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Powell v. Catholic Medical Center3/21/2000
client to the state mental health system.
III. No monetary liability and no cause of action may arise concerning client privacy or confidentiality against a physician licensed under this chapter for information disclosed to third parties in an effort to discharge a duty under paragraph II.
IV. For purposes of this section, "physician" shall include persons providing treatment under the supervision of a physician licensed under this chapter.
The defendants argue that because the statute dictates when a physician may be held liable for failing to warn a third party of the violent potential of his patient, the statute preempts the common law duty to warn claim. The defendants base their argument on Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976), and its progeny.
In Tarasoff, the California Supreme Court held that a psychotherapist, having determined under professional standards that a patient posed a threat of serious danger of violence, had a duty to use reasonable care to protect the identified victim. See id. at 345. Tarasoff is distinguishable from this case. The facts in Tarasoff involve a patient who confided in his psychotherapist his intent to kill an identified female friend. See id. at 339. The patient murdered the friend, and the victim's family brought suit against the psychotherapist for failing to take steps to protect the victim. See id. at 340. Thus, the patient vocalized an intent to harm an identified victim, a situation that may be governed by RSA 329:31. In this case, the patient did not communicate an intent to harm an identified or identifiable victim. In fact, CMC concedes that at no time did the patient communicate a threat of physical violence regarding any specific staff member. The patient may have been a threat, but he did not communicate that threat. As such, neither RSA 329:31 nor Tarasoff applies.
A plaintiff may not raise a claim under the common law if "the legislature intended to replace it with a statutory cause of action." Wenners v. Great State Beverages, 140 N.H. 100, 103, 663 A.2d 623, 625 (1995). The statute, however, applies only where the patient has communicated a serious threat of physical violence against a clearly identified or reasonably identifiable victim. Therefore, the statute does not explicitly preempt all common law claims for a physician's failure to warn. It merely preempts the common law claims addressed by its language. See RSA 329:31. The statutory language does not evidence an "intent to replace" the common law claim in this case. See Wenners, 140 N.H. at 103, 663 A.2d at 625.
The defendants contend that our decision in Boston Ice Co. v. Boston & Maine Railroad, 77 N.H. 6, 86 A. 356 (1913), requires that we hold that RSA 329:31 implicitly repeals the common law. In Boston Ice Co., we stated that " hen a statute revises the whole subject of a former one and is clearly designed as a substitute, the former law is repealed although no express terms to that effect are used." Id. at 17, 86 A. at 359. However, we further explained:
The rule does not rest strictly upon the ground of repeal by implication, but upon the principle that when the legislature . . . frames a new statute upon the subject-matter, and from the framework of the act it is apparent that the legislature designed a complete scheme for this matter, it is a legislative declaration that whatever is embraced in the new law shall prevail, and whatever is excluded is discarded. Id.
The subject matter embraced by RSA 329:31 is limited to a physician's duty to warn of a client's violent behavior when the client has communicated a serious threat of physical violence against
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