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Law & Psychiatry: Third-Party Suits Against Therapists in Recovered-Memory Cases
Paul S. Appelbaum, M.D.
Psychiatric Services 2001; doi: 10.1176/appi.ps.52.1.27
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Can third parties sue psychotherapists for their actions during the treatment process? This question gained new salience for clinicians in the mid-1990s as the result of a few highly publicized cases involving recovered memories of childhood sexual abuse (1). At the time, concern was expressed about a potential flood of litigation against therapists, even outside the recovered-memory context. Where the courts have headed since then, however, leaves the situation anything but clear.

The case that aroused the greatest consternation among psychotherapists was Ramona v. Ramona, in which a father was awarded $475,000 by a California court on the grounds that his daughter's therapists had negligently induced false memories that he had sexually abused her as a child (2). Although clinicians ordinarily are responsible only to their patients for their actions, the trial court in Ramona decided that the situation presented in the case constituted an exception to the usual rule. The therapists, a family counselor and a psychiatrist, were charged with negligence for having suggested to the patient that her bulimia must have been due to sexual abuse, misrepresenting to her that an amobarbital interview had confirmed her recovered memory of having been raped by her father. They encouraged her to confront her father and participated in the confrontation. As a result of the confrontation, the father lost his job, his marriage collapsed, and his daughter filed a civil suit against him.

To get around the usual barrier against suits by third parties, the Ramona court pointed to the actions of the therapists that had been directed at the father himself, specifically their having arranged and facilitated the meeting at which the charges against him were made. By virtue of these steps, the father became the "direct victim" of the therapists' negligence, the court ruled, and thus was entitled to recover for the foreseeable harms that ensued (1). Ramona was the most widely reported case of its type, but similar litigation has been allowed to proceed to trial on roughly equivalent rationales in other jurisdictions (3,4).

Most observers agreed that the approaches of many therapists who worked with patients to recover memories of child sexual abuse were problematic. Techniques such as the use of hypnosis and imagery seemed likely to suggest to patients that abuse had occurred, even when it had not. But it was also clear that litigation as a means of discouraging these practices created manifold difficulties of its own.

Indeterminacy about what sort of behavior might be considered sufficient to render a third party a "direct victim" threatened to stifle therapists' freedom in dealing with patients who believed that they had been or may have been abused. Allowing third parties to bring suit, even when patients themselves were satisfied with their treatment, also endangered the confidentiality of the therapist-patient relationship, because the therapists would have to be able to reveal the details of their interactions with patients in order to mount a successful defense. Moreover, there appeared to be no clear way of limiting third-party liability to recovered-memory cases, raising the specter of family members and other intimates of patients suing psychotherapists whenever they felt that the results of therapy had adversely affected their interests.

How have the courts responded since those early cases to suits against therapists by third parties? Although the wave of cases that some commentators anticipated has not materialized, the courts have been sharply split on how to react to claims that have been filed. And, since the facts of the cases do not appear to differentiate clearly between those that have been thrown out by the courts and those allowed to proceed to trial, therapists are afforded little guidance as to what behaviors they had best avoid.

The New Hampshire Supreme Court considered the issue in Hungerford v. Jones, a case involving a social worker who used "imagery" or "visualization" as a technique "which led [the patient] into a self-induced trance to uncover allegedly lost memories of sexual abuse" (5). Once the patient, a woman in her mid-20s, affirmed that she now believed she had been abused, the therapist directed her to cease all contact with her father and to file a criminal complaint against him for felonious sexual assault. After the criminal case was dismissed, the father sued the therapist for negligent treatment and diagnosis. On these facts, and echoing the rationale in Ramona, the New Hampshire high court held that "when treating therapists take public action based on false accusations of sexual abuse or encourage their patients to do so … the foreseeability of harm is so great that public policy weighs in favor of imposing on the therapist a duty of care to the accused parent throughout the therapeutic process."

A similar result obtained in Sawyer v. Midelfort, a Wisconsin Supreme Court decision involving an unlicensed therapist who allegedly induced false memories of sexual and physical abuse in a 26-year-old woman (6). The patient subsequently cut off all contact with her parents and ultimately filed suit against them. Even though it does not appear that the therapist directly encouraged her to take these measures, the court concluded, "We are quite confident that negligent treatment which encourages false accusations of sexual abuse is highly culpable for the resulting injury." The case was allowed to proceed to trial.

