thank you ron or to me because somebody had upon dr rivera i would like to reserve five times for a bottle i will keep my eye on the clock as i start approaching that area this case involves confluence of two important policies under california law and i think the importance is underscored by the nature and number of the amaechi in this case addressing both issues one is the scope of the medical injury compensation reform act known informally as micra and the other the immunity provided to psycho therapist and psychiatrist under civil code section forty three nine to two concerning the duty to warn specified individual of a threat posed a serious injury posed by a psychiatric psychologist patient i will turn st to the statue of limitations issue only because it also overlaps with the cross feel issue as to whether this is a professional negligence action within the meaning of  and i think that is settled as the district court correctly recognized by the california supreme court in heaven vs superior court where the court in the context of talking about a case based upon their a failure to warn of an attack that th e diagnosis and appropriate steps necessary to protect the victim are not separate or severable but together constitute the duty giving rise to the cause of action which is to say a physician doesn't make a decision whether to warn or not to warn and lest they with a claim covered by the act because again the nature of the act is designed to cap damages put other limitations for the benefit of protecting malpractise insurance rates from rising that's the express purpose of it i liability minimizing statute there's no question about it and those purposes would be defeated if in the course of providing medical treatment you could get around it by saying well i'm just getting something else even though indirectly arises out of the professional services you're rounding good example of this is the barest versus county of los angeles case it's a patient dumping involving emtala the federal statute the federal statute liability standards are higher than your negligence they're not quite intentional  but they're pretty high because you have to have kind of a you're transferring your patient for an improper non medical reason and they're their point of origin you didn't transfer me because i was medically stable you just wanted to dump me  and the supreme court said that claim is still governed by micro because the determination of whether or not you're stable to transfer ultimately is a medical decision and that goes back to the purpose of micra to you  premiums and i think that's exactly what we have here it makes no sense to say that he physicians decision whether or not to warm is not tied to the diagnosis and treatment and i'll get to when we talk to the merits of the unity but i think that's shown here because that's kind of what plaintiff's case of actually evolved into was you negligently determined that i presented a risk that required a warning so i think under the governing case law this just isn't a circumstance where you are outside of my group this is kind of the core medical judgment that these professionals exercised when they determine whether or not somebody presents a serious threat of injury tw micro that's where you don't tell the plaintiff a potential complication you have the operation complication occurs you then perform a surgery beyond what they expected the other is where you've told them they know and then you go in and you do a completely different chrissy ager another example that's the perry case for one goes in for one type of surgery and comes out with an unwanted breast augmentation those are very extreme cases there the conduct does not really  arise out of the true exercise of medical judgment but a conscious decision to do something that's not based on medical judgment and i think here again you can see that plaintive kind of edged into that because they're all case of benchley you know evolved into this was a negligent diagnosis case so i think under the governing case law this is where lee falls into mike with the type of cases that don't are generally like the big case where the person selling a medical device or putting someone in a procedure that's not that they have a financial interest in but is really related to the actual medical care that's being provided the so versus shinn case good example intentional infliction claim but was it based on the doctor or through blood and tissue with the pain plaintiff not a difficult call that that's not something doctors do that's not really medical treatment but those are the extreme kind of cases that get it's involved with their professional sponsibility but if your allegation is it you know it could be you i don't know whether it's going to be part of their professional responsibilities or an extreme example they could be both when they get you c question and maybe it's moot because that doesn't appear that that was the question given to the jury it appears at least i mean correct me if i'm wrong that the jury was soley presented with  graph theory that that that's correct but i but i will say it i think in this context where you're talking about a failure to warn based upon you've assessed a patient you think he presents a threat to an identifiable individual but that's going to be inherently a medical determination right because your decision to warn or not to mourn is based upon your evaluation and certainly that's what this case is based on that i mean there is no allegation that this wasn't a product of dr rev examination exercise professional judgment basically they said it was wrong or didn't rise to a level sufficient under the statute which i'll fuck about on the merits of the of the immunity but that's what their pitch w ask about the statue of limitations and it seems to me it boils down to whether or not others equitable calling it applies to this statute in which we don't have a california case as i understand could have statutory tolling if you always assume the legislature knows what it's doing and you have to you know have statutes you know interact in a rational manner but that doesn't mean it's no one in the visitation on on equitable tolling i think i thought there was negligence i went to an attorney and he said there was no negligence i didn't have a lawsuit and the court used the term tolling when talking about the one year period is not told that's the language goods here is used so i think the california judgment you didn't really raise this question it's issue and summary judgment but to me it seems like it's a pure legal question so i don't i'm trying to figure out whether