## Facts

- Marty Nuzum, Carol Munstermann’s decedent’s estranged boyfriend, had a history of depression and multiple suicide attempts.
- In January 2002, Nuzum was hospitalized at Alegent Health–Immanuel Medical Center after a suicide attempt; he was assessed for homicidal risk factors and was not found to show homicidal tendencies.
- On February 4, 2002, Nuzum admitted himself to the hospital for inpatient care due to depression and suicidal ideation and was treated by psychiatrist Hudson Hsieh, M.D.
- During the February admission, a medical student documented that Nuzum was “thinking of hurting” his girlfriend in the context of relationship problems; Hsieh and the student understood the statement to refer to emotional harm rather than physical violence.
- Nuzum was discharged after about a week of treatment.
- Five days after discharge, on February 12, 2002, Nuzum murdered the decedent when she went to his apartment to retrieve car keys.
- The estate brought a wrongful death action alleging the hospital and Hsieh failed to warn or protect the decedent from Nuzum.
- At trial, the plaintiff’s expert psychiatrist opined the “thinking of hurting” statement likely referred to physical violence, but did not testify that Hsieh actually believed Nuzum communicated a serious threat of physical harm.
- The jury could not reach a verdict and a mistrial was declared; defendants’ post-mistrial motion for judgment notwithstanding the verdict (JNOV) was denied.

## Issues

1. Whether the evidence was legally sufficient to allow a jury to find that the patient communicated a serious threat of physical violence against a reasonably identifiable victim, triggering a duty to warn or protect.
2. What duty standard governs Nebraska psychiatrists regarding third-party victims where statutory limits expressly address other mental health professionals but not psychiatrists.
3. Whether the jury instructions correctly stated the applicable duty standard for retrial.

## Decision

- The Nebraska Supreme Court affirmed the denial of defendants’ JNOV motion and remanded for a new trial.
- The court held a reasonable jury could find that Nuzum communicated a serious threat of physical violence against a reasonably identifiable victim based on the “thinking of hurting” statement, surrounding context, and expert testimony.
- The court adopted for psychiatrists a duty standard consistent with Nebraska’s statutory policy for other mental health professionals: a duty arises when the patient communicates a serious threat of physical violence against a reasonably identifiable victim.
- The court determined the prior jury instructions did not clearly and correctly reflect this governing duty formulation, requiring a new trial with proper instructions.

## Legal Principles

- A Nebraska psychiatrist owes a duty to take reasonable precautions to warn or protect a third party only when the patient has communicated a serious threat of physical violence against a reasonably identifiable victim.
- Legislative policy limiting duties of specified mental health professionals may inform the common-law duty imposed on psychiatrists when similar confidentiality and predictive concerns are present.
- On review of a denied JNOV, evidence is viewed most favorably to the nonmoving party; if reasonable inferences permit a finding that the duty-triggering communication occurred, the issue should go to the factfinder.
- Whether an ambiguous statement constitutes a communicated serious threat of physical violence may present a fact question when context and expert testimony support competing interpretations.
- A new trial is required when jury instructions fail to accurately state the governing duty standard, even where the first trial ended in a mistrial.

## Conclusion

The court held that psychiatrists’ third-party duties in Nebraska are limited to situations where a patient communicates a serious threat of physical violence toward an identifiable victim; because the evidence could support such a finding and the jury instructions misstated the duty standard, the JNOV denial was affirmed and the case was remanded for retrial with corrected instructions.


Munstermann v. Alegent Health-Immanuel Med. Ctr., 716 N.W.2d 73 (Neb. 2006)