California Civil Jury Instructions (CACI) (2017)

503A. Psychotherapist’s Duty to Protect Intended Victim From Patient’s Threat

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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; Revised June 2013
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 communicated to the therapist a threat 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 Communication of Threat to Victim and Law
Enforcement, if the therapist asserts that he or she is immune from liability under
Civil Code section 43.92(b) because he or she made reasonable efforts to
communicate the threat to the victim and to a law enforcement agency.
In a wrongful death case, insert the name of the decedent victim where applicable.
Sources and Authority
• Limited Psychotherapist Immunity. Civil Code section 43.92(a).
“[T]herapists cannot escape liability merely because [the victim] was not their
patient. When a therapist determines, or pursuant to the standards of his
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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].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1050, 1051
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and
Mental Disabilities: Judicial Commitment, Health Services and Civil Rights,
§ 361A.93 (Matthew Bender)
11 California Points and Authorities, Ch. 154, Mental Health and Mental
Disabilities, § 154.30 (Matthew Bender)
CACI No. 503A MEDICAL NEGLIGENCE
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