Full opinion text
WILLIAM E. DOYLE, Circuit Judge. This is a wrongful death action against several doctors employed by Larned State Hospital in Larned Kansas. The defendants in this action are Drs. Artiles, Rosales, and Medrano. A detailed recitation of the facts can be found in the Kansas Supreme Court’s opinion. See Appendix, infra. We provide a skeletal version of the facts below. On January 7, 1974, after contemplating murdering his grandparents, Bradley Durflinger was found mentally ill by a probate judge and ordered to enter Larned State Hospital. On April 19,1974, the defendants found that Bradley was not dangerous to himself or others and recommended his release from the hospital. On April 25, 1974, Bradley shot and killed his mother and brother. Inasmuch as the instant action presented issues arising out of Kansas law, we submitted an interrogatory to the Supreme Court of Kansas and now have received an opinion answering the questions that were certified to the Kansas Court. That Court held as follows: 1. A claim arising out of a negligent release of a patient who has violent propensities poses a valid cause of action. Physicians have a duty to use reasonable and ordinary care and discretion in making a recommendation to release such a patient. This duty is owed to the patient and the public. 2. At least as to causes of action, such as this one, arising before enactment of the 1979 Kansas Tort Claims Act, staff doctors of a state mental institution are not immune from civil liability resulting from release or failure to warn of the release of a dangerous patient. We accept these determinations by the Kansas Supreme Court. The full opinion by that court, 234 Kan. 484, 673 P.2d 86, is incorporated herein as an appendix to this opinion. Several issues remain to be decided by this court. I. DEFENDANT’S CHALLENGES TO EVIDENTIARY RULINGS: The defendants raise several challenges to the trial judge’s decisions to admit and exclude the testimony of certain proffered witnesses. After considering the various arguments, we conclude that the trial judge acted properly in rendering his decisions. Decisions on relevance of testimony and competence of witnesses are within the broad discretion of the trial judge and will only be reversed on a showing of abuse of discretion. Mason v. United States, 719 F.2d 1485, 1490 (10th Cir.1983); Scholz Homes, Inc. v. Wallace, 590 F.2d 860 (10th Cir.1979). At no time did the trial court abuse its discretion. A. Testimony of Dr. O’Connor: Defendants challenge the competence of plaintiffs’ expert witness on the ground that he was licensed and trained in a different discipline than the defendants. The expert, Dr. William O’Connor, has several advanced degrees in clinical psychology and extensive experience in institutional procedure and mental patient evaluation. Defendants argue that notwithstanding his experience and training, Dr. O’Connor is not a medical doctor and is thus incompetent to testify on the standard of care expected of the defendant medical doctors on the team- that made the challenged discharge decision. They cite Kansas law holding that a medical malpractice defendant must be evaluated according to the standards of his or her particular discipline. Webb v. Lungstrum, 223 Kan. 487, 575 P.2d 22 (1978); Hiatt v. Groce, 215 Kan. 14, 523 P.2d 320 (1974). The trial judge considered and rejected defendants’ contention. He conceded that he would “doubt that you could have a foot doctor testify as to the qualifications of a cardiologist,” but held that this case involves psychological evaluation and technique common to psychiatrists and clinical psychologists. We are in agreement with the trial court on this. This is not a case in which medical training or competence is at issue. The defendant physicians were members of a team engaged in psychological inquiry. Indeed, one of the original defendants, who settled before trial, was a clinical psychologist. All the team members agreed to discharge Bradley Durflinger, and all considered the same historical and diagnostic information. The decision involved psychological rather than medical inquiry, and a clinical psychologist such as Dr. O’Connor has competence to testify on the proper standards applicable to such a decision. The trial judge did not abuse his discretion in admitting Dr. O’Connor’s testimony. B. Testimony of Dr. Dyck: The defendants also challenge the trial judge’s exclusion of one of their proffered experts, a psychiatrist named Dr. Dyck. The trial judge was justified in excluding Dr. Dyck’s testimony. In retaining and presenting Dr. Dyck, the defendants violated the discovery provisions of the Federal Rules of Civil Procedure. The trial court was within its discretion in excluding the testimony of the witness on these grounds. Plaintiffs had originally retained Dr. Dyck as a consultant, and designated him as a probable witness in presenting their case. Subsequently, they decided not to use him as a witness, and so informed defendants. Plaintiffs did not give defendants any information about the substance of Dr. Dyck’s evaluation because they had decided not to call him to the witness stand. Upon learning of plaintiffs’ decision not to call Dr. Dyck, defendants contacted Dr. Dyck and requested a copy of the report he prepared for the plaintiffs. He sent them a copy of the evaluation and the defendants sought at trial to call him as their witness. In proceeding in this rather unorthodox fashion, defendants violated Rule 26 of the Federal Rules of Civil Procedure. Rule 26(b)(4)(B) provides that: A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only .... upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. The rule is designed to promote fairness by precluding unreasonable access to an opposing party’s diligent trial preparation. See Advisory Committee Notes, Fed.R.Civ.P. 26(b)(4)(B); Ager v. Jane C. Stormont Hosp. & Training School for Nurses, 622 F.2d 496, 502 (10th Cir.1980). Under the standards articulated in Ager, supra at 501,. Dr. Dyck was certainly an “expert who has been retained or specially employed by another party in anticipation of litigation.” He prepared a report for plaintiffs after the case was filed. This was based on information furnished to him by plaintiffs. He was paid by plaintiffs for his services. In obtaining his report and assistance, defendants failed to make the necessary showing of special need to the court. Had they made a showing, there is small possibility that they could have prevailed; they had an expert testify on the same psychological principles and procedures, and could probably have obtained others with little difficulty. In proceeding as they did, defendants circumvented the discovery process and subverted the principle of fairness that underlies Rule 26(b)(4XB). Defendants’ disregard of the Rule, coupled with the prejudice Dr. Dyck’s specially informed opinion might work on plaintiffs’ case, justified the trial court’s exclusion of the proffered evidence. The exclusion worked no hardship on defendants because they presented another expert on the same subject. So, our holding is that the trial judge