Bellah v. Greenson

• Citation: 146 Cal.Rptr. 535,81 Cal.App.3d 614
• Court: California Court of Appeals Court of Appeals
• Decision Date: 06 June 1978
• Parties: , 17 A.L.R.4th 1118 Melanie BELLAH and Robert N. Bellah, Plaintiffs and Appellants, v. Daniel P. GREENSON, M.D., Defendant and Respondent. Civ. 39770.

Page 535

146 Cal.Rptr. 535

81 Cal.App.3d 614, 17 A.L.R.4th 1118

Melanie BELLAH and Robert N. Bellah, Plaintiffs and Appellants, v. Daniel P. GREENSON, M.D., Defendant and Respondent.

Civ. 39770.

Court of Appeal, First District, Division 2, California.

June 6, 1978.

Hearing Denied Aug. 3, 1978.

Melanie Bellah, Berkeley, Ellen J. Beilock, Oakland, for plaintiffs and appellants.

Hanna, Brophy, MacLean, McAleer & Jensen, San Francisco, for defendant and respondent.

Severson, Werson, Berke & Melchior, San Francisco, Wainer & Stone, Los Angeles, for amicus curiae.

ROUSE, Associate Justice.

Plaintiffs appeal from an order sustaining defendant's demurrer without leave to amend. ¹ For reasons set forth herein, including an explanation contained in footnote 1, we amend that order and affirm the judgment of dismissal.

Plaintiffs, Melanie and Robert Bellah, are the heirs of Thomasin (Tammy) Bellah, their daughter, who succumbed to a self-inflicted overdose of pills on April 12, 1973. Tammy had been under the care of defendant, Daniel Greenson, a psychiatrist in Berkeley, for an unspecified period of time prior to her death. It appears that, during that time, defendant concluded that Tammy was disposed to suicide, and that he recorded his conclusion in his written notes. At the time of Tammy's death, plaintiffs were temporarily living in Princeton, New Jersey, where they were spending the 1972-73 academic year.

On April 11, 1975, some two years after Tammy's death, plaintiffs instituted the present action for wrongful death, alleging that defendant had failed to personally take measures to prevent Tammy's suicide; that he failed to warn plaintiffs of the seriousness of Tammy's condition and of circumstances which might cause her to commit suicide; and that he had failed to inform plaintiffs that Tammy was consorting with heroin addicts in plaintiffs' home. Plaintiffs' complaint purported to state two causes of action, one based upon simple negligence, and one based upon defendant's negligent performance of his contract with plaintiffs to care for their daughter, which contract allegedly contained the implied term that defendant would use reasonable care to prevent Tammy from harming herself or the property of another. Plaintiffs sought to recover damages which would compensate them for Tammy's wrongful death and for certain thefts from their home which were apparently committed by the heroin addicts with whom Tammy was consorting.

Defendant demurred generally to the complaint and also raised the defense of the statute of limitations by way of demurrer. The demurrer was sustained without leave to amend. Plaintiffs' motion for reconsideration was denied on October 1, 1975, and the present appeal followed.

The primary issue to be decided on appeal from a judgment rendered following the sustaining of a demurrer is whether, considering all allegations in the complaint to be true, plaintiffs have stated facts sufficient to entitle them to some relief. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216; accord, Landeros v. Flood (1976) 17 Cal.3d 399, 407-408, 131 Cal.Rptr. 69, 551 P.2d 389; People ex rel Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 48, 130 Cal.Rptr. 328, 550 P.2d 600; Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 123, 109 Cal.Rptr. 799, 514 P.2d 111.) In the present case, a second issue is whether the action is barred by the statute of limitations, as alleged in the demurrer below. (Zapata v. Meyers (1974) 41 Cal.App.3d 268, 272, 115 Cal.Rptr. 854; Anderson v. McNally (1957) 150 Cal.App.2d 778, 783, 310 P.2d 975.)

