Ewing v. Northridge Hosp. Med. Ctr.

Filed 7/27/04

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

Plaintiffs and Appellants,

Defendant and Respondent.

B166525

(Los Angeles County
Super. Ct. No. BC267552)

CAL EWING, et al.,

NORTHRIDGE HOSPITAL MEDICAL
CENTER – ROSCOE BOULEVARD
CAMPUS,

APPEAL from a judgment of the Los Angeles County Superior Court.

Frances Rothschild, Judge. Reversed.

Fonda & Fraser, Sandra F. Winter and Kristen J. Heim, for Defendant and

Respondent.

Stark, Rasak & Clarke, Edmund W. Clarke, Jr., for Plaintiffs and Appellants.

________________________

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 Civil Code section 43.92, and the parents failed to designate an
expert, and (2) because the threat of risk posed by the patient was communicated to the
psychotherapist by the patient’s father, not by the patient himself, the parents could not
prevail. Both rulings were in error.

First, the pivotal inquiry under section 43.92 is whether the psychotherapist
actually believed or predicted that the patient posed a serious risk of inflicting grave
bodily injury upon a readily identifiable victim or victims. Factfinders require no expert
guidance to ascertain a psychotherapist’s actual belief or prediction. The mind-set of a
psychotherapist can be determined by resort to common knowledge without the aid of
expert testimony. Accordingly, the parents’ failure to designate an expert was not fatal to
their claim.

Second, when the communication of a serious threat of grave physical harm is
conveyed to the psychotherapist by a member of the patient’s family, and is shared for
the purpose of facilitating the patient’s evaluation or treatment, it is irrelevant that the
family member himself is not a patient of the psychotherapist. If a psychotherapist

actually believes or predicts a patient poses a serious risk of inflicting grave bodily injury
upon another, it is not material that the belief or prediction was premised, in some
measure, on information derived from a member of the patient’s family.
FACTUAL AND PROCEDURAL BACKGROUND
On this appeal from the grant of a motion for nonsuit “we shall, in accordance

with the settled rule in cases of nonsuit, disregard conflicts and consider the evidence
most favorable to the plaintiff.” (Lawless v. Calaway (1944) 24 Cal.2d 81, 85.)

Plaintiffs Cal and Janet Ewing (Ewings) are the parents and heirs of Keith Ewing
(Keith). Keith, who was 34 years-old at the time, was shot and killed on June 23, 2001,1
as he washed his car in the driveway of his home. The murderer, Geno Colello, then
turned the gun on himself and committed suicide. Colello had been involved in a
romantic relationship with Diana Williams for about 17 years. That relationship had
recently broken-up, and Williams had begun dating Keith. Colello, a Los Angeles Police
Department (LAPD) officer, had been in therapy for emotional problems for years. He
attributed his emotional instability to job-related injuries and, more recently, to his
increasing depression and despondency over his break-up with Williams – with whom he
wanted to reunite – and her new romantic relationship.

On June 21, Colello had dinner at his parents’ home. He told his father he “hurt
inside, and [didn’t] want to live anymore.” He asked his father to give him a gun so he
could shoot himself. When his father refused, Colello said the alternative was that he
would get a gun and go “kill [the] kid” with whom Williams was romantically involved,
“and then . . . kill [himself].” The father told his son to “buckle up” and not “take the
coward’s way out.” Colello punched his father in the face. He then asked his father to
take him to the hospital, saying he “need[ed] help.”

The father took Colello to respondent Northridge Hospital Medical Center –
Roscoe Boulevard Campus (erroneously sued as Northridge Hospital Medical Center,

1
Unless noted otherwise, all date references are to calendar year 2001.

and referred to hereafter as “hospital”). Colello and his father met with Art Capilla, a
licensed clinical social worker employed by the hospital. Capilla perceived Colello as
angry, upset and hostile. For his own safety, Capilla requested assistance from the
hospital’s security guards during the intake interview. The father told Capilla that, for the
first time in his life, Colello had punched him, and had threatened to “kill the young man
that Diana Williams was now seeing.” He told Capilla he believed his son was likely to
carry out his threat. Capilla denies having been told about the threat, either by Colello or
his father, but acknowledges he was told Colello struck his father in the face. Capilla
asked Colello if “he intended to kill . . . the new boyfriend.” The record does not reflect
Colello’s response.

