In Canterbury v. Spence, 464 F.2d 772 (D.D.C. 1972), one of the issues was a physician’s duty to disclose risks associated with surgery

| March 13, 2016

Question 1
In Canterbury v. Spence, 464 F.2d 772 (D.D.C. 1972), one of the issues was a physician’s duty to disclose risks associated with surgery. The Court found that a jury should have had the opportunity to decide whether the physician accused of negligence had a duty to disclose a risk of which there was only 1% risk. What do you think of the Court’s ruling? At what threshold of risk do you think a physician should have to disclose the risk to a patient? How does this/should this duty of disclosure affect hospital policy? What implications does a physician’s duty of disclosure have for health care administrators?

Question 2
In Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976)View in a new window. What precedent (prior case law authority) did the Court rely on in coming to its decision? Is the reporting requirement established in this case akin to the abuse reporting requirements discussed last week? How or how not? How is the duty to warn in tension with the duty of confidentiality? Can you think of a better way to lessen the tension?
17 Cal.3d 425 (1976)
551 P.2d 334
131 Cal. Rptr. 14

VITALY TARASOFF et al., Plaintiffs and Appellants,
Docket No. S.F. 23042.
Supreme Court of California.
July 1, 1976.
429*429 COUNSEL
George Alexander McKray for Plaintiffs and Appellants.
Robert E. Cartwright, Floyd A. Demanes, William H. Lally, Edward I. Pollock, Leonard Sacks, Stephen
I. Zetterberg, Sanford M. Gage, Robert O. Angle and Melanie Bellah as Amici Curiae on behalf of
Plaintiffs and Appellants.
Ericksen, Ericksen, Lynch, Mackenroth & Arbuthnot, Ericksen, Ericksen, Lynch & Mackenroth,
Ericksen, Ericksen, Lynch, Young & Mackenroth, 430*430 William R. Morton, Richard G. Logan,
Hanna, Brophy, MacLean, McAleer & Jensen, Hanna & Brophy and James V. Burchell for Defendants
and Respondents.
Evelle J. Younger, Attorney General, James E. Sabine, Assistant Attorney General, John M. Morrison
and Thomas K. McGuire, Deputy Attorneys General, John H. Larson, County Counsel (Los Angeles),
Daniel D. Mikesell, Jr., Deputy County Counsel, Richard J. Moore, County Counsel (Alameda),
Charles L. Harrington, Deputy County Counsel, Musick, Peeler & Garrett, James E. Ludlam, Severson,
Werson, Berke & Melchior, Kurt W. Melchior, Nicholas S. Freud and Jan. T. Chilton as Amici Curiae
on behalf of Defendants and Respondents.
On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff.[1] Plaintiffs, Tatiana’s parents, allege
that two months earlier Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a
psychologist employed by the Cowell Memorial Hospital at the University of California at Berkeley.
They allege that on Moore’s request, the campus police briefly detained Poddar, but released him when
he appeared rational. They further claim that Dr. Harvey Powelson, Moore’s superior, then directed that
no further action be taken to detain Poddar. No one warned plaintiffs of Tatiana’s peril.
Concluding that these facts set forth causes of action against neither therapists and policemen involved,

nor against the Regents of the University of California as their employer, the superior court sustained
defendants’ demurrers to plaintiffs’ second amended complaints without leave to amend. [2] This appeal
431*431 Plaintiffs’ complaints predicate liability on two grounds: defendants’ failure to warn plaintiffs
of the impending danger and their failure to bring about Poddar’s confinement pursuant to the
Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 ff.) Defendants, in turn, assert that they owed
no duty of reasonable care to Tatiana and that they are immune from suit under the California Tort
Claims Act of 1963 (Gov. Code, § 810 ff.).
We shall explain that defendant therapists cannot escape liability merely because Tatiana herself was
not their patient. (1) When a therapist determines, or pursuant to the standards of his 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.
In the case at bar, plaintiffs admit that defendant therapists notified the police, but argue on appeal that
the therapists failed to exercise reasonable care to protect Tatiana in that they did not confine Poddar
and did not warn Tatiana or others likely to apprise her of the danger. Defendant therapists, however,
are public employees. Consequently, to the extent that plaintiffs seek to predicate liability upon the
therapists’ failure to bring about Poddar’s confinement, the therapists can claim immunity under
Government Code section 856. No specific statutory provision, however, shields them from liability
based upon failure to warn Tatiana or others likely to apprise her of the danger, and Government Code
section 820.2 does not protect such failure as an exercise of discretion.
Plaintiffs therefore can amend their complaints to allege that, regardless of the therapists’ unsuccessful
attempt to confine Poddar, since they knew that Poddar was at large and dangerous, their failure to
warn Tatiana or others likely to apprise her of the danger constituted a breach of the therapists’ duty to
exercise reasonable care to protect Tatiana.
Plaintiffs, however, plead no relationship between Poddar and the police defendants which would
impose upon them any duty to Tatiana, and plaintiffs suggest no other basis for such a duty. Plaintiffs
have, 432*432 therefore, failed to show that the trial court erred in sustaining the demurrer of the
police defendants without leave to amend.

