my name is brian hickey representing the appellant community resource center in this case richard st murdered his wife on june ninth two thousand and three issue for this court to decide is whether community resource center and the other medical providers owed duty of care to the third party treece the street to warn her of a possible criminal act from her husband a therapist does not owe a duty to a non patient to warn of a possible criminal act of a third party there are a couple general rules of law they want to talk about the first is that there is no duty by a physician or therapist to a non patient as a general rule of law the exception that's prominently cited in the briefs is the supreme court decision of ren's low talking about transfer of negligence and in that case the court found that when there is a special relationship there can be an exception to th general duty where duty is then owed to a non patient that case though before the appellate court in hedrick was the first and only case to find a special relationship under this of transferred negligence the court has refused since renzo to extend the duty any further for any other relationship in the brief cite to kirk johnson versus  all supreme court cases that refutes refuse to extend it even to a parent child relationship the second general rule of law that's important here is that there's no duty generally to protect a person from a criminal act of a third party as was pointed out and initial in the initial statement richard street murdered his wife he then pled guilty that to that crime and he didn't plead guilty by reason of insanity he pled guilty to an intentional  there is general there are exceptions also to protecting people from criminal acts of third parties such as in the supreme court case of hickman where security from the specifically hired to protect property and persons that's not what we have here in this case we have a therapist who is providing mental health treatment to a patient and the plaintiffs are requesting that the duty be extended that therapists now  duty to warn to the wife who three days after the therapy and counseling session is murder the apple e's believe that there is support for duty under the  restatement second section three twenty four eight however section three twenty four day which is the voluntary undertaking statute talking about when one voluntary one voluntarily undertake so one as there is one who undertakes for consideration to render services to another which he should or she should recognize is necessary for the protection of a third person is subject to why ability to the third person fear for physical harm resulting from her failure to exercise reasonable care to protect this undertaking if one of three things are met in this case and in any medical negligence case the court has not found section three twenty four will apply in medical negligence cases all the cases cited under section three twenty four are not medical negligence cases medical negligence is really a unique area of water that is separate from general negligence principles and we find that the statutes by the legislature have provided specific requirements in order to plead improve medical negligence cases in this case the plaintiffs were required and did final a two day six to two affidavit to support the allegations of medical negligence and they supported their complaint with an affidavit from a physician in a general negligence case those kind of requirements and additional herder's hurdles are not require police are asking this court to extend section three twenty four a the voluntary undertaking to this medical negligence case when no other court has done so other than  community resource center for there to have been any duty if this court does extend section three twenty four to a medical negligence setting such as this case then analysis of section three twenty four to this case still shows that there is no duty first under the preamble of section three twenty four it must be shown that community resource center undertook a duty to counsel richard st for the byproduct of that treatment ideally is to prevent him from harming himself or others but the primary purpose of the treatment by community community resource center or any psychiatry ister psychologist or therapist or counselor is to help the patient who is in their offices in their counseling room even if the court gets past that and believes that community resource cent should have known and recognized that their job was necessary to protect theresa st the plaintiff must also show some paragraph c of three twenty four essay that the hama suffered because of reliance recent street i'm community resource center all of the plaintiffs complaint alleges for alliance that is simply a conclusion of law there are no facts pled in this case to outline that teresa street relied on a therapy provided by community resource center on march sixth actually learning the course during the course of c or c's treatment of richard was there not some ongoing counselling or street had locked and there was a discussion where theresa st was advised here's a number for the police he is being discharged he's going to see his physician right now is not providing her therapy and providing her counseling it is providing her with information so yes c r c did provide teresa st with information but they did not then assume any kind of physician per patient or therapist patient relationship by virtue of having a telephone discussion with  analysis under the four corners of the complaint but after the r two six fifteen motion was filed the plaintiff was allowed to amend the complaint to dish in all times and in response to our motion to dismiss is the plaintiff who raised additional evidence that the court had considered in the appellate court concerning the threats of harm that were posed in the notes by one of the treating nurses amy  whipple so i think it's it's ideally for the apple e the court considers this as a two fifteen motion but i believe because of the co defendants motion and the evolution of this case it's really more as to six nineteen whether or not there's a duty of care we need to establish first and foremost is there a duty of care to protect rhesus street is there a duty to warn theresa st we know from kirk and that there is a requirement of a physician patient relationship for there to be a duty no question there is no physician patient relationship here we know under under voluntary undertaking the facts will establish whether or not there's a duty and if there is no facts to show that to resus street relied on a warning then there is no duty of care and the amy whipple testimony attached in response to plaintiff's brief shows that this lady who was murdered knew the morning before she came to the community resource center when her husband sat on her chest and put his hands around her throat that there was a risk of harm of staying with this man yet she chose to do so warning her would have made no difference she knew the threat so it's all these facts are important but the facts for important to go to whether or not there was a duty of care so in conclusion i believe is  warnings from community resource center she she received a telephone she made a phone call to community resource center she was told that this man was leaving she was given a