we should just you know deferred of the district court because it was at the motion dismissed and you know we've seemed plausible that there was a question about how much you know rivera earlier you know what rivera knew at the time now there's not that question but does it really change court the absence of cases where there's an attempt to impose liability based upon an actual warning given and i think it's because the statute is so protective i mean i think there's you know a few instances probably probably none in which someone gives an a warning something bad did happen but you want and you into equivocal in which they point out that the inquiry about the serious injury threat seriousness doesn't go to the likelihood that it's going to happen the one thing is abundantly clear from the legislative history is made clear in ewing when you into is it's not a battle of experts as to whether the therapist got it right as to the likelihood of attack and that's because everybody recognised the legislature in particular the difficulty of predicting dangerousness and that's why it only requires a serious threat and using the court notes of a threat of death is a theory is threat as a matter of law you don't need an then why does it have serious it could just say threat of grave bodily harm or the fact that it's serious suggests that serious does mean something different than referring just to the consequences of threat that's the holding of the california court of appeal and i believe this court is bound by it unless it's clear the california supreme court would hold otherwise and has been the law in the california for over twenty years i think the court's probably not we to depart from that under it's own case law nd the un court talks about it being a threat and i think if you get into that notion how serious is it in order to warn does it have to be five thousand and fifty does it have to be forty percent is forty percent and you're the potential target that looks pretty significant for me if i'm the potential target and i think what the legislature wanted to avoid getting into was precisely this sort of slicing and dicing down into increment to figure out what the implication of your argument is so i want i want to be very specific what's the mistake that was made below it was take me below was that there was undisputed evidence that dr revere believed this was an actual threat she may have characterized it as low to moderate but it was a threat of a serious injury to be within the meaning of the statute which is death under the un case and that she actually believed and then she should not have gone to the jury and that's why is it wrong to go to the jury on whether the doctor thought there was an actual threat and whether the doctor actually believed white white could that be a jury question because what would the evidence be that there's she didn't actually believe that in fact plaintiff's case didn't focus on again whether or not dr revere actually believed it it was she should not have opined that to begin with because she should have assessed him as a realistic that this was a meaningful threat that was ninety percent of the plaintiff's case players counsel even in argument said look if you agree with me that this isn't serious i e likely to occur then you don't have to get to whether she believed it or not counsel at this point to argue that the discourse should have taken the issue from the jury is to tell us that the the judge should have granted that there's no way that the jury could have could have decided anything else correct  that's a very very steep hill to climb i don't know what you had a battle of expert witnesses here including dr b i don't know how to pronounce her last i don't know how to pronounce her last name i read her testimony on friday and i have to say it was very very concerned about things that she was testifying to i was very bothered by that but then went back to the district court's order and discovered that you insisted that that the plaintiff had to show that there was a violation of her professional duty here and that you proposed your own witness and that you had so we had a battle of expert witnesses as to whether the duty of care had been violated and if so it looks to me like you've left the door wide open for this no for two reasons one in the motion for summary judgment we argued the immunity in response to plaintiff's submitted dns testimony by the way again under this misnomer that you can erode the immunity by arguing it was a mis it as to whether it had to be basing his value judgment entered and so he did treat it as in and rule on the merits you're right the rule fifty motion was late but that just recorded exercise its discretion and which the merits on this issue and judge by these question again you try the case as it ends up being presented we do not think they should honor the jury at all under california law and if you're going to have a medical malpractise professional negligence action you have to have testimony on the standard of care now here care to care probably is do you know what four thousand three hundred and ninety two provides physicians need to know that but the other aspect which was were you negligent in diagnosing is not part of the case using makes that clear the legislative history makes that clear we move to exclude events testimony on the grounds that you can't you just got to testify about negligence that's not what the standard is so yes you have an expert come in and say you need to understand what four th ninety two provides but at the same time you don't get to say oh and by the way you reach the standard of care because you can accurately diagnose that clearly is something that the legislature did not want to have each of these cases that we're talking about the perry case so case unruh case and each of those there is a claim for medical malpractise and there is as an additional claim for an reading a pro se complaint but then when counsel and i don't recall whether you were counsel or not but they came in and tried to amend the complaint and add privacy claims and the district court said no we're not going to do that at this late date doesn't that sort of undermine the position that there were privacy claims already existing if they tried to amend the adam did not happen quite that way but let me address that so i didn't come in and sort of before trial  and what we asked was that the jury be instructed on each of the theories that were consistent with the general talk while and that was an invasion of privacy claim that was a violation of the  in the case it's already in complying everybody's always