Credeur v. United States , 97 F. App'x 500 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 24, 2004
Charles R. Fulbruge III
Clerk
04-30029
Summary Calendar
JENNIFER A CREDEUR, individually and on behalf of her deceased
husband, Robert S. Credeur and the Estate of Robert S. Credeur,
Plaintiff-Appellant,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
For the Middle District of Louisiana
(98-CV-798)
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
This case presents the question whether in an outpatient
setting a psychiatrist owes a duty to third persons to protect
against harm from a patient’s tortious conduct apart from those
duties addressed in Louisiana Revised Statute, section 9:2800.2.
The district court granted summary judgment for Defendant, holding
that a psychiatrist owes no duty to third persons beyond any
imposed under the statute, and that the statute is not applicable
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
under the undisputed facts. We agree and affirm.
I.
For over forty years Joseph Owens has been mentally ill, in
and out of Veterans’ Administration hospitals both upon his own
request and through involuntary commitments. Defendant the United
States is allegedly liable through the actions of the Veteran’s
Administration and the psychiatric physicians who treated Owens
over the years. One Dr. John Simpson evaluated Owens a few times
during the 1990's, most notably four days before the August 1994
accident and fatality at issue in this case. Driving the wrong way
in an on-coming lane of traffic, Owens struck the Credeur vehicle
head-on, injuring Plaintiff Jennifer Credeur and killing her
husband Robert Credeur.
II.
We determine liability under the Federal Tort Claims Act2 in
accordance with the laws of the state where the act or omission
occurred,3 Louisiana in this case. We review summary judgment de
novo, applying the same standard as the district court.
III.
The parties do not dispute that Dr. Simpson and the Veterans’
2
28 U.S.C. § 2671 et seq.
3
28 U.S.C.A. § 2674 (United States liable under FTCA “in the
same manner . . . as a private individual under like
circumstances”); Ferrero v. United States, 603 F.2d 510, 512 (5th
Cir. 1979) (FTCA claim governed by law of the state where the tort
occurred).
2
Administration owed no statutory duty to warn, because the statute
applies only to “clearly identified victims,” not the general
public.4 Owens did not even know the Credeurs when this accident
occurred and certainly made no threat against them as identified
victims.
Under plaintiff’s interpretation, the statute provides no
limitation on a psychotherapist’s duty to third persons to control
or protect against violent propensities of a patient, a duty
recognized in Estates of Morgan v. Fairfield Family Counseling
4
The pertinent statute has three subsections providing as
follows:
A. When a patient has communicated a threat of physical
violence . . . against a clearly identified victim or victims,
. . . the psychiatrist . . . treating such patient and
exercising reasonable professional judgment, shall not be
liable for a breach of confidentiality for warning of such
threat or taking precautions to provide protection from the
patient's violent behavior.
B. A . . . psychiatrist's . . . duty to warn or to take
reasonable precautions to provide protection from violent
behavior arises only under the circumstance specified in
Subsection A of this Section. This duty shall be discharged
by the . . . psychiatrist . . . if the treating professional
makes a reasonable effort to communicate the threat to the
potential victim or victims and to notify law enforcement
authorities in the vicinity of the patient's or potential
victim's residence.
C. No liability or cause of action shall arise against any
psychologist, psychiatrist . . . based on an invasion of
privacy or breach of confidentiality for any confidence
disclosed to a third party in an effort to discharge the duty
arising under Subsection A of this Section.
La. Rev. Stat. Ann. § 9:2800.2 (West Supp. 2004).
3
Center.5 We disagree because a Louisiana statute does provide a
limitation on the duty owed third persons. Morgan does not
persuade since it was decided in another jurisdiction and not under
the applicable statute.6
Here a statute on point declares that “A . . . psychiatrist's
. . . duty to warn or to take reasonable precautions to provide
protection from violent behavior arises only under the circumstance
specified” in that statute.7 That specified circumstance is that
the “patient has communicated a threat of physical violence . . .
against a clearly identified victim or victims”8 — a circumstance
all parties to this action admit was not present.
Plaintiff’s attempt to distinguish the duty to warn from the
duty to control is to no avail. This statute limits not only the
duty to warn but also the duty “to take reasonable precautions to
provide protection from violent behavior.”9 The limited
5
Estates of Morgan v. Fairfield Family Counseling Ctr., 673
N.E.2d 1311, 1324 (Oh. 1997).
6
Plaintiff cites CHG Finance Company v. Lea, 127 So. 2d 534,
539 (La. 1961), for the principle that decisions of other
jurisdictions, though not controlling, possess persuasive effect if
they determine a practically identical issue. Since a statute
governs the case, more to the point is Bell v. Jet Wheel Blast, 462
So. 2d 166, 170 (La. 1985), which states that when there is precise
rule intended by the legislature to govern the case, it is binding
on the court.
7
La. Rev. Stat. Ann. § 9:2800.2B (emphasis added).
8
Id. § 9:2800.2A.
9
Id. § 9:2800.2B.
4
circumstance under which a psychiatrist could owe either duty to
third persons did not arise in this case.
IV.
Under the stipulated facts and the applicable law, Defendant
had no duty to third persons to provide protection from Owen’s
violent behavior.
AFFIRMED.
5