1. Plaintiffs’ complaints
Plaintiffs, Tatiana’s mother and father, filed separate but virtually identical second amended complaints.
The issue before us on this appeal is whether those complaints now state, or can be amended to state,
causes of action against defendants. We therefore begin by setting forth the pertinent allegations of the
Plaintiffs’ first cause of action, entitled “Failure to Detain a Dangerous Patient,” alleges that on August
20, 1969, Poddar was a voluntary outpatient receiving therapy at Cowell Memorial Hospital. Poddar
informed Moore, his therapist, that he was going to kill an unnamed girl, readily identifiable as Tatiana,

when she returned home from spending the summer in Brazil. Moore, with the concurrence of Dr.
Gold, who had initially examined Poddar, and Dr. Yandell, assistant to the director of the department of
psychiatry, decided that Poddar should be committed for observation in a mental hospital. Moore orally
notified Officers Atkinson and Teel of the campus police that he would request commitment. He then
sent a letter to Police Chief William Beall requesting the assistance of the police department in securing
Poddar’s confinement.
Officers Atkinson, Brownrigg, and Halleran took Poddar into custody, but, satisfied that Poddar was
rational, released him on his promise to stay away from Tatiana. Powelson, director of the department
of psychiatry at Cowell Memorial Hospital, then asked the police to return Moore’s letter, directed that
all copies of the letter and notes that Moore had taken as therapist be destroyed, and “ordered no action
to place Prosenjit Poddar in 72-hour treatment and evaluation facility.”
433*433 Plaintiffs’ second cause of action, entitled “Failure to Warn On a Dangerous Patient,”
incorporates the allegations of the first cause of action, but adds the assertion that defendants
negligently permitted Poddar to be released from police custody without “notifying the parents of
Tatiana Tarasoff that their daughter was in grave danger from Posenjit Poddar.” Poddar persuaded
Tatiana’s brother to share an apartment with him near Tatiana’s residence; shortly after her return from
Brazil, Poddar went to her residence and killed her.
Plaintiffs’ third cause of action, entitled “Abandonment of a Dangerous Patient,” seeks $10,000 punitive
damages against defendant Powelson. Incorporating the crucial allegations of the first cause of action,
plaintiffs charge that Powelson “did the things herein alleged with intent to abandon a dangerous
patient, and said acts were done maliciously and oppressively.”
Plaintiffs’ fourth cause of action, for “Breach of Primary Duty to Patient and the Public,” states
essentially the same allegations as the first cause of action, but seeks to characterize defendants’
conduct as a breach of duty to safeguard their patient and the public. Since such conclusory labels add
nothing to the factual allegations of the complaint, the first and fourth causes of action are legally
As we explain in part 4 of this opinion, plaintiffs’ first and fourth causes of action, which seek to
predicate liability upon the defendants’ failure to bring about Poddar’s confinement, are barred by
governmental immunity. Plaintiffs’ third cause of action succumbs to the decisions precluding
exemplary damages in a wrongful death action. (See part 6 of this opinion.) We direct our attention,
therefore, to the issue of whether plaintiffs’ second cause of action can be amended to state a basis for

2. (2a) Plaintiffs can state a cause of action against defendant
therapists for negligent failure to protect Tatiana.
The second cause of action can be amended to allege that Tatiana’s death proximately resulted from
defendants’ negligent failure to warn Tatiana or others likely to apprise her of her danger. Plaintiffs
contend that as amended, such allegations of negligence and proximate causation, with resulting
damages, establish a cause of action. Defendants, however, contend that in the circumstances of the
present case they owed no duty of care to Tatiana or her parents and that, in the absence of such
434*434 duty, they were free to act in careless disregard of Tatiana’s life and safety.