understood it was in the complaint if you look at the supplemental excerpts of record of page thirty three dollars which was the brief that we filed pretrial brief we cited the case management statements the complaint the court's own characterization over and over again this was ascribed to route the case as a privacy case the privacy case that absolutely was a medical malpractise claim and there as well it was a privacy case dr rivera and her that that happened in those the that we can prove that because we were required to prove it and the malpractise claim that we actually prevailed on at trial so on this record you can conclude that had the court instructed on the theories that were in the complaint  are claims for professional negligence right and my argument here is that even the claim that we tried is not properly understood as a claim for professional negligence and i know when we do this migranal assessing the california state  confidential information so then we go to you what is what are the cases or what are the cases say about what this standard is for what some might her case and what's not because as we all know there are all these cases that involve doctors treating patients in the course of the treatment doing something that isn't does not qualify for my protection right and parry that's the case in which the doctor obtained consent while the asian was under a medication and  on her and said don't report this she won on her medical malpractise claim it's all the one on her pension for life so these are all wrapped up in the treatment of the patients none the less than they're not my proclaims mitered because it would have only been a professional malpractise right where you would start to look past the label and so the question would be is the thing that you are complaining about the diagnosis and mr codes wants to say that the complaint was about a diagnosis and that's not for the complaint is not about a diagnosis the complaint was that dr rivera called the police and told them something that was not true based on information t got but the reason why i'm so focused on this issue is that when we look at what the my for cases say they say that in order for the case of the subject to my bra the claim has to be based on the on the defendant's failure to adhere to a clearly connected to her medical duties that seems to be different you know because i mean you would agree that if if if a client came into a counselor at a weapon in hand and said i'm leaving here and i'm going to go duty to call the police not not based income but i think it's a duty based on the statute there is no duty that arises from the fact that they are a professional because you don't look to the standards for psycho therapist to make that decision so and found it was appropriate in that case to do so so that the real why that's important here is that the pros a complaint had other bases that would make it timely one was statutory tolling the doctor goes outside the state that's you can see that from the base of the complaint you don't have a record on that was dr rivera never came back to the issue but there's also that one of the last aapl because what happened here was mr turner went to see  believe there is a credible threat and there was substantial evidence that she did not believe that now mr condit we didn't argue that not only did we are going to be look at my closing argument i spent ten pages of the closing argument walking through the specific  which showed there never was a direct object of lee he did not make a serious threat a serious credible threat which is how the his instruction to finding a serious threat was given to the jury of course we argued that and there's five not believe that and we absolutely argued that so the jury had that ample evidence on which to conclude that dr rivera who had the burden of proof on this issue did not need it and so for that reason as well moderate language which as we noted we think under the statute you don't go into those kind of qualitative determinations our expert said that the issue is did she come to ninety to say she's serious threat because she was wrong in determining that it was likely to occur and again i know it is like a broken record if you look at you and if you look at the legislative history the one thing that is absolutely clear is the legislature did not want there to be a battle of the experts as to whether or not there was a correct diagnosis and that goes whether there is a likelihood or how great the likelihood because you're going to put that camel's head into the tent you're going to have the exact same problem if you start slicing and dicing how much is enough to trigger the duty to warn forty percent thirty percent twenty five percent that's something that i think in drafting four thousand three hundred and ninety two the legislature did not want to get into and they didn't want that to come in the back door as it did here in the medical negligence case by having a doctor come in and say that wasn't enough to be a serious job of the the concern i have about your argument that you're presenting now is you magic anything they're incentivized to go report that because there are they have a professional duty perhaps to report it but your position is they can't be helped liable under the law but the case law is do they sincerely believe not if it's a joke using makes that point not if they make statements like oh this is incredible i really don't believe this but i'm erring on the side of caution that's not what the evidence is but you are absolutely right this is an extremely protective standard it is designed to be an extremely protective standard it is designed to err on the side of caution if there is an actual belief that a threat is presented i policy decision the legislature make to it made to encourage the duty to warn because the backlash against terror is awful which they thought was going to give rise to absolutely this kind  of going to warn all the time or you're going to be afraid of being sued if so they legislature drew this balance and i again think it's telling you to look at california case law you will not find a case out there based upon giving an improper warning and i think it's because the statute is drafted the way it is this is plainly micra it is based upon her exercise of professional judgment because she only makes the report because of a diagnosis had little means good law and that point it for that point and i know if the court again is debating whether this is on my quick claim that's a sea change under the headline i would certify that to the california supreme court because that's a nuclear bomb