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McIntosh v. Milano

Decided: June 12, 1979.


Petrella, J.s.c.


Defendant Michael Milano, M.D., a board-certified psychiatrist licensed to practice in New Jersey, seeks summary judgment dismissing the complaint in this wrongful death action on the ground that he owed no duty to plaintiff's decedent and daughter, Kimberly McIntosh (sometimes referred to as decedent). On July 8, 1975 Lee Morgenstein, who by then had been a patient of defendant for slightly more than two years, murdered decedent.*fn1

There are few reported cases on the liability of therapists, including psychiatrists, for failure to warn third parties or potential victims of danger or threats of potential harm by persons for whom they render treatment or therapy. No reported New Jersey case has been found which discusses the allegations plaintiff here asserts against defendant psychiatrist. Plaintiff places reliance in her claim of duty and

breach thereof on the case of Tarasoff v. Regents of Univ. of California , 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P. 2d 334 (Sup. Ct. 1976) (Tarasoff II),*fn2 which is nonbinding authority in this jurisdiction.

Defendant argues that no such duty exists in this State, and that this court should not create one or allow one to be asserted by plaintiff by adopting the Tarasoff II rule or one comparable thereto.

The parties have fully briefed this matter. They refer to depositions filed with the court, certain affidavits filed in connection with this matter, the report of plaintiff's expert psychiatrist which asserts that defendant committed a "gross deviation" from accepted medical practice, and the report of the defendant himself to the Bergen County Prosecutor (with certain handwritten changes and additions thereon) in connection with Morgenstein's criminal trial. The court also had the benefit of the criminal trial testimony of defendant Milano, when he testified in support of Lee Morgenstein's defense (a transcript of which was provided and made a part of this motion by the court). Defendant's counsel also submitted an affidavit of defendant and a fairly voluminous appendix*fn3 containing various articles bearing on the policy issue of imposing on a psychiatrist or therapist a duty of reasonable care in this or in similar situations.

Giving all reasonable inferences in favor of the party opposing this motion, as required by Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 75 (1954), the factfinder could conclude from the deposition testimony and other factual sources relative to the instant litigation the

events hereinafter outlined. Defendant first met Lee Morgenstein, then age 15, and began his treatment on May 5, 1973, after the latter's school psychologist had given Morgenstein's parents defendant's name and that of certain other therapists, partially because of Morgenstein's involvement with drugs. His treatment was on a weekly basis for what he initially diagnosed as "an adjustment reaction of adolescence." Initially it also included family therapy. During the course of therapy over the approximate two-year period, Morgenstein related many "fantasies" to defendant on various subjects, including fantasies of fear of other people, being a hero or an important villain, and using a knife to threaten people who might intimidate or frighten him.

Morgenstein also related certain alleged experiences and emotional involvements with decedent, who in 1973 was about 20 years old and at that time lived with her parents next door to the Morgensteins. Decedent's father was a doctor who from time to time had treated Lee Morgenstein for minor ailments. Defendant considered all such "fantasies" referred to above as just that, but he came to accept, after initial reservations, that the experiences related to him by Morgenstein as to his eventual victim represented truth and not fantasy. Dr. Milano stated he was somewhat "nonplussed" initially about the revelations of Morgenstein concerning Miss McIntosh and alleged sexual experiences because of the five-year age difference. However, he said that he came to believe it because the way Morgenstein responded emotionally fit with what he told him, and Milano claimed he never had any reason to doubt Morgenstein. The doctor testified at Morgenstein's criminal trial that "[h]e [Morgenstein] didn't spend a lot of time describing in detail what he and Kim did, but that also sort of fit, if anything, his character in that he thought that nobody would believe him." Defendant did indicate in his deposition that he advised Morgenstein to break off the relationship.

Morgenstein had possessive feelings towards Kimberly, according to the doctor, and was "overwhelmed" by the relationship.

Although Morgenstein is said to have repeatedly expressed anxiety to defendant over his relationship with Miss McIntosh, defendant asserts she was not the dominant theme of the therapy.*fn4

It is undisputed, and Dr. Milano admits, that Morgenstein had confided that he had fired a B.B. gun at what he recalled to be a car (Miss McIntosh's or her boyfriend's) on one occasion when he was upset because she was going on a date with her boyfriend. There is evidence proffered by plaintiff that other windows in the McIntosh house and another vehicle had been shot at and damaged by a B.B. or some other gun, and a factfinder might infer that these were actions of Morgenstein. It is also undisputed that Dr. Milano had been told by Morgenstein that he had purchased and carried a knife to show to people to scare them away if they should attempt to frighten or intimidate him, and brought it to a therapy session to show the doctor.

Although Dr. Milano said that Morgenstein wished Miss McIntosh would "suffer" as he did and had expressed jealousy and a very possessive attitude towards her, was jealous of other men and hateful towards her boyfriends, had difficulty convincing himself that fights or things were really over or finished, he denied that Morgenstein ever indicated or exhibited any feelings of violence toward decedent or said that he intended to kill her or inflict bodily harm. Morgenstein was also very angry that he had not been able to obtain Miss McIntosh's phone number when she moved from the family home. He may not even have known where she lived in 1975. Plaintiff proffered testimony that Miss McIntosh had told her family of Morgenstein's drug problems, felt sorry for him, and hoped he could get help.

