Ewing v. Goldstein
Letter in Support of Petition for Review filed 9/04
Court: California Supreme Court
Year of Decision: 2004
Read the letter of petition for review (PDF, 111KB)
This case seeks review of a decision that extends California's duty to warn statute from communications from the patient to the therapist to include communications about the patient from a third party
Duty to Warn/Protect
In this case, the patient did not tell his therapist of intent to harm himself and a former girlfriend's new boyfriend but did communicate this to his father. The father in turn told the therapist of his conversation and the therapist encouraged the father to have his son hospitalized. The inpatient psychiatrist discharged the patient over the therapist's objection by telephone and the patient then killed the boyfriend and himself. (The therapist did not see the patient after the father called and never was advised by the patient of his intent to harm the victim.) The parents of the victim sued the therapist for failure to warn. The therapist moved for summary judgment on the basis of the Cali. duty to warn statute, which immunizes psychotherapists from liability for any failure to warn of or to 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” (California Civil Code 43.92). The therapist argued he could not be liable for failing to alert the police and the intended victim to danger posed by his patient because the patient had never directly disclosed to him a threat. The trial court granted the motion and dismissed the case because the communication was not from the patient and therefore was immunized under the statute.
The Court of Appeal reversed the trial court's decision stating that the trial court too narrowly construed the duty to warn statute and further stating that a communication from a family member to a therapist made for the purpose of advancing a patient's therapy, is a "patient communication" within the meaning of the statute.
APA joined with the California Psychological Association to submit a letter in support of a petition for review and depublication of the appellant decision. The letter addressed the increased liability and the probable undermining of effective psychotherapy represented by the appellate decision. The letter advised that APA and CPA would provide detailed support for the position that the decision, if left standing, will have dramatic adverse effects on the practice of psychotherapy in California. Specifically, it was noted that exposing therapists to risks when a third party reports that a client has made a serious threat of harm to others unreasonably broadens the extent to which therapists may be subjected to liability for failing to protect those who are subsequently harmed by their patients, and, at the same time, removes or at least diminishes the professional judgment of the therapist in assessing through communication with the patient whether the risk is indeed "serious."
The key factors addressed by APA and CPA's decision to support petition for review include: 1) the importance of confidentiality and trust in the psychotherapeutic relationship (and the chilling effect on willingness to seek therapy if patients believe that confidences may be violated); 2) exceptions to the rule of confidentiality are, by necessity narrow and definitive (involving the careful balancing of the public interest in maintaining the confidentiality of patient communications to their therapists against the public interest in safety from violent assault, where the psychotherapist has a reasonable professional basis to conclude that the client is a threat to a specific person); and 3) the adverse effects of the Court of Appeal's decision (e.g., undermine existing therapeutic relationships, deter potentially dangerous individuals from seeking treatment, prevent full disclosure of patients' thoughts, imposition of a duty to warn based on a patient threat reported by a third party will necessarily result in over assessment of dangerousness since many more threats are made than are acted upon and the psychologist has no other means to protect against legal liability).
The California Supreme Court denied the petition for review.