician-patient relationship between the doctor and the plaintiff or a special
relationship between the patient and the plaintiff.” Id.
Finding that there was no evidence that the doctor’s patient had “ever made specific threats
of violence against her husband,” the Eckhardt court determined that because the plaintiff
had “failed to establish the first two elements of the duty to warn, the trial court properly
granted summary judgment to the defendant.” Id. at 873. In light of that determination, the
court declined to decide whether the plaintiff had established the existence of a “ ‘special
relationship.’ ” Id. The Eckhardt court then stated that its disposition was consistent with the
“sound public policy against expanding the liability of health professionals to an
indeterminate class of potential plaintiffs” and that “[h]uman behavior is simply too
unpredictable and the field of psychotherapy presently too inexact to require that therapists
be ultimately responsible for all the actions of their patients.” Id. at 873-74. “To impose such
a responsibility without limit would be to place an unacceptably severe burden on those who
provide mental health care to the people of this State, ultimately reducing the opportunities
for needed care.” Id. at 874.
¶ 27 In a special concurrence, Justice Reinhard opined that the Eckhardt majority should not
have “adopted, in large part,” Tarasoff’s duty-to-warn standard, because there was no need to
do so in light of the supreme court’s holding in Kirk. Id. at 874-75 (Reinhard, J., specially
concurring). Applying Kirk to the facts at issue, Justice Reinhard noted that it was “clear that
plaintiff’s decedent had no direct physician-patient relationship with defendant” and that
there was no “special relationship between the patient and the plaintiff’s decedent, as was
present in Renslow.” Id. at 875. When discussing Kirk, Justice Reinhard further noted:
“In deciding the scope of the duty of a physician in Illinois, the supreme court
considered decisions in other jurisdictions, including cases with holdings similar to
the approach used by the majority herein, which focus on whether the victim is a
specifically identifiable potential victim, and rejected them.” Id.
¶ 28 In Doe v. McKay, 183 Ill. 2d 272, 273-76 (1998), the plaintiff father sued the defendant
psychologist for the negligent treatment of his daughter after the daughter’s therapy sessions
with the defendant led to an accusation that the father had sexually abused the daughter
“when she was about 11 years old.” Noting that in the counts at issue, the father had not
alleged that he had a therapist-patient relationship with the defendant psychologist, our
supreme court held that pursuant to Kirk, the father could not sustain a cause of action based
on the defendant’s treatment of his daughter. Id. at 279 (citing Eckhardt, 179 Ill. App. 3d at
874-75 (Reinhard, J., specially concurring)). Declining to “apply Renslow’s concept of
transferred negligence” to the facts of the case, the court reiterated that “the duty of due care
owed by a health care professional runs only to the patient, and not to third parties.”
Id. at 279-80. The court then explained that “[a] number of considerations relevant to the
duty analysis strongly militate against imposition of a duty here, even when the asserted
liability is characterized in terms of transferred negligence or a special relationship.”
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Id. at 281-82. The court noted that expanding a therapist’s duty of care to “nonpatient third
parties” would result in “competing demands” and divided loyalties that could negatively
affect the therapist’s treatment decisions. Id. at 282. The Doe court observed:
“As one court has noted, ‘[D]octors should be free to recommend a course of
treatment and act on the patient’s response to the recommendation free from the
possibility that someone other than the patient might complain in the future.’
Lindgren v. Moore, 907 F. Supp. 1183, 1189 (N.D. Ill. 1995). Hoping to avoid
liability to third parties, however, a therapist might instead find it necessary to deviate
from the treatment the therapist would normally provide, to the patient’s ultimate
detriment. This would exact an intolerably high price from the patient-therapist
relationship and would be destructive of that relationship.” Id.
The Doe court also recognized that expanding a therapist’s duty of care to nonpatient third
parties could negatively impact “the duty of confidentiality that every therapist owes to his or
her patients.” Id. The court noted that by statute, communications between a therapist and a
patient are privileged and “subject to disclosure only in a limited range of circumstances.”
