In an Iowa case, the third party offered a policy reason why third parties within the group at risk for foreseeable harm should be allowed to assert claims against mental health care providers. Unless such claims are allowed, the third party argued, the negligent and harmful treatment may well continue unchecked because the patient is too emotionally altered to recognize the harm that has taken place. However, the Iowa Supreme Court rejected this paternalistic approach. The court said, "It assumes that competent adults who voluntarily undergo mental health treatment cannot decide for themselves whether the treatment is beneficial, an assumption we believe is unjustified" (J.A.H. v Wadle & Associates, 589 N.W.2d 256 [Iowa 1999]).
Similarly, in a recent decision at variance with Ramona, the California Court of Appeals observed, "Out of state cases which have allowed such suits to go forward, and commentators who favor tort liability, however, have invariably not come to grips with the impossibility of verification and the conflicts of interest that a duty to a possible abuser creates" (Trear v Sills, 69 Cal. App. 4th 1341, 82 Cal. Rptr. 2d 281 ). In this case, unlike in Ramona, the therapist had not seen the parent. If courts were to hold that therapists only face the possibility of liability upon meeting with a third party, however, therapists would become reluctant to meet with a parent whose child may be an abuse victim, dampening family therapy.
The history of psychoanalysis is marked by blaming the parent-a tendency exacerbated during the tumultuous 1960s when trust was not to be placed in anyone over the age of 30 years. Then, patients' troubles were frequently attributed to childhood sexual abuse (Hale, 1995). The California Court of Appeals in Trear said, "[B]y the late 1970s and 1980s, there was a resurgence of Freud's initial view that childhood sexual abuse was at the root of many if not most psychological ills." The court went on, "Granting the early-Freudian assumption (as distinct from the later-Freudian assumption) that abuse is widespread and the root cause of most dysfunction, it is simply not outrageous for a therapist to act on that premise."
Of course, Freud abandoned his blind faith in the idea that alleged memories of abuse are always what they purport to be. However, he found that from the perspective of therapy, the reality of abuse or seduction was irrelevant. Thus, in therapy, it does not matter whether the mind is reacting to trauma, coping with everyday turmoils or just imagining.
More and more, however, therapists have turned from listening and exploring with the patient to making interpretations about the cause of symptoms, though without objective evidence in support of those interpretations. Theodor Reik, in his book The Unknown Murderer, cautioned that psychoanalysis had no contribution to make to evidence of guilt, as psychoanalysis is concerned with mental or inner reality rather than material or outer reality (1949).
Patient-Therapist Privilege Issues
The tort causes of action that are alleged by a third party include infliction of mental distress, defamation and interference with family relations. In jurisdictions that allow a third-party suit against a therapist for malpsychotherapy, another problem arises. How does the third party obtain evidence of what occurred in therapy, given the privilege that shields confidential communications between therapist and patient? In Ramona, the court held that privilege was waived because the patient filed a lawsuit against her father, and the therapist had seen the father on an occasion or two.
Certainly, a therapist's duty to third parties would have little meaning if third-party plaintiffs were not able to procure the information needed to vindicate their claims. Moreover, out of self-defense, a therapist would have to be allowed to make reference to his records or recollections. The various state laws exclude from privilege "actions, civil or criminal, against the physician for malpractice." As commonly understood, malpractice means an action by a patient against a physician for treatment in a manner contrary to accepted standards that has injurious results to the patient. The term has also included actions of a third party against the physician arising out of his practice, as when a third party is injured by a patient in a case where the physician should have given warning of a danger posed by the patient.
Clearly, as soon as an alleged abuse survivor files a lawsuit against her alleged abuser, as in Ramona, the records of the therapy lose the protection of privilege. When a third party sues a therapist in the case of "revival of memory," usually the patient has retracted and joined the parents' lawsuit against the therapist. Or, when the patient sues her parents, the parents implead the therapist. In these situations, by filing a lawsuit, the patient waives the privilege. However, in cases where the patient is not a party in the lawsuit, a number of courts have held that privilege is not waived (J.A.H. v Wadle & Associates, 589 N.W.2d 256 ). In that event, the parent can name the child as a party defendant and that would result in a termination of the privilege (Slovenko, 1998).