## Facts

- Dr. Michael Milano, a licensed, board-certified psychiatrist, treated Lee Morgenstein (age 15) for slightly more than two years before July 8, 1975.
- During treatment, Morgenstein discussed intense feelings toward his neighbor, Kimberly McIntosh (age 20).
- Morgenstein disclosed information suggesting escalating fixation and hostility, including a claimed sexual relationship with Kimberly, fantasies involving knives, firing a BB gun through a car window linked to Kimberly’s dating, and wishing Kimberly “would suffer.”
- On July 8, 1975, Morgenstein murdered Kimberly.
- Kimberly’s estate brought a wrongful-death action alleging Milano knew or should have known Morgenstein posed a serious danger to Kimberly and failed to take protective measures, including warning Kimberly or her parents.
- Milano moved for summary judgment, arguing he owed no legal duty to Kimberly, a nonpatient.

## Issues

1. Whether a psychiatrist owes a duty to take reasonable steps to protect a specifically identifiable third person when the psychiatrist determines, or should determine, the patient presents a probability of harm to that person.
2. Whether the duty question and alleged breach could be resolved as a matter of law on summary judgment.

## Decision

- The court denied the psychiatrist’s motion for summary judgment.
- The court held that a psychiatrist may owe a duty to take reasonable steps to protect an identifiable or specifically foreseeable victim when the psychiatrist determines, or reasonably should determine, that the patient presents a probability of harm to that victim.
- The court concluded that breach, causation, and what reasonable protective steps were required depended on disputed facts and expert proof, making jury resolution appropriate.

## Legal Principles

- A “special relationship” between therapist and patient can support a duty of reasonable care extending to an identifiable third party when harm to that person is sufficiently foreseeable.
- The relevant trigger is not certainty, but a professional determination (actual or imputed) that the patient presents a probability of harm to an identifiable or readily foreseeable victim.
- Psychotherapist-patient confidentiality is significant but not absolute; it may yield when disclosure is reasonably necessary to protect an identifiable person or the public from serious threatened harm.
- The duty is framed as taking “reasonable steps” under the circumstances, which may include warning the potential victim or others, notifying authorities, arranging hospitalization, or other protective measures; the appropriate response is fact-dependent.
- Summary judgment is improper where the existence and scope of the duty, compliance with professional standards, and causation turn on contested factual inferences and expert evidence.

## Conclusion

The court recognized that New Jersey negligence principles can impose on a psychiatrist a duty to take reasonable protective measures for an identifiable third party when the psychiatrist knows or should know the patient poses a probability of harm, and it allowed the wrongful-death claim to proceed because the alleged breach and causation required fact-finding.


McIntosh v. Milano, 403 A.2d 500 (N.J. Super. Ct. Law Div. 1979)