Hedlund v. Superior Court

• Decision Date: 29 September 1983
• Citation: 669 P.2d 41,34 Cal.3d 695,194 Cal.Rptr. 805
• Court: California Supreme Court
• Parties: , 669 P.2d 41, 41 A.L.R.4th 1063 Bonnie HEDLUND et al., Petitioners, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent; Darryl Jeffrey WILSON, a Minor, etc., et al., Real Parties in Interest. L.A. 31676

Page 805

194 Cal.Rptr. 805

34 Cal.3d 695, 669 P.2d 41, 41 A.L.R.4th 1063

Bonnie HEDLUND et al., Petitioners, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent;

Darryl Jeffrey WILSON, a Minor, etc., et al., Real Parties in Interest.

L.A. 31676.

Supreme Court of California

Sept. 29, 1983.

Rehearing Denied Dec. 15, 1983.

Law Offices of John G. Kerr, Laurie-Lessing Barre, Los Angeles, for petitioners.

S. James Colloran, Horton, Barraro & Reilly, Santa Ana, for real parties in interest.

GRODIN, Justice.

By this petition for writ of mandate Bonnie Hedlund and Peter Ebersole, licensed psychologists, seek to compel respondent superior court to vacate an order overruling their demurrer to two counts of a complaint by real parties in interest LaNita Wilson and her minor son Darryl Jeffrey Wilson, of whom she is guardian ad litem, and to enter orders sustaining the demurrer and dismissing the action against them. They contend that LaNita's claim is barred on the face of the complaint by Code of Civil Procedure section 340, subdivision (3), ¹ which establishes a one-year statute of limitations for actions for personal injury, and that Darryl's count fails to state a cause of action. We shall conclude that neither claim has merit and deny the petition.

LaNita's Cause of Action

The question posed by petitioners' first contention is whether the statute of limitations of section 340, or that of section 340.5 ² governs a cause of action against a psychiatrist or psychologist for injuries suffered as a result of a therapist's negligence in failing to warn a potential victim of a threat to the victim made by the therapist's patient.

To determine whether, as real parties in interest contend, section 340.5 governs, ³ we must decide whether a negligent failure to comply with the duty recognized in Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, constitutes "professional negligence" within the meaning of section 340.5.

The original complaint in the underlying action was filed on November 12, 1980.

In her third amended complaint against petitioners styled as one for "Professional Malpractice," LaNita alleges as her cause of action that petitioners had rendered health care services to herself and to Stephen Wilson ⁴ in the form of psychotherapy, counseling and treatment; that prior to April 9, 1979, Stephen told petitioners of his intent to commit serious bodily injury upon her, and that from his communications to them petitioners, in the exercise of the professional skill, knowledge, and care possessed by members of their specialty, should have known that Stephen presented a serious danger of violence to her. She further alleges that petitioners owed her and other foreseeable victims a duty to diagnose Stephen's condition, to realize that he presented a serious threat of violence to her, and to recognize that the requirements of their profession required them to notify her of the danger. Allegedly this duty was breached when petitioners failed to warn her of the danger. Thereafter, on April 9, 1979, Stephen used a shotgun to inflict serious bodily injury on LaNita.

Applicability of Section 340.5 to LaNita's Action

In Tarasoff, this court held that because a psychotherapist stands in a special relationship with a person whose conduct may need to be controlled--the patient--the therapist has a duty first to exercise " 'that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of [that professional specialty] under similar circumstances' " in predicting whether the patient poses a serious danger to others, and second, "to exercise reasonable care to protect the foreseeable victim of that danger." (17 Cal.3d at pp. 438-439, 131 Cal.Rptr. 14, 551 P.2d 334.) Among the alternative means by which the therapist may fulfill the duty to protect the victim is warning the victim of the peril. LaNita's cause of action is founded upon an alleged breach of this duty to predict, or diagnose, dangerousness, and to warn of a danger posed by a therapist's patient. We must determine whether this breach constitutes professional negligence within the meaning of section 340.5.

Petitioners, claiming that a breach of the duty is "ordinary," not "professional" negligence, rely in part on language used by the court in Tarasoff stating that a therapist must exercise "reasonable care" to protect the victim once "under applicable professional standards" he determines or should have determined that the patient poses a danger. Inasmuch as this question was not before us in Tarasoff, however, that case is not dispositive. In order to define the scope of section 340.5, we look both to the language and the history of the section.

