Patients Versus Therapists: Legal Actions Over Recovered Memory Therapy

Psychiatric TimesPsychiatric Times Vol 16 No 11
Volume 16
Issue 11

The debate over the accuracy of memories of childhood sex abuse that are recovered decades later, usually during the course of therapy, has led to the polarization of psychiatrists and other mental health professionals. There are those who claim that -recovered memories are, in the main, accurate, and there are others who believe that most, if not all, recovered memories are false.

The debate over the accuracy of memories of childhood sex abuse that are recovered decades later, usually during the course of therapy, has led to the polarization of psychiatrists and other mental health professionals. There are those who claim that -recovered memories are, in the main, accurate, and there are others who believe that most, if not all, recovered memories are false.

Those who believe in recovered memory therapy (RMT) believe that abreaction of the emotions accompanying the alleged sex abuse experiences is necessary for cure. During this process there is often an aggressive use of hypnosis, including age regression, sodium amytal interviews, guided imagery and suggestive dream interpretation. Most patients undergoing such treatment attend group therapy for survivors of childhood sex abuse and read books about and by survivors. Sometimes unconventional techniques such as psychodrama, channeling and neurolinguistic programming-even primal-scream therapy-are used. Opponents of RMT believe that such techniques are highly suggestive-that suggestion plays a leading role in the promotion of these alleged memories of childhood sex abuse.

Inevitably, the debate has been played out in the judicial system. Since the mid-1980s, lawsuits by accusers against alleged perpetrators have been numerous: as many as 803 such cases have been filed in the United States (Lipton, in press). These cases had to overcome a time-restricted statute of limitations. In order for this to happen, the majority of states changed their laws-either through legislative or judicial action-to allow for the equitable tolling of the statute of limitations in recovered memory therapy cases.

The flood of accusers suing their alleged perpetrators is now a mere trickle. There are several reasons for this reduction. For example, the increasing recognition by the courts that many accusations were based on pseudomemories rather than on historically accurate memories led to a marked decrease in such cases. This change in the position of the courts has in large part been due to both the marshalling of evidence that the accusations were false and to the replacement of the Frye decision by the Daubert decision (Underwager and Wakefield, 1998).

Between 1923 and 1993 the courts relied on the Frye test when accepting scientific evidence. Evidence was accepted in the courtroom if there was general acceptance in the scientific community (James Frye v US, 293 F. 1013 [1923]). In 1993, with William Daubert v Merrell Dow Pharmaceuticals Inc., 113 S.Ct. 2786 (1993), the U.S. Supreme Court changed the rules of the courtroom. As a consequence, the substance of expert testimony must now qualify as "scientific knowledge."

The Court established that the criterion for science (following Sir Karl Popper's position) is whether a theory or technique can be tested. The scientific status of a theory rests on its falsifiability or refutability. The Court still retained the Frye decision-essentially based on peer review and publication-but they also included as part of the Daubert decision the need to establish a known or potential rate of error. Unless a theory or technique can be tested and its rate of error-both false-positives and false-negatives-established, then that theory or technique cannot be accepted as scientific. (See related article on case definitions in August PT-Ed.)

Thus, a trial judge can throw out testimony purporting to establish the validity of recovered memory therapy because its rate of falsifiability cannot be established. Recovered memory therapy cases were based on the concept of repression and the development of psychogenic amnesia. Since the percentage of cases in which recovered memories are false cannot be established, the theory lacks scientific validity. Hence, in many cases, courts have excluded testimony by expert witnesses brought on behalf of the accusers. The bulk of the original cases brought by accusers were for incest, but there were also accusations against physicians (notably pediatricians) and seven cases in which murders were allegedly witnessed (Lipton, in press).

These changes in court rulings have paved the way for a spate of malpractice claims brought by ex-patients against the therapists who treated them during the evolution of their pseudomemories. The number of cases of patients suing therapists in which the plaintiff is acting alone or with a third party-usually a family member-is estimated to be approximately 200 (Scheflin et al., 1998). In addition, there are cases in which third parties alone sue their accuser's therapist. Two types of cases will be discussed here: one in which the original accuser later retracts the accusations and sues alone and another in which the plaintiff is joined by a third party who has been included in the therapeutic situation.

Lawsuits by ex-patients are brought after patients declare that their memories were false and were created during therapy. These ex-patients are called retractors (occasionally recanters). (The evolution of pseudomemories has been described by Lief and Fetkewicz [1995]). Typically, these patients get much worse in therapy (Fetkewicz et al., in press); they become depressed and even suicidal. In half the cases, patients develop multiple alters and are beset by delusions that they have been involved in satanic ritual abuse that include child-breeding, ritual sacrifice and cannibalism. In order to begin the road to recovery, they must stop the ingestion of the large doses of benzodiazepines, such as diazepam (Valium) and alprazolam (Xanax), and beta-blockers commonly prescribed. Likewise, they must separate from their therapists who, in a type of "folie-à-deux," believe the same delusions.