In analyzing this issue, we bear in mind that legal duties are not discoverable facts of nature, but merely
conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.
As stated in Dillon v. Legg (1968) 68 Cal.2d 728, 734 [69 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R.3d
1316]: “The assertion that liability must … be denied because defendant bears no `duty’ to plaintiff
`begs the essential question whether the plaintiff’s interests are entitled to legal protection against
the defendant’s conduct…. [Duty] is not sacrosanct in itself, but only an expression of the sum total of
those considerations of policy which lead the law to say that the particular plaintiff is entitled to
protection.’ (Prosser, Law of Torts [3d ed. 1964] at pp. 332-333.)”
In the landmark case of Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal. Rptr. 97, 443 P.2d 561, 32
A.L.R.3d 496], Justice Peters recognized that liability should be imposed “for injury occasioned to
another by his want of ordinary care or skill” as expressed in section 1714 of the Civil Code. (3) Thus,
Justice Peters, quoting from Heaven v. Pender (1883) 11 Q.B.D. 503, 509 stated: “`whenever one
person is by circumstances placed in such a position with regard to another … that if he did not use
ordinary care and skill in his own conduct … he would cause danger of injury to the person or property
of the other, a duty arises to use ordinary care and skill to avoid such danger.'”
We depart from “this fundamental principle” only upon the “balancing of a number of considerations”;
major ones “are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff
suffered injury, the closeness of the connection between the defendant’s conduct and the injury
suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the
extent of the burden to the defendant and consequences to the community of imposing a duty to
exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance
for the risk involved.”[4]
The most important of these considerations in establishing duty is foreseeability. (4) As a general
principle, a “defendant owes a duty of 435*435 care to all persons who are foreseeably endangered by
his conduct, with respect to all risks which make the conduct unreasonably dangerous.” (Rodriguez v.
Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399 [115 Cal. Rptr. 765, 525 P.2d 669]; Dillon v. Legg,
supra, 68 Cal.2d 728, 739; Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40 [123 Cal. Rptr. 468, 539
P.2d 36]; see Civ. Code, § 1714.) As we shall explain, however, when the avoidance of foreseeable
harm requires a defendant to control the conduct of another person, or to warn of such conduct, the
common law has traditionally imposed liability only if the defendant bears some special relationship to
the dangerous person or to the potential victim. Since the relationship between a therapist and his
patient satisfies this requirement, we need not here decide whether foreseeability alone is sufficient to
create a duty to exercise reasonable care to protect a potential victim of another’s conduct.
(5) Although, as we have stated above, under the common law, as a general rule, one person owed no
duty to control the conduct of another[5] (Richards v. Stanley (1954) 43 Cal.2d 60, 65 [271 P.2d 23];
Wright v. Arcade School Dist. (1964) 230 Cal. App.2d 272, 277 [40 Cal. Rptr. 812]; Rest.2d Torts
(1965) § 315), nor to warn those endangered by such conduct (Rest.2d Torts, supra, § 314, com. c.;
Prosser, Law of Torts (4th ed. 1971) § 56, p. 341), the courts have carved out an exception to this rule
in cases in which the defendant stands in some special relationship to either the person whose conduct
needs to be controlled or in a relationship to the foreseeable victim of that conduct (see Rest.2d Torts,
supra, §§ 315-320). Applying this exception to the present case, we note that a relationship of
defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in
section 315 of the Restatement Second of Torts, a duty of care may arise from either “(a) a special
relation … between the actor and the third person which imposes a duty upon the actor to control the