acted within his discretion. In different circumstances we recognize that a trial judge might not be required to exclude the testimony of a witness consulted in violation of the rules of discovery. C. Testimony of Bradley Durflinger and Reverend Holgate: Defendants argue that the trial judge erred in excluding the testimony of Bradley Durflinger and Reverend Holgate. Specifically, they argue that those two witnesses would have testified to the volatile family situation and abusive history that Bradley endured while growing up. Defendants argue that this testimony is relevant to their defense of plaintiffs’ contributory negligence in the deaths of Margaret and (Dor-win Durflinger. The trial judge ruled that the defendants’ theory of contributory negligence was invalid, and excluded the testimony as irrelevant. We agree. The plaintiffs in this case allege negligence in discharging a foreseeably violent mental patient. Defendants might be permitted to argue contributory negligence if the plaintiffs had contributed to the decision to discharge Bradley or if they had provoked Bradley to act violently. At the trial, however, defendants did not proceed on either of these grounds. Defendants sought to prove that plaintiffs’ past abuse or neglect led or contributed to the deaths. This does not establish contributory negligence. Contributory negligence is not established unless there exists proof of past mistreatment of Bradley which proximately caused or contributed to his violence. Negligence is the proximate cause of an injury when it appears that “the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” Reece Const. Co., Inc. v. State Highway Comm’n., 6 Kan.App.2d 188, 627 P.2d 361, 364 (1981) (quoting Schwarzschild & Sulzberger Co. v. Weeks, 72 Kan. 190, 83 P. 406 (1905)). Even if plaintiffs had mistreated or neglected Bradley in the past, defendants offered no evidence that the deaths of Margaret and Corwin Durflinger could reasonably be called a “natural and probable consequence” of the plaintiffs’ past treatment of Bradley. Because they could not demonstrate that Bradley’s alleged childhood suffering proximately caused or contributed to Bradley’s violent outburst, the trial judge properly rejected their proffered theory of contributory negligence. D. Deposition of Dr. Moore: In addition to their challenge to the trial court’s rulings on witnesses, the defendants argue that the trial court improperly admitted the deposition of Dr. Federick Moore. Dr. Moore is the psychiatrist who, following the incident with Bradley’s grandparents, found Bradley Durflinger to be a danger to himself and others and recommended hospitalization. The defendants contend that his deposition testimony was irrelevant and based on facts not within his personal knowledge. Neither of these arguments commands a reversal here. Dr. Moore’s deposition testimony was clearly relevant. He was the director of the Mental Health Institute charged by the Probate Court with evaluating Bradley Durflinger. His observations and conclusions are germane to the issue of Bradley’s mental condition on admission to the hospital and his need for therapy. The defendants’ relevancy objection is unfounded. The defendants also challenge the deposition on the ground that it contains testimony based on facts not within Dr. Moore’s personal knowledge. The record is not clear whether Dr. Moore was an expert witness or merely a lay witness to certain facts at issue in the case. The standards applied to lay and expert witnesses differ. Rule 602 of the Federal Rules of Evidence provides: “A [lay] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.” Rule 703 of the Federal Rules of Evidence permits an expert to base an opinion on any facts or data, admissible or not, which are “of a type reasonably relied on by experts in the particular field in forming opinions or inferences on the subject.” In re Aircrash in Bali, Indonesia, 684 F.2d 1301, 1309 (9th Cir.1982) (quoting Rule 703). In drafting this rule, the Advisory Committee noted that “the rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court.” Advisory Committee Notes, Fed.R. Evid. 703. In their brief, defendants suggest that Dr. Moore is to be treated as an expert. If this is so, then his conclusions based in part on data and reports prepared by Dr. Strange, a psychologist colleague, in reaching a conclusion on Bradley’s condition and prognosis was properly in evidence. He could and did reasonably rely on this information in forming his professional opinion. Aircrash, 684 F.2d at 1314 (9th Cir.1982) (expert permitted to testify on pilot competence based on flight training records). If Dr. Moore served as a lay witness, the deposition testimony should have been limited to his conclusions based on his own observations. The conclusions based upon Dr. Strange’s observations should have been excluded. This possible error in the trial judge’s ruling, however, does not require reversal of this case. “Even if there is error, reversal is appropriate only if we can say that the error affected the substantial rights of the parties.” Aircrash, supra at 1313; Fed.R.Civ.P. 61. No substantial rights were affected by this alleged error. Dr. Strange testified at trial on the same issue as Dr. Moore’s deposition testimony. Moreover, the Probate Court records were already in evidence. The evidence challenged here was cumulative at worst, and did not substantially damage defendants’ case. E. Videotape of Bradley Durflinger: Defendants assert that the trial court erroneously admitted a videotape of Bradley Durflinger, which was made during his confession to the police on the day of the murders. Defendants maintain that this evidence of Bradley Durflinger’s behavior subsequent to his discharge from Larned State Hospital is irrelevant and highly prejudicial. The trial court received the videotape on the grounds that it was relevant to Bradley Durflinger’s state of mind and demeanor and to the similarity of conduct between the contemplated murder of his grandparents and the actual murder of his mother and brother. The trial judge cautioned the jury that the tape was received and could be considered for limited purposes. The videotaped confession at issue meets the test of relevancy set forth in Federal Rule of Evidence 401. Relevant evidence within the meaning of Rule 401 is evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The videotape of Bradley Durflinger, made less than a week after his discharge from Larned State Hospital meets this broad definition of relevancy. While this court may question the weight to be given to evidence of Bradley’s activities subsequent to his discharge, it cannot be said that the trial court committed an abuse of discretion in finding that the evidence was relevant. The contention of defendant that admitting this relevant evidence prejudiced the jury is a harder one. Other courts have grappled with the question of whether the admission of a videotape into evidence violated Federal Rule of Evidence 403. Rule 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury .... ” In deciding whether evidence is admissible under Rule 403, a trial