1 Pursuant to 5 T H C I R

. 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

May 24, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 a part from those

duties addressed in Louisiana Revised Statute, sec tion 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 applicable2 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 under the undisputed facts. We agree and affirm.

I.

For over forty years Joseph Owens has been mentally ill, in

and out of V eterans’ 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 Act 2 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’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 s uch patient and

exercising reasonable professional judgment, shall not be

liable for a breach of confidentiality for warn ing of such

thr eat 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 speci f ied in

Subsection A of this Section. This duty shall be discharged

by the . . . psychiatrist . . . if the treating professional

ma kes a reasonable effort to communicate the threat to the

potential victim or victims and to notify law enforcement

authorities in the vicinity of the patien t's or potential

victim's residence.

C. No liability or cause of action shall arise against any

psychologist, psychiat rist . . . based on an invasion of

privacy or breach o f 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 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

o ccurred and certainly made no threat against them as identif ied

victims.

Under plaintiff’s interpretation, the statute provides no

limitation on a psychotherapist’s duty to third persons to control

o r protect against violent propensities of a patient, a duty

r ecognized in Estates of Morgan v. Fairfield Family Counselin g5 E states of Morgan v. Fairf ield Family Counseling Ctr. , 673

N.E.2d 1311, 1324 (Oh. 1997).

6 Plaintiff cites C HG 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 C enter

. 5 We disagree because a Louisiana statute does provide a

limitation on the duty owed third persons. M organ 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 statu te. 7 That specified circumstance is that

the “patient has communicated a threat of physical violence . . .

against a clearly identified victim or victim s” 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 limited5

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.