503. Psychotherapist's Duty to Warn - Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] was negligent because [he/she] did not warn [name of plaintiff] or a law enforcement agency about [name of third party]'s threat of violent behavior. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] was a psychotherapist;

2. That [name of third party] was [name of defendant]'s patient;

3. That [name of third party] communicated a serious threat of physical violence to [name of defendant];

4. That [name of defendant] knew or should have known that [name of plaintiff] was [name of third party]'s intended victim; and

5. That [name of defendant] did not make reasonable efforts to warn [name of plaintiff] and a law enforcement agency about the threat.

Sources and Authority

Civil Code section 43.92 provides: (a) There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code 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.

(b) 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.

Civil Code section 43.92 was enacted to limit the liability of psychotherapists under Tarasoff v. Regents of the University of California (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14, 551 P.2d 334], regarding a therapist's duty to warn an intended victim. (Barry v. Turek (1990) 218 Cal.App.3d 1241, 1244-1245 [267 Cal.Rptr. 553].) Under this provision, "[p]sychotherapists thus have immunity from Tarasoff claims except where the plaintiff proves that the patient has communicated to his or her psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims." (Id. at p. 1245.)

Failure to inform a law enforcement agency concerning a homicidal threat made by a patient against his work supervisor did not abrogate the "firefighter's rule" and, therefore, did not render the psychiatrist liable to a police officer who was subsequently shot by the patient. (Tilley v. Schulte (1999) 70 Cal.App.4th 79, 85-86 [82 Cal.Rptr.2d 497].)

Secondary Sources

26 California Forms of Pleading and Practice, Ch. 304, Insane and Other Incompetent Persons (Matthew Bender)

11 California Points and Authorities, Ch. 117, Insane and Incompetent Persons (Matthew Bender)

(New September 2003)