Justice Enoch delivered the opinion of Court in which Chief Justice Phillips Justice Gonzalez Justice Hightower and Justice Hecht join.

In this case a psychologist Esther Bird examined a child for signs of sexual abuse. After examining the child the psychologist concluded that the child had been sexually abused and that the natural father W.C.W. was the abuser. The psychologist then signed an affidavit reporting these conclusions. The affidavit was filed by the child's mother B.W. in the family court in an effort to modify child custody and visitation orders. All matters criminal and civil predicated upon the assertion that the natural father was a child abuser were eventually dropped. The natural father then sued the psychologist and her employer Kenneth Wetcher M.D. P.A. & Associates. *fn1 The question presented is whether the psychologist owed a professional duty of care to the natural father to not negligently misdiagnose the condition of the child. In defense the psychologist asserts there is no professional duty running to third parties as a matter of law and regardless the affidavit asserting the natural father to be the abuser of the child was used as a part of Court litigation process and consequently the statement was privileged as a matter of law. The trial court granted summary judgment in favor of Bird and Wetcher. Court of appeals reversed and remanded for trial on the merits. 840 S.W.2d 50 (Tex. App.-Houston [1^st.Dist.] 1992). We hold that as a matter of law there is no professional duty running from a psychologist to a third party to not negligently misdiagnose a condition of a patient. We further reaffirm that a statement in an affidavit filed as a part of a court proceeding is privileged. Consequently we reverse the judgment of Court of appeals and render judgment that the plaintiff take nothing.

I.

In 1983 W.C.W. was appointed managing conservator of his son Jarrad following a divorce from B.W. W.C.W. moved to Florida in 1986 and temporarily left Jarrad with his maternal grandmother. Shortly before Jarrad was to leave for Florida his mother reported to Child Protective Services (CPS) that he had indicated his "daddy" had sexually assaulted him. There was an on-going criminal investigation of sexual abuse allegations when the mother was referred to the Wetcher Clinic a crisis management service. There Bird examined Jarrad and interviewed the mother and her common law husband D.R. Bird suspected that Jarrad had been sexually abused. She later executed an affidavit stating that: "I have concluded that Jarrad has been the victim of sexual abuse by his father . . . ." The mother submitted this affidavit to the family district court and sought to change the existing custody order to gain managing conservatorship of Jarrad and terminate the father's custodial rights. The Houston Police Department also filed criminal charges against the father. After the father retained custody and the criminal charges were dismissed he sued Bird and Wetcher. We note at the outset that while couched in terms of negligent misdiagnosis the essence of the father's claim is that it was Bird's communication of her diagnosis that caused him emotional harm and related financial damages. *fn2

II.

DUTY OF A MENTAL-HEALTH PROFESSIONAL

First we address whether a mental health professional owes a duty to a parent to not negligently misdiagnose a condition of the child. Liability in negligence is premised on a finding of a duty a breach of that duty which proximately causes injuries and damages resulting from that breach. Greater Houston Transp. Co. v. Phillips 801 S.W.2d 523 525 (Tex. 1990). Whether a legal duty exists under a set of facts is a question of law. Id. In determining whether to impose a duty this Court must consider the risk foresee ability and likelihood of injury weighed against the social utility of the actor's conduct the magnitude of the burden of guarding against the injury and the consequences of placing that burden on the actor. Id.; Otis Engineering Corp. v. Clark 668 S.W.2d 307 309 (Tex. 1983).

We acknowledge that the harm to a parent accused of sexual abuse is foreseeable. However foresee ability alone is not a sufficient basis for creating a new duty. Boyles v. Kerr 855 S.W.2d 593 599 (Tex. 1993); Graff v. Beard 858 S.W.2d 918 (Tex. 1993). Psychology is an inexact science. There is an inherent risk that someone might be falsely accused of sexually abusing a child; in such cases injury is almost certain to result. The magnitude of the burden of guarding against the injury is also uncertain. While mental health professionals may be able to conduct tests to determine whether there is indicia of sexual abuse the quality of information they can acquire is limited. The child is often the main source of the information and young children can have difficulty communicating abuse of that nature. Thus while the risk of injury to an accused parent is real it is only part of the equation. Furthermore the risk of an erroneous determination of abuse is ameliorated in part by the availability of criminal sanctions against a person who knowingly reports false information in a custody proceeding. See TEX. FAM. CODE ANN. SEC. 34.031.

A claimant's right to sue a mental health professional must be considered in light of countervailing concerns including the social utility of eradicating sexual abuse. Evaluating children to determine whether sexual abuse has occurred is essential to that goal. See Vineyard v. Kraft 828 S.W.2d 248 251 (Tex. App.--Houston [14^th.Dist.] 1992 writ denied). Young children's difficulty in communicating sexual abuse heightens the need for experienced mental health professionals to evaluate the child. Because they are dealing with such a sensitive situation mental health professionals should be allowed to exercise their professional judgment in diagnosing sexual abuse of a child without the judicial imposition of a countervailing duty to third parties.

