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Suzuki v. Lilly2/25/2002
ations. On the other side of the scale are placed factors such as the relative burden on the class of defendants involved, the degree to which imposing liability on those defendants will discourage other, socially beneficial conduct, and the like.
The majority opinion emphasizes two factors from the "non-duty" side of the equation - financial liability out of proportion to fault and adverse impact on the class of defendants upon whom the injured party is seeking to impose liability. But these factors are almost always present in every duty calculation; yet often fail to carry the day. For example, a defendant automobile driver might claim financial liability out of proportion to fault when losing everything he or she owns for driving 10 miles over the speed limit, nicking a school bus and sending it out of control. Or doctors might assert they are performing dangerous operations and imposing liability when they make a mistake has an "adverse impact" on them. Yet in neither instance do these factors result in a finding of no duty.
This is not to suggest the factors the majority opinion stresses are not relevant in the case before this court. But, in my view, they outweigh the "pro duty" factors only because those factors (especially the degree of foreseeability) are so weak in this case. Indeed I could imagine a situation where scale would swing the other way and the psychotherapist's duty thus extend to the general public. Suppose the defendant here had mistakenly (negligently) given his patient a medication that somehow turned people with his particular mental disease (or at least a significant percentage of them) into raving homicidal maniacs ready to kill the next person they saw after taking a pill. In that admittedly unlikely circumstance, the degree of forseeability of harm coupled with the seriousness of that harm - and with it the degree of blameworthiness and the importance of preventing future harm - would overwhelm the other policy factors, including and especially the ones on which the majority opinion relies. Indeed it would be enough to expand the scope of duty to embrace not just the patient's immediate family and other specific potential victims, but the general public. (Moreover, since the defendant psychotherapist's negligent act would not be a failure to predict or warn about a patient's homicidal tendencies, but the creation of those homicidal tendencies, the statutory immunity would be inapplicable.)
Conversely, one if not the most salient feature of the instant case is the opposite, the extraordinarily low - venturing on zero - degree of forseeability of homicide from giving this patient Prozac. At oral argument we asked plaintiff's counsel if he had introduced or knew of any statistical - or other - evidence suggesting Prozac produced homicidal tendencies in any percentage of the population. He replied no. Nor did appellants allege the existence of such a relationship in their pleadings. Not only does this affect the degree of forseeability and the degree of blameworthiness, but it also reduces the weight of other policy considerations on the "pro-duty" side of the scale, such as the goal of preventing future harm.
For these reasons, I concur with my colleagues in their conclusion defendant psychotherapist owed no duty to appellants in this instance and cannot be held financially liable for the tragic murders his patient committed.
JOHNSON, Acting P.J.
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