Ten Simple Steps to Success in Litigating
Therapist Abuse Cases
John D. Winer, Esq.
http://www.johnwiner.com
San Francisco, CA
I. Introduction
To litigate a therapist abuse case is to perform a balancing act
between many seemingly contradictory forces. On the one hand, a
plaintiff's attorney must maintain the plaintiff's credibility at
all costs by demonstrating that the plaintiff is competent (to win
on liability) while at the same time, convince the jury that the
plaintiff is deeply disturbed (to increase damages). The plaintiff's
attorney must plead and present the case in such a way that the
MICRA limitations are obviated (by demonstrating intentional
misconduct) while at the same time, attempting to maintain insurance
coverage (because defendant's acts were negligent). If there is a
statute of limitations issue, the plaintiff's attorney must prove
that plaintiff could not make the connection between defendant's
wrongful conduct and her injuries until within one year of the
filing of the complaint while, simultaneously, attempting to prove
through expert testimony that for years there was an obvious causal
connection between defendant's misconduct and plaintiff's injury (to
win on causation). The same records that may help win the causation
case, i.e., the subsequent treaters' records and testing that
demonstrate that it was obvious that the plaintiff was injured by
the defendant's misconduct, may destroy the statute of limitations
case if those records reveal knowledge of misconduct more than a
year before the filing of the complaint.
We do not have enough space in this article to detail all of the
intricacies of a therapist abuse litigation; however, we will touch
upon ten key points. For more detailed discussions of trial
strategies, litigation techniques and client relation dynamics,
please see other articles by this author referenced in the footnote
below. (1)
II. The Ten Steps to Success
1. Theme of the Case -- Exploitation of a Patient by a
Professional We license to Treat the Most Vulnerable Amongst Us
The theme in every therapist sexual abuse case should be as
follows:
a professional who we, as a society, licensed to care for the
most fragile amongst us -- the mentally ill; a professional who is
licensed to treat the most delicate part of our body and soul -- the
human mind -- has exploited not only the plaintiff, but all of us,
by gratifying his own needs at the expense of his vulnerable
patient's needs. (indented for emphasis only).
The theme, as stated above, serves to highlight the power of
psychotherapist; the vulnerability of the plaintiff, and takes the
focus away from the plaintiff, who may be unattractive to the jury,
and puts the focus on the harm that the defendant has caused to all
of us, not just the plaintiff.
Psychotherapists hold an extraordinary and unique role in our
society: they work almost entirely behind closed doors; they often
treat patients without any informed consent unless they administer
medication; most patients have no idea how psychotherapy works; and
most patients do not understand the critical transference process
(see supra.). Psychotherapists frequently treat patients who have
been badly abused or neglected by people who had power over them
(e.g., parents). Patients reveal to psychotherapists their deepest,
darkest secrets: secrets they frequently have told nobody else.
Psychotherapists are trained to recognize a patient's
vulnerabilities and before a patient sees a psychotherapist, they
are frequently in such bad shape that they often depend upon the
psychotherapist for survival.
We as a society cannot really monitor how psychotherapy is
practiced. Since most of their work is secret, we are dependent upon
psychotherapists to monitor their own behavior and act ethically.
When a therapist steps out of line and gets caught, it is up to the
jury to right this wrong against the plaintiff and society by
awarding a large verdict.
2. Understand the Transference Phenomenon.
Transference is the process by which a patient transfers
feelings, perceptions and fantasies which she had for her (2)
parents or significant people in her past onto the psychotherapist.
It occurs in every single psychotherapy (as well as every
relationship) and every therapist is trained to work with the
transference and not to abuse or exploit the transference.
The transference phenomenon is extraordinarily powerful and yet
the patient does not realize it is occurring, since it is an
unconscious process. The therapist essentially becomes a parent in
the patient's eyes. Sexual feelings which the patient had for her
parents, which have long since been stuffed into the unconscious,
will come up during psychotherapy as a result of the transference.
The patient will not experience these feelings as sexual feelings
for her parents but, rather, as sexual feelings for the therapist.
It is incestuous for a therapist to take advantage of this
situation by entering into a sexual relationship with his patient.
In many ways it is worse than a situation in which a father has a
sexual relationship with a daughter because, one, therapists are
trained to understand the damage that this exploitation creates and,
two, once the therapist has violated a patient, the patient no
longer has anywhere to turn to for help. That is why victims of
abuse of transference are frequently irreparably harmed and
suicidal.
3. Retain as an Expert a Therapist Who Specializes in Therapist
Abuse.
Most therapists, even forensic experts, do not realize the extent
of damage that is caused by therapist sexual abuse. Plaintiff must
retain an expert who specializes or has considerable experience in
this area. If the case is worked up properly, a plaintiff should be
able to blackboard somewhere between $400,000 and $4,000,000 in
future medical specials. Frequently, a patient who has been abused
by her therapist will require long term hospitalization in a
specialty hospital, such as Meningers Clinic in Kansas, to be able
to get back to where she was before the sexual abuse by a therapist.
A hospital like Meningers costs over $300,000 a year. In addition,
or in lieu of hospitalization, victims of transference abuse will
also require three-to-five-time a week therapy for five or ten years
or, sometimes, for the rest of her life. It is inconceivable that a
patient of therapist abuse will not need some type of psychotherapy
for the rest of her life. Only a specialist will realize how damaged
victims of therapist abuse are and how difficult they are to treat.
