                                                       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this opinion should not be published and is not precedent except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.




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