judge must weigh the probative value of the challenged evidence against the probability of prejudice. Thomas v. C.G. Tate Const. Co., Inc., 465 F.Supp. 566 (D.S.C.1979). Thus the decision is based on the exercise of discretion. In Thomas, supra, the court excluded a proffered videotape. The videotape portrayed, in graphic detail, the pain and suffering experienced by the plaintiff as he underwent therapy for burns he received as a result of an automobile accident. The court noted that the tape would nauseate a squeamish individual. As part of its ruling, the court recognized the probable inflammatory effect the film would have on a jury, as well as the fact that the plaintiff could instead present the same evidence through the testimony of the plaintiff, his wife, doctor and therapist. In addition, the court recognized that the videotape format, without regard to its content, would stand out in the minds of jurors. In Grimes v. Employers Mut. Liab. Ins. Co., 73 F.R.D. 607 (D.Alaska, 1977), the court allowed a portion of a videotape to be shown. The film depicted the plaintiff (the victim of an industrial accident) performing daily activities. The court ruled that the films “illustrate, better than words, the impact the injury has had on the plaintiff’s life in terms of pain and suffering and loss of enjoyment of life. While the scenes are unpleasant, so is plaintiff’s injury. Id. at 610. As noted by the Thomas court, liability was not at issue in Grimes and the film was shown only as an aid in determining damages. The case of Foster v. Crawford Shipping Co., Ltd., 496 F.2d 788 (3rd Cir.1974), is one in which plaintiff suffered personal injuries while unloading defendant’s ship. The trial court found the defendant liable and the only issue on appeal was the amount of damages. After the injury, the plaintiff became a severe schizophrenic and was adjudicated an incompetent. At issue was plaintiff’s prognosis for recovery. The trial court admitted a videotape of a conversation between the plaintiff and his attorney. The court of appeals held that the trial court committed reversible error in admitting the tape. Plaintiff contended that the purpose of the film was merely to illustrate their expert witnesses’s testimony regarding plaintiff’s condition. The court found that even if the film had actually been utilized in this way, “any benefit which might have been derived in the factfinding process by such an illustration was far outweighed by the prejudice of what amounted to ex parte testimony from the absent incompetent.” Id. at 792. The above cases suggest that the prejudicial effect of a videotape is decided on a case by case basis. These cases illustrate the approaches taken by various courts in deciding the admissibility of a videotape. These cases which deal with different videotapes and were decided under totally different circumstances do not, however, provide an answer for this case. The particular circumstances determine admission or exclusion. As noted above, decisions on relevancy of evidence are within the sound discretion of the trial judge. Mason, supra. This same rule applies to questions of prejudice. Fitzgerald v. United States, 719 F.2d 1069 (10th Cir.1983). After having reviewed the record we are unable to hold that the trial judge abused his discretion in admitting the videotape. Bradley Durflinger did not appear as a raving incompetent on the videotape. The videotape suggested that Bradley was very much in control of his outward behavior. Indeed, the trial judge commented at trial: “He appears much more normal on the tube than you would imagine a guy of that character. I thought maybe the defendants wanted it for evidentiary purposes.” The tape could arguably benefit either of the parties. It cannot be said to be unduly prejudicial and the trial court did not abuse its discretion in admitting it. E. Remarks of Plaintiff’s Attorney: The defendants also argue that the trial court erred in permitting plaintiffs’ counsel to make certain remarks. According to defendants, counsel’s references to famous killers and questions to witnesses regarding psychotic behavior were improper. Defendants urge this court to find that these remarks were irrelevant and prejudicial. This argument, however, is unpersuasive. The standard of review for alleged improper conduct of counsel is whether the trial court abused its discretion. Arnold v. Eastern Air Lines, Inc., 681 F.2d 186 (4th Cir.1982), cert. denied, -- U.S. --, 103 S.Ct. 1801, 76 L.Ed.2d 366 (1983); Slade v. Slade, 439 F.2d 130 (9th Cir.1971); Zeigler v. Seaboard Coast Line R.R. Co., 437 F.2d 80 (5th Cir.1971); Waters v. Western Company of N. Am., 436 F.2d 1072 (10th Cir.1971). Moreover, “trial court discretion as to these matters is broad or — what comes to the same thing — appellate review is especially deferential.” Arnold v. Eastern Air Lines, supra at 195. In cases containing remarks comparable to those made here, appellate courts have found that remarks of counsel were not prejudicial. See, e.g., Zeigler, supra at 81-82 (reference to grade crossing as a “death trap” during opening argument in tort action). Indeed, courts have upheld as non-prejudicial comments by counsel that were much stronger than those made here. Arnold, supra at 196. (“[Eastern must have searched the countryside” for [opponent’s expert witness] and “for 40 bucks an hour, you can probably get almost anybody to say anything”; “killing people and maiming people is something they’ve gotten immune to as a part of doing business.”). After considering the remarks at issue here, there is no reason to believe that the challenged comments were either prejudicial or that the trial court’s response to them was an abuse of discretion. In reaching this decision it is important to note that this was a long trial. It is unlikely that these isolated remarks prejudiced the jury in any way. II. DEPENDANT’S CHALLENGE TO JURY INSTRUCTIONS: Defendants contend that the trial court erred in its instructions to the jury. Essentially, defendants’ argument is that the trial judge should have used the instructions proposed by appellant. The instructions given to the jury contained substantially the same information as appellants’ proposed versions. While this court may note that litigants always seek the instruction that is most favorable to their position, this is not the standard by which to judge the charge to the jury. “The appellate standard of review to be applied by the court is clear: an error in jury instructions will mandate reversal of a judgment only if the error is determined to have been prejudicial, based on a review of the record as a whole.” Wellington v. Daniels, 717 F.2d 932, 938 (4th Cir.1983) (citing Connors v. McNulty, 697 F.2d 18 (1st Cir.1983)). In addition, the reviewing court is to “consider all that the jury heard and, from standpoint of the jury, decide ‘not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine these issues.’ ” Alloy Int'l. Co. v. Hoover-NSK Bearing Co., 635 F.2d 1222 (7th Cir.1980) (quoting Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1100 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974)). The district court’s instructions to the jury correctly stated the law governing the case and were fair to all parties. The instructions do not constitute reversible error. III. MOTIONS FOR DIRECTED VERDICT & NEW TRIAL: The various points raised by the defendants have been treated in some detail and it has been this court’s conclusion that none of the issues presented disclosed substantial error. Consequently, although we have noted and considered the arguments in the briefs with respect to these matters, inasmuch as the arguments involve a summary of the questions already considered, we conclude that it is unnecessary to discuss them in detail again. The decision of the trial court, 563 F.Supp. 322, should be affirmed. APPENDIX No. 55,594 IRVIN L. DURFLINGER, RAYMOND DURFLINGER, and RONALD DURFLINGER, Plaintiffs, v. BENJAMIN ARTILES, PRECIOSA ROSALES and EDUARDO MEDRANO, Defendants. Syllabus by the Court 1. Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence. 2. Negligence is an essential element of a medical malpractice action. 3. A physician is obligated to his patient to use reasonable and ordinary care and diligence in the treatment of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill and experience which is ordinarily possessed by other physicians in the same or similar locations. 4. The duty of a physician to exercise reasonable and ordinary care and discretion remains the same for all physicians, but what constitutes negligence in a particular situation is judged by the professional standards of the particular area of medicine with which the practitioner is involved. 5. Where a physician is employed by a state mental hospital and, as a part of such employment, participates in a hospital team recommendation to the hospital superintendent that a committed patient be discharged as being no longer in need of care or treatment, i.e. no longer dangerous to himself or others, said physician has a duty to use reasonable and ordinary care and discretion in making such recommendation. This duty is owed to the patient and the public. 6. Liability for negligent release of a mental patient committed to a state hospital is discussed and distinguished from liability predicated upon a therapist’s failure to warn a readily identifiable potential victim of danger to him or her presented by the patient and a therapist’s failure to take affirmative action to cause the commitment of a patient. 7. The superintendent of a state mental hospital is a public officer. Staff physicians employed in a state mental hospital are public employees rather than public officers. On certification of two questions of law from the United States Court of Appeals, Tenth Circuit, WILLIAM E. DOYLE, circuit judge. Opinion filed December 2,1983. Question No. 1: A claim against state mental hospital staff physicians alleging negligent release of a patient is a valid cause of action. Question No. 2: The staff physicians have no legal immunity from liability predicated on the negligent release of a patient in 1974. Deborah Carney, of Turner and Bois-seau, Chartered, of Great Bend, argued the cause, and Christopher Randall and Casey R. Law, of the same firm, were with her on the briefs for plaintiffs. Mary Beth Mudrick, assistant attorney general, argued the cause, and Robert T. Stephan, attorney general, and Reid Stacey, assistant attorney general, were with her on the briefs for defendants. John E. Wilkinson, of Topeka, was on the amicus curiae brief for the Kansas Psychiatric Association. Sheila M. Janicke, of Shawnee Mission, was on the amicus curiae brief for the Kansas Trial Lawyers Association. Mary Beth Blake, of Fallon, Holbrook & Ellis, of Kansas City, was on the amicus curiae brief for the State of Kansas and State Treatment Facilities. John E. Shamberg, Lynn R. Johnson and Ruth M. Benien, of Schnider, Shamberg & May, Chartered, of Shawnee Mission were on the amicus curiae brief for party-plaintiffs in complaints numbered 80-2095 and 83-2094 filed in the United States District Court for the District of Kansas. McFARLAND, Justice: This case comes before us on a certification from the United States Court of Appeals, Tenth Circuit, under authority of the Uniform Certification of Questions of Law Act, K.S.A.1982 Supp. 60-3201 et seq. The two certified questions are: I. WOULD THE KANSAS SUPREME COURT RECOGNIZE AS A VALID CAUSE OF ACTION A CLAIM WHICH GREW OUT OF A NEGLIGENT RELEASE OF A PATIENT WHO HAD VIOLENT PROPENSITIES, FROM A STATE INSTITUTION, AS DISTINGUISHED FROM NEGLIGENT FAILURE TO WARN PERSONS WHO MIGHT BE INJURED BY THE PATIENT AS THE RESULT OF THE RELEASE? II. DO STAFF DOCTORS, AS DISTINGUISHED FROM THE SUPERINTENDENT OR HEAD OF THE HOSPITAL OR INSTITUTION, HAVE LEGAL IMMUNITY UNDER KANSAS LAW FROM CIVIL LIABILITY RESULTING FROM A RELEASE OR FAILURE TO WARN OF THE RELEASE OF A DANGEROUS PATIENT? The factual background giving rise to the litigation may be summarized as follows. On December 25, 1973, Butler and Carol Elliott returned to their Hutchinson, Kansas, home after a few days’ absence. As they walked into their home, the Elliotts were confronted by their nineteen-year-old grandson, Bradley Durflinger, who was armed with a hatchet and a meat fork. It was Bradley’s intention to kill his grandparents and steal their automobile. The planned attack was averted. The following day Butler Elliott filed a petition in the probate court of Reno County, Kansas, seeking commitment of Bradley to a mental hospital on the grounds he was, or probably would become, dangerous to himself or to the person or property of others. Bradley had a history of disciplinary problems. He had run away from home on numerous occasions. His United States Navy service had ended in discharge after he was absent without leave. In March, 1973, Bradley attempted suicide and in November, 1973, Bradley was placed on probation for shoplifting. The probate court found Bradley to be a mentally ill person and ordered he be given care or treatment at the Larned State Hospital in Larned, Kansas. On January 8,1974, the Elliotts delivered Bradley to the Larned State Hospital. Bradley was diagnosed by the hospital as having a passive-aggressive personality with sociopathic tendencies. On April 19, 1974, Bradley was discharged from the hospital as being no longer in need of care or treatment. On that day, the Elliotts picked Bradley up at the hospital and a few days later put him on a commercial airliner bound for Oregon in order that Bradley could reside with his parents and siblings. A week after his discharge, Bradley killed his mother (Margaret Durflinger) and his younger brother (Corwin Durflinger) by shooting each person several times with a rifle. Bradley was subsequently convicted of the two homicides and was sentenced to serve time in the Oregon penal system. On March 25, 1975, this wrongful death action was commenced in the United States District Court for the District of Kansas. The plaintiffs are Irvin L. Durflinger (husband of Margaret and father of Corwin) and Raymond and Ronald Durflinger (sons of Margaret and brothers of Corwin). Defendants named in the action were all doctors