Capilla believed Colello met the criteria under Welfare and Institutions Code
section 5150 for involuntary hospitalization. That statute permits certain professionals to
temporarily and involuntarily commit a person whom the professional believes presents a
danger to himself, herself or others, or is gravely disabled. However, because an
involuntary hospitalization would have had negative repercussions on Colello’s career as
an LAPD officer, Capilla persuaded Colello to voluntarily admit himself to the hospital.
If Colello had not agreed to do so, Capilla was prepared to have him involuntarily
admitted under the “danger to self” criterion. Capilla also knew that, if a patient
“communicated . . . a serious threat of physical violence against a reasonably identifiable
victim or victims,” he was legally required to make reasonable efforts to warn the
potential victim and a law enforcement agency of the threat. (§ 43.92, subds. (a), (b).)
Neither Capilla, nor any other hospital representative, made any such warning about
Colello.2

2
Although neither Capilla nor Colello’s father knew Keith’s name at the time, it is
undisputed Keith was “readily identifiable.”

Colello was voluntarily admitted to the hospital the evening of June 21.3 He was

discharged June 22. On June 23, Colello murdered Keith Ewing and then committed
suicide.

The Ewings filed this action in February 2002. The operative first amended
complaint alleges a single cause of action against the hospital and Colello’s treating
physicians for wrongful death based on professional negligence. The Ewings alleged
Colello posed a foreseeable danger to their son, and directly or indirectly through third
persons communicated to the hospital, namely, Capilla, and his doctors, his intention to
kill or cause grave bodily injury to Keith. They alleged the hospital and Colello’s doctors
failed to discharge their duty to warn their son and a law enforcement agency of the risk
of harm Colello posed to Keith’s safety.

Before trial, the hospital informed the trial court it intended to move for nonsuit
following the Ewings’ opening statement on two bases. First, the hospital argued expert
testimony was required to establish a psychotherapist’s liability for failure to warn under
section 43.92, and the Ewings had not designated an expert witness. Second, it
contended the Ewings could not satisfy the statutory exception to immunity under section
43.92, because they offered no evidence that a threat of harm was directly communicated
by Colello (the patient) to Capilla (the psychotherapist),4 and a direct communication is
necessary to trigger liability under the statute. The court agreed to hear an opening
statement before a jury was impaneled. The Ewings and the hospital each submitted
briefs on the issues raised by the hospital’s forthcoming motion.

3
Colello was admitted under the care of Dr. Gary Levinson, a staff psychiatrist.
Levinson was a defendant in this action, but is not involved in this appeal. Colello’s
parents, Victor and Anita Colello, are also defendants in this action but are not involved
in this appeal.
4
As a licensed clinical social worker, Capilla is considered a “psychotherapist.”
(Evid. Code, § 1010, subd. (c); § 43.92, subd. (a).)

After the Ewings presented their opening statement, the hospital’s motion for
nonsuit was argued and granted. The Ewings appealed.
DISCUSSION

Two issues are presented in this appeal. First, is a psychotherapist’s statutory duty
to warn triggered only if the communication of a serious threat of physical violence
comes directly from the patient? Second, is expert testimony required to establish
liability for a psychotherapist’s failure to warn under section 43.92? The answer to each
question is no.
1.
Standard of review.