Id. at 283. The Doe court further noted that the United States Supreme Court had “recently
underscored the importance of the psychotherapist privilege,” quoting the following:
“ ‘Effective psychotherapy *** depends upon an atmosphere of confidence and trust
in which the patient is willing to make a frank and complete disclosure of facts,
emotions, memories, and fears. Because of the sensitive nature of the problems for
which individuals consult psychotherapists, disclosure of confidential
communications made during counseling sessions may cause embarrassment or
disgrace. For this reason, the mere possibility of disclosure may impede development
of the confidential relationship necessary for successful treatment.’ Jaffee v.
Redmond, 518 U.S. 1, 10, 135 L. Ed. 2d 337, 345, 116 S. Ct. 1923, 1928 (1996).” Id.
The Doe court thus observed that “[a]llowing a nonpatient’s action against another person’s
therapist to go forward would seriously intrude on the relationship between therapist and
patient, jeopardizing the confidentiality necessary for the relationship to flourish.”
Id. at 283-84. In conclusion, the court stated:
“The considerations we have just discussed–the problem of divided loyalties, and
the strong public interest in maintaining the confidentiality of therapist-patient
communications–argue strongly against imposing on therapists a duty of care toward
nonpatients. Accordingly, we believe that the rule in Kirk [citation], barring
malpractice actions by third parties must be applicable here and requires that no duty
be extended to the plaintiff for psychic injuries allegedly arising from the therapist’s
treatment of [his daughter]. To be sure, the plaintiff may allege that he himself was a
patient of [the therapist], and counts to that effect remain pending in the circuit court
of Du Page County. They are not at issue in the present appeal, however.” Id. at
284-85.
¶ 29 Lastly, in Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155, 157-60 (2009),
after the defendant health-care providers’ patient killed his wife, the wife’s representatives
brought wrongful death and survivor actions alleging, among other things, that the
defendants had been negligent in their care of the husband and had a duty to warn the
decedent of his stated thoughts and threats of killing her. The circuit court dismissed with
prejudice the plaintiffs’ complaint for failing to allege a recognized legal duty or a special
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relationship that would allow for a transfer of negligence from the patient to his wife.
Id. at 157, 177. When affirming the circuit court’s judgment, the supreme court rejected the
plaintiffs’ arguments that the defendants could be held liable because a marital relationship is
a “special relationship” for purposes of transferred negligence and because the defendants’
voluntary undertakings “created a duty to protect [the patient’s wife] irrespective of a
patient-physician relationship or special relationship between the patient and a third party.”
Id. at 162. With respect to the former argument, after noting that it had repeatedly limited
Renslow to its particular facts, the court stated that a marriage relationship “is not comparable
to the relationship between a mother and fetus.” Id. at 177. With respect to the latter, having
noted that there was no evidence that the decedent wife was also a patient of the defendants,
the court held that the defendants did not owe the decedent a duty to warn her of her
husband’s violent propensities. Id. at 160, 172. The court stated that it was “not persuaded by
plaintiffs’ arguments that the long-established principles in Kirk and Doe should not be
followed in this case.” Id. at 172.
¶ 30 When determining that the defendants did not owe the decedent wife a duty to protect or
warn, the Tedrick court noted that Tarasoff was the seminal case cited for the proposition that
“a mental-health-care provider owes a duty to warn and protect a nonpatient third party,
when his patient confides his intention to kill an identified third party and later kills the third
party.” Id. at 169-70. The court then discussed Eckhardt and stated, “[I]t is clear from a
careful reading of Eckhardt [citation] and our opinion in Doe that this court had rejected the
rationale of the Tarasoff case.” Id. at 170. In a footnote, the court observed that the Eckhardt
majority’s three-elements test had been cited with approval in several appellate court
decisions. Id. at 171 & n.4. The court also noted that in Doe, it had cited with approval
Justice Reinhard’s special concurrence for the proposition that “Kirk precludes recovery” in
the absence of a physician-patient relationship. Id. at 172.