Following an incident in which Morgenstein fell off a bicycle and injured his face the day before the July 8, 1975 therapy session, and after an incident during the course of that day's therapy (apparently when Dr. Milano briefly left the room), he stole a prescription form from the doctor's desk. Later that day he attempted to obtain 30 Seconal tablets*fn5 from a pharmacist with the stolen form. The pharmacist apparently became suspicious and called Dr. Milano, who instructed him to retain the unauthorized prescription form, not to fill it, and to send Morgenstein home. He later tried to reach Morgenstein at home, but between then and the early evening hours Morgenstein was involved in the tragedy which took Miss McIntosh's life. Whatever exactly transpired thereafter, it would appear that Morgenstein left the pharmacy upset and at some point either late that afternoon or early evening obtained a pistol which he had kept hidden at his home, and knowing Miss McIntosh was expected to visit her parents, waited for her and either got her to go with him, wittingly or unwittingly, to a local park area where he fatally shot her in the back.

Dr. Milano had indicated in his testimony at the criminal trial that sometimes he inquired further when he felt that a patient was in some ways endangering himself or someone else, and in those instances he would contact his patient's [168 NJSuper Page 475] parents, school, or people like that. In his deposition in this civil case Dr. Milano said he had spoken to Morgenstein's parents about a problem with a car accident and this resulted in their withholding certain privileges from their son. He also indicated he spoke to a school teacher about one of Morgenstein's problems. Apparently this was usually with Morgenstein's consent. Dr. Milano had said he would "look into it" if he felt the patient was endangering himself or someone else. He apparently talked to Morgenstein's parents in some fashion about the relationship between their son and Miss McIntosh a number of times in late 1974 and in 1975, but never attempted to contact decedent or her parents. Despite Morgenstein's fantasies and the incidents previously recited, and wishes for her suffering, he felt that Morgenstein had never expressed a desire for retaliation or "fantasies" of retaliation.*fn6 Dr. Milano had said at the criminal trial that

Morgenstein had fantasies of magical power and violence, which meant that if somebody said he was a scrawny little runt and wouldn't dare fight back, that he would be able to pull out a gun and shoot them. But he denied that Morgenstein ever had fantasies of pulling out a gun, and claimed that his fantasies apparently related to pulling out a knife and scaring people off. Morgenstein, nevertheless, was quoted as saying that if he had a gun, that would scare men and then nobody would dare threaten him.

In the evening of July 8, 1975 Dr. Milano was called to police headquarters after decedent's death and spoke to Morgenstein, who was then in custody. He asked Morgenstein where he had gotten the gun and why he had not told him about it. Morgenstein responded he was frightened, and was unsure about what the doctor would have done. There was also discussion at that time about earlier events of that day, including Morgenstein's taking of the prescription form.

Obviously, all factual statements would be subject to jury scrutiny as to credibility.

Plaintiff instituted this wrongful death action*fn7 based in large part on the trial testimony of Dr. Milano. She relies also on a report of a psychiatrist retained as an expert witness expressing the opinion that defendant had a duty to warn Kimberly McIntosh, her parents or appropriate authorities that Morgenstein posed a physical threat or danger to decedent. Plaintiff asserts defendant breached that duty.

On the other hand, defendant argues there is no such duty by a therapist to third parties or potential victims, and that Tarasoff II should not be applied, and was wrongly decided

in that it (1) imposes an "unworkable" duty on therapists to warn another of a third person's dangerousness when that condition cannot be predicted with sufficient reliability;*fn8 (2) will interfere with effective treatment by eliminating confidentiality; (3) may deter therapist from treating potentially violent patients in light of possible malpractice claims by third persons; and (4) will result in increased commitments of patients to mental or penal institutions.

In addition, defendant argues that the McIntosh family was aware of Lee Morgenstein's problems and that he had apparently threatened Kimberly on at least one occasion. However, this is immaterial to the legal question of the existence of any duty in the factual context presented and goes rather to a factual defense. Therefore, it is unnecessary to consider that defense at length here.

Plaintiff, in opposition to the motion, relies on the report of her expert, a psychiatrist, who states that defendant committed a "gross deviation" from accepted medical practice by failing to warn or protect decedent under the factual circumstances

he derives from defendant Milano's report to the prosecutor and testimony at the Morgenstein trial. Plaintiff's expert opines that it is clear from the criminal trial testimony of Dr. Milano that Lee Morgenstein was a dangerous individual, and the object of his aggression was Miss McIntosh. Even though a diagnosis of dangerousness is recognized by that proposed expert witness as a complex determination, in his opinion that was not an issue since Morgenstein demonstrated his dangerousness by (a) firing a weapon at Miss McIntosh's car, (b) exhibiting a knife to Dr. Milano, (c) forging a prescription, and (d) verbalizing threats towards Miss McIntosh and her boyfriends. In light of this and the commission of a violent act, i.e. , firing the gun, dangerousness was not in his opinion a prediction, but a known fact.

Plaintiff's expert indicates there appears to be no doubt as to dangerousness because Dr. Milano admitted in his testimony that Morgenstein had fantasies of violence or feelings of retribution.


Duty to Warn of "Dangerousness" and Alleged Inability to Predict

The argument in this case is whether principles analogous to those expressed in Tarasoff II apply or should be applied in New Jersey. That case was a lawsuit against university regents, psychotherapists employed by the university hospital, and campus police to recover for the murder of plaintiffs' daughter by a psychiatric patient. It was alleged that the patient had expressly informed his therapist that he was going to kill an unnamed girl (identifiable as plaintiff's decedent) when she returned home from spending the summer in Brazil. The therapist, with the concurrence of two colleagues, decided to commit the patient for observation. The ...

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