The opinion of the court was delivered by: Per Curiam
On certification to the Superior Court, Appellate Division, whose opinion is reported at 322 N.J. Super. 236 (1999).
We affirm the judgment of the Appellate Division substantially for the reasons set forth in its comprehensive opinion. Runyon v. Smith, 322 N.J. Super. 236 (1999). We add these observations to clarify the basis for our disposition and to address the concerns of our dissenting colleagues.
We recognize the dissent's concern about instances in which the psychologist-patient privilege must yield because of "the potential of harm to others." Post at __ (slip op. at 1) (O'Hern, J., dissenting). In Kinsella v. Kinsella, 150 N.J. 276, 316 (1997), adverting to that very concern, we observed that "[b]ecause of the unique nature of custody determinations, the scope of the patient-psychiatrist privilege that may be claimed by parents in relation to custody issues poses more difficult problems that those posed by the scope of the privilege in other situations." We specifically acknowledged in Kinsella that courts in custody disputes "must strike a balance between the need to protect children who are in danger of abuse and neglect from unfit custodians and the compelling policy of facilitating the treatment of parents' psychological or emotional problems." Id. at 327.
We are not prepared on this inadequate record to agree unqualifiedly with the Appellate Division's conclusion that, even absent Dr. Smith's testimony, "there was sufficient evidence from plaintiff's friend and from Mr. Runyon to justify awarding temporary custody of the children to Mr. Runyon." 322 N.J. Super. at 245. We simply cannot assess in hindsight whether the testimony of Mr. Runyon and that of plaintiff's friend provided an adequate basis for the Family Part's temporary custody award. Nevertheless, all parties acknowledge that the Family Part did not conduct the in camera review contemplated by Kinsella, 150 N.J. at 328, and apparently did not make the appropriate determination on the record that evidence of fitness from other sources was inadequate. We also acknowledge that the hearing in question took place more than two years before Kinsella was decided. However, we cannot turn back the clock and determine now whether adherence to the Kinsella standards and procedures would have permitted the privilege to be pierced. Indisputably, those standards and procedures were not observed. We therefore conclude, as did the Appellate Division, 322 N.J. Super. at 246, that "Dr. Smith's testimony at the January hearing and her subsequent report violated the psychologist-patient privilege."
We acknowledge that in certain circumstances a psychologist may have a duty to warn and protect third parties or the patient from imminent, serious physical violence. As part of that duty, the psychologist would be required to disclose confidential information obtained from a patient. See N.J.S.A. 2A:62A-16. Nothing in this record demonstrates that the children were exposed to danger of a degree that approached the level of danger that triggers the statutory duty to warn. Moreover, Dr. Smith's testimony occurred about six months after her last session with plaintiff. That six-month interval is itself inconsistent with the statutory standard of "imminent serious physical violence." N.J.S.A. 2A:62A-16b(1).
We also are in accord with the Appellate Division's conclusion that a psychologist who fails to assert her patient's privilege and discloses as a witness confidential information concerning that patient without a court determination that disclosure is required may be liable for damages to the patient. See Stempler v. Speidel, 100 N.J. 368, 375-77 (1985) (discussing liability of physicians in general for unauthorized disclosure of confidential information). The dissent argues persuasively, however, that plaintiff incurred no recoverable damages as a result of Dr. Smith's disclosures, asserting that the result of the custody dispute would have been the same even if her testimony had been excluded. Post at ___ (slip op. at 3-4) (O'Hern, J., dissenting). That plaintiff may not prevail on her claim for damages does not affect her right to pursue it. Because the issue is not before us, however, we express no view on the merits of plaintiff's claim. Affirmed.
JUSTICES STEIN, COLEMAN, LONG, VERNIERO, and LAVECCHIA join in this opinion.
I agree with the substantive analysis of the Appellate Division's restatement of the manner in which a psychologist should exercise responsibility in preserving a patient's confidences. Those principles were set forth in our decision in Kinsella v. Kinsella, 150 N.J. 276 (1997). Resolution of the Kinsella issues is but the beginning of the analysis, not the end.
Psychologists labor under conflicting sets of duties. They have a duty to respect the confidences of a patient, but exceptions do exist. Psychologists cannot always ignore the potential for harm to others. The seminal case regarding the duty of a psychiatrist [or psychologist] to protect against the conduct of a patient is Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976). In Tarasoff the plaintiffs alleged the defendant therapists had a duty to warn their daughter of the danger posed to her by one of the therapists' patients. The Tarasoff plaintiffs were parents of Tatiana Tarasoff, a young woman killed by a psychiatric patient. Two months prior to the killing, the patient informed his therapist that he intended to kill a young woman. Although the patient did not specifically name Tatiana as his intended victim, plaintiffs alleged, and the trial court agreed, that the defendant therapists could have readily identified the endangered person as Tatiana.
Applying Restatement (Second) of Torts § 315 (1965) to the facts before it, the Tarasoff court held the patient-therapist relationship was sufficient to support the imposition of an affirmative duty on the defendant for the benefit of third persons. Tarasoff, 17 Cal. 3d at 435, 131 Cal. Rptr. 14, 551 P.2d 334. The Tarasoff court ruled that when a psychotherapist determines, or, pursuant to the standards of the profession, should determine, that a patient presents a serious danger of violence to another the therapist incurs an obligation to use reasonable care to protect the intended victim against such danger. Tarasoff, 17 Cal.3d at 435, 131 Cal. Rptr. 14, 551 P.2d 334. According to the Tarasoff court, discharge of the duty may require the therapist to take whatever steps are necessary under the circumstances, including possibly warning the intended victim or notifying law enforcement officials. [Petersen v. State, 671 P.2d 230, 236 (Wash. 1983) (emphasis added).]
This psychologist may have erred in not asserting her patient's privilege. She may have believed that she was under a duty to do so, being in the presence of a court that expressed no concern for the propriety of her conduct. One thing is clear, there is no evidence that she intended to do anything but that which was best for the involved children.
We generally try to avoid "unnecessary court events." State v. Shaw, 131 N.J. 1, 13 (1993). We should do that here. Although Kinsella had not been decided when the psychologist testified in the custody case, the trial court was fully aware of the principles of Kinsella when it dismissed the patient's subsequent complaint for malpractice. The trial court was also fully aware of the principles that govern a professional malpractice action against a psychologist. The plaintiff in a malpractice action based on tort must establish four elements to make out a prima facie case. . . . When the plaintiff is a patient and the defendant is the patient's therapist, Schultz tells us that the four key elements necessary to prove malpractice are: "(1) that a therapist-patient relationship was established; (2) that the therapist's conduct fell below the acceptable standard of care; (3) that this conduct was the proximate cause of the injury to the patient; and (4) that an actual injury was sustained by the patient." In the particular case of a patient suing a therapist for breach of confidentiality, the most difficult hurdles to overcome, showing malpractice has taken place, are "whether the ...