Special Relation Between Psychotherapist and Third Person-Outpatient
In considering the establishment of a duty based upon a special relation, the court discussed 2 Restatement of the Law 2d on Torts, and began with the premise, "that there is no duty to act affirmatively for another's aid or protection absent some 'special relation' which justifies the imposition of a duty."
See: Morgan, 77 Ohio St. 3d at 293, 673 N.E.2d at 1319, citing 2 Restatement of the Law 2d, Torts (1965) 116-130, Sections 314-319; Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St. 3d 86, 92, 529 N.E.2d 449, 455; Hill v. Sonitrol of Southwestern Ohio, Inc. (1988), 36 Ohio St. 3d 36, 39, 521 N.E.2d 780, 783; and Gelbman v. Second Natl. Bank of Warren (1984), 9 Ohio St. 3d 77, 79, 9 Ohio B. Rep. 280, 282, 458 N.E.2d 1262, 1263.
By recognizing a special relation existed between the defendant-psychotherapist and the third person-outpatient, the court in Morgan resolved the very narrow issue of "'whether a psychiatrist's duty to protect a person from the violent propensities of the psychiatrist's patient extends to the outpatient setting.'" (Citation omitted.) Morgan, 77 Ohio St. 3d at 292, 673 N.E.2d at 1318.
In addition, though, the court also recognized that a special relation may exist between the defendant and a person who is not the outpatient.
In reaching these conclusions, the court not only discussed foreseeability and the existence of a special relation, but also discussed public policy and the broader concepts of duty.
Similarly, in Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St. 3d 435, 628 N.E.2d 46, the Ohio Supreme Court discussed the evolving and contemporary role of hospitals in today's society. In considering the role of hospitals in light of public policy, the court stated:
"As an industry, hospitals spend enormous amounts of money advertising in an effort to compete with each other for the health care dollar, thereby inducing the public to rely on them in their time of medical need.
The public, in looking to the hospital to provide such care, is unaware of and unconcerned with the technical complexities and nuances surrounding the contractual and employment arrangements between the hospital and the various medical personnel operating therein. Indeed, often the very nature of a medical emergency precludes choice.
Public policy dictates that the public has every right to assume and expect that the hospital is the medical provider it purports to be." Id., 68 Ohio St. 3d at 444, 628 N.E.2d at 53.
The above public policy concerns have direct bearing upon the issue of whether a legal duty exists. Indeed, in Morgan, the court likewise stated:
"Duty is not an immutable concept, nor is it grounded in natural law. As Prosser & Keeton explains, 'the statement that there is or is not a duty begs the essential question whether the plaintiff's interests are entitled to legal protection against the defendant's conduct.
"Duty" is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.' Prosser & Keeton on Torts, supra, at 357-358, Section 53.
Thus, '"duty" is only a word with which we state our conclusion, and no more.' Id. at 281, Section 43." Id., 77 Ohio St. 3d at 297-298, 673 N.E.2d at 1322.