Vol 22, 2013 Annals of Health Law 391
DUTY TO WARN OF THE RISK OF HIV/AIDS
such duty exists, failure to discharge its burden would expose a physician to
negligent liability. For most commentators,38 Tarasoff v. The Regents of the
University of California is the foundational case for the existence of a duty
to warn in the analogical context of HIV/AIDS.39 There, in the course of
treatment, a mental health patient confided to his psychotherapist his
intention to kill a woman who had rebuffed his advances.40 Acting upon a
report by the therapist, the campus police promptly detained the patient.41
The therapist did not inform the woman about the threat. Following his
release from detention, the patient murdered the woman.42 One of the
central questions the Supreme Court of California addressed was whether
the therapist had a duty to warn the deceased about the threat on her life.43
The court held that a therapist who knows or ought to know that “a patient
poses a serious danger of violence to others . . . bears a duty to exercise
reasonable care to protect the foreseeable victim of that danger,” and since
the therapist failed in this duty, he was liable to plaintiffs.44
The decision has been widely adopted in some American jurisdictions45
but explicitly rejected in others.46 As to whether the reasoning is applicable
in the context of HIV infection, there is no unanimity of opinion. Denying
its applicability, some scholars point out that in Tarasoff, a direct physical
violence against an identified individual was threatened, but such is not the
38. See Lawrence O. Gostin & James G. Hodge, Piercing the Veil of Secrecy in
HIV/AIDS and Other Sexually Transmitted Diseases: Theories of Privacy and Disclosure in
Partner Notification – Contact Tracing, the ‘Right to Know,’ and the ‘Duty to Warn’, 5
DUKE J. GENDER L. & POL’Y 41, 43 (1998); Carrie Gene Pottker-Fishel, Improper Bedside
Manner: Why State Partner Notification Laws are Ineffective in Controlling the
Proliferation of HIV, 17 HEALTH Matrix 158, 159 (2007); Christine E. Stenger, Taking
Tarasoff Where No One Has Gone Before: Looking at “Duty to Warn” under the AIDS
Crisis, 15 ST. LOUIS U. PUB. L. REV. 471, 480-2 (1996); Richard O’Dair, Liability in Tort for
the Transmission of A.I.D.S.: Some Lessons from Afar and the Prospects for the Future,
CURRENT LEGAL PROBLEMS 236, 236 (1990).
39. See generally Tarasoff v. The Regents of the Univ. of California, 551 P.2d 334 (Cal.
Sup. Ct. 1976). Compare with the Australian case of Harvey & 1 ors v. PD  NSWCA
97 (Austl.) (held that a doctor has a duty to prevent onward transmission of HIV/AIDS as
between two of his patients).
40. Id. at 341.
43. Id. at 342.
44. Id. at 345-6.
45. Turner v. Jordan, 957 S.W.2d 815, 819-21 (Tenn. 1997); People v. Sergio, 864
N. Y.S.2d 264, 266 (N.Y. Sup. Ct. 2008); Emerich v. Phila. Ctr. for Human Dev., 720 A.2d
1032, 1036-37 (Pa. 1998).
46. See Thapar v. Zezulka 994 S.W.2d 635, 638 (Tex. 1999) (holding that
confidentiality statute governing mental health professionals in Texas trumps Tarasoff–type
common law duty).