third person’s conduct, or (b) a special relation … between the actor and the other which gives to the
other a right of protection.”
436*436 (2b) Although plaintiffs’ pleadings assert no special relation between Tatiana and defendant
therapists, they establish as between Poddar and defendant therapists the special relation that arises
between a patient and his doctor or psychotherapist.[6] Such a relationship may support affirmative
duties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable care to
control the behavior of a patient which may endanger other persons.[7] A doctor must also warn a
patient if the patient’s condition or medication renders certain conduct, such as driving a car, dangerous
to others.[8]
Although the California decisions that recognize this duty have involved cases in which the defendant
stood in a special relationship both to the victim and to the person whose conduct created the danger,[9]
we do not think that the duty should logically be constricted to such situations. Decisions of other
jurisdictions hold that the single relationship of a doctor to his patient is sufficient to support the duty to
exercise reasonable care to protect others against dangers emanating from the patient’s illness. The
courts hold that a doctor is liable to persons 437*437 infected by his patient if he negligently fails to
diagnose a contagious disease (Hofmann v. Blackmon (Fla.App. 1970) 241 So.2d 752), or, having
diagnosed the illness, fails to warn members of the patient’s family (Wojcik v. Aluminum Co. of
America (1959) 18 Misc.2d 740 [183 N.Y.S.2d 351, 357-358]; Davis v. Rodman (1921) 147 Ark. 385
[227 S.W. 612, 13 A.L.R. 1459]; Skillings v. Allen (1919) 143 Minn. 323 [173 N.W. 663, 5 A.L.R. 922];
see also Jones v. Stanko (1928) 118 Ohio St. 147 [6 Ohio L.Abs. 77, 160 N.E. 456]).
Since it involved a dangerous mental patient, the decision in Merchants Nat. Bank & Trust Co. of
Fargo v. United States (D.N.D. 1967) 272 F. Supp. 409 comes closer to the issue. The Veterans
Administration arranged for the patient to work on a local farm, but did not inform the farmer of the
man’s background. The farmer consequently permitted the patient to come and go freely during
nonworking hours; the patient borrowed a car, drove to his wife’s residence and killed her.
Notwithstanding the lack of any “special relationship” between the Veterans Administration and the
wife, the court found the Veterans Administration liable for the wrongful death of the wife.
In their summary of the relevant rulings Fleming and Maximov conclude that the “case law should
dispel any notion that to impose on the therapists a duty to take precautions for the safety of persons
threatened by a patient, where due care so requires, is in any way opposed to contemporary ground
rules on the duty relationship. On the contrary, there now seems to be sufficient authority to support the
conclusion that by entering into a doctor-patient relationship the therapist becomes sufficiently
involved to assume some responsibility for the safety, not only of the patient himself, but also of any
third person whom the doctor knows to be threatened by the patient.” (Fleming & Maximov, The
Patient or His Victim: The Therapist’s Dilemma (1974) 62 Cal.L.Rev. 1025, 1030.)
Defendants contend, however, that imposition of a duty to exercise reasonable care to protect third
persons is unworkable because therapists cannot accurately predict whether or not a patient will resort
to violence. In support of this argument amicus representing the American Psychiatric Association and
other professional societies cites numerous articles which indicate that therapists, in the present state of
the art, are unable reliably to predict violent acts; their forecasts, amicus claims, tend consistently to
overpredict violence, and indeed are more often wrong 438*438 than right.[10] Since predictions of
violence are often erroneous, amicus concludes, the courts should not render rulings that predicate the
liability of therapists upon the validity of such predictions.

