Court Expands “Patient Communication” for Duty to Warn

For nearly 30 years, psychotherapists have been duty-bound under California law to warn law enforcement officials and intended victims when the health care provider learns of a patient’s threat to harm another.

When the duty was first articulated by the California Supreme Court in 1976 in Tarasoff v. Regents of University of California, the psychotherapist remained liable, even after contacting the police, because he did not warn the actual intended victim, who was killed by a patient after campus police released him. The California Legislature later passed a law, Civil Code Section 43.92, to codify the Tarasoff case and to address some questions about “predicting” violent conduct.

Section 43.92 states: “There shall be no monetary liability on the part of, and no cause of action shall arise against . . . a psychotherapist . . . in failing to warn of and protect from a patient’s threatened violent behavior or failing to predict and warn of and protect from a patient’s violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.”

The law goes on to say: “If there is a duty to warn and protect under the limited circumstances specified above, the duty shall be discharged by the psychotherapist making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency.”

A recent Court of Appeal opinion has now expanded this duty by broadly construing what the statute means by a patient’s “communication.”

In Cal Ewing v. David Goldstein, Ph.D., the Second District Court of Appeal held that a psychotherapist must stand trial for failing to warn an intended victim after the patient’s father told the therapist of his son’s dinner-table comments about harming the new boyfriend of the patient’s ex-girlfriend. Specifically the father told the marriage and family therapist that his son told him he couldn’t handle the fact that the ex-girlfriend was going with someone else and said he “was considering causing harm to the young man that [the ex-girlfriend] was seeing.” The therapist told the father to take the patient, a former police officer whom the therapist had been treating for four years, to the hospital. There, he was voluntarily admitted under the care of a psychiatrist.

When the therapist learned that the psychiatrist planned to discharge the patient, he contacted the psychiatrist and explained why the patient should remain hospitalized. The psychiatrist disagreed and discharged the patient. Two days later, the patient murdered the new boyfriend and committed suicide.

The Court of Appeal, in an opinion issued July 16, rejected the therapist’s argument (in a motion for summary judgment) that because the “patient himself” had not communicated the threat to the therapist, he had no duty to warn under the law. Instead, the Court of Appeal said that “a communication from a patient’s family member to the patient’s therapist, made for the purpose of advancing the patient’s therapy, is a ‘patient communication’ within the meaning of Section 43.92.”

In holding that the father’s comments to the therapist about the threat had the same legal significance as the patient’s own communication, the Court of Appeal analogized Section 43.92 to the California Evidence Code, which protects relevant communications to a psychotherapist by others: “A mental illness or an emotional problem does not exist in a vacuum. In order to effectively treat a patient, a therapist must often explore the contextual aspects of a patient’s mental illness or emotional problem associated with or impacted by his or her life history, current circumstances, and personal or familial relationships.”

The Court of Appeal said that the information given to the therapist was not “necessarily sufficient to trigger his duty to warn.” Instead, the Court said such a question should be decided by a jury, not a judge.

The Ewing case has caused a stir among lawyers in the medical field and could still be appealed to the California Supreme Court, resulting in a different interpretation of Section 43.92. Should the Supreme Court decide to hear this issue anew, we will report that development in this space.

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Gordon Ownby is general counsel at CAP-MPT.Comments on Case of the Month should be directed to gownby@cap-mpt.com