Brown (1999) argues that the retractors change their minds about memories that are indeed true because they are highly suggestible (which is probably true), and because they have been subjected to suggestion by people who believe that their memories are confabulations. Ost et al. (in press) surveyed 20 retractors about their experiences of recovering and subsequently retracting their abuse memories. They found that the process of retraction involved much less social pressure than the memory recovery process. In 48% of our 40 cases (Lief and Fetkewicz, 1995) and in 60% of the 139 cases reported by Lipton that involved satanic ritual abuse and multiple personalities, sometimes hundreds of alters were part of the therapeutic picture. It seems absurd to give serious consideration to Brown's ideas that these patients had retracted true memories. Theoretically, it is possible that a handful of retractors still believe their accusations and pretend to disown them in order to effect reconciliation with their families, but it is incredible that these would account for any substantial number. Our own study of 40 retractors failed to show a single one that might be termed a false retractor.

The basis of most lawsuits against former therapists has been that the therapist violated the appropriate standard of care. (Incidentally, the many unlicensed therapists involved in these cases cannot be sued for malpractice, but only for negligence [Brown et al., 1999].) Negligence or malpractice complaints filed by former patients are based on the failure to make accurate diagnoses or perform appropriate testing, failure to treat for the presenting problem, failure to develop and document an appropriate treatment plan, and failure to adjust or correct the treatment plan despite clear evidence of the patient's deteriorating clinical status.

In addition, the complaints may include the accusation that the therapist used suggestive techniques, which led to false memories. In some instances, there are complaints regarding the lack of informed consent: that there was a failure on the part of the therapist to inform the patient that the techniques used were unsupported by reliable scientific evidence, the diagnoses were controversial, and thus that the patient lacked information necessary to make a reasoned and informed consent to the treatment rendered. In some instances the complaints were specifically against the use of hypnosis as a memory-recovery technique. In several cases, breach of contract was alleged.

The evolution of pseudomemories is clearly demonstrated in the case of Jeannette Bartha v Hicks Richard and Friends Hospital in Philadelphia. In September 1994, this former patient sued her treating psychiatrist and hospital for negligence and reckless treatment beginning in March 1986. For the six and one-half years she was under the care of the defendant psychiatrist, the plaintiff's condition deteriorated, according to her complaint. The complaint alleged that the defendant psychiatrist failed to exercise due care and skill, and that he failed to conform to the requisite standards of medical care or use proper diagnostic techniques in testing. The complaint continued that the defendant psychiatrist failed to monitor the course of treatment and used hypnosis and prescribed medications, increasing the plaintiff's tendency toward suggestion, coercion and manipulation. Over time, this caused the plaintiff to experience and display symptoms of supposed multiple personality in conformity with the defendant's expectations, when in fact no such illness existed.

As a direct result of the negligence of the defendant, the plaintiff alleged, her ability to rationally function was destroyed. Moreover, she became convinced that she had hundreds of alternate personalities as a result of extended and repeated sexual and other traumatic abuses as a child. These experiences-which, in fact, did not occur-included participation in ritual murders, cannibalism, Satan worship and torture by members of her family, among others. The plaintiff alleged that these memories were the product of coercion and suggestion resulting from the improper techniques employed by the defendant. As a result of the defendant's negligence, the plaintiff claimed, her previous relationship with her parents and sister was effectively destroyed. The complaints led to a settlement, the amount of which is undisclosed.

In preparation for this article, I reviewed a sample of 62 cases that were provided by the False Memory Syndrome Foundation. The patient alone sued the therapist in 27 of the cases, the patient and family members sued in 21 cases, the state licensing authority investigated complaints against the therapist in 12 cases, and criminal cases were brought by the state against the defending therapist in two cases.

One of the cases involved a plaintiff who claimed that the defendant therapist led her to falsely believe she suffered from multiple personality disorder (MPD) and had been victimized by a satanic cult. She was also led to believe that she had blocked out the memories of these traumatic experiences. The plaintiff further alleged that the defendant failed to keep honest and accurate records of their therapy sessions. In addition, she stated that she was not adequately informed of the risks associated with the treatment provided. As a result, she became suicidal and lived through the imagined terror of satanic ritual abuse as if it had been real.

