Expansion of Tarasoff ‘Duty to Warn’ headed to trial in California

By Susan Bowman
January 1, 2005



The California Supreme Court has declined to review a lower court decision that has the potential to expand greatly the state’s duty to warn law, widely known as the Tarasoff warning.

And the treasurer of the California Association of Psychology Providers (CAPP) is urging the California General Assembly to define better the duty to warn responsibilities for the state’s mental health professionals.

Steve Berger, Ph.D., is also urging the California Board of Psychology and the California Psychological Association to help clear up what he sees as confusion over an appeals court’s interpretation of the state’s duty to warn statute.

In Ewing v. Goldstein, the Second District Court of Appeals held that a trial court judge erred when it granted summary judgement to David Goldstein, Ph.D., who was told by a family member of one of his clients that the client had threatened to commit a violent act. The decision by the state’s highest court means the case now goes back to trial court for a determination if the threat communicated to Goldstein by his client’s father was sufficient to trigger the duty to warn.

Generally, under Tarasoff, a therapist is not held liable if he warns the police or the target of the threat.

Goldstein’s client, former Los Angeles Police Officer Geno Colello, killed Keith Ewing a day after being released from a psychiatric hospital. Colello had entered the hospital voluntarily, but left the next day over the objection of Goldstein. Colello had been depressed about his breakup with his former girlfriend and about her relationship with Ewing. Colello committed suicide after he killed Ewing.

The parents of the victim sued Goldstein alleging wrongful death based on professional negligence. The trial court granted summary judgment in favor of Goldstein, finding that he had no duty to warn the victim because Colello himself had not communicated the threat.

But the court of appeals reasoned that a communication between a patient’s family member and a therapist made in the course of diagnosing and treating the patient is patient communication within the meaning of the state law.

The court said that the duty to warn law “would preclude the imposition of liability if information about the patient’s violent intentions, regardless of the credibility of the information, was received by a therapist from any source other than the patient. The trial court construed the statute in that manner. However, the rule of reason and a review of the circumstances which led to the enactment (of the law) militate strongly against such a restrictive interpretation.”

Berger said the reasoning of the court is flawed and imposes a duty to warn that cannot be fulfilled. He said it was not within the standard of care, or competence, for therapists to determine that confidentiality and privilege are overridden by a duty to warn based on statements from family members.

He explained that there is no scientific evidence that an expert could draw on to document that the therapist violated the standard of care in assessing the communication from the family member.

“The overwhelming literature is that such a standard does not exist,” Berger said.

He called for the California Board of Psychology to issue a position statement clarifying that the standard of care enunciated by the appeals court does not exist.

Goldstein is a licensed marriage and family therapist in Los Angeles.

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