concurring in part and dissenting in part. I concur in large part with the majority’s adoption of the professional judgment rule, and with the affirmance of the trial court’s dismissal of Theresa Pearson as a party plaintiff, but I do not agree that a new trial is warranted on the issue of Dr. Murray’s liability.
The professional judgment rule is a satisfactory approach to the thorny problem of the liability of mental health practitioners for the violent acts' of a voluntarily hospitalized patient subsequent to discharge. I am troubled to some degree, however, by the test adopted today in that it fails to include a limited duty to warn. Further, the rule seems to “swallow up” the concept of malpractice in this area, such that professional incompetence will not be the basis for liability.
Under my reading of the profes*102sional judgment rule set forth in the majority opinion, a psychiatrist may never be held liable for the discharge of a patient known to be violent as long as the psychiatrist has made a thorough evaluation of the patient’s violent tendencies and balanced in good faith the competing interests. I am not persuaded of the desirability of such a rule in all cases. Consider the example of a patient who has repeatedly stated to his psychiatrist that he intends to kill an identified individual upon discharge, and the psychiatrist believes that the patient is capable of carrying out the threat but releases him without warning the intended victim. The psychiatrist may very well have exercised his professional judgment in good faith in deciding that discharge was therapeutically appropriate] but if the patient then harms or kills the threatened victim, should there really be no liability? And what if the psychiatrist discharges a patient, having made a completely incompetent finding that the patient was non-violent, and the patient then kills or maims the unwarned victim? Under today’s majority opinion, no liability will attach as long as the psychiatrist has made a “thorough” evaluation of the relevant factors and has acted in good faith. I am not convinced that such a rule is entirely fair, although I am aware of the difficulties of proving competence or lack thereof in the area of predicting dangerousness and the importance of confidentiality in treating mental illness.
In any event, while I am willing to accept the rule set forth today as a satisfactory compromise in a difficult area of. the law, I cannot accept the majority’s application of the rule to the facts presented in this case.
The majority finds that a new trial is warranted on the question of Dr. Murray’s liability “* * * in light of this new standard,” i.e., the professional judgment rule. It is my belief, however, that a new trial is not necessary, since even under the new standard, the result would be the same.
Dr. Murray was the head of the team charged with Theresa’s care. He held the ultimate responsibility for decisions made during the course of her treatment. Dr. Murray conceded that he knew of Theresa’s threat to kill her baby. He admitted that he never discussed this threat with Theresa. In fact, according to Dr. Litvak, an expert witness who examined the relevant medical records in this case, “* * * there is no indication in the record that * * * [Dr. Murray] ever talked with the patient * * (Emphasis added.) Given these facts, it is difficult to imagine how any reasonable juror could find that Dr. Murray conducted a “thorough evaluation of the patient’s propensity for violence * * *, taking into account all relevant factors * * A “thorough” evaluation of a patient’s violent tendencies must surely include personal contact with the patient. Since Dr. Murray had the ultimate responsibility for all aspects of Theresa’s treatment, including any decision regarding her discharge, and since he was aware of her specific threat to kill her baby, an adequate evaluation of her dangerousness could not be made without at least talking with her about her plan. Theresa’s apparent retraction of her threat hours after voicing it does not negate the fact that the threat was made. After her retraction, Theresa continued to express hostile feelings toward her baby. Dr. Murray could not reasonably evaluate the depth of these hostilities without talking to Theresa.
Thus, even under the new standard adopted today, reasonable minds can come to only one conclusion: Dr. Murray is liable for failing to conduct a *103“thorough evaluation” of Theresa’s potential for violence. Therefore, the trial court’s instructions to the jury cannot be considered prejudicial error because the same result would have occurred had the instructions included the new standard, which, of course, did not exist before today’s decision. Therefore, there is no need for a retrial with all the expenditures of time, energy and money such a trial would entail. My review of the record reveals that Judge Kessler conducted this pro-' ceeding in a fair, thorough, and highly competent manner with full regard for the rights and interests of all parties. After hearing all the evidence and viewing all the witnesses at trial, the jury returned a verdict for $1.8 million. This jury, it should be remembered, was composed of a cross-section of the parties’ peers, drawn at random, who approached the case with no previous knowledge of the facts or circumstances and, of course, no preconceived notions. Given the record before us, it is not difficult to see how the jury could render such a verdict. Nevertheless, the trial judge obviously felt the amount of the jury’s verdict was excessive. Accordingly, the judge, exercising his prerogative, ordered a remittitur reducing the award to $300,000, or, in the alternative, granting a new trial on the issue of damages only.23 Based upon a thorough review of the record, I support the well-reasoned decision of Judge Kessler.
To set aside the verdict, as well as the consequent remittitur, is completely unnecessary and unwarranted. I wonder what the majority will do if the jury on retrial, properly instructed under the new standard, returns a verdict for the plaintiff in the amount of, say, two million dollars. Faced with this prospect, I think the far wiser course to take at this point is to reverse the judgment of the court of appeals solely on the remittitur issue, and reinstate the judgment of the trial court in all respects.
It is interesting to note that neither the Ohio Rules of Civil Procedure nor the Ohio Revised Code contains a specific provision allowing for remittitur of a grossly excessive jury verdict. See, generally, however, Civ. R. 59(A). Nevertheless, the practice of ordering the remittitur of an excessive verdict or granting a new trial in the alternative has long been established in Ohio. See, e.g., Pendleton Street RR. Co. v. Rahmann (1872), 22 Ohio St. 446, syllabus; Larrissey v. Norwalk Truck Lines, Inc. (1951), 155 Ohio St. 207, 219, 44 O.O. 238, 243, 98 N.E. 2d 419, 426.