Not all of these therapists are highly trained professionals. Some are "counselors" of various descriptions. In a case involving a male plaintiff (Schick v Drake University et al., District Ct. Poke County Iowa, CL73158), a student at Drake University sued his counselor for malpractice, negligence, fraudulent representation, sexual battery and other violations, including sexual harassment. He also sued Drake University, which employed the defendant counselor in a campus counseling center, for negligence and negligent hiring and supervision. The plaintiff claimed that the counselor (a female) falsely convinced him he had been victimized by members of a satanic cult and convinced him to break off all ties with his family. He also alleged mishandling of the transference and countertransference phenomenon, resulting in sexual activity that constituted battery due to his inability to consent to sexual conduct initiated by his counselor.

The plaintiff had entered therapy because of educational stress but was encouraged to drop out of law school so he would not be "burdened" while focusing on his treatment for "cult abuse." The defendant also persuaded this patient to spend the night at her home, visit an out-of-state psychic, participate in ritual chants and allow her to manage his finances. The disposition of this case is still pending.

There have also been cases in which former patients were joined in their suits by family members. One such example that received much media attention was the Burgus case. Patricia Burgus, her husband and two minor children sued Bennett G. Braun, M.D.; Rush Presbyterian-St Luke's Medical Center in Chicago; and Elva Poznanski, M.D., for negligence.

Patricia Burgus was one of the first patients on the dissociative disorders unit founded by Braun. She originally sought treatment for depression following the difficult birth of her second son. She had been diagnosed with MPD at another medical center, and Braun and his associates reinforced that original diagnosis and belief system. Under high doses of medication and hypnosis, Patricia became convinced that she had over 300 alternate personalities. These personalities were allegedly a result of extended and repeated traumatic childhood abuse, which included participation in ritual murders, cannibalism, Satan worship and torture by family members. The Burgus' two sons, thought to be involved with a cult, were hospitalized at Rush for almost three years. This case was part of a PBS Frontline documentary, "The Search for Satan," that explored treatment for satanic ritual abuse. The case was settled out of court for $10.6 million in 1997. The settlement is the largest in the world for a case involving RMT.

Whether or not the therapist has a duty to a member of the family is also an important legal issue. When a family member is involved in the treatment, that issue is not generally in dispute (although there are exceptions).

However, if the family member has not been treated by the therapist, the decision by the court is rather uncertain. In some instances, the court has decided that the third party has the right to sue, as in the Ramona case (Rptr.2d 766 [Aug. 19, 1997]). (See related article by R. Slovenko, M.D., in August PT-Ed.) In Ramona, the court allowed the petition to go forward, and a judgment was made in the favor of the suing family member. In other instances, the courts have decided against this right.

There are some (e.g., Fink, 1998), who allege that the opposition to RMT constitutes an attack on psychotherapy. Quite the contrary. In the absence of acceptable external corroboration, the effort to decrease or even eliminate aggressive attempts to uncover alleged repressed childhood sexual abuse that occurred decades earlier, safeguards and enhances good psychotherapy. This effort is a boon to the entire field of psychiatric care.




Brown D (1999), Patients in false memory cases sue after being influenced by third party. Psychiatric News June 18, p 8 & 22.


Brown D, Hammond DC, Scheflin AW (1999), False Memory Law Suits: The Weight of the Scientific and Legal Evidence. Presented at the American Psychiatric Association Annual Meeting. May 16; Washington, D.C.


Fink P (1998), The attack on psychotherapy. Clinical Psychiatry News 26(11):23.


Fetkewicz JM, Sharma V, Merskey H (in press), A note on suicidal deterioration with recovered memory treatment. J Affect Disord.


Lief HI, Fetkewicz J (1995), Retractors of false memories: the evolution of pseudomemories. J Psychiatry and Law 23:411-435.


Lipton A (in press), Recovered Memories in the Courts: Report of the FMSF Legal Survey. In: Recovered Memories of Abuse, Psychological, Social and Legal Perspectives on a Contemporary Mental Health Controversy, Taub S ed., New York: Charles Thomas.


Ost J, Costall A, Bull R (1999), A Perfect Symmetry? Retractors' Experiences of Recovering and then Retracting Abuse Memories. Paper presented at the 1st meeting of the American Psychological-Law Society and European Association of Psychology and the Law. July 6, 1999; Dublin, Ireland.


Scheflin A, Brown D, Hammond C (1998), Memory, Trauma Treatment, and the Law. New York: W.W. Norton.


Underwager R, and Wakefield H (1998), Recovered memories in the courtroom. In: Truth in Memory, Lynn SJ McConkey KM, eds. New York: Guilford Press, p 394-434.

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