Ewing

SUMMARY

As a general rule, a mental health practitioner has no duty to warn third persons about, nor any duty to predict, a patient’s dangerous propensities. This rule is subject to an important exception: when a patient has “communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim,” the psychotherapist must take reasonable steps to warn the victim and a law enforcement agency of the threat. (Civ. Code, § 43.92, subds. (a), (b) (section 43.92).)

In this action, the parents of a victim killed by a mental patient sued for wrongful death the mental health facility in which the patient was briefly hospitalized. The parents allege a psychotherapist employed by the hospital was aware the patient had threatened to kill their son, but failed to take steps to warn him and a law enforcement agency of the risk of harm posed by the threat.

The trial court granted the hospital’s motion for nonsuit after the parents’ opening statement. It found: (1) expert evidence is required to establish the exception to immunity codified at section 43.92, and the parents failed to designate an expert, and (2) because the threat of risk…