It was feared this decision would open the door to litigation by any person aggrieved by an interpretation made by a therapist to a patient. In an address at the 1994 annual meeting of the American Psychiatric Association, Judith Herman, M.D., author of Trauma and Recovery (1992), said, "The fact that a third party was given standing to speak on malpractice because he was not happy with the treatment of his daughter really opens the door to permit anyone who is dissatisfied with our treatment of any patient to lay claim against us."
Hyperbole abounded. Thomas Gutheil, M.D., who testified on behalf of the defense in the case, asked, "Whose therapy was this anyway? Should the father have been called in to approve each interpretation as it occurred to the therapist?" This scenario is what law professors call a parade of horribles or slippery slope argument in which it is argued (without proof) that one action will unleash a host of unpleasant consequences.
The important fact, however, is that in Ramona the therapists operated on the basis of unsupported beliefs, blaming the father for the patient's problems. The court found that the therapists assumed a duty of care to the parent when they encouraged the daughter to confront him with accusations of abuse. The jury foreperson explained that the jury felt the therapist "had reinforced the memories by suggestions and by sending her [the patient] to a therapy group for eating disorders that was filled with sex abuse victims."
However, an article in the American Journal of Psychiatry, written by Paul Appelbaum, M.D., and law professor Rose Zoltek-Jick, cautioned that aggrieved third parties would have the power to bring effective treatment to a halt by filing suit or threatening to do so. Appelbaum and Zoltek-Jick concluded that, although concern about therapeutic practices related to memories of childhood abuse may be warranted, allowing nonpatients to sue would be ill-advised, as it would leave therapists unclear regarding how to avoid duties to third parties (1996).
In the Harvard Law Review, law professors Cynthia Grant Bowman and Elizabeth Mertz wrote that the imposition of third-party liability against therapists would compromise the interests of sexual abuse survivors (1996). The Minnesota Court of Appeals, citing the article, declined "to extend the law to recognize a duty to third-party nonpatients when there is no contractual relationship, duty to warn, or duty to control" (Strom v C.C., 1997 Minn. App. LEXIS 327).
The Illinois Supreme Court also declined to impose a duty in this type of case. It said:
A number of considerations relevant to the duty analysis strongly militate against imposition of duty here…Approval of the plaintiff's cause of action…would mean that therapists generally, as well as other types of counselors, could be subject to suit by any nonpatient third party who is adversely affected by personal decisions perceived to be made by a patient in response to counseling. This result would, we believe, place therapists in a difficult position…Concern about how a course of treatment might affect third parties could easily influence the way in which therapists treat their patients. Under a rule imposing a duty of care to third parties, therapists would feel compelled to consider the possible effects of treatment choices on third parties and would have an incentive to compromise their treatment because of the threatened liability. This would be fundamentally inconsistent with the therapist's obligation to the patient…Hoping to avoid liability to third parties…a therapist might instead find it necessary to deviate from the treatment the therapist would normally provide, to the patient's ultimate detriment. This would exact an intolerably high price from the patient-therapist relationship and would be destructive of that relationship (Doe v McKay, 183 Ill. 2d 272, 700 N.E.2d 1018 at 1023-1024 ).
Dissenting, Justice Moses Harrison said, "My colleagues expound at length about the need to protect medical providers from liability to some indeterminate class of nonpatient third parties. They fail to see that that is not what this case is about at all. Plaintiff here was not a chance bystander or random member of the general public" (700 N.E.2d at 1026).