In order to state a cause of action for negligence, the complaint must allege facts sufficient to show a legal duty on the part of the defendant to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury. The duty of care is always related to some circumstance of time, place and person. (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594, 83 Cal.Rptr. 418, 463 P.2d 770; DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 701-702, 133 Cal.Rptr. 920.) The determination of whether a duty exists is primarily a question of law. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) Thus, in the present case, we must determine whether plaintiffs have alleged facts sufficient to give rise to a duty on the part of defendant to take steps to prevent Tammy from committing suicide or to advise plaintiffs about the existence of conditions which might cause Tammy to take her own life, so that they could take such steps.

It has been held that the requisite special relationship does exist in the case of a patient under the care of a psychiatrist and that a psychiatrist who knows that his patient is likely to attempt suicide has a duty to take preventive measures. Thus, in Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 62 Cal.Rptr. 577, 432 P.2d 193, and Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 71 Cal.Rptr. 903, 445 P.2d 519, it was held that a wrongful death action would lie where the plaintiffs' decedent committed suicide while undergoing psychiatric treatment in a hospital. In Vistica, the cause of action was held to exist against the hospital, which was the only named defendant, and in Meier, it was found to exist against both the hospital and the decedent's treating physician.

Vistica was cited in Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 436, 131 Cal.Rptr. 14, 551 P.2d 334, for the proposition that a hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons.

However, on their facts, Vistica and Meier are readily distinguishable from the case at hand. Each involved situations where the patient was confined in a hospital at the time of the event which constituted the basis for subsequent litigation. Obviously, the duty imposed upon those responsible for the care of a patient in an institutional setting differs from that which may be involved in the case of a psychiatrist treating patients on an out-patient basis.

Here, the complaint alleged the existence of a psychiatrist-patient relationship between defendant and Tammy, knowledge on the part of the defendant that Tammy was likely to attempt suicide, and a failure by defendant to take appropriate preventive measures. We are satisfied that these allegations are sufficient to state a cause of action for the breach of a psychiatrist's duty of care towards his patient. The nature of the precautionary steps which could or should have been taken by defendant presents a purely factual question to be resolved at a trial on the merits, at which time both sides would be afforded an opportunity to produce expert medical testimony on the subject. From the face of plaintiffs' complaint, we are unable to determine whether defendant did or did not take preventive steps which were consonant with good medical practice in the community. However, that question is not before us in the demurrer stage of these proceedings.

We disagree with plaintiffs in their contention that Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, created a duty on the part of the defendant in this instance to breach the confidence of a doctor-patient relationship by revealing to them disclosures made by their daughter about conditions which might cause her to commit suicide. In Tarasoff, the California Supreme Court held that, under certain circumstances, a therapist had a duty to warn others that a patient under the therapist's care was likely to cause personal injury to a third party. There the court said, "Although . . . under the common law, as a general rule, one person owed no duty to control the conduct of another (citations), nor to warn those endangered by such conduct (citations), 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 (citation)." (P. 435, 131 Cal.Rptr. p. 23, 551 P.2d p. 343.) Applying that exception to the facts of Tarasoff, the court held that where a therapist knows that his patient is likely to injure another and where the identity of the likely victim is known or readily discoverable by the therapist, he must use reasonable care to prevent his patient from causing the intended injury. Such care includes, at the least, informing the proper authorities and warning the likely victim. However, the court did not hold that such disclosure was required where the danger presented was that of self-inflicted harm or suicide or where the danger consisted of a likelihood of property damage. Instead, the court recognized the importance of the confidential relationship which ordinarily obtains between a therapist and his patient, holding that "the therapist's obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others . . . ." (Tarasoff, supra, p. 441, 131 Cal.Rptr. p. 27, 551 P.2d p. 347; emphasis added.)

Far from imposing a duty to warn others of the likelihood of any and all harm which might be inflicted by a patient, Tarasoff requires that a therapist not disclose information unless the strong interest in confidentiality is counterbalanced by an even stronger public interest, namely, safety from violent assault. (Tarasoff v. Regents of University of California, supra, 17 Cal.3d at pp. 440-442, 131 Cal.Rptr. 14, 551 P.2d 334.)

The imposition of a duty upon a psychiatrist to disclose to others vague or even specific manifestations of suicidal tendencies on the part of the patient who is being treated in an out-patient setting could well inhibit psychiatric treatment. In his...