In contrast, two state supreme courts dealing with situations that appeared at least as egregiously negligent as the cases just discussed held that the affected third party had no standing to sue the therapist. The Illinois case of Doe v. McKay considered allegations against a psychologist who suggested to her patient, who was 26 years old when therapy began, that she had repressed memories of sexual abuse (7). Later, the psychologist arranged a confrontation with the allegedly abusive father, purportedly "to maximize the shock effect of his daughter's accusation and to force from the plaintiff a confession regarding the alleged abuse." When the father denied the behavior, the psychologist told him that he too had repressed the memory of the abuse and referred him to a colleague for an extended course of treatment aimed at breaking through the repression.

Despite the similarity of these facts to Ramona, the Illinois Supreme Court refused to recognize the father's right to recovery, pointing to the adverse effects on therapy that would ensue if a clinician needed to weigh whether his or her behavior might adversely affect a third party.

A similar decision came from the Supreme Judicial Court of Maine in the still more bizarre case of Flanders v. Cooper (8). Here, a father sued his daughter's physical therapist, to whom she had gone for treatment of temporomandibular joint syndrome, a condition caused by excessive clenching of her jaw. The physical therapist, in an 18-month course of treatment, believed that he detected signs of sexual abuse and allegedly implanted false memories of abuse in the patient. Despite the father's plausible allegation that the physical therapist was practicing well beyond the scope of his license, the court declined to grant the father the right to sue. In their decision, the judges indicated their concern that recognizing a cause of action would leave all therapists open to litigation and that "such exposure to a negligence action would be a powerful disincentive to the detection and treatment of sexual abuse."

One other recent court decision involved a somewhat different set of allegations against a therapist. In Althaus v. Cohen, a psychiatrist who began treating a teenaged girl after allegations of abuse had surfaced was initially found liable to the patient's parents for failing to independently investigate the girl's allegations of sexual and ritual abuse and for not intervening when the therapist knew that her patient had testified falsely at legal hearings on the case (9).

Had this result, supported by an appellate court ruling (10), been allowed to stand, therapists would have faced a set of duties extending well beyond their behavior in the consulting room. However, when the case reached the Pennsylvania Supreme Court, the jurists reversed the finding. They held that "the societal interest in encouraging treatment of child abuse victims and maintaining the trust and confidentiality within the therapist/patient relationship dictates against the imposition of a duty of care beyond that owed to the patient" (11).

Where do these decisions of the highest courts in five states leave the psychotherapeutic professions with regard to third-party liability? Unfortunately, at this point, whether therapists can be sued by alleged abusers of their patients depends on which state they practice in, and most jurisdictions still lack any definitive case law on point. The courts that have considered the matter to date seemed less affected by the facts of a particular situation than by their views of the balance of interests between effective therapy of allegedly abused patients and the rights of falsely accused persons—almost always one or both of the patient's parents—to obtain redress for their suffering. The courts imposing a duty on therapists toward third parties appear less aware of and concerned about the likely negative impact on the practice of psychotherapy.

A prudent psychotherapist in this situation of uncertainty might do well to abide by the guidelines issued by professional associations and endorsed by many experts (12,13). Therapies aimed explicitly at recovery of memories that are most likely to result in suggestive effects on vulnerable patients should be avoided. Therapists need to be cognizant of the reality that recovered memories cannot be assumed to be veridical without independent confirmation. And the highest-risk behaviors are clearly those in which therapists encourage or direct patients to take actions against alleged abusers, including confrontation, cessation of contact, and initiation of civil or criminal proceedings. Clinicians who adhere to these principles while the currently ambiguous legal situation is being resolved are less likely to find their names memorialized in their own states' landmark cases on this issue.

Dr. Appelbaum, who is editor of this column, is A. F. Zeleznik professor and chair of the department of psychiatry at the University of Massachusetts Medical School, 55 Lake Avenue North, Worcester, Massachusetts 01655 (e-mail, appelbap@ummhc.org).




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