The role of the psychiatrist, who is indeed a practitioner of medicine, and that of the psychologist who
performs an allied function, are like that of the physician who must conform to the standards of the
profession and who must often make diagnoses and predictions based upon such evaluations. Thus the
judgment of the therapist in diagnosing emotional disorders and in predicting whether a patient presents
a serious danger of violence is comparable to the judgment which doctors and professionals must
regularly render under accepted rules of responsibility.
We recognize the difficulty that a therapist encounters in attempting to forecast whether a patient
presents a serious danger of violence. Obviously, we do not require that the therapist, in making that
determination, render a perfect performance; the therapist need only exercise “that reasonable degree of
skill, knowledge, and care ordinarily possessed and exercised by members of [that professional
specialty] under similar circumstances.” (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [91 Cal.
Rptr. 760, 478 P.2d 480, 45 A.L.R.3d 717]; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154,
159-160 [41 Cal. Rptr. 577, 397 P.2d 161]; see 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, §
514 and cases cited.) Within the broad range of reasonable practice and treatment in which professional
opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without
liability; proof, aided by hindsight, that he or she judged wrongly is insufficient to establish negligence.
In the instant case, however, the pleadings do not raise any question as to failure of defendant therapists
to predict that Poddar presented a serious danger of violence. On the contrary, the present complaints
allege that defendant therapists did in fact predict that Poddar would kill, but were negligent in failing
to warn.
439*439 Amicus contends, however, that even when a therapist does in fact predict that a patient poses
a serious danger of violence to others, the therapist should be absolved of any responsibility for failing
to act to protect the potential victim. In our view, however, once a therapist does in fact determine, or
under applicable professional standards 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. While the discharge of this duty of due care will necessarily vary
with the facts of each case,[11] in each instance the adequacy of the therapist’s conduct must be
measured against the traditional negligence standard of the rendition of reasonable care under the
circumstances. (Accord Cobbs v. Grant (1972) 8 Cal.3d 229, 243 [104 Cal. Rptr. 505, 502 P.2d 1].) As
explained in Fleming and Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974) 62
Cal.L.Rev. 1025, 1067: “… the ultimate question of resolving the tension between the conflicting
interests of patient and potential victim is one of social policy, not professional expertise…. In sum, the
therapist owes a legal duty not only to his patient, but also to his patient’s would-be victim and is
subject in both respects to scrutiny by judge and jury.”
Contrary to the assertion of amicus, this conclusion is not inconsistent with our recent decision in
People v. Burnick, supra, 14 Cal.3d 306. Taking note of the uncertain character of therapeutic
prediction, we held in Burnick that a person cannot be committed as a mentally disordered sex offender
unless found to be such by proof beyond a reasonable doubt. (14 Cal.3d at p. 328.) The issue in the
present context, however, is not whether the patient should be incarcerated, but whether the therapist
should take any steps at all to protect the threatened victim; some of the alternatives open to the
therapist, such as warning the victim, will not result in the drastic consequences of depriving the patient
of his liberty. Weighing the uncertain and conjectural character of the alleged damage done the patient
by such a warning against the peril to the victim’s life, we conclude that professional inaccuracy in
predicting violence cannot negate the therapist’s duty to protect the threatened victim.

440*440 The risk that unnecessary warnings may be given is a reasonable price to pay for the lives of
possible victims that may be saved. We would hesitate to hold that the therapist who is aware that his
patient expects to attempt to assassinate the President of the United States would not be obligated to
warn the authorities because the therapist cannot predict with accuracy that his patient will commit the
Defendants further argue that free and open communication is essential to psychotherapy (see In re
Lifschutz (1970) 2 Cal.3d 415, 431-434 [85 Cal. Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1]); that “Unless
a patient … is assured that … information [revealed by him] can and will be held in utmost confidence,
he will be reluctant to make the full disclosure upon which diagnosis and treatment … depends.” (Sen.
Com. on Judiciary, comment on Evid. Code, § 1014.) The giving of a warning, defendants contend,
constitutes a breach of trust which entails the revelation of confidential communications. [12]
We recognize the public interest in supporting effective treatment of mental illness and in protecting the
rights of patients to privacy (see In re Lifschutz, supra, 2 Cal.3d at p. 432), and the consequent public
importance of safeguarding the confidential character of psychotherapeutic communication. Against
this interest, however, we must weigh the public interest in safety from violent assault. The Legislature
has undertaken the difficult task of balancing the countervailing concerns. In Evidence Code section
1014, it established a broad rule of privilege to protect confidential communications between patient
and psychotherapist. 441*441 In Evidence Code section 1024, the Legislature created a specific and
limited exception to the psychotherapist-patient privilege: “There is no privilege … if the
psychotherapist has reasonable cause to believe that the patient is in such mental or emotional
condition as to be dangerous to himself or to the person or property of another and that disclosure of
the communication is necessary to prevent the threatened danger.”[13]
We realize that the open and confidential character of psychotherapeutic dialogue encourages patients
to express threats of violence, few of which are ever executed. Certainly a therapist should not be
encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient’s
relationship with his therapist and with the persons threatened. To the contrary, the therapist’s
obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to
avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the
privacy of his patient to the fullest extent compatible with the prevention o…

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