Boundary Violations and Malpractice Litigation

Invasive nature of pretrial discovery
Once pretrial discovery begins, the intimate details of the plaintiff's life become fodder for discovery. The process almost always involves a multihour or multiday deposition (oral examination) conducted by opposing counsel. The plaintiff will be grilled about all factual circumstances bearing on the negligent treatment and damages. Where applicable, significant others, spouses, family, business associates, friends, and previous therapists may also be deposed.

The plaintiff should expect to undergo a private psychiatric examination by the defendant's expert psychiatrist without counsel's presence.¹⁴ These examinations should be divested as far as possible of any adversarial character.¹⁵ Anticipation of and participation in the independent medical examination can be particularly stressful for a previously victimized patient.

During pretrial discovery, the plaintiff will receive detailed, extensive document requests for income tax returns; employment history; and hospital, medical, school, and therapy records. If the plaintiff has confided intimate thoughts to a diary, journal, or correspondence, these mate- rials are likely discoverable.

Plaintiffs frequently ask about proceeding anonymously or sealing court papers. These measures are difficult to implement, run contrary to the principle of "open courts," and are rarely available in practice.¹⁶ While the very frequency of therapist malpractice claims has made them far less worthy of press coverage, victims contemplating litigation should recognize that some lawsuits garner public attention and could result in personal exposure.

Most patient-therapist communications are confidential and subject to legal protection against disclosure. After malpractice litigation begins, courts consider these privileges waived. Whatever the patient said, did, or wrote during therapy, regardless of date, becomes discoverable and open to scrutiny. Ongoing ameliorative therapy loses its privileged character, with even session notes generally being discoverable.

Notwithstanding this abrogation of patient-doctor confidentiality, attorney-client communications retain their privileged character throughout litigation. At this point, however, patients must remember to guard against revealing protected conversations with counsel within the newly unprotected confines of therapy. Likewise, therapists must exercise care in including only necessary treatment data in session notes obtainable through discovery.

Furthermore, past or current therapists may be required to testify at a deposition or trial concerning the patient's history, treatment, diagnosis, prognosis, or injuries. While such opinions can significantly impact the settlement or trial, they may engender adverse patient reactions or deleteriously impact ongoing therapy and professional relationships.¹⁷

Expectations and realities
The purpose of civil litigation is to compensate the victim through settlement or trial. Former patients typically have highly unrealistic expectations about court proceedings and about the nature and extent of their involvement.

A lawsuit is not an open forum enabling plaintiffs to deride defendants with accounts of abuse, ethical failings, or misconduct involving nonparties. Likewise, nonexpert depictions of personal inner growth or psychological insights are considered irrelevant. Litigation is not therapy and is decidedly not therapeutic. Instead, it is a carefully controlled process requiring litigants to make extremely painful disclosures to often unsympathetic or hostile strangers in order to receive fair compensation for damages and injuries sustained.

Insurance coverage for sexual boundary violations is either extremely limited or nonexistent. Without adequate insurance, a plaintiff is limited to the defendant's personal assets and future earnings as a source of monetary recovery. If such assets are insufficient, litigation could be financially impractical despite substantial harm to the patient. Following inordinate delay, the malpractice insurer may offer a monetary settlement that, despite extensive negotiation, will remain unsatisfactory to the plaintiff.

Plaintiff anger is a hallmark of malpractice litigation. Victims must adjust to the lack of control inherent in a civil suit. During even substandard therapy, the plaintiff was a key person, 1 of 2 featured participants. This attention level continues in ameliorative therapy and in presuit attorney interactions. Following the start of litigation, however, the plaintiff becomes merely one player among many. The respective interests of the defendant, his defense counsel and malpractice insurer, and the court may be and often are contrary to those of the plaintiff.

Although the trial may be years away, the plaintiff is cautioned to maintain control, which is difficult in light of pretrial discovery and its interminable process of exposure, frustration, and indignity. As the plaintiff dredges up painful memories, disgorges private correspondence, and girds for depositions and independent psychiatric examinations, unhappy life events must be recounted, analyzed, and relived.

Hitherto carefully guarded secrets are revealed through discovery, which can exacerbate existing family and marital tensions. Pretrial disclosures add stress to already fragile relationships, and the critical opinions of the defendant, outside experts, and previous therapists force painful self-assessments. Occasionally, anticipation of the actual trial becomes unbearable, and plaintiffs find that the need for self-preservation requires abandonment of the litigation.

Settlement issues
Settlement negotiations bring further discontent and frustration. In all likelihood, the claim will be valued far lower than hoped. Arriving at a settlement is a complex function of witness credibility, reciprocal discovery, patient history and harm, expert opinion, available insurance coverage, laws, attorney skill, and perseverance. Mediation can play a useful role in resolving monetary disputes by exposing unrealistic trial expectations and illuminating each party's strengths and weaknesses.

Assuming that agreement can be reached on the settlement amount, other issues arise. Understandably, defendants insist on confidentiality in settlement documentation. Conversely, plaintiffs commonly oppose such restrictions out of concern for other potential victims and a disdain for secrecy.

Although litigation may lead to professional sanctions, licensing boards mete out discipline. In many jurisdictions, a suit or a settlement automaticalthizaidesly mandates notification to licensing authorities by the court, defendant, or insurance carrier, which results in disciplinary proceedings. Plaintiffs can be called to testify via involuntary process by a governmental entity; they therefore must retain this right during settlement negotiations. Any out-of-court resolution should expressly acknowledge and allow for such an occurrence when the issue of confidentiality is raised.

Victims contemplating malpractice litigation should initiate disciplinary proceedings with counsel's direct involvement. Statements made for or during the disciplinary process must be carefully prepared. Exaggerated or reckless board submissions inevitably generate inconsistencies and credibility problems in related civil litigation.

Conclusion
Malpractice litigation negatively impacts victims and perpetrators alike. Its invasive aspects affect ameliorative treatment; ongoing patient-therapist, personal, and familial relationships; and professional reputations and livelihoods. Its delays, expense, emotional tolls, and inherent uncertainties suggest that it is in the interest of all parties to resolve such disputes before commencing suit or as early as feasible after litigation has begun.