number for the police department and other people that could help her but they didn't tell her he's fine don't worry about it there's no facts such as that in the record that would indicate a reasonable person would rely on what treatment was provided by c reasonable person rely on the fact that they didn't tell her that he was extremely dangerous that she would be lying and that if he was ok i don't believe so and in there if you believe that that a phone call has to be made to say that he is a danger or isn't a danger would again created duty by community resource center in every case to call a patient's family and report to them what the findings were of a private confidential therapy session that is not what should happen through confidential medical treatment and i believe the co counsel is going to discuss the mental health and disabilities act that just doesn't allow those phone calls to be made unless there's an imminent threat of harm what would you need to have right well under the under that pact it actually is in the sole discretion of the mental health care provider in their conclusion as to whether or not there is an imminent threat of harm but the law does not say what imminent threat of harm is but it's up to the therapist or the counsellor or the physician in their sole discretion to decide whether or not there is a risk of an imminent threat of harm and if they conclude that there is not an imminent threat of harm big cannot and must not disclose any information to anyone about that treatment session sawing three days before the occurrence and basically told him that he had to see a psychiatrist that a family practice physician could pursue its treatment a fundamental tenet of any physician patient relationship is the undivided loyalty of the physician to the patient including keeping confidences and this court in both though vs mckay and in nor recognizing this confidentiality was extremely important with psychotherapy otherwise the patient if he if he was afraid of disclosure of his confidences was not going to be forthright with the station physician and the physician would not be able to adequately treat the patient and those are common law principles but there is eight in the general assembly is also recognized in kind of right these principles in the a mental health confidentially confidential scuse me confidentiality act which were habits the disclosure of mental health records except in very narrow circumstances and most of the circumstances are like peer review reporting to governmental agencies applying for benefits with governmental agencies and what not and a mr hickey referred to especially important to this case a section eleven of the confidentiality act which states and record some communications maybe he disclose not must or should be disclosed may be disclose when in to the extent necessary to the extent a therapist in his sole discretion determines that disclosure is necessary to prevent this i mean imminent risk best interests and it's a recognition that in this area they have the mental health professional should be given discretion sole discretion which is pretty strong language to make  whether this is true am i not risk of harm and should be disclosed i mean i can see where in some sense it does protect the physician because it really it relieves him of any fear of liability for disclosure if you believes there is a undergoing a risk of harm but ultimately it's also protecting the confidentiality of the patient i've heard you know i just i just believe this language couldn't decision is totally inconsistent with this provision and it should be just a small facet of it doesn't the the the ability for a doctor to that he disclosed the information  me call someone who might be you know risk of harm mean that the purpose of that section would be to protect who might be harmed the person who might be harmed absolutely and looking to that as  obviously would be need general somebody was concerned about a lot of things serious is your question and just describing this question as brought out and but it's still leaves the sole discretion the by the general assembly out of that of that fact that this is very unpredictable thing it has to be left to the discretion of mental health professionals who i'm sure if they're really afraid that their patient is going to harm himself or someone else and will act professionally and give whatever limited disclosure is necessary  and i'd also like to point out with regard to the statutory scheme that even beyond the mental health code the general assembly has  determines for instance when a physician should report communicable disease communicable diseases or suspected child abuse and it is just an area where the are the proper exceptions so when confidences can be disclosed and i just think it's an area in which the general assembly has done so much not just just with mental health ability the likelihood of injury burden of guarding against the injury and the consequences of imposing that burden and just so in this general framework i referred to a few moments ago about mental health professionals only being able to predict dangerous patients and a thirty to fifty percent accuracy so basically it's not to his own liability and i'm sure he doesn't want to do that but in the back of his mind of his duty is imposed upon him to report or face liability he's going to be perhaps not acting always in the interest of his patients subconsciously you know and i think he should be the physician should be free to do that and that also bears upon it on the consequences of what we're trying these disclosures you know that means if if these statistics are right the mental health professional will be wrong in predicting who's dangerous and who's  patient would not no longer be assured of confidentiality if he was going to fear disclosure of his secrets he would be less likely to seek treatment and without psychiatric help these patients would be more likely to act on their own their fantasies so i do think the public policy as expressed both in the common law and by the general assembly favors what was the status quo so to speak practically poet court's decision in this case a very very strong policy in favor of keeping pla the court my name is chris mann trying to represent the state of teresa street and her children dalton and dylan st the question presented to the port in this in the instant case whether mental health care provider after identifying an imminent and probable threat of harm to a specific party has a duty to act or the discretion to allow a third party to be injured or killed with civil immunity it's defend its position that even if a therapist is completely certain that a mental health patient suppose they did yes that there could be situations in which there are adverse interest to off the top of my head for the purpose of voluntary undertaking i can't think of a situation where anyone or court has dealt with that as far as the special relationship rulin that the special relationship will doesn't apply in those situations just not really do we have to agree with your transferred negligence theory to find is the one and i think this was defining the voluntary undertaking doctrine one who undertakes through to is loosely or for consideration to render services to another is subject to liability for bodily harm