Recently, co-pilot Andreas Lubitz locked himself in the cockpit of a Germanwings plane and intentionally caused the plane to crash, killing himself and 149 passengers and crew. We are learning new information daily. Apparently, he had a doctor’s note declaring him unfit for flying on the date he crashed. And, he apparently sought help in the past for a psychiatric condition. Details are scarce. Still, no one in close proximity to Lubitz said they saw this coming. Everyone expressed shock and surprise.
Will Lubitz’s doctors be blamed, in part or in full? And, if so, what kind of liability might that trigger?
Put aside the fact that the airline was a German national carrier; and the plane took off, crashed, and would have safely landed in just three countries, none of which is the United States. Local law and international law would determine the legal outcome. Further, any individual doctor would not have the funds – insured or not – to pay even a fraction of the likely claims. For that, Germanwings will be covered by its well-heeled parent company, Lufthansa, and its insurance carrier, Allianz.
If a doctor is aware of a credible threat to a third party, does that doctor have a duty to warn?
In the United States, the answer varies state by state, and it depends. Most states have laws that either require or permit mental health professionals to disclose protected health information about patients who may become violent. The distinction is between permissive disclosure and mandatory disclosure. Permissive disclosure allows the doctor to breach confidentiality without liability. Mandatory disclosure holds the doctor liable for failing to warn. Some states, like North Carolina, have explicitly concluded there is NO duty to warn.
Even in those states that mandate a duty to warn or protect, the scope is narrow. The famous case that got the ball rolling was Tarasoff in California. A patient with paranoid schizophrenia confided to his psychotherapist he intended to kill Tarasoff, a fellow student. The psychologist recommended the patient be civilly committed as a dangerous person. He was detained but shortly released. He appeared rational. Several months later, the patient made good on his threat. He carried out the plan he had confided to his psychologist, stabbing and killing Tarasoff. Tarasoff’s parents then sued the psychologist and other employees of the University of California.
The case went to the California Supreme Court. Justice Mathew O. Tobriner wrote the famous holding in the majority opinion. “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. The protective privilege ends where the public peril begins.”
If the state mandates there is a duty to warn or protect, each state has its own take on it. Such rules as based on, for example, whether violence was foreseeable, whether a specific victim might be identified, the specificity of the threat, and zone of danger. The more specific the threat targeted to a specific individual; and the greater the likelihood the patient can execute on the threat, the greater the duty – in those states mandating warning.
In Lubitz’s case, no one has come forward – yet – suggesting the patient had threatened to take down a plane, murdering the passengers and crew. If he had, then arguably, that doctor receiving that information should have reported the patient – whether reporting was mandatory or permissive. I would argue that even if no reporting was allowed, such a doctor should have reported such a threat- to the extent the threat seemed marginally credible. The doctor could have worked within the system to have such a patient evaluated further. Given what we currently know, Lubitz was just a quiet mass-murderer waiting for his moment to act. It is unlikely such a heinous act was foreseeable.
What made this potential medical case even more challenging is that Lubitz was a pilot – a person in charge of operating “dangerous machinery.” In analyzing a doctor’s ethical or legal duty to warn, the case is analogous qualitatively (though not quantitatively) to a doctor’s duty to report a patient with seizures to the Department of Motor Vehicles. If a patient has a seizure, a minority of states require the doctor report the seizure to the licensing department. The Department of Motor Vehicles will determine whether the patient can drive, what conditions are necessary to reinstate a revoked license, etc. But, in 44 states, the burden is placed on the patient to self-report.
I do not personally believe any individual doctor would have been able to prevent the Germanwings tragedy. Still, my opinion might change as more information becomes known. Trying to predict violent behavior is still hard.