employed at Larned State Hospital during the time of Bradley Durflinger’s confinement at that institution. Liability was predicated on the alleged negligent release of Bradley from the hospital. Dr. G.W. Getz was granted summary judgment on the basis that, as superintendent of the hospital, he was a public officer acting pursuant to a special statutory duty when he approved Bradley’s hospital dismissal (K.S.A.1973 Supp. 59-2924). Dr. Francisco Izaguirre (psychiatrist) was dismissed from the action on the basis of improper service. Dr. Terry Keeley (psychologist) settled with plaintiffs immediately before trial. The present defendants are Dr. Benjamin Ar-tiles (psychiatrist and hospital clinical director), Dr. Preciosa Rosales (attending physician) and Dr. Eduardo Medrano (ward physician). Drs. Rosales and Medrano were members of the hospital team which made the recommendation to Dr. Getz to discharge Bradley. Initially the team tentatively decided Bradley should be transferred to an Oregon mental hospital. This plan would have necessitated he be flown to Oregon at the expense of the State of Kansas and be accompanied on the trip by a Larned hospital staff member. Such arrangement would be subject to the approval of the Division of Institutional Management in Topeka. Dr. Artiles, hospital clinical director, sent a note to a member of the hospital team opposing the transfer plan. Subsequently, the recommendation was made simply to discharge Bradley. The case was tried to a jury which returned a verdict in favor of the plaintiffs in the amount of $92,300. After deducting the Keeley settlement, judgment was entered against Drs. Artiles, Rosales and Me-drano in the amount of $67,300. These three defendants then appealed to the United States Court of Appeals for the Tenth Circuit. Numerous issues have been raised in the appeal. Two questions of law have been certified by the federal appellate court to this court as being substantially determinative of the appeal and entirely subject to Kansas law. We have accepted the certification. We turn now to the first question of law certified to this court for determination. For convenience the question is repeated. WOULD THE KANSAS SUPREME COURT RECOGNIZE AS A VALID CAUSE OF ACTION A CLAIM WHICH GREW OUT OF A NEGLIGENT RELEASE OF A PATIENT WHO HAD VIOLENT PROPENSITIES, FROM A STATE INSTITUTION, AS DISTINGUISHED FROM NEGLIGENT FAILURE TO WARN PERSONS WHO MIGHT BE INJURED BY THE PATIENT AS THE RESULT OF THE RELEASE? Preliminarily, some fundamental principles of the law of negligence need to be stated. Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence. See Marks v. St. Francis Hospital & School of Nursing, 179 Kan. 268, 270-71, 294 P.2d 258 (1956). An accident which is not reasonable to be foreseen by the exercise of reasonable care and prudence is not sufficient grounds for a negligence action. Trimyer v. Norfolk Tallow Co., 192 Va. 776, 780, 66 S.E.2d 441 (1951); and Carrington, Victims’ Rights Litigation: A Wave of the Future?, 11 U.RichL.Rev. 447, 461 (1977). In Kansas it is a fundamental rule actionable negligence must be based on a breach of duty. Hanna v. Huer, Johns, Neel, Rivers & Webb, 233 Kan. 206, 221, 662 P.2d 243 (1983). See also Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982); and Madison v. Key Work Clothes, 182 Kan. 186, 192, 318 P.2d 991 (1957). Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458, recognized a special relationship between certain persons could give rise to a duty. Whether a duty exists is a question of law, McIntosh v. Milano, 168 N.J.Super. 466, 495, 403 A.2d 500 (1979); Chesapeake & Pot. Tel. Co. v. Bullock, 182 Va. 440, 445, 29 S.E.2d 228 (1944); Tort Law—Duty to Warn—Psychiatrist’s Duty to Warn Parties of Dangerous Patients, 19 Duq.L.Rev. 181, 185 (1980); and Carrington, 11 U.Rich.L.Rev. at 461. Whether the duty has been breached is a question of fact. Chesapeake & Pot. Tel. Co. v. Bullock, 182 Va. at 445, 29 S.E.2d 228. Further, whether there is a causal connection between the breached duty and the injuries sustained is also a question of fact. Stucky v. Johnson, 213 Kan. 738, 739, 518 P.2d 937 (1974). In Kansas negligence is never presumed. Blackmore v. Auer, 187 Kan. 434, 440, 357 P.2d 765 (1960). This court in Blackmore commented it may be said negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, as a result of which such other person suffers injury. 187 Kan. at 440, 357 P.2d 765. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance, before an act is said to be negligent, there must exist a duty to the individual complaining, the observance of which would have averted or avoided the injury. The plaintiff who sues his fellow man sues for a breach of duty owing to himself. 187 Kan. at 440, 357 P.2d 765. An act is wrongful, or negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), 59 A.L.R. 1253. The existence of negligence in each case must depend upon the particular circumstances which surrounded the parties at the time and place of the occurrence on which the controversy is based. 187 Kan. at 441, 357 P.2d 765. At the center of negligence is the concept of the reasonable person. What would a reasonable and prudent person, confronted by like circumstances and exercising reasonable care, have done? In other words, negligence involves acting other than as a reasonable person would do in the circumstances. The reasonable person has been observed to be the epitome of ordinariness, never reckless or absent minded, yet neither endowed with exceptional courage, foresight or skill. Mellor, The Law, p. 53 (3rd ed. 1966). The particular area of the law of negligence with which we are concerned herein is that of medical malpractice. Negligence is an essential element of a medical malpractice action. Natanson v. Kline, 187 Kan. 186, 354 P.2d 670 (1960). In Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976), we summarized the duties of physicians and hospitals as follows: “In Tefft v. Wilcox, 6 Kan. 46, 61, this court held that a physician is obligated to his patient under the law to use reasonable and ordinary care and diligence in the treatment of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill and experience which is ordinarily possessed by other physicians in the same or similar locations. We have continued to impose those duties upon physicians. See PIK, Civil, 15.01 and cases there cited. A physician also has the duty to make a reasonable disclosure to the patient of pertinent facts within his knowledge relating to proposed treatment, in order that the patient may intelligently consent to or refuse the treatment. [Citation omitted.] “Hospitals owe a duty to their patients to exercise reasonable care. This is such care, skill and diligence as the known physical and mental condition of the patient may require, and it is that degree of care used by other hospitals in the community or similar communities under like circumstances. See PIK, Civil, 15.02, and cases therein cited.” 