caused to the other by one's failure to exercise due care in the performance of the undertaking yes justice freiman and opposing counsel regarding the two six fifteen nature of the allegations as i understand the allegations in your complain that's why i asked my question with respect to transfer ignite negligence absent any of those allegations and you know obviously of supporting facts down the line doesn't a voluntary undertaking claim fails with regard to and this is an important distinction that this court brought up in in the heart of the train the special relation the rental type special relationship rule only applies to it to claims of transferred negligence it doesn't apply claims of direct negligence and under section three twenty four a of the restatement defendant's oh teresa street directly a duty of care to protect her now is section three twenty four a of the restatement reads that  that a duty arises when one undertakes when one person undertakes to perform services for another which would be person to which are necessary for the protection of person three and this this court will take i one person to which is necessary for the protection of a person three that that case was a fire case in which this company was hired to put fire protection systems within one of one of within the defendants from one of the parties buildings and because they did that negligently the third party was injured do we have to overrule them the definition of said to me it doesn't sound like that needs to be over ruled certainly not under section three twenty four a the person number one can provide support services to person number two which creates the duty to protect i'm well at what i what i what i did allege is that they they provided services to richard which were necessary for the protection of teresa now this as a court brought up th s six one nine the court can consider outside evidence in making its determination and a motion to dismiss can only be granted if both if there are no facts that can be pleaded which would give rise to  kill the school principal well would there would that would that still be an out voluntary undertaking you wrote that unfair to separate super two separate duty certainly under the voluntary undertaking as long as there is a specific identifiable party that fulfills of the first foreseeability requirement under under the restatement but of the you know as as other courts certainly noted there must be specific identifiable threats of harm to specific individuals so as long as a person is named then then that person can be should be protected so this it be pretty far r those in a special relationship which is limited to the scope of the family now i'm under section three twenty four a as long as the person knows that there's a specific identifiable third party that should be protected and that extends to them  have addressed this i know that pennsylvania and new york have applied section three twenty four a medical providers as far as section three twenty four a under illinois law certainly pippen did not apply to somebody to to a party that was previously known that was a security case in which a person in a housing project was injured and because he had a housing authority  contracted with a security agency they had the duty to protect people within that building so that this conforms with what this court has previously held with regard to the duty to protect plaintiff's claim the defendants are liable under theory of transfer of negligence and that due to the special relationship between richard and and his wife teresa the duty owed the duty defendant owed to richard transfer to his wife protection of the family unit that the reason for this was the protection of the family as a unit upon which our society is found it relying upon this court's decision and runs willing to me the first district the second district and the  repeatedly held that the marital that the marital contract was one that gives rise to derivative actions for transfer negligence also i would like to briefly address section one ten eleven this course holds that the rules of the stack short constructional prior valuating the statute as a will be mindful of the legislature's intent in applying t relationship that's correct a number of the first second and fifth districts have held that that the that the marital relationship that the relationship between husband and wife services demonstrate that there was a long rest recognized that a wrong done to one person may invade the protected rights of one who is intimately related to the first in these cases because of the nature of the lation ship between the parties harmed a law is recognized wording of the nine hundred seventy seven case runs low is that in dual vs mckay or nine hundred ninety eight case as i indicated earlier they talked about the unique nature and men's and it is just  monstrably different from the relationship that exists between a parent and an adult child so i i don't i'm not going to argue with you on surely we're going to take a look at the case law but you're not saying that this court has defended definitively whole held based on the facts of any case the transfer of negligence applies in those other relations no no that's correct and in the book that you  protect an individual who's been threatened by patient work where therapist patient privilege exists this is the subject subsection does not foreclose the possibility of  mandatory other mandatory disclosure requirements as is sown by subsection i which provides that records may be disclosed in accordance with provisions of the used and neglected child reporting act which is an act that mandates disclosure furthermore defense reading of the statutes and position with regard to the statute brings causes absolute and unjust results it is defense position that after a mental health care professional determines that disclosure is necessary to prevent quote and this is from the statute the standard that is necessary a clear imminent risk of serious physical or mental injury or disease or death that the statute gives mental health health care professionals the ability to play god and to decide whether the targeted victim lives or dies this is an absolute result that is contrary to the purpose of the statute rossley imposing a duty in this case is not something that would be overly burdensome or will open the floodgates to rampant liability on june sixth two thousand and three all the fence needed to do to save three streets life was to call the police fill out a petition and certificate and show up at a hearing within five days this is part of defend his job as mental health care providers also in a position of duty in this case would not create massive new liability liability based upon a rense those types such relationship as i've mentioned is limited to the scope of the family moreover first the foreseeability limits the duty under section three twenty four a of the restatement to identifiable victims of probable harm by recognizing defendant studio under transferred negligence not report even though he believes his patient is dangerous i don't know the so the legislature must take that into account when it when it's said that  physician who undertakes to treat a patient can voluntarily undertake to provide services to another is going to conflict with the interests of his