¶ 31 In the present case, the plaintiff contends that the circuit court should not have applied
Eckhardt’s three-elements test when determining that Sarma had no duty to warn Sara of the
potential threat that Jacob posed to her safety. The plaintiff argues that because the victim in
Eckhardt was not a patient of the defendant doctor, Eckhardt only implicated the “duty to
warn a nonpatient third party.” The plaintiff thus maintains that Eckhardt’s holding should be
strictly limited to its facts. See Doe, 183 Ill. 2d at 289 (Harrison, J., dissenting) (“A cardinal
principle of our common law system is that a holding can have no broader application than
the facts of the case that gave rise to it.”). Noting that our supreme court “has twice cited
Justice Reinhard’s concurrence in Eckhardt with approval for the proposition that Illinois law
simply restricts claims against a physician to her patients and those persons sharing a special
relationship with her patients,” the plaintiff further suggests that Eckhardt’s specific-threat
elements should be deemed nonprecedential “surplusage” that cannot control the outcome
here. We disagree.
¶ 32 At the outset, we note that while the Tedrick court specifically stated that in Doe, it had
cited Justice Reinhard’s concurrence with approval, the Tedrick court arguably cited the
Eckhardt majority’s opinion with approval as well. See Tedrick, 235 Ill. 2d at 170-72. There
was no need for the Tedrick court to consider or rely on the majority opinion, however,
because Kirk, Doe, and Justice Reinhard’s concurrence were dispositive of the third-party
duty issue that the Tedrick court was asked to decide. Id. at 172. Additionally, the Tedrick
court specifically noted that the Eckhardt majority’s three-elements test had been cited with
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approval in several appellate court decisions (id. at 171 & n.4) and did not criticize the
standard or suggest that it was unsound. The Tedrick court also stated that it had previously
rejected the rationale of the Tarasoff case, but in context, the court was referring to
Tarasoff’s extension of duty to nonpatient third parties, as opposed to the specific-threat
component adopted by the Eckhardt majority. Id. at 169-70; see also Doe 1 v. North Central
Behavioral Health Systems, Inc., 352 Ill. App. 3d 284, 290-91 (2004) (Holdridge, J., specially
concurring). In any event, because our supreme court has not explicitly rejected or adopted
the Eckhardt majority’s three-elements test for determining a mental health professional’s
duty to warn or protect, the circuit court was bound by Eckhardt and the subsequent appellate
court decisions that have cited it with approval. See Delgado v. Board of Election
Commissioners, 224 Ill. 2d 481, 488 (2007) (noting that until our supreme court “says
otherwise,” circuit courts are bound by the decisions of the appellate court “regardless of the
appellate court’s district”). We further believe that Eckhardt is good law that provides a
workable standard for mental health professionals and reflects the policy considerations and
relationship factors upon which their legal duties are based.
¶ 33 As previously noted, in Doe, when discussing “the importance of the psychotherapist
privilege,” the supreme court recognized “the duty of confidentiality that every therapist
owes to his or her patients” and the “limited range of circumstances” in which that duty may
statutorily be breached. Doe, 183 Ill. 2d at 282-83. The Doe court further recognized that
therapists should not be put in positions where “divided loyalties” might negatively affect a
patient-therapist relationship or otherwise influence or compromise a particular course of
treatment. Id. at 282, 284. In Kirk, the court observed that holding medical providers liable
for all of the harmful acts of their patients would undoubtedly be “an unreasonable burden.”
Kirk, 117 Ill. 2d at 526. Eckhardt’s three-elements test addresses these duty considerations
and further recognizes the unforeseeable and “speculative nature of the risk of harm” posed
by mental health patients. Eckhardt, 179 Ill. App. 3d at 873; see also Peck v. Counseling
Service of Addison County, Inc., 499 A.2d 422, 427 (Vt. 1985) (Billings, C.J., dissenting,
joined by Peck, J.) (“It is scientifically recognized that it is impossible to predict future
violent behavior.”). We further note that Eckhardt was decided in February 1989, and
effective September 1990, the General Assembly amended the Mental Health and
Developmental Disabilities Confidentiality Act (the Act) (now see 740 ILCS 110/1 et seq.