A defendant is entitled to nonsuit after the plaintiff’s opening statement only if the
trial court determines that, as a matter of law, the evidence to be presented is insufficient
to permit a jury to find in the plaintiff’s favor. (Campbell v. General Motors Corp.
(1982) 32 Cal.3d 112, 117-118; Galanek v. Wismar (1999) 68 Cal.App.4th 1417, 1424.)
When determining whether the plaintiff’s evidence is sufficient, the court must accept as
true all favorable facts asserted in the plaintiff’s opening statement, indulge all legitimate
inferences from those facts, and disregard all conflicting evidence. (Hoff v. Vacaville
Unified School Dist. (1998) 19 Cal.4th 925, 930.) We independently review the ruling on
a motion for nonsuit, guided by the same rules that govern the trial court. (Carson v.
Facilities Development Co. (1984) 36 Cal.3d 830, 839; Saunders v. Taylor (1996)
42 Cal.App.4th 1538, 1541-1542.) We will not sustain the judgment “ ‘ “unless
interpreting the evidence most favorably to plaintiff’s case and most strongly against the
defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a
judgment for the defendant is required as a matter of law.” ’ [Citations.]” (Nally v.
Grace Community Church (1988) 47 Cal.3d 278, 291.)

Communication of the threat of physical violence need not come directly
2.
from the patient to the psychotherapist.

The hospital contends, and the trial court agreed, that a psychotherapist’s statutory
duty to warn is triggered only if the communication of a serious threat of physical

violence comes directly from the psychotherapist’s patient. The hospital insists it cannot
be liable for failure to warn under section 43.92, because the alleged threat of physical
violence by Colello was conveyed to Capilla not by Colello himself, but by his father
when he brought Colello to the hospital. We rejected an equivalent contention in a
previously published opinion in a related appeal in this action, in which the Ewings sued
Colello’s long-term psychotherapist. (See Ewing v. Goldstein (July 20, 2004, B163112)
__ Cal.App.4th ___ [04 D.A.R. 8707, 8709-8710] (Ewing I).) For the reasons articulated
in Ewing I, we do so again. When, the communication of a serious threat of grave bodily
injury is conveyed to the psychotherapist by a member of the patient’s immediate family,
and is shared for the purpose of facilitating and furthering the patient’s treatment, the fact
that the family member is not a patient of the psychotherapist is not material. If a
therapist actually believes or predicts a patient poses a risk of inflicting serious physical
harm upon a reasonably identifiable person, the therapist must take steps to warn the
potential victim and a law enforcement agency. The pivotal factual question is whether
the psychotherapist actually held the belief or made the prediction. If so, it does not
matter that the belief or prediction was premised, in some measure, on information
derived from a member of the patient’s family.

Accordingly, the trial court erred in refusing, as a matter of law, to consider
information relayed by Colello’s father to Capilla in determining whether the Ewings’
opening statement presented sufficient evidence to survive the hospital’s motion for
nonsuit.

The trial court’s grant of nonsuit was improper because a plaintiff need not
3.
present expert evidence to establish a psychotherapist’s liability for failure to

warn under Civil Code section 43.92.

The question is whether the presentation of expert testimony is a necessary
prerequisite to establishing a psychotherapist’s liability for failure to warn a third person
of a patient’s violent propensities under section 43.92. For reasons discussed below, we
conclude it is not.

A psychotherapist could be found liable at common law for
a.

failing to predict a patient’s dangerous behavior if other mental

health practitioners, adhering to standards of the profession,

would have predicted such behavior.

Our discussion begins with the expansive holding in the Supreme Court’s

landmark decision, Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425,
in which a psychotherapist’s legal duty to warn was first articulated.
Before Tarasoff, the generally accepted rule in California had long been that,

under common law, a person had no duty to control another person’s conduct, nor any
duty to warn others potentially endangered by that conduct. (Richards v. Stanley (1954)
43 Cal.2d 60, 65; Rest.2d Torts (1965) §§ 315, 314, com. c.) As with most rules,
exceptions existed. An exception was carved out by the judiciary “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.” (Tarasoff,
supra, 17 Cal.3d at p. 435, citing Rest.2d Torts, supra, §§ 315-320.) In Tarasoff, the
Supreme Court recognized and broadly defined the exception as it relates to the special
relationship between psychotherapists, their potentially dangerous patients, and their
patients’ intended victims.
In Tarasoff, a patient confided to his psychotherapist his intent to kill an unnamed

but readily identifiable girl upon her return from Brazil. The therapist notified police and
requested the patient’s involuntary commitment for observation in a mental hospital.
The police released the patient after they were satisfied that he appeared rational and
promised to stay away from the girl. Despite his appearance and promise, the patient
killed the girl. Her parents sued the therapist for wrongful death for failure to warn them
or their daughter about the danger his patient presented. (Tarasoff, supra, 17 Cal.3d at
pp. 432-433.) The Supreme Court narrowly rejected the therapist’s contention that he
owed no duty to the girl because she was not his patient. The majority held “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.”
(Id. at pp. 431, 439.)