Two prior cases have found no duty in similar situations. In Vineyard 828 S.W.2d at 251 a father accused of sexually molesting his daughter sued the doctor and the psychotherapist for negligent misdiagnosis and for negligent infliction of emotional harm. The court considered whether a legal duty arises between a parent and a mental health professional who makes an evaluation of a child's condition when child abuse is suspected. Id. at 252. The court declined to find a legal duty because there was no physician-patient relationship. Id. At 253; see also Wilson v. Winsett 828 S.W.2d 231 232-33 (Tex. App.-Amarillo 1992 writ denied) (noting that a physician is liable for malpractice or negligence only when there is a physician-patient relationship); Fought v. Solce .821 S.W.2d 218 (Tex. App.--Houston [1^st.Dist.] 1991 writ denied) (holding a physician liable for negligence only where there is a physician-patient relationship); Armstrong v. Morgan 545 S.W.2d 45 (Tex. App.-Texarkana.1986 no writ) (finding fact questions existed regarding duty not to injure person being examined). Here the father had no physician-patient relationship with Bird or with the Wetcher Clinic. Fought 821 S.W.2d at 220.

Court of appeals in Dominguez v. Kelly 786 S.W.2d 749 (Tex. App.-El Paso 1990 writ denied) reached a similar result. In that case an employee of the Texas Department of Human Services requested that a minor female be examined by Doctor Kelly. Id. 786 S.W.2d at 750. The doctor concluded that there had been sexual abuse. *fn3 Id. The father Mr. Dominguez was charged with aggravated sexual abuse. After that charge was dismissed Mr. Dominguez sued Dr. Kelly for negligence as well as for malicious prosecution. *fn4 Id. 786 S.W.2d at 751. Because there was no physician-patient relationship Court declined to find a duty. Id.

However one court has concluded that a doctor owed a duty to a third party without the requisite patient-doctor relationship. Gooden v. Tips 651 S.W.2d 364 (Tex. App.--Tyler 1983 no writ). The Goodens were involved in automobile accident with Mrs. Good pastures. They sued Mrs. Good pastures' doctor Dr. Tips for negligence in failing to warn his patient not to drive while under the influence of the drug Quaalude. Gooden noted that "under proper facts a physician can owe a duty to use reasonable care to protect the driving public where a physician's negligence in diagnosis or treatment of his patient contributes to plaintiff's injuries." Id. 651 S.W.2d at 369.

The Gooden court focused on the foresee ability of the resulting harm in reversing summary judgment in Dr. Tips' favor. Court held that under the facts alleged Dr. Tips might have a duty to warn his patient not to drive. Id. 651 S.W.2d at 369-70 (emphasis supplied). That limited duty does not however extend to this case. There is little social utility in failing to warn patients about known side-effects of a drug but there is great social utility in encouraging mental health professionals to assist in the examination and diagnosis of sexual abuse. Furthermore in Gooden the plaintiff was harmed by the resulting actions of the patient not by the condition treatment or diagnosis of the patient.

We hold that summary judgment was proper in favor of Bird because she owed no professional duty to the father to not negligently misdiagnose the condition of the child.

III.

PRIVILEGE FOR STATEMENT IN AFFIDAVIT

Although we have concluded that there is no professional duty owed to one other than the patient to not negligently misdiagnose a condition we must still address the defensive issue raised by Bird whether the communication of her conclusion that the father was the abuser by way of affidavit to the family court was privileged. Bird has not asserted and the record does not show that identifying or communicating the identity of the perpetrator of the abuse was part of Jarrad's diagnosis or treatment.

Bird's expertise was required to diagnose whether abuse had occurred and she had a duty to report any suspected abuse. See TEX. FAM. CODE ANN. SEC. 34.01 (requiring professionals to report suspected abuse of a child). However the record does not demonstrate nor does Bird assert that identifying the actual perpetrator of the abuse was within the purview of her expertise. Likewise there is no claim or showing that Bird's professional duty to the patient regarding diagnosis of abuse encompassed communicating her conclusions to third parties outside the physician/patient relationship. See TEX. FAM. CODE ANN. SEC. 34.02 (calling for non-accusatory reporting of child abuse). A mental health professional's duty might differ however if identifying or communicating the identity of the abuser was part of the patient's treatment such as when part of the treatment is to confront the abuser or to solicit the family's assistance in helping the patient cope with the abuse.

