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Russell Yates argues that his wife fell through the health care system cracks. But is the system legally accountable? Let’s review some information. On March 18, 37-year-old Andrea Pia Yates was sentenced to life in prison for drowning three of her five children. With the conclusion of the trial and the end of the gag order, Russell Yates again voiced his criticisms of the medical community — specifically the mental health system in Texas. From his initial tearful front yard interview with the media just hours after her arrest, made prior to the entry of a gag order by the trial court, to his recent appearance on “Larry King Live,” he blames the health care system for the deaths of his children and the incarceration of his wife. He claims the system failed to protect his five children from his wife, who was suffering from postpartum psychosis, by failing to timely diagnose, intervene and treat her condition. In December 2001, on CBS’ “60 Minutes,” Russell Yates expressed frustration with the Devereaux Texas Treatment Network and Andrea Yates’ doctor for allegedly discharging her too soon. In particular, he criticized his wife’s psychiatrist for allegedly taking her off anti-psychotic medication two weeks before the murders and for allegedly failing to hospitalize her two days before the killings. After the sentencing, Russell Yates claimed Andrea Yates was a victim of the failures of the medical community and reiterated his belief that the medical community failed to fulfill its responsibility to diagnose her postpartum psychosis and protect his small children. It has been reported that Russell Yates, when asked what he could have done differently, stated he would have taken his wife to a different doctor and a different hospital. Now comes the blame game. Almost nightly, we are subjected to network and cable commentators who speculate on potential causes of action Russell Yates can assert against his wife’s health care providers. But for the sake of this article, let’s focus on medical malpractice. To win a suit against health care providers, Russell Yates would have to prove a duty, a breach of duty and damages. Does he have a viable claim? The landmark California Supreme Court case Tarasoff v. Regents of University of California set the standard 25 years ago for a health care provider’s duty to warn third parties of a patient’s psychiatric problems. According to the opinion, a University of California student named Prosenjit Poddar was seeing a psychologist at the university’s student health center because a young woman named Tatiana Tarasoff had spurned his affections, according to the opinion. The psychologist, Dr. Lawrence Moore, reasoning that Poddar was dangerous because of his pathological attachment to Tarasoff and because he intended to purchase a gun, notified the police verbally and in writing. The police questioned Poddar and found him to be rational; they made Poddar promise to stay away from Tarasoff. Two months later, however, Poddar killed Tarasoff. After her death, Tarasoff’s parents filed suit. The California Supreme Court held in Tarasoff that a health care provider owes a duty to warn when a patient makes a specific threat to an identifiable victim. So the questions are these: Did Andrea Yates disclose a threat to kill her children? And, if so, was the threat so specific as to give rise to a duty to warn? The answers may not matter. The Texas Supreme Court has uniformly declined to extend the duty to warn first enunciated in Tarasoff. In Thapar v. Zezulka (1999), the court expressly rejected the Tarasoff duty when given the opportunity to create a new cause of action in Texas. According to Thapar, Henry Zezulka was murdered by his stepson, Freddy Ray Lilly, who was a patient of the defendant psychiatrist, Dr. Renu K. Thapar. Thapar treated Lilly for posttraumatic stress disorder, paranoia and delusions. He was hospitalized under Thapar’s care multiple times, and was treated with anti-psychotic medication and psychotherapy on an outpatient basis, the opinion said. During his final inpatient stay, the stepson told Thapar that he wanted to kill Henry Zezulka, according to the opinion. Thapar did not notify Henry Zezulka’s family that Lilly had been discharged. One month after his release from the hospital, Lilly killed his stepfather. Lyndall Zezulka, the patient’s mother, sued Thapar for the death of her husband, alleging Thapar was negligent in failing to warn Henry Zezulka or the police of his stepson’s threats, and in improperly diagnosing and treating the stepson and releasing him prematurely from the hospital. Texas’ 80th District Court rendered summary judgment for Thapar. The state’s 1st Court of Appeals reversed and remanded. The court of appeals rejected Thapar’s argument that Zezulka had consented to the summary judgment and therefore, could not appeal it. The 1st Court of Appeals, citing Tarasoff, held that because Thapar allegedly knew of a specific threat to a specific identifiable person, she could owe a duty to that person despite the absence of the traditional physician-patient relationship. The Texas Supreme Court held that the wife could not recover from the psychiatrist for negligent diagnosis or treatment, absent any doctor-patient relationship between the wife and the psychiatrist that would give rise to such a duty. The court also held that the psychiatrist had no common-law or statutory duty to warn the victim or victim’s family of the patient’s threat and was prohibited by the confidentiality statute from disclosing the threat. UNANSWERED QUESTIONS As a matter of public policy, should confidentiality concerns outweigh the risk of harm to innocent children? Is patient confidentiality a legal fiction when discussing health care between a husband and wife? If Andrea Yates was refused the hospital stay, where is the liability? If the Yates family was a member of a health plan, would the plan be liable for the children’s death because the plan imposed financial disincentives on Andrea Yates’ doctor that discouraged him from recommending her for an extended hospital stay or additional treatment? Will a plan or HMO be liable for the conduct of the physician? The Texas Health Care Liability Act provides that entities may be held liable for substandard health care treatment decisions made by their employees, agents or representatives. Those questions will have to be answered if a suit is filed. Whether Russell Yates pursues traditional claims of medical malpractice or entity liability based on quality of care provided by a plan, he will likely encounter Employee Retirement Income Securities Act pre-emption hurdles. While little is known regarding what disclosures may have been made to Russell Yates, the Texas Supreme Court could be asked to reconsider its holding in Thapar and whether it will impose upon Texas health care providers the Tarasoff duty to warn. We’ll have to wait and see. Yvonne K. Puig is a partner in the Austin, Texas, office of Akin, Gump, Strauss, Hauer & Feld. She specializes in health care liability, including managed care.

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