Justice Mosk agreed a viable claim for violation of the duty to warn was stated in
Tarasoff, because the therapist had in fact predicted his patient’s violence. (Tarasoff,
17 Cal.3d at p. 451 (conc. & dis. opn. of Mosk, J.).) However, in a sharply critical
dissent, he took issue with “the majority’s rule that a therapist may be held liable for
failing to predict his patient’s tendency to violence if other practitioners, pursuant to the
‘standards of the profession,’ would have done so.” (Ibid.) Justice Mosk pointed to the
arguments of multiple amici and an “impressive body of literature” which, in his view,
demonstrated amply that “psychiatric predictions of violence are inherently unreliable.”
(Id. at p. 451.) “ ‘It must be conceded that psychiatrists still experience considerable
difficulty in confidently and accurately diagnosing mental illness. Yet those difficulties
are multiplied manyfold when psychiatrists venture from diagnosis to prognosis and
undertake to predict the consequences of such illness . . . . “ ‘Predictions of dangerous
behavior, no matter who makes them, are incredibly inaccurate, and there is a growing
consensus that psychiatrists are not uniquely qualified to predict dangerous behavior and
are, in fact, less accurate in their predictions than other professionals.’ ” (Murel v.
Baltimore City Criminal Court (1972) . . . 407 U.S. 355, 364-365, fn. 2 . . . (Douglas, J.,
dissenting from dismissal of certiorari.).)’ ” (Tarasoff, 17 Cal.3d at pp. 451-452
(conc. & dis. opn of Mosk, J.), quoting People v. Burnick (1975) 14 Cal.3d 306, 325-326,
emphasis in original.) Mosk argued the majority’s rule should be restructured “to
eliminate all reference to conformity to standards of the profession in predicting violence.
If a psychiatrist does in fact predict violence, then a duty to warn arises.” (Id. at p. 452.)
By expanding the rule to create a duty to warn not just where a psychotherapist actually
predicted a patient’s violence, but also where other practitioners adhering to the standard
of the mental health profession, would have done so, Justice Mosk feared the Court had
taken mental health professionals “from the world of reality into the wonderland of
clairvoyance.” (Ibid.)

The issue of a psychotherapist’s liability for failure to warn arose again several
years later in Hedlund v. Superior Court (1983) 34 Cal.3d 695. In Hedlund, the young
child of a woman shot by a therapist’s patient sued for emotional injuries suffered after
the therapist failed to warn of a known threat against his mother. The child, who
witnessed the shooting, asserted the therapist owed him a duty on the theory it was
foreseeable he would be injured if the patient carried out his threats against the child’s
mother. (Id. at p. 705.) Four justices of the Supreme Court agreed. The majority held
that a therapist’s duty to diagnose dangerousness and warn potential victims of a patient’s
threatened violence extends not just to the intended victim, but also “to persons in close
relationship to the object of a patient’s threat. . . .” (Id. at p. 706.) Three justices,
however, disagreed. The dissenting opinion, authored by Justice Mosk, took issue with
the majority’s “unfortunate[] perpetuat[ion of] the myth that psychiatrists and
psychologists inherently possess powers of clairvoyance to predict violence.”
(Id. at p. 707 (dis. opn. of Mosk, J.).) Once again, although the case at hand involved
allegations the therapist was actually aware the patient intended to assault the child’s
mother, the majority went much further and found, as in Tarasoff, that a therapist could
also be liable if, according to the “standards of the profession,” he should have known of
the threatened violence. (Id. at pp. 707-710 (dis. opn. of Mosk, J.).) Pointing again to the
professional literature, Justice Mosk noted “[i]t has been almost universally recognized
that the state of the art has not reached a pinnacle at which forecasts of future violence
can be made with unerring accuracy. Thus no standard of predictability has developed
against which professional conduct can be measured.” (Id. at pp. 709-710, fn. omitted.)
As presaged by Justice Mosk, Tarasoff and its progeny generated significant

confusion and consternation among mental health professionals in two significant
respects. First, a therapist’s liability was now premised upon the ability to predict
potential dangerousness in patients according to the “standards of the profession.”