Thus while Bird owed no duty to the father for her diagnosis of Jarrad the record does not support the contention that she was functioning within a treatment and diagnosis role when she communicated to the family court via affidavit her opinion that it was W.C.W. who abused Jarrad. To the contrary from the record it appears that she acted no differently than any other lay person in identifying the alleged perpetrator in that the statement was based not upon a scientific experiment but upon the outcry of the child. Like any other person she thereby subjected herself to liability for defamation unless a privilege attaches to the form of the communication. Although two privileges potentially relieve Bird of liability for the communication made she has asserted only a privilege for statements made in the course of judicial proceedings. *fn5

Communications made during the course of judicial proceedings are privileged. Reagan v. Guardian Life Ins. Co. 140 Tex. 105 166 S.W.2d 909 912-13 (Tex. 1942). The privilege also extends to pre-trial proceedings including affidavits filed with the court. James v. Brown 637 S.W.2d 914 916-17 (Tex. 1982) (applying the privilege in a defamation action). Bird argues that because the essence of the father's allegations is libel in the context of judicial proceedings the privilege should apply in this case. We agree.

The privilege afforded against defamation actions is founded on the "theory that the good it accomplishes in protecting the rights of the general public outweighs any wrong or injury which may result to a particular individual." Reagan 166 S.W.2d at 913; see also Leigh v. Parker 740 S.W.2d 101 103 (Tex. App.--Austin 1987 writ denied) (noting that an action is "'privileged' if it furthers a policy interest of such importance that one is entitled to protection even at the expense of damage to another"). However James 637 S.W.2d at 918 declined to expand the privilege beyond libel and slander. See also City of Brady v. Bennie 735 S.W.2d 275 279 (Tex. App.-Eastland.1987 no writ) (recognizing a "qualified privilege" in an action for tortious interference in connection with a letter written by an Counsel during the course of a prior libel suit).

Court in James held that the "doctors' communications to Court of their diagnosis of Mrs. James' mental condition regardless of how negligently made cannot serve as the basis for a defamation action . . . ." James 637 S.W.2d at 917 (emphasis added). Although in James the plaintiff was the patient examined and here Jarrad was the patient examined not his father and although W.C.W. asserted a negligence rather than a defamation action the James case and this case are virtually indistinguishable on the issue of privileged communications. The communication made by Bird in this case is privileged. This is especially true here where the father's damages are basically defamation damages. *fn6 See Doe v. Blake 809 F. Supp.1020 1028 (D. Conn. 1992) (extending the privilege beyond defamation actions to avoid the "circumvention [of the policy behind the privilege] by affording an almost equally unrestricted action under a different label"). *fn7

Any injury caused to W.C.W. by denying him the ability to bring a negligence cause of action for his identification as a child abuser based upon an inaccurate diagnosis of child abuse which is communicated in a court proceeding is outweighed by the need to encourage the reporting of child abuse. The public has a strong interest in protecting children especially protecting them against physical and sexual abuse. By extending the privilege of in court communication to mental health professionals engaged in examining and diagnosing abuse of children we further the public's strong interest in helping to eradicate child abuse. *fn8 Furthermore the administration of justice requires "full and free disclosure from witnesses unhampered by fear of retaliatory lawsuits." Id. 637 S.W.2d at 917; Leigh 740 S.W.2d at 103. We continue to afford a privilege to communications made in the context of a judicial proceeding. Thus the affidavit Bird submitted to the family court is privileged and defeats the father's negligence claim.

We hold that a mental health professional owes no professional duty of care to a third party to not negligently misdiagnose a condition of a patient. We also hold that a privilege exists for communication of an alleged child abuser's identity in the course of a judicial proceeding whether the accusation was negligently made. Consequently we reverse the judgment of Court of appeals and render judgment in favor of Bird and Wetcher.

CRAIG ENOCH

JUSTICE

Concurring: The Hon. Justice Bob Gammage; John Cornyn

Though I concur today's judgment should not be read as conferring a grant of absolute immunity upon mental health professionals. The opinion concludes that "a privilege exists for communication of an alleged child abuser's identity in the course of a judicial proceeding whether [or not] the accusation was negligently made." Every privilege carries with it a responsibility. If we are to grant mental health professionals the privilege of making such accusations even if they are not called upon to make them we also should hold them to an appropriate standard of professional responsibility. Adhering to its duty to recognize changes in the common law Texas courts have from time to time imposed standards on various occupations. See e.g. El Chico Corp. v. Poole 732 S.W.2d 306 308 (Tex. 1987); Otis Engineering Corp. v. Clark 668 S.W.2d 307 at 311; Gooden v. Tips 651 S.W.2d 364 at 369.

False accusations of child abuse can be devastating: they destroy reputations relationships even lives. Our society faces no problem more serious than child abuse. Though we should give mental health workers in this field some latitude and protection in their efforts to eradicate child abuse commensurate standards of professional discretion should apply and failure to adhere to such standards could foresee ably result in their judicial recognition and enforcement.

BOB GAMMAGE

JUSTICE

JUSTICE CORNYN joined by JUSTICE SPECTOR concurs with the judgment.

I join Court's judgment solely for the reason that I agree that Bird's statement made during the course of judicial proceedings was privileged.

John Cornyn Justice