Monday, July 19, 2004
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C.A.: Statement Made to Therapist by Patient’s Relative Can Give Rise to Duty to Warn of Attack
By DAVID WATSON, Staff Writer
A statement to a therapist by a patient’s relative that the patient plans to harm someone can give rise to a duty to warn the victim, this district’s Court of Appeal ruled Friday.
Writing for Div. Eight, Justice Paul Boland said Los Angeles Superior Court Judge Frances Rothschild adopted too narrow a view of Civil Code Sec. 43.92 in granting therapist David Goldstein’s motion for summary judgment. The section immunizes therapists from damage claims for harm done by their clients “except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.”
Goldstein’s client, former Los Angeles Police Department Officer Geno Colello, killed Keith Ewing a day after being released from Northridge Hospital Medical Center. Colello had been depressed about his breakup with his former girlfriend, Diana Williams, and about Williams’ new relationship with Ewing.
After killing Ewing, Colello committed suicide. Ewing’s parents sued Goldstein for negligence, claiming Goldstein should have warned Ewing after he learned Colello had threatened to harm their son.
Rothschild accepted Goldstein’s argument that the Sec. 43.92 exception was inapplicable, since the therapist learned of the threats from Colello’s father, not from Colello. But Boland disagreed.
“Read literally,” the justice conceded, “section 43.92 would preclude the imposition of liability if information about the patient’s violent intentions, regardless of the credibility of the information, was received by a therapist from any source other than the patient. The trial court construed the statute in that manner. However, the rule of reason and a review of the circumstances which lead to the enactment of section 43.92 militate strongly against such a restrictive interpretation.”
Boland noted that the law was passed in the wake of the California Supreme Court’s decisions in Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 and Hedlund v. Superior Court (1983) 34 Cal.3d 695 in an attempt to limit the potential liability imposed on therapists by those rulings. It attempts to strike a “reasonable balance” between the patient’s interest in confidentiality and the need for public protection, he said.
“When the communication of the serious threat of physical violence is received by the therapist from a member of the patient’s immediate family and is shared for the purpose of facilitating and furthering the patient’s treatment, the fact that the family member is not technically a ‘patient’ is not crucial to the statute’s purpose,” Boland declared.
Colello’s father told Goldstein about the threats the same evening they were made. Goldstein arranged for Colello to receive psychiatric care at the Northridge facility, but did not take steps to ascertain Ewing’s identity and warn him.
The Northridge doctors discharged Colello the next day over Goldstein’s objections.
Boland pointed out that the communication of the threats by Colello’s father came within the patient-psychotherapist privilege under Evidence Code Sec. 1014, since it was “functionally related to the diagnosis and treatment of the patient,” but would have been subject to disclosure under Evidence Code Sec. 1024. The Evidence Code privilege provisions and Civil Code Sec. 43.92 “should be accorded complimentary interpretations, if at all possible,” he explained.
“We discern no principled reason why equally important information in the form of an actual threat that a parent shares with his or her son’s therapist about the risk of grave bodily injury the patient poses to another also should not be considered a ‘patient communication’ in determining whether the therapist’s duty to warn is triggered under section 43.92,” the justice wrote.
Boland noted that it remained to be determined at trial whether, based on his experience and his past treatment of Colello, Goldstein should have treated the threats as serious.
Edmund Willcox Clarke, Jr. of Stark Rasak & Clarke in Torrance represented Ewing’s parents on appeal, while Christopher J. Zopatti of Callahan, McCune & Willis in Tustin represented Goldstein.
The case is Ewing v. Goldstein, B163112.
Copyright 2004, Metropolitan News Company