220 Kan. at 375, 552 P.2d 885. In Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 574 P.2d 136 (1977), this court said: “A physician or surgeon is expected to have and to exercise that reasonable degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices, or similar communities; similarly, a hospital is required to exercise that degree of care, skill and diligence used by hospitals generally in the community or in similar communities under like circumstances. Avey v. St. Francis Hospital & School of Nursing, 201 Kan. 687, 442 P.2d 1013, and cases cited therein.” 223 Kan. at 3, 574 P.2d 136. See also PIK Civ.2d 15.01. It should be noted a physician is not a guarantor of good results and civil liability does not arise merely from bad results, nor if bad results are due to some cause other than his treatment. Voss v. Bridwell, 188 Kan. 643, 364 P.2d 955 (1961); Goheen v. Graber, 181 Kan. 107, 309 P.2d 636 (1957). Rules of law governing the duty of physicians and surgeons to their patients apply generally to dentists (Simpson v. Davis, 219 Kan. 584, 549 P.2d 950 [1976]), and to registered nurses (Hiatt v. Groce, 215 Kan. 14, 523 P.2d 320 [1974]). The duty of a physician to exercise reasonable and ordinary care and diligence remains the same regardless of the particular medical specialty in which the physician practices. However, the particular decisions and acts required of the physician in fulfilling the duty will vary with the circumstances of the patient’s situation and the medical specialty of the physician. Obviously such diverse medical specialties as dermatology, radiology, pediatrics, surgery, and psychiatry confront the professional practitioner of each with radically different medical problems. However, what constitutes negligence in a particular situation is judged by the professional standards of the particular area of medicine with which the practitioner is involved. The appellants herein are a psychiatrist and two physicians who were involved in the professional recommendation of the hospital team to discharge Bradley Durflinger on the basis he was no longer in need of care or treatment. They argue, in essence, they and others like them, should be insulated from civil liability for their acts, even if negligent, on the basis prediction of dangerousness of a mental patient is too difficult to make and, further, to hold otherwise: (1) would seriously cripple their ability to function professionally, and (2) would have a catastrophic effect on the civil rights of mentally ill persons. We do not agree. In Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976), 83 A.L.R.3d 1166, similar arguments were raised and rejected. Although Tarasoff involved claimed liability for failure to warn rather than for negligent release (the distinction between the two theories to be discussed later), the following rationale of the California court applies with equal force to the therapist’s duty in negligent release cases: “The role of the psychiatrist, who is indeed a practitioner of medicine, and that of the psychologist who performs an allied function, are like that of the physician who must conform to the standards of the profession and who must often make diagnoses and predictions based upon such evaluations. Thus the judgment of the therapist in diagnosing emotional disorders and in predicting whether a patient presents a serious danger of violence is comparable to the judgment which doctors and professionals must regularly render under accepted rules of responsibility.” 17 Cal.3d at 438, 131 Cal. Rptr. 14, 551 P.2d 334. Continuing: “We recognize the difficulty that a therapist encounters in attempting to forecast whether a patient presents a serious danger of violence. Obviously, we do not require that the therapist, in making that determination, render a perfect performance; the therapist need only exercise ‘that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of [that professional specialty] under similar circumstances.’ (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [91 Cal.Rptr. 760, 478 P.2d 480, 45 A.L.R.3d 717] Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159-160 [41 Cal.Rptr. 577, 397 P.2d 161]; see 4 Witkin, Summary of Cal.Law (8th ed.1974) Torts, § 514 and eases cited.) Within the broad range of reasonable practice and treatment in which professional opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without liability; proof, aided by hindsight, that he or she judged wrongly is insufficient to establish negligence.” 17 Cal.3d at 438, 131 Cal.Rptr. 14, 551 P.2d 334. (Emphasis supplied.) Liability predicated upon negligent release of a patient committed to a mental hospital is a medical malpractice action. Bradley Durflinger was committed by the Reno County Probate Court to the Larned State Hospital upon the finding he was a mentally ill person in need of care or treatment. The statute in effect at the time of the commitment defining “mentally ill person” was K.S.A.1973 Supp. 59-2902 which provided, in pertinent part: “(1) The term ‘mentally ill person’ shall mean any person who is mentally impaired, except by reason of mental deficiency only, to the extent that he is in need of ‘care or treatment’ and who is or probably will become dangerous to himself or the person or property of others if not given ‘care and treatment’ and “(A) who lacks sufficient understanding or capacity to make responsible decisions with respect to his need for ‘care or treatment’, or “(B) who refused to seek ‘care and treatment’ .... ” (Emphasis supplied.) The petition for commitment alleged Bradley was dangerous to himself or others. The petition was filed by his grandfather the day after Bradley had attempted to kill his grandparents. Clearly he was committed to the hospital because he was dangerous to other persons. The hospital was required to provide care or treatment for Bradley. The “head of the hospital” was required to discharge Bradley when he was “no longer in need of ‘care and treatment’ ” (K.S.A.1973 Supp. 59-2924), i.e. no longer dangerous to himself or others. The three defendant-physicians were involved in the hospital team recommendation to the head of the hospital (hospital superintendent) that Bradley was no longer in need of care or treatment, i.e. no longer dangerous to himself or others. The making of the recommendation by the physicians to discharge or retain Bradley as a patient was a basic part of their professional employment. This professional duty obviously was for the benefit of Bradley and the public. We find no rational basis for insulating this one aspect of professional service from liability for negligence occurring in the performance thereof. The aforementioned standards for medical malpractice actions are applicable to an action for negligent release of a patient from a mental hospital. In Davis v. Lhim, 124 Mich.App. 291, 335 N.W.2d 481 (1983), the Michigan Court of Appeals held: “All psychiatrists, whether employed by a state institution or private facility, are subject to a duty to exercise competent, professional judgment in all aspects of treatment of their patients, including the decision to discharge a patient from custodial care.” 124 Mich.App. at 297, 335 N.W.2d at 486. Having reached this conclusion, we could end the discussion. However, we believe