Second, the duty to report impacted the very nature of the confidential relationship
between therapist and patient.5

Predicting a patient’s dangerous propensities according to the standards of the
profession presents four serious problems. First, it is almost universally agreed among
mental health professionals themselves, that therapists are poor predictors of future
violent behavior. (See Rosenhan, et al., Warning Third Parties: The Ripple Effects of
Tarasoff (1993) 24 Pac. L.J., 1165, 1185-1186, and authorities cited at fn. 134.) Second,
fear of liability may cause therapists to err on the side of overpredicting dangerousness,
eliciting unnecessary warnings or even causing them to avoid treating potentially
dangerous patients altogether. (Id. at p. 1187, and fns. 141-150.) Third, imposing upon a
therapist a duty to report may cause the therapist single-mindedly to focus on a patient’s
“dangerousness,” at the expense of treating his other mental health needs. (Id. at p. 1188,
and fns. 151-52.) Fourth, the rule holds psychotherapists to an ill-defined community
standard. Tarasoff imposes on the therapist the duty to protect a potential victim if the
therapist decides, or should have decided, the patient is potentially dangerous.

5
In a separate dissent in Tarasoff, Justice Clark pointed out the potentially
devastating effects of that decision on the dynamics of the patient-therapist relationship.
Legal and medical experts had long “agreed that confidentiality is essential to effectively
treat the mentally ill, and that imposing a duty on doctors to disclose patient threats to
potential victims would greatly impair treatment.” (Tarasoff, 17 Cal.3d at pp. 452, 458
(dis. opn. of Clark, J.).) The therapist’s assurance of confidentiality is important for three
reasons. First, without a guarantee of confidentiality, people afraid of the societal stigma
of mental illness will be deterred from seeking help. (Id. at pp. 458-459.) Second, once
treatment begins, complete candidness is necessary for effective psychological
counseling. Without an assurance of confidentiality, the patient’s conscious or
unconscious inhibitions might deter the patient from expressing his innermost thoughts.
(Id. at p. 459.) Third, even if a patient is not deterred from full disclosure, the potential
revelation of confidential information to outside parties will hinder the patient’s ability
fully to trust the therapist, and trust is a fundamental component of effective
psychotherapy. (Id. at pp. 459-460.) Mental health professionals found these
ramifications from Tarasoff as deleterious as their newly expanded liability.
(See Rosenhan, et al., Warning Third Parties: The Ripple Effects of Tarasoff (1993)
24 Pac. L.J., 1165, pp. 1189-1192, and authorities cited at fns. 166-174.)

“Determining whether the therapist should have diagnosed the patient as dangerous is
problematic because the standard depends upon agreement in the mental health
community. If psychotherapists as a group can only weakly and imprecisely predict
future dangerousness, then there can be no criteria against which to judge the therapists’
actions. . . . [¶] . . . [V]iolent behavior is a relatively rare event, and rare events are by
their nature difficult to predict.” (Id. at p. 1189, and fns. 153-156.)
b.
Civil Code section 43.92 was enacted to limit psychotherapist

liability for failure to warn to instances in which the therapist

actually believed or predicted a patient posed a serious risk of

inflicting grave bodily injury.

