Judicial Notebook

For nearly three decades, the Tarasoff rule has been controversial among mental health professionals. This rule, which has spread to many states, originated in the California Supreme Court's decision in Tarasoff v. Regents of the University of California (17 Cal.3d 425 [1976]). In Tarasoff, a patient told his psychotherapist that he intended to kill an unnamed but readily identifiable woman. Subsequently, the patient killed the woman. Her parents then sued the psychotherapist for failing to warn them or their daughter about the danger. The California Supreme Court rejected the psychotherapist's claim that he owed no duty to the woman because she was not his patient, holding that if a therapist determines or reasonably should have determined "that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger."

In 1985, the California legislature codified the Tarasoff rule: California law now provides that a psychotherapist has a duty to protect or warn a third party only if the therapist actually believed or predicted that the patient posed a serious risk of inflicting serious bodily injury upon a reasonably identifiable victim.

While the legislature clearly narrowed the applicability of the Tarasoff rule, recently the rule was expanded by a California appeals court in two lawsuits stemming from a murder-suicide.

Family-reported threats

Geno Colello was in psychotherapy with Dr. David Goldstein and was despondent over the breakup of his long-standing relationship with Diana Williams, who had recently begun dating Keith Ewing. On June 21, 2001, Colello asked his father to loan him a gun. When his father refused, Colello said he would get another gun and "kill" the "kid" who was then dating Williams. Colello's father relayed this threat to Goldstein, who urged him to take Colello to Northridge Hospital Medical Center. Later that evening a hospital social worker evaluated Colello. Colello's father told the evaluator about his son's threat. Colello was admitted to the hospital as a voluntary patient but discharged the next day. The following day he shot and killed Ewing and then himself.

Ewing's parents sued Goldstein and the hospital, alleging that Colello posed a foreseeable danger to their son and that both Goldstein and the hospital were aware of the threat but failed to discharge their duty to warn either Ewing or a law enforcement agency.

At trial, Goldstein claimed he was not liable for failure to warn because Colello had never directly disclosed to him any intention to seriously harm Ewing. The hospital claimed that expert testimony was required to prove a psychotherapist's liability for failure to warn and noted that the plaintiffs had no plans to present such testimony. The trial judge agreed with both arguments and granted summary judgment to the defendants.

On appeal, in Ewing v. Goldstein (120 Cal. App. 4th 807 [2004]) and Ewing v. Northridge Hospital Medical Center (120 Cal. App. 4th 1289 [2004]), the California Court of Appeal held that the plaintiffs had a right to take their claims to trial. Specifically, the court held that the defendants' duty to warn could have been triggered by the statements Collelo's father made to Goldstein and the social worker regarding his son's threats. The court saw no difference between threats conveyed directly by the patient and those related by an immediate family member of the patient.

The appeals court also concluded that no expert testimony was required because the issue was not whether the defendants violated a professional standard of care but whether they "actually believed or predicted" that Colello posed a serious risk of inflicting grave bodily injury upon an identifiable victim--an issue that could be decided by a lay jury based upon "common knowledge."

Tarasoff extended

Though the court's decisions in these two cases are interpretations of a specific California statute, they extend the reach of Tarasoff in that state, further erode psychotherapeutic confidentiality, and may well influence future judicial interpretation of the doctrine in other states as well. Thus, psychotherapists everywhere need to give careful thought to handling threats reportedly made by a patient but revealed to them by a relative of the patient. Indeed, while the California court did not reach the issue of threats reported by other third parties because that issue was not presented on the facts, the court did not rule out future extension of the Tarasoff doctrine to cover such cases as well.

Mental health professionals should also be concerned by the Ewing court's conclusion that in some cases, such as this one, jurors may rely solely upon "common knowledge" to determine whether a psychotherapist actually believed or predicted that a patient posed a serious risk to an identifiable victim. The court concluded that, on the facts of this case, reaching such a conclusion was not beyond the ken of lay jurors. But, as the court also observed, it is possible to "conceive of circumstances involving an alleged breach of a psychotherapist's duty to warn in which expert guidance may be useful." The court added, "[W]e are not presented with and express no view on the issue of whether expert testimony is permissible in such a case." Where the line is drawn between those cases in which expert testimony is necessary and those where it is not remains an open and troubling question.

Judicial Notebook is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).