California Civil Jury Instructions (CACI)
503A. Psychotherapist’s Duty to Protect Intended Victim From Patient’s Threat
[Name of plaintiff] claims that [name of defendant]’s failure to protect [name of plaintiff/decedent] was a substantial factor in causing [injury to [name of plaintiff]/the death of [name of decedent]]. 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 patient] was [name of defendant]’s patient;
3. That [name of patient] communicated to [name of defendant] a serious threat of physical violence;
4. That [name of plaintiff/decedent] was a reasonably identifiable victim of [name of patient]’s threat;
5. That [name of patient] [injured [name of plaintiff]/killed [name of decedent]];
6. That [name of defendant] failed to make reasonable efforts to protect [name of plaintiff/decedent]; and
7. That [name of defendant]’s failure was a substantial factor in causing [[name of plaintiff]’s injury/the death of [name of decedent]].
Derived from former CACI No. 503 April 2007
Directions for Use
Read this instruction for a Tarasoff cause of action for professional negligence against a psychotherapist for failure to protect a victim from a patient’s act of violence after the patient made a threat to the therapist against the victim. (See Tarasoff v. Regents of Univ. of Cal. (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14, 551 P.2d 334].) The liability imposed by Tarasoff is modified by the provisions of Civil Code section 43.92(a). First read CACI No. 503B, Affırmative Defense—Psychotherapist’s Warning to Victim and Law Enforcement, if the therapist asserts that he or she is immune from liability under Civil Code section 43.92(b) by having made reasonable efforts to warn the victim and a law enforcement agency of the threat.
In a wrongful death case, insert the name of the decedent victim where applicable.
Sources and Authority
- Civil Code section 43.92(a) provides:
“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.”
- “[T]herapists cannot escape liability merely because [the victim] was not their patient. When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.” (Tarasoff, supra, 17 Cal.3d at p. 431.)
- Civil Code section 43.92 was enacted to limit the liability of psychotherapists under Tarasoff 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.” (Barry, supra, 218 Cal.App.3d at p. 1245.)
- “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.” (Ewing v. Goldstein (2004) 120 Cal.App.4th 807, 817 [15 Cal.Rptr.3d 864].)
- “Section 43.92 strikes a reasonable balance in that it does not compel the therapist to predict the dangerousness of a patient. Instead, it requires the therapist to attempt to protect a victim under limited circumstances, even though the therapist’s disclosure of a patient confidence will potentially disrupt or destroy the patient’s trust in the therapist. However, the requirement is imposed upon the therapist only after he or she determines that the patient has made a credible threat of serious physical violence against a person.” (Calderon v. Glick (2005) 131 Cal.App.4th 224, 231 [31 Cal.Rptr.3d 707].)
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1050, 1051
26 California Forms of Pleading and Practice, Ch. 304, Insane and Other Incompetent Persons, § 304.93 (Matthew Bender)
11 California Points and Authorities, Ch. 117, Insane and Incompetent Persons: Actions Involving Mental Patients, § 117.30 (Matthew Bender)