it is appropriate to distinguish negligent release from certain other types of third-party actions against physicians for damages done by their mental patients. In these other actions liability is not predicated upon the inherent duty of the physician in the ordinary course of treatment of his patient, but rather that a special relationship existed which required the physician to take some affirmative action outside the regular course of treatment to protect third persons. Such affirmative actions are for the benefit of third parties, not the patient, and involve such steps as notifying a potential victim, calling the police or instituting commitment proceedings. In Tarasoff, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, the therapist had knowledge an office patient was dangerous to a readily identifiable third person. He did not warn the third person and the patient murdered her. The California court held the therapist had an affirmative duty to warn the victim, call the police, or take other appropriate action for the victim’s protection. Lipari v. Sears, Roebuck & Co., 497 F.Supp. 185 (D.Neb.1980), involved a situation where a mental patient had been committed to a mental hospital and had been receiving psychiatric care from the Veterans Administration. The patient purchased a shotgun and resumed psychiatric day care treatment from the V.A. for about a month. The patient then stopped the treatment and a month later walked into a nightclub and shot Dennis Lipari to death and seriously wounded Ruth Ann Lipari. The United States was made a party to the action on the basis of negligent failure to detain the patient by seeking commitment. Here again, the duty imposed required the taking of an affirmative action for the protection of a third party, said action not being a part of the already accepted care and treatment of a committed patient such as in the case before us. In order to impose a duty to take affirmative action for the protection of third persons, the courts in both Tarasoff and Lipari adopted the Restatement (Second) of Torts § 315 (1965) and found a special relationship existed which required action be taken for the benefit of a third person. The opinion in Lipari discusses in depth the Tarasoff decision as well as adding its own rationale. The opinion further discusses a number of policy considerations also asserted by appellants herein. The relevant portion of the Lipari opinion is set forth in full as follows: “This Court must therefore determine whether Nebraska law would impose a duty on a psychotherapist to take reasonable precautions to protect potential victims of his patient, when the psychotherapist knows or should know that his patient presents a danger to others. “Unfortunately, the Nebraska Supreme Court has never addressed the issue of a therapist’s duty to third persons. It therefore becomes the duty of this Court to ascertain what rule of law the Nebraska Supreme Court would adopt in this situation. In making this determination, the Court will consider any Nebraska authority dealing with issues analogous to those raised in this case. The Court will also consider the ease law of other jurisdictions, to the extent that it suggests the rule of law which the Nebraska Supreme Court would be likely to adopt. See Hoesing v. Sears, Roebuck & Co., 484 F.Supp. 478, 478-79 (D.Neb.1980). “An essential element in any negligence action is the existence of a legal duty which the defendant owes to the plaintiff. Daniels v. Andersen, 195 Neb. 95, 98, 237 N.W.2d 397, 400 (1975). Under the common law, a person had no duty to prevent a third party from causing physical injury to another. A number of courts, however, have recognized an exception to this general rule. Under this exception, a person has a duty to control the conduct of a third person and thereby to prevent physical harm to another if “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or “(b) a special relation exists between the actor and the other which gives to the other a right to protection. Restatement (Second) of Torts § 315 (1965). See, e.g., Seibel v. City & County of Honolulu, 61 Haw. 253, 602 P.2d 532, 536 (1979). Since there is clearly no relationship between the V.A. and the persons injured by Mr. Cribbs [patient], the Court will limit its analysis to a discussion of the relationship between Mr. Cribbs and his doctors at the Y.A. “Under the Restatement approach, the psychotherapist-patient relationship has been found to be a sufficient basis for imposing an affirmative duty on the therapist for the benefit of third persons. Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976); McIntosh v. Milano, 168 N.J.Super. 466, 403 A.2d 500 (1979). Although the cases recognizing this duty are from jurisdictions other than Nebraska, this Court may be guided by these decisions since they provide a ‘just and reasoned’ analysis of the issues raised in the instant case. See Seedkem v. Safranek, 466 F.Supp. 340, 343 (D.Neb.1979). The Court will therefore discuss these decisions in some detail. “In Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976), the plaintiffs’ complaint alleged that the defendant therapists had a duty to warn their daughter of the danger posed to her by one of the therapist’s patients. The California Supreme Court’s analysis of whether the complaint stated a cause of action began with recognition of the general rule that one person owes no duty to control the acts of another. However, the court then adopted the Restatement’s special relationship exception to this rule. Applying this exception to the facts before it, the court held that the relationship between the patient and her therapist was sufficient to support the imposition of an affirmative duty on the defendant for the benefit of third persons. Id. at 435, 551 P.2d at 343, 131 Cal.Rptr. at 23. This duty existed even though the defendant therapists did not stand in a special relationship to both the injured party and the person whose conduct created the risk. Id. at 436, 551 P.2d at 344, 131 Cal.Rptr. at 24. “In support of recognition of this duty, the court noted that in other settings, courts had found doctors and hospitals responsible for the behavior of their patients. Among the cases cited by the Tarasoff court were decisions in which the courts had recognized that a mental hospital may be liable for the negligent release of dangerous patients. Id. at 436 n. 7, 551 P.2d at 343 n. 7, 344, 131 Cal.Rptr. at 23 n. 7, and in which the courts had held that a doctor was liable for his negligence to those contracting a contagious disease from his patient. Id. at 436, 551 P.2d at 344, 131 Cal.Rptr. at 24. “In McIntosh v. Milano, 168 N.J.Super. 