Assembly Bill 1133 was introduced in response to the concerns expressed in the
Tarasoff and Hedlund dissents. The resulting statutory provision, Civil Code section
43.92, was expressly not intended to overrule Tarasoff and its progeny, “but rather to
limit the psychotherapists’ liability for failure to warn to those circumstances where the
patient has communicated an ‘actual threat of violence against an identified victim[,]’ ”
and to “ ‘abolish the expansive rulings of Tarasoff and Hedlund . . . that a therapist can be
held liable for the mere failure to predict and warn of potential violence by his patient.’ ”
(Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1133 (1985 Reg. Sess.) May 14,
1985, p. 2.) In a press release issued upon the bill’s introduction, its author pronounced
that the bill’s “ ‘principal effect will be to abolish the expansive rulings of Tarasoff and
Hedlund to the effect that a therapist can be held liable for the mere failure to predict and
warn of potential violence by his patient. Such extremely broad and open-ended liability
is premised upon a degree of confidence in the predictive ability of psychologists and
psychiatrists that is simply unjustified in light of our best scientific and common sense
knowledge.’ ” (Assembly member Alister McAlister, 18th Dist., (March 5, 1985) Press
release on A.B. 1133, p. 6.)

In its codified form, section 43.92 provides:

“(a) There shall be no monetary liability on the part of, and no cause of action
shall arise against, any . . . psychotherapist . . . in failing to warn of and protect from a

patient’s threatened violent behavior or failing to predict and warn of and protect from a
patient’s violent behavior except where the patient has communicated to the
psychotherapist a serious threat of physical violence against a reasonably identifiable
victim or victims.”

“(b)
If there is a duty to warn and protect under the limited circumstances
specified above, the duty shall be discharged by the psychotherapist making reasonable
efforts to communicate the threat to the victim or victims and to a law enforcement
agency.”

In enacting section 43.92, the Legislature clearly took to heart Justice Mosk’s
admonition and severely narrowed the rule in Tarasoff to eliminate “all reference to
conformity to standards of the profession in predicting violence.” (Tarasoff, 17 Cal.3d at
p. 452 (conc. & dis. opn. of Mosk, J.).) Today, a psychotherapist may be held liable for
failing to warn a third party of a threat of harm only if the plaintiff is able to persuade the
trier of fact the psychotherapist actually believed or predicted the patient posed a serious
risk of inflicting grave bodily injury upon a reasonably identifiable victim or victims.
(§ 43.92. subds. (a), (b).)

Jurors require no expert guidance to ascertain a psychotherapist’s
actual belief or prediction.

A psychotherapist may be held liable for failure to warn under section 43.92 only
if the jury is persuaded the therapist actually believed or predicted his or her patient
posed a serious risk of inflicting grave bodily injury upon an identifiable victim. Applied
here, this rule means simply that, because there is no need for expert guidance on the
“standard of care” for psychotherapists’ statutory duty to warn, the court erred when it
found, as a matter of law, that plaintiffs could not establish their claim without presenting
expert testimony. If resort to expertise is unnecessary, so is the expert. (Lawless, supra,
24 Cal.2d at p. 86; Zavala v. Board of Trustees of the Leland Stanford, Jr. University
(1993) 16 Cal.App.4th 1755, 1764.) Under section 43.92, liability is not premised on a

breach of the standard of care.6 Instead, it rests entirely on the factfinder’s determination
that each factual predicate is satisfied: the existence of a psychotherapist-patient
relationship; the psychotherapist’s actual belief or prediction that the patient poses a
serious risk of inflicting grave bodily injury; a reasonably identifiable victim; and the
failure to undertake reasonable efforts to warn the victim and a law enforcement agency.
(See BAJI No. 6.00.2 (July 2004 ed.); CACI No. 503 (July 2004 ed.).)

The hospital insists expert evidence is necessary because the Ewings chose to
bring and have consistently prosecuted this case as one for professional, not simple,
negligence. The hospital is mistaken.

