Boundary Violations and Malpractice Litigation

Disregard of professional boundaries is a leading cause of malpractice litigation. Boundary violations take many forms. Sexual involvement is a recurring problem that can cause serious damage.¹ Even without erotic physical contact, material boundary crossings can, at least, destroy or interfere with therapy, and at most, injure the patient and lead to litigation. Generally, boundaries are violated by any act that alters or blurs the contours of the professional relationship (Table 1).

Professional malpractice (negligence) requires proof by a preponderance of evidence that first establishes the existence of a duty or standard of care, then shows a breach of that duty or standard of care, which proximately causes (ie, materially causes or substantially contributes to) damage. Boundary crossings often involve violations of professional ethical rules.

However, an ethical violation alone may be insufficient to constitute an actionable breach of duty or standard of care. A violation of a canon of ethics or a disciplinary rule is not in itself considered an actionable breach of duty.² As with statutes and regulations, if a plaintiff can show that a disciplinary rule that was intended to protect him or her was violated, that may be evidence of negligence.² In any event, the plaintiff must still prove the causal relationship between the negligent act or omission and the resulting damage.

While negligence provides the usual basis for malpractice litigation, other legal theories may also support such suits, including breach of fiduciary duty,^3-6 invasion of privacy,⁷ outrageous conduct (negligent or reckless infliction of extreme emotional distress), and loss of consortium.

Consortium claims are brought by the patient's spouse and/or children to recover damages for the loss of affection, companionship, sexual relations, and society suffered by immediate family members and caused by therapist negligence.

Plaintiffs have also sued, with varying degrees of success, for battery, breach of contract, defamation, fraud, and violation of state consumer protection statutes. However, insurance coverage availability, laws governing damage recovery, and judicial precedents often limit use of the foregoing theories in malpractice litigation involving mental health professionals.

Causation and damages
Of course, all patients begin therapy as products of their past. Because negligent practitioners do not harm pristine humans, they are liable only for the aggravation of their patients' underlying preexisting condition.⁸

Patients have difficulty understanding the calculation of damages, a major focus in litigation. Because the premalpractice condition is so critical, plaintiffs must understand that their entire lives will be examined, dissected, and analyzed. All documents concerning the patient's previous civil and criminal litigation, education, employment, hospital, medical, and therapy experiences are relevant to the determination of the preexisting condition. All aspects of the patient's life before the malpractice are considered highly relevant to the issue of future damages.

A plaintiff has only one opportunity to recover monetary damages from the defendant. Therefore, recoverable damages include past losses and those reasonably anticipated to occur in the future (Table 2).⁹

Negligently provided therapy defeats itself because the patient for-feits the opportunity to improve when treatment is substandard.⁹ The actual chance for improvement is patient dependent. Some patients begin therapy with historical burdens so great that prospects for meaningful alleviation are minimal. Translating this loss of chance into money is an imprecise exercise that should be buttressed by expert psychiatric opinion.

Statutes of limitation Every jurisdiction has laws restricting the time during which injured parties may sue for damages. Memories fade, witnesses die, and documentation is lost or destroyed. By requiring different types of lawsuits to start within specific time periods, statutes of limitation are intended to promote fairness.

Victims of therapeutic boundary violations face unique problems. Patients are conflicted, unable to come to terms with failed therapies, or afraid to confront former therapists in litigation. A patient's embarrassment, guilt, reluctance, shame, self-blame, or unwillingness to litigate may cause the lawsuit to be barred by expiration of the limitation period.¹⁰

Patients may suspect that ongoing therapy is deficient, but because of idealization, transference, trust, or vulnerability they may not act on that suspicion. Some jurisdictions recognize a "continuing treatment" doctrine for medical malpractice cases.¹¹ Under this approach, the limitations period does not begin until treatment has ended.

Many states have a "discovery rule," which provides that the period for commencing litigation begins when a patient or a former patient first comprehends, learns, knows, or understands that he was harmed by the clinician's acts or omissions.¹⁰ The limitation period commences when the patient comprehends the negligence and its causal relationship to the attendant harm.¹⁰

Another exception to the statute of limitations emphasizes the fiduciary aspects of the therapist-patient relationship. Thus, a "fiduciary" treater's failure to reveal facts to the patient "ward" that are relevant to a potential claim stops the statute from running until the victim "discovers" them. The failure to disclose during treatment has also been characterized as fraud or fraudulent concealment.¹⁰ However, once the patient becomes aware or reasonably should become aware of the existence of the cause of action, the statute begins to run.¹⁰

It is sometimes argued that in situations involving improper or nonexistent termination, therapy does not end when office visits cease. In Massachusetts, the state regulatory board promulgated a rule that presumes that a licensed psychologist's relationship with a patient extends a minimum of 2 years from the date of the last professional service.¹²

Another exception involves the plaintiff's disability or mental disorder. If the patient is institutionalized for reasons of mental health, the limitation period may be suspended until the patient's release; the clock then resumes anew. In the case of minors who are victims of negligent therapy, most jurisdictions delay commencement of the limitations period until the patient reaches majority.

Statutes of repose
Some jurisdictions have enacted statutes of repose governing malpractice litigation. A statute of repose places an absolute time limit on the liability of those within its protection and abolishes a plaintiff's cause of action thereafter, even if the plaintiff's injury does not occur, or is not discovered, until after the statute's time limit has expired.¹³ Connecticut courts begin counting the period of repose during treatment by, or continued duty of, a doctor for the same condition to which his alleged negligence is related.¹³ Other jurisdictions extend their statutes of repose until the end of a course of continuous treatment if the effects of a series of acts or omissions are so cumulative and inextricable as to render the series actionable as a single wrong.¹³

It has been argued that in situations involving improper or nonexistent termination, therapy does not terminate with the cessation of office visits. In Massachusetts, by administrative regulation, a therapist's relationship with a patient is presumed to extend a minimum of 2 years from the date of the last professional service.¹²

Still another exception involves the plaintiff's disability or mental disorder. If the patient is institutionalized for reasons of mental health, the limitation period is suspended until the patient's release, whereupon the clock resumes anew.

Of course, minors also suffer from negligent therapy. Most jurisdictions keep open the statute of limitations until the patient becomes an adult.

Litigation considerations
Assuming the patient's damage is substantial and provable, can he handle litigation? A lawsuit entails an intensive examination of a plaintiff's life by opposing counsel, outside experts, including defense psychiatrists, the court, and the jury. After beginning litigation, victims of psychiatric malpractice may display unremitting hostility to defense counsel. In addition, they may experience or display any number of behaviors (Table 3).