466, 403 A.2d 500 (1979), the New Jersey Superior Court was faced with the issue of whether a psychiatrist had a duty to warn a potential victim of one of his patients of the danger posed by that patient. The McIntosh court adopted the Restatement rule that a defendant has no duty to control the actions of another unless a special relationship had existed between the defendant and either the potential victim or the person whose conduct had created the risk. Id. at 483, 403 A.2d at 508-09. In analyzing the issue of whether the psychiatrist-patient relationship would support the creation of such a duty, the court noted that there were other factual settings in which the physician-patient relationship gave rise to an affirmative duty on the medical professions. “ ‘[T]he concept of legal duties for the medical profession is not new. A doctor-patient relationship in some circumstances admittedly places a duty to warn others of contagious diseases. New Jersey recognizes the general rule that a person who negligently exposes another to a contagious disease, which the other contracts, is liable in damages.... Specifically, a physician has the duty to warn third persons against possible exposure to contagious diseases, e.g., tuberculosis, venereal diseases, and so forth.... That duty extends to instances where the physician should have known of the infectious disease. “ ‘Physicians also must report tuberculosis, venereal disease and various other contagious diseases, see e.g., N.J.S.A. 26:4-15, as well as certain other conditions.’ Id. at 484, 403 A.2d at 509. Based on these previously recognized duties, the McIntosh court concluded that the psychiatrist had an affirmative duty to take reasonable precautions to protect potential victims of his patients. In the McIntosh court’s opinion, ‘the relationship giving rise to this duty [could] be found either in that existing between the therapist and the patient, as was alluded to in Tarasoff II, or in the more broadly based obligation a practitioner may have to protect the welfare of the community, which is analogous to the obligation a physician has to warn third persons of infectious or contagious disease.’ Id. at 490, 403 A.2d at 512. “The Tarasoff and McIntosh decisions provide a well-reasoned framework for analyzing the issue of whether a psychotherapist owes an affirmative duty to persons other than his patient. This Court, however, must determine whether the Nebraska Supreme Court would adopt the Tarasoff-Mclntosh analysis. “The basis for the Tarasoff-Mclntosh rule imposing an affirmative duty on psychotherapists was the courts’ adoption of the special relationship analysis of the Restatement (Second) of Torts § 315. This Court is not aware of any Nebraska case expressly adopting the rule found in the Restatement § 315. However, there are two Nebraska cases which implicitly recognize the special relationship analysis. See Daniels v. Anderson, supra, 195 Neb. at 98, 237 N.W.2d at 400, Rose v. Gisi, 139 Neb. 593, 597-598, 298 N.W. 333, 336 (1941). In these cases, the Nebraska Supreme Court found a duty arising out of the defendant’s relationship with the plaintiff, Daniels v. Andersen, supra, 195 Neb. at 98, 237 N.W.2d at 400, or with the person creating the risk, Rose v. Gisi, supra, 139 Neb. 597-99, 298 N.W. at 336-37. The duty required that the defendant exercise reasonable care in controlling the action of a third person. In light of these Nebraska decisions recognizing an affirmative duty based on a special relationship, this Court is of the opinion that the Nebraska Supreme Court would adopt the special relationship analysis found in Restatement § 315. “Having determined that the special relationship rule is applicable to the instant case, the Court must next consider the issue of whether under Nebraska law the relationship between a psychotherapist and his patient is sufficient to justify imposition of an affirmative duty on the therapist to control the conduct of his patients. Although the Nebraska Supreme Court has never addressed this issue, this Court is of the opinion that the Nebraska court would find that the therapist-patient relationship gives rise to an affirmative duty for the benefit of third persons. “The existence of this duty is suggested by a passage from a Nebraska ease involving the physician-patient privilege. In Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920), the court held that a doctor was not liable to his patient for disclosing the patient’s confidence, when the disclosure was necessary to prevent the spread of a contagious disease. This privilege was based on the fact that ‘[t]he doctor’s duty does not necessarily end with the patient, for on the other hand, the malady of his patient may be such that a duty may be owing to the public and, in some cases, to other particular individuals.’ Simonsen v. Swenson, supra, 104 Neb. at 227, 177 N.W. at 832. From this passage, it may be inferred that under Nebraska law the physician-patient relationship imposes affirmative duties on the physician for the benefit of persons other than the patient. This inference is buttressed by the fact that other jurisdictions have found that a physician owes a duty to persons who may be harmed by their patient’s condition. Freese v. Lemmon, 210 N.W.2d 576 (Iowa 1973); Kaiser v. Suburban Transportation System, 65 Wash.2d 461, 398 P.2d 14 (1965), modified [65 Wash.2d 461] 401 P.2d 350 (1965). See Seibel v. City & County of Honolulu, supra, 602 P.2d at 538. “Despite this precedent imposing affirmative duties on physicians generally, the United States argues that various policy considerations counsel against the imposition of liability on psychotherapists. The primary thrust of the argument of the United States is that a therapist should not be held liable for the violent outbursts of his patients, because a therapist cannot accurately predict which patients pose a danger to other persons. To support this contention, the United States has submitted to the Court various studies which purport to prove that dangerousness cannot be predicted. The Court, however, is not persuaded that the inherent difficulties in predicting dangerousness justify denying the injured party relief regardless of the circumstances. “The argument of the United States ignores the fact that psychiatrists and mental hospitals have been held liable for failing to predict the dangerous propensities of their patients. See Hicks v. United States, 511 F.2d 407, 415-17 (D.C.Cir.1975); Eanes v. United States, 407 F.2d 823 (4th Cir.1969); White v. United States, 317 F.2d 13, 17 (4th Cir.1963); Johnson v. United States, 409 F.Supp. 1283, 1292-94 (M.D.Fla.1976), rev’d on other grounds 576 F.2d 606 (5th Cir.1978); Greenberg v. Barbour, 322 F.Supp. 745 (E.D.Pa.1971); Merchants National Bank & Trust Co. v. United States, 272 F.Supp. 409, 417-19 (D.N.D.1967); Baker v. United States, 226 F.Supp. 129, 132-35 (S.D.Ia.1964), aff’d 343 F.2d 222 (8th Cir.1965). Moreover, the Nebraska Supreme Court has imposed on hospitals a duty to guard against their patients’ dangerous mental conditions when the condition is discoverable by the exercise of reasonable care. Foley v. Bishop Clarkson Memorial Hospital, 185 Neb. 89, 94-95, 173 N.W.2d 881, 884-85 (1970). See Skar v. City of Lincoln, Neb., 599 F.2d 253, 258 n. 5 (8th Cir.1979). These cases from Nebraska and other jurisdictions clearly show that the difficulty in predicting dangerousness has not caused the Nebraska Supreme Court or other courts to deny the existence of a cause of action for the negligence of the doctor or hospital. “Th