(West 2012)) to allow for the disclosure of privileged communications “when and to the
extent, in the therapist’s sole discretion, disclosure is necessary to warn or protect a specific
individual against whom a recipient has made a specific threat of violence where there exists
a therapist-recipient relationship or a special recipient-individual relationship” (Pub. Act
86-1417 (eff. Sept. 11, 1990) (amending Ill. Rev. Stat. 1989, ch. 91½, ¶ 811); now see 740
ILCS 110/11(viii) (West 2012)). Thus, to the extent that Eckhardt’s specific-threat elements
might have arguably been dicta when the case was decided, they are now recognized public
policy. See A.B.A.T.E. of Illinois, Inc. v. Quinn, 2011 IL 110611, ¶ 34 (noting that the policy
of the state is established by its laws). Moreover, given that the Act mandates that all
communications between a therapist and a patient “shall be confidential and shall not be
disclosed except as provided in [the] Act” (740 ILCS 110/3(a) (West 2012)), we agree with
Sarma’s observation that she was “precluded from assuming the very duty [the] [p]laintiff
would seek to impose.”
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¶ 34 To be sure, Sarma owed Jacob and Sara the same duty, i.e., “the duty of confidentiality
that every therapist owes to his or her patients.” Doe, 183 Ill. 2d at 282. The purpose of that
duty is to foster “ ‘an atmosphere of confidence and trust in which the patient is willing to
make a frank and complete disclosure of facts, emotions, memories, and fears,’ ” without fear
that “competing demands” and divided loyalties might negatively affect the therapist’s
treatment decisions. Id. at 282-83 (quoting Jaffee, 518 U.S. at 10).
“[A] psychiatrist’s ability to help her patients
is completely dependent upon [the patients’] willingness and ability to talk freely.
This makes it difficult if not impossible for [a psychiatrist] to function without
being able to assure … patients of confidentiality and, indeed, privileged
communication. Where there may be exceptions to this general rule ..., there is
wide agreement that confidentiality is a sine qua non for successful psychiatric
treatment.” (Internal quotation marks omitted.) Jaffee, 518 U.S. at 10.
¶ 35 As previously noted, under Eckhardt’s three-elements test:
“To sustain a cause of action predicated on a therapist’s alleged duty to warn third
parties of the potential violent acts of a patient, the plaintiff must demonstrate the
following: (1) the patient made specific threats of violence, (2) the threats of violence
were directed against a specific and readily identifiable victim, and (3) there is a
direct physician-patient relationship between the defendant and the victim or a special
relationship between the patient and the victim.” Doe 1, 352 Ill. App. 3d at 290 (citing
Eckhardt, 179 Ill. App. 3d at 872).
Here, the circuit court correctly concluded that although the plaintiff had satisfied the third
element given Sara’s direct physician-patient relationship with Sarma, Sarma had no legal
duty to protect or warn Sara because there was no evidence that Jacob had ever made any
specific threats to harm her. The plaintiff argues that Sarma’s liability should be extended
beyond Eckhardt’s constraints, but as the circuit court observed, that Sara and Jacob were
both Sarma’s patients did “not change the duty owed” and that to expand Sarma’s duty as the
plaintiff suggests “would clearly be contrary to case law and public policy.” What happened
to Sara was tragic, but we cannot conclude that Sarma had a duty to protect and warn her
under the circumstances. To do so “would exact an intolerably high price from the
patient-therapist relationship and would be destructive of that relationship.” Doe, 183 Ill. 2d
at 282. We lastly note that the divided-loyalty concerns discussed in Doe would seem
particularly significant with respect to health-care providers such as the health department,
which often have many patients but few doctors.
¶ 36 CONCLUSION
¶ 37 For the foregoing reasons, the circuit court’s judgment granting Sarma’s motion for
summary judgment on all of the plaintiff’s counts against her is hereby affirmed.
¶ 38 Affirmed.
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