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Diagnoses and predictions about the danger of violence presented by a patient must be rendered under accepted rules of professional responsibility, and that in so doing therapists must exercise the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the profession. Diagnosis of psychological problems and emotional and mental disorders is a professional service for which a psychologist is licensed, and a negligent failure in this regard is therefore "professional negligence" as that term is defined in Cal. Civ. Proc. Code § 340.5. This diagnosis and prediction is an essential element of a cause of action for failure to warn. It is the basis upon which the duty to the third party victim is found. A negligent failure to diagnose dangerousness is as much a basis for liability as is a negligent failure to warn a known victim once such diagnosis has been made. The decision to warn and the manner in which the warning is given may also involve professional judgment.
Two psychologists petitioned the Supreme Court for a writ of mandate after the trial court overruled their demurrer to two counts of a complaint by a woman and her minor son. The action arose when the woman was shot by defendants' patient in April 1979. The child, who was seated beside his mother at the time, allegedly suffered emotional injuries as a result of witnessing the attack. The complaint, which was filed in November 1980, alleged that defendants negligently failed to warn the woman of threats against her by their patient and that the duty of care owed to the woman extended to her minor child. Defendants asserted that the woman's claim was barred by the one-year statute of limitations for personal injury actions (Code Civ. Proc., § 340, subd. (3), and that the child's claim failed to state a cause of action.
The Supreme Court denied the petition for a writ of mandate. The Court held that a therapist's negligent failure to comply with the duty to warn a potential victim of a threat by a patient constituted professional negligence within the meaning of Code Civ. Proc., § 340.5 (three-year statute of limitations for personal injury actions against health care providers based on professional negligence), since therapists were unquestionably health care providers, and since a failure to warn a third person of a danger posed by a patient was an omission to act in the rendering of professional services for which the provider was licensed. The duty to diagnose or recognize a danger posed by a patient and the duty to take appropriate steps to protect a potential victim were not separate or severable, but together constituted the duty giving rise to a cause of action based on a failure to warn. Thus, the Court held that the woman's action was not time barred. The Court also held that the duty defendants owed to the woman extended to her minor child, since the risk of harm to him was foreseeable as a matter of law and since he was identifiable as a person who might be injured if the patient attacked the woman. The Court held that it was foreseeable that when a therapist negligently failed to warn a mother of a patient's threat of injury to her, and she was injured as a proximate result, that her young child will not be far distant and may be injured, or, upon witnessing the incident, may suffer emotional trauma. Thus, in alleging his age and relationship to the woman, and defendants' negligent failure to diagnose and/or warn her of the danger posed by their patient, the court held that the child stated a cause of action.