As a rule, expert testimony is required to establish a health care practitioner’s
failure to exercise the requisite degree of learning, care or skill so as to satisfy the
necessary standard of care. (Lawless, supra, 24 Cal.2d at p. 86.) However, in the rare
circumstance in which “negligence on the part of a doctor is demonstrated by facts which
can be evaluated by resort to common knowledge, expert testimony is not required since
scientific enlightenment is not essential for the determination of an obvious fact.” (Ibid.;
Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 141.) In cases
where a layperson “ ‘is able to say as a matter of common knowledge and observation
that the consequences of professional treatment were not such as ordinarily would have
followed if due care had been exercised[,]’ ” no expert testimony is required. (Flowers v.
Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001, fn. & citation
omitted; Franz, supra, 31 Cal.3d at p. 141; see also Evid. Code, § 801, subd. (a)
[permitting expert opinion testimony only where the subject is “sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact”].)

6
We are aware the trial court found a need for expertise as to the “seriousness” of
the threat, not just the standard of care. This was incorrect. However, “a serious threat of
physical violence,” is defined (See Ewing I, supra, ___ Cal.App.4th at p. ___ [04 D.A.R.
at pp. 8710-8711]), it is not beyond the layperson’s ken to understand that a patient’s
threat to take another’s life, if believed, is “serious.”

The “common knowledge” exception is typically employed in medical malpractice
cases in which the misfeasance is sufficiently obvious as to fall within the common
knowledge of laypersons. Examples include cases in which a foreign object is left in a
patient’s body following surgery (Flowers, supra, 8 Cal.4th at p. 1001), an injury occurs
to a body part not slated for medical treatment (Ybarra v. Spangard (1944) 25
Cal.2d 486, 487-490 [shoulder injury during appendectomy]), or the amputation of a
wrong limb. Similarly, expertise may not be necessary in medical negligence cases
where the issue is whether the medical professional failed to obtain informed consent.
(See Cobbs v. Grant (1972) 8 Cal.3d 229, 243; Arato v. Avedon (1993) 5 Cal.4th 1172,
1190-1192.) In short, the common knowledge exception applies in cases in which no
scientific enlightenment is necessary because the topic is familiar to a layperson.7

7
Other situations exist in which medical malpractice claims require no expert
testimony. For example, physicians have a statutory duty to report suspected cases of
child abuse, and may be civilly liable for failure to do so. (Storch v. Silverman (1986)
186 Cal.App.3d 671, 677.) To prove a violation for failure to report, a plaintiff must
persuade the factfinder the doctor actually observed injuries and formed an opinion they
were intentionally inflicted on the child. Expertise, while permissible, is not necessary.
The requisite state of mind of the physician may be evidenced by circumstantial evidence
and inferences drawn by the jury, based on common experience. (Landeros v. Flood
(1976) 17 Cal.3d 399, 410-411, fn. 8, 415, fn 13.)

The applicability of the common knowledge exception to a context similar to ours
is well-illustrated by Kerker by Kerker v. Hurwitz (App. Div. 1990) 558 N.Y.S.2d 388
[163 A.D.2d 859]. A patient under a psychiatrist’s care was known to have suicidal
tendencies and had twice tried to kill himself, once by hanging himself from sprinkler
pipes in his room. The patient made a third attempt, hanging himself on the same pipes.
Although his life was saved, the patient was permanently disabled. He sued the
psychiatrist for medical malpractice and common law negligence, but the trial court
refused to instruct the jury on ordinary negligence. The appellate court reversed.
“ ‘The distinction between ordinary negligence and malpractice turns on whether the acts
or omissions complained of involve a matter of medical science or art requiring special
skills not ordinarily possessed by lay persons or whether the conduct complained of can
instead be assessed on the basis of common everyday experience of the trier of the facts.’
[Citations.] [¶] Although expert testimony is ordinarily required to establish a prima
facie case of medical malpractice, where, as here, the issue of negligence is readily
determinable by a trier of fact evaluating the evidence based on common knowledge,

