Legal Duty of Therapists to Third Parties

August 1, 1999
NeedsFixing
Volume 16, Issue 8

When do therapists legally owe a duty of care to persons other than their patients? It is an axiom that good medical care involves consideration not only of the patient but also of others. In law, the general principle is that the risk which may result from one's behavior, as reasonably perceived, determines the duty of care.

When do therapists legally owe a duty of care to persons other than their patients? It is an axiom that good medical care involves consideration not only of the patient but also of others. In law, the general principle is that the risk which may result from one's behavior, as reasonably perceived, determines the duty of care.

History of Third Party Decisions

The duty to third parties finds expression in court decisions or legislation imposing various reporting obligations on physicians. In Tarasoff v Regents of University of California, the California Supreme Court held that when a patient poses a serious danger of violence, a therapist has a duty to exercise reasonable care to protect the threatened victim of that danger (Tarasoff v The Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14, 83 A.L.R.3d 1166 [1976]). That decision was widely followed by subsequent court rulings, with some jurisdictions ruling that the therapist may be held liable to anyone, identifiable or not, who is harmed by the patient. This is analogous to physicians failing to report a contagious disease situation and then being held liable to third parties who contract that disease from the patient.

The courts have stated that psychiatrists or mental hospitals owe a duty to the general public to exercise reasonable care regarding escape prevention and release decisions. In these cases, no distinction is made between foreseeable and unforeseeable victims. Likewise, a physician who fails to warn a patient of the soporific effects of medication may be held liable to anyone injured by the patient in a motor vehicle accident while the patient is medicated.

In derivative actions, such as those of a husband or parent for the loss of the wife's or child's society, the law has long recognized that a wrong done to one person may invade the protected rights of one who is intimately related. But by and large, the courts have been reluctant to recognize a duty to third-party nonpatients when there is no contractual relationship, duty to warn or duty to control.

Liability insurance policy lines, to some extent arbitrary, are drawn to narrow the scope of liability. In determining to whom a duty of care is owed, the courts are mindful of the extent of liability insurance coverage, although this is unmentioned. There is a miscegenetic union of insurance and liability. The courts not only consider the foreseeability of harm, but they also assess the competing public policy considerations for or against imposing liability. As one court expressed it, "Liability must be controlled by workable and just limits" (Iancona v Schrupp, 521 N.W.2d 70 [Minn. App. 1994]).

A number of jurisdictions (or various courts within a jurisdiction) allow only the patient to sue over negligent treatment, even when that malpractice causes physical injury to others-as occurs when tuberculosis is improperly treated and consequently passed on to family members. In an Illinois case of this sort, the defendant physician raised the specter of potentially unlimited liability to all those infected by his patient, as well as all those whom they infect. He also asserted that allowing the patient's immediate family to sue would constitute an artificial distinction between family members and all others whom his patient or his patient's family might infect.

The majority of an intermediate appellate court agreed (Britton v Soltes, 205 Ill. App. 3d 943, 563 N.E.2d 910 [1990]). Justice Charles Freeman dissented and would have extended the duty to the patient's immediate family. He said, "I cannot agree that limiting the right to sue...to a patient's immediate family members, i.e., to those with whom he has special relationships, is an artificial and arbitrary distinction" (563 N.E. 2d at 916).

In this type of situation, other jurisdictions by and large have not limited a cause of action only to patients. In a case decided by the Pennsylvania Supreme Court, a physician negligently advised a patient exposed to hepatitis that she could be confident she had not contracted the disease and was not contagious if she remained symptom-free for six weeks. However, the correct waiting period is six months. The patient refrained from sexual intercourse for eight weeks after the exposure and then resumed sexual intercourse with the plaintiff. Both patient and plaintiff were later diagnosed with hepatitis. The court held that the plaintiff had a cause of action against the physician (DiMarco v Lynch Homes, 525 Pa. 558, 583 A.2d 422 [1990]).

Recovered Memory Cases

The past decade or so has been marked by controversy as to whether a third party has a cause of action against a therapist on the grounds that the therapist negligently implanted or reinforced false memories of child sexual abuse. In 1994 in California, Gary Ramona made history when he sued his daughter's therapists for inducing false memories of incest, and he was awarded $500,000 (Ramona v Ramona, Case No. 61898 [Cal. Sup. Ct. 1994]). The trial court held that the therapists owed a duty of care, not only to the patient, but also to the patient's father. The theory of the decision was that the father was a direct victim of the defendants' malpractice (Johnson, 1997).

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 [1998]).

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).

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 [1999]). 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 [1999]). 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).

One can only guess whether the main line of cases will allow a third-party suit against a therapist in revival of memory of childhood sexual abuse. The trend appears to be against allowing it.

References:

References


1.

Appelbaum P, Zoltek-Jick R (1996), Psychotherapists' duties to third parties: Ramona and beyond. Am J Psychiatry 153(4):457-465.

2.

Bowman CG, Mertz E (1996), A dangerous direction: legal intervention in sexual abuse survivor therapy. Harv Law Rev 109(3):549-639.

3.

Hale NG (1995), The Rise and Crisis of Psychoanalysis in the United States: Freud and the Americans. New York: Oxford University Press.

4.

Herman JL (1992), Trauma and Recovery. New York: Basic Books.

5.

Johnston M (1997), Spectral Evidence: The Ramona Case: Incest, Memory, and Truth on Trial in Napa Valley. Boston: Houghton Mifflin.

6.

Reik T (1949), The Unknown Murderer. New York: International University Press.

7.

Slovenko R (1998), Psychotherapy and Confidentiality: Testimonial Privileged Communication, Breach of Confidentiality, and Reporting Duties. Springfield Ill.: Charles C. Thomas Publisher, Ltd.