Ewing v. Goldstein, decided by the California Court of Appeal in 2004, expanded when a California psychotherapist’s duty to protect a third party is triggered. Before the ruling, Civil Code Section 43.92 was widely read to require that the patient personally communicate the threat to the therapist. The Ewing court held that a serious threat relayed to the therapist by a member of the patient’s immediate family, for the purpose of advancing the patient’s treatment, also counts as a “patient communication” under the statute.1Justia Law. Ewing v. Goldstein The California Supreme Court declined review, so the decision stands as binding authority statewide.
The Facts Behind the Case
Geno Colello, a former Los Angeles police officer, had been treated by Dr. David Goldstein, a licensed marriage and family therapist, since 1997. Part of the treatment addressed depression tied to the end of Colello’s relationship with Diana Williams, who had begun seeing Keith Ewing.1Justia Law. Ewing v. Goldstein
In June 2001, Colello told his father he had lost the desire to live and was “considering causing harm” to Williams’s new boyfriend. Colello’s father called Dr. Goldstein and repeated what his son had said. Dr. Goldstein urged Colello to enter a psychiatric hospital voluntarily, and Colello was admitted. The inpatient psychiatrist discharged him the next day, concluding he was not suicidal. A day after his release, Colello killed Keith Ewing and then himself.2FindLaw. Ewing v. Goldstein (2004)
Keith’s parents, Cal and Janet Ewing, sued Dr. Goldstein for wrongful death, arguing he was negligent for failing to warn Keith or contact police.2FindLaw. Ewing v. Goldstein (2004)
The Statute and the Trial Court’s Reading
California Civil Code Section 43.92 shields psychotherapists from liability for failing to protect against a patient’s violence, with one exception: when “the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim.”3California Legislative Information. California Code Civil Code CIV 43.92
The trial court dismissed the case on a strict reading of that language. Colello himself had not spoken the threat to Dr. Goldstein; his father had. Under the trial court’s view, the duty was never triggered because the patient had not personally communicated the threat.
What the Court of Appeal Held
The Court of Appeal reversed. Its core holding: a communication from a patient’s immediate family member to the therapist, made for the purpose of advancing the patient’s therapy, qualifies as a “patient communication” within the meaning of Section 43.92.1Justia Law. Ewing v. Goldstein
The court’s reasoning centered on purpose rather than form. When a parent shares information about a patient’s violent intentions with the therapist to help the treatment, drawing a hard line between that and the patient saying the same words directly “is not crucial to the statute’s purpose.” An actual threat that a parent conveys about the danger a patient poses to another person should carry the same weight as a threat from the patient’s own mouth.1Justia Law. Ewing v. Goldstein
Before Ewing, a therapist who learned of a credible threat only through a family member could argue the statutory duty was never triggered. After Ewing, that argument fails when the family member shared the threat to further the patient’s treatment.
What Ewing Did Not Decide
The court drew the line narrowly. It did not define “immediate family member,” even while acknowledging that California codes contain varying definitions. And it expressly declined to address situations where someone outside the patient’s immediate family conveys the information. A roommate, coworker, friend, or acquaintance who reports a patient’s violent statements sits outside the boundary the court set.
Clinically, most therapists take any credible threat seriously regardless of source. Legally, the Section 43.92 duty as interpreted by Ewing reaches only communications from immediate family members made in the context of the patient’s treatment.
How the Duty to Protect Works Today
Section 43.92 both shields the therapist and imposes an obligation. A therapist faces no monetary liability for failing to protect against a patient’s violence unless the trigger is met: a serious threat of physical violence against a reasonably identifiable victim, communicated by the patient or, after Ewing, by an immediate family member advancing the patient’s treatment.3California Legislative Information. California Code Civil Code CIV 43.92
Once triggered, the therapist must make reasonable efforts to notify both the identified victim and a law enforcement agency. Doing both discharges the duty and restores immunity.3California Legislative Information. California Code Civil Code CIV 43.92 “Reasonable” does real work. The statute does not require the therapist to succeed in reaching the victim or to guarantee a police response. It requires genuine, documented effort at both.
In 2012, the Legislature renamed the obligation from a “duty to warn and protect” to a “duty to protect.” The statute states that the change is not substantive and directs courts to interpret the amended version consistently with how the section was read before January 1, 2013.3California Legislative Information. California Code Civil Code CIV 43.92 Ewing’s interpretation survived the rename.
Who Is Bound by the Ruling
The duty applies to anyone who fits the definition of “psychotherapist” in California Evidence Code Section 1010. That definition is broad. It covers psychiatrists, licensed psychologists, licensed clinical social workers engaged in nonmedical psychotherapy, licensed marriage and family therapists, credentialed school psychologists, qualifying psychiatric-mental health nurses, and clinical nurse specialists certified in psychiatric-mental health nursing. It also covers registered psychological associates, associate marriage and family therapists, associate clinical social workers, psychological interns, and qualifying trainees while under required supervision.4California Legislative Information. California Evidence Code 1010 Supervised trainees and associates are not exempt.
Confidentiality, Privilege, and HIPAA
A therapist who acts on the Ewing rule is not violating the therapist-patient privilege. California Evidence Code Section 1024, the dangerous patient exception, provides that the privilege does not apply when the therapist has reasonable cause to believe the patient is dangerous to self or others and disclosure is necessary to prevent the threatened danger.5California Legislative Information. California Evidence Code 1024
Federal privacy rules line up the same way. The HIPAA Privacy Rule at 45 CFR 164.512(j) allows a covered entity to disclose protected health information, without patient authorization, when the entity believes in good faith that disclosure is necessary to prevent or lessen a serious and imminent threat to health or safety, and the disclosure is made to a person reasonably able to prevent or lessen the threat, including the target. The regulation presumes good faith when the belief rests on actual knowledge or a credible representation by someone with apparent knowledge or authority.6eCFR. Title 45 CFR Section 164.512 That language fits the Ewing scenario, where a family member with firsthand knowledge conveys the threat.
Practical Steps When the Duty Is Triggered
Notify law enforcement first. That gets the warning to people with the authority and resources to intervene. Then make reasonable efforts to communicate the threat to the identified victim. Section 43.92 requires both, not one or the other.
Document the content of the threat, who communicated it, when the information arrived, the clinical assessment of credibility, and every action taken in response, including the time and method of each notification attempt. If the assessment concluded the duty was not triggered, document that reasoning as well. The question a court or licensing board will later ask is whether the decision-making process was reasonable given what the therapist knew.
Clinical interventions can accompany the required notifications: voluntary hospitalization, involuntary commitment proceedings, medication adjustments, more frequent sessions. Dr. Goldstein took one such step by encouraging voluntary hospitalization. The Ewing court’s concern was not with that clinical judgment but with the absence of a warning to Keith Ewing or a call to law enforcement.