By enacting section 43.92, the Legislature intended to limit a psychotherapist’s
liability for failure to warn to instances in which the therapist actually believed or
predicted that the patient posed a serious threat of inflicting grave bodily injury. The
mind-set of a therapist can be evaluated by resort to common knowledge without the aid
of expert testimony. The Ewings are correct: “The factual predicates necessary to
establish liability of a psychotherapist are outlined in Civil Code section 43.92
. . . . Liability is not based on a breach of the standard of care but rather the specific duty
to warn which arises from communication of a threat.” The view that adherence to a
professional standard of practice is not an element of a claim for negligent failure to warn
is also supported and illustrated by the jury instructions for the claim. (See e.g., CACI
No. 503; BAJI No. 6.00.2.)8 Under the unique circumstances involved in a case such as
this, whether the duty to warn arises is a question of fact, not law. (See BAJI No. 6.00.2
[“If you [the jury] find a psychotherapist had this duty [to warn], it is satisfied and there is
no liability if . . . .” (emphasis added)].)9

there is no need for expert testimony [citation].” (Id. at p. 390.) The gravamen of the
patient’s negligence claim was the psychiatrist’s breach of his duty to protect, not his
negligence in furnishing psychiatric care or treatment. (Ibid.) “It is well-established that
when a risk of harm has been identified through the exercise of medical judgment, a
failure to take measures to prevent the harm may constitute actionable ordinary
negligence [citations].” (Ibid.) The reasoning of Kerker is equally applicable here:
“[I]n cases where there is clear notice of the risk of harm, liability may be imposed
without reference to professional standards of care [citations].” (Ibid.)

8
For example, CACI 503 states that, to establish a negligence claim against a
psychotherapist for failure to warn, the plaintiff must prove that: (1) the defendant was a
psychotherapist; (2) a third party was the psychotherapist’s patient; (3) the third party
communicated a serious threat of violence to the defendant; (4) the defendant knew or
should have known the identity of the patient’s intended victim; and (5) the defendant
failed to make reasonable efforts to warn the victim and a law enforcement agency about
the threat.
9
We can conceive of circumstances involving an alleged breach of a
psychotherapist’s duty to warn in which expert guidance may be useful. However, we

d.
Hospital’s motion for nonsuit was improperly granted.

Viewing the facts most favorably to the Ewings, we conclude the record contains
sufficient facts from which the jury could infer Capilla actually believed or predicted
Colello would fulfill his threat to kill Keith Ewing.

Colello was an LAPD officer, well-trained in the use of guns, and with ready
access to them. He had been in therapy for mental and emotional problems for years, and
had recently become increasingly depressed and despondent upon learning his longtime
love had become romantically involved with another man. On June 21, he struck his
father for the first time in his life and insisted his father get him to a mental hospital in
order to obtain “help.” During the intake interview with the licensed clinical social
worker, Colello’s father – himself a former LAPD officer – described the disturbing
events of that evening, and told the social worker about Colello’s threat to kill himself
and “the young man [] Williams was now seeing.” The father told Capilla Colello was
fully capable of carrying out his threat and, indeed, was likely to do so. Capilla perceived
Colello as angry, upset and hostile.

The evidence strongly indicates that Capilla believed Colello’s father’s statements.
First, Capilla concedes Colello presented a very real threat of suicide, and Capilla
intended to involuntarily commit Colello to the hospital if he would not agree to a
voluntary admission. More importantly, it may be inferred that Capilla also believed
Colello presented a very real threat of violent assault to others, including Keith. Capilla
perceived Colello as angry, upset and hostile. For that reason, he specifically asked
Colello whether “he intended to hurt or kill [Williams’] new boyfriend.” Finally, Capilla
was sufficiently concerned for his own personal safety that he insisted upon the presence
of the hospital’s security staff during the interview. From this evidence, a jury could

are not presented with and express no view on the issue of whether expert testimony is
permissible in such a case. Our conclusion is limited: we hold only that the trial court
erred in concluding that, to prevail at trial in their wrongful death action against the
hospital, the Ewings were required to present expert evidence.

reasonably infer Capilla actually believed or predicted Colello intended to carry out his
threat. If so, Capilla’s failure to take reasonable steps to warn and protect Keith is
actionable.

DISPOSITION
The judgment is reversed. The Ewings are awarded their costs of appeal.
CERTIFIED FOR PUBLICATION

We concur:

BOLAND, J.

COOPER, P.J.

RUBIN, J.