In 1975 the Legislature, as part of the Medical Injury Compensation Reform Act (Stats.1975, Second Ex.Sess., ch. 1, § 1, p. 3949; Stats.1975, Second Ex.Sess., ch. 2, § 1, p. 3978; hereinafter M.I.C.R.A.) adopted definitions of "health care provider" and "professional negligence." These definitions, used throughout M.I.C.R.A., ⁵ were added to section 340.5 which establishes a three-year period of limitation on actions "for injury or death against a health care provider based upon such person's alleged professional negligence." Petitioners unquestionably are health care providers since they are "licensed or certified pursuant to Division 2 ... of the Business and Professions Code ...." (§ 340.5, subpar. (1). See Bus. & Prof.Code, § 2900 et seq.) A failure to warn a third person is "professional negligence," however, only if this was an omission to act "in the rendering of professional services ... provided that such services are within the scope of services for which the provider is licensed ...." (§ 340.5, subpar. (2).) The "practice of psychology" and "psychotherapy" for which a license is required and issued pursuant to division 2 of the Business and Professions Code are defined by that code as follows:

"[R]endering or offering to render for a fee to individuals, groups, organizations or the public any psychological service involving the application of psychological principles, methods, and procedures of understanding, predicting, and influencing behavior, such as the principles pertaining to learning, perception, motivation, emotions, and interpersonal relationships; and the methods and procedures of interviewing, counseling, psychotherapy, behavior modification, and hypnosis; and of constructing, administering, and interpreting tests of mental abilities, interests, attitudes, personality characteristics, emotions, and motivations.

"The application of such principles and methods includes, but is not restricted to: diagnosis, prevention, treatment, and amelioration of psychological problems and emotional and mental disorders of individuals and groups.

"Psychotherapy within the meaning of this chapter means the use of psychological methods in a professional relationship to assist a person or persons to acquire greater human effectiveness or to modify feelings, conditions, attitudes and behavior which are emotionally, intellectually, or socially ineffectual or maladjustive.

"As used in this chapter, 'fee' means any charge, monetary or otherwise, whether paid directly or paid on a prepaid or capitation basis by a third party, or a charge assessed by a facility, for services rendered." (Bus. & Prof..Code, § 2903.)

Petitioners do not deny that the duty to recognize "dangerousness" arises in their rendering of professional services in the practice of psychology, and thus injury to a patient proximately caused by a negligent failure to diagnose or predict such behavior constitutes "professional negligence" as defined in section 340.5. They argue, however, that the duty to warn a third person does not involve the rendering of professional services. In sum, petitioners' position is that "professional negligence" involves only acts in the course of diagnosis or treatment resulting in injury to the patient. An injury to a third person resulting from a failure to warn is "ordinary negligence" governed by section 340.

In support of their argument, petitioners rely on Tresemer v. Barke (1978) 86 Cal.App.3d 656, 150 Cal.Rptr. 384. There, discussing one count of a complaint alleging injury resulting from a physician's failure to warn the plaintiff-patient of hazards related to the use of the Dalkon Shield intrauterine device that were discovered subsequent to its insertion, the court distinguished that cause of action from those for medical malpractice: "A cause of action is stated for failure to warn plaintiff. This would arise by virtue of a confidential relationship between doctor and patient. It is not a malpractice cause of action in the commonly understood sense but rather a malpractice action from the imposed continuing status of physician-patient where the danger arose from that relationship. It is also a cause of action for common negligence. The statute of limitations of section 340.5 would not apply even though the basic 'injury' resulted from a medical treatment for it is a separate duty to act which is involved." (86 Cal.App.3d at p. 672, 150 Cal.Rptr. 384.)

We need not decide if Tresemer is correct in stating that section 340.5 would not apply to a failure to warn of the kind involved there. That statement is dictum since the action was commenced within one year of the date the plaintiff learned of her injury and its cause (86 Cal.App.3d at p. 665, 150 Cal.Rptr. 384) and was barred by neither section 340.5 nor 340, subdivision 3. The case is also distinguishable in that the duty to warn was based on the defendant/physician's past professional relationship and arose long after he had treated plaintiff. Whether a failure to warn in those circumstances occurs "in the rendering of professional services" is not determinative of the question posed here where the duty arose and the omission to act occurred during the...