Frequently, subsequent treating therapists will not recognize the
severity of their patient's problems and will be under the mistaken
belief that the patient will be able to be back to their
pre-existing condition in two or three years. Unfortunately, studies
indicate that this is unrealistic and, for a variety of reasons,
victims of therapist exploitation require many years of intensive
treatment to improve and, often, survive.
4. How to Overcome the Statute of Limitations Defense.
It is highly unusual for victims of therapist/patient sexual
abuse to seek out the services of an attorney within one year of the
termination of the relationship. Therefore, the great majority of
therapist sexual abuse cases involve statute of limitations issues.
Code of Civil Procedure Section 340.5 states that a patient must
bring a case against a therapist within three years of the date of
the injury or one year of the date of the discovery of the injury,
whichever is sooner. It is important to remember that 340.5 applies
only to plaintiff's medical negligence cause of action. All other
causes of action do not have a three-year outside statute of
limitations. Therefore, it is possible that a patient could lose on
the statute of limitations issue as to medical negligence and win on
intentional tort causes of action. Plaintiff's attorney may want to
mention to cumis counsel in a case in which the relationship
terminated more than three years before the date of the complaint
that if the insurance defense attorney is allowed to raise the
three-year statute of limitations on a summary judgment motion or at
trial, that could do the defendant irreparable harm by eliminating
the one insurable tort while leaving the defendant exposed to a
verdict on uninsurable misconduct.
All of the plaintiff's potential causes of action besides fraud
and negligent misrepresentation carry with them a one-year statute
of limitations and the one year begins to run from discovery. A
fraud and negligent misrepresentation cause of action have a
three-year from the date of discovery statute of limitations Code of
Civil Procedure §338(d); therefore, it is always wise to plead
negligent misrepresentation and fraud in therapist sexual abuse
cases. Generally speaking, there will be evidence that the defendant
defrauded plaintiff into having or maintaining the sexual
relationship.
As to the MICRA three-year statute of limitations, it is tolled
by intentional concealment or fraud. (C.C.P. §340.5.) Further, it
does not run until "appreciable harm was first
manifested." (Brown v. Bleiberg (1982) 32 Cal.3d 426.) Finally,
it is tolled during the continuation of the treatment relationship.
(Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 393.) However,
plaintiff's attorneys must be aware of the case of Marriage and
Family Center v. Superior Court (1991) 228 Cal.App.3d 1647, 1654,
which stands for the proposition that the three-year statute begins
to run when a subsequent therapist recognizes an injury, even if the
plaintiff has no such awareness.
As to the one-year statute of limitations, it must be plaintiff's
position that there was no connection in her mind between the
defendant's misconduct (if she was aware of any) and any harm she
suffered until within one year of the date of the filing of the
complaint. This is frequently a sophisticated psychological argument
and must be bolstered by testimony of an expert. The basic theme is
that the abuse of the transference prevents discovery of the
wrongdoing and the harm. The patient is so psychologically invested
in believing in the goodness and righteousness of the defendant that
any sense that the patient may have that something is wrong with the
relationship ends up in self blame. Just as victims of child sexual
molestation tend to blame themselves, victims of therapist sexual
abuse go through the same self-blaming phenomenon. This is one more
reason why it is imperative to retain an expert who specializes in
therapist abuse cases. This expert will be able to testify that it
is rare for a patient to realize misconduct and harm within one year
of the termination of the relationship.
The case of Mason v. Marriage and Family Center (1991) 228
Cal.App.3d 537 deals with the one-year statute of limitations in
therapist/patient sexual abuse cases. In that case, it was found
that plaintiff complied with the statute of limitations because she
did not realize she had been damaged by her therapist's sexual
misconduct until within a year of filing the complaint.
Even if plaintiff cannot prove that she complied with the
three-year statute of limitations and/or she discovered the
wrongdoing and the harm more than one year before the complaint is
filed, the plaintiff may still be able to survive a statute of
limitations defense if she can prove that the defendant should be
estopped from raising the statute of limitations as a defense. The
estoppel theory is simple: just as the abuse of transference
frequently prevents a patient from discovering harm, it also
prevents a patient from acting on the harm even if there is actual
discovery. The defendant, through his abuse, has regressed the
patient to a child-like state. It is just as difficult for a
sexually abused patient to sue a therapist as it is for a child to
sue a parent. The very abuse and imbalance of power prevents the
patient from taking action. Further, frequently the defendant asks
or demands that the patient keep the relationship secret. The
plaintiff develops a fear that something horrible will happen to
both her and the defendant (even when she stops seeing the
defendant) if she tells anybody about the relationship or sues the
defendant. Finally, there are often actual threats made by the
defendant. Plaintiff should always plead estoppel and utilize this
theory in responding to summary judgment motions.
Support for an estoppel theory on the statute of limitations can
be found in 3 Witkin, California Procedure, §523, p.50 (3d Ed.,
1990) which states:
"An estoppel to set up the defense of statute of limitations
arises as a result of some conduct by the defendant, relied on by
the plaintiff, which induces the belated filing of the action ...
whether there is an estoppel is chiefly a question of fact."
[Emphasis added.]
Additional support for this theory can be found in the cases of
Atateeq v. Major (93 C.D.O.S. 3751); Kleinecke v. Montecito Water
District (1983) 147 Cal.App.3d 240; Gaglione v. Coolidge (1955) 134
Cal.App.2d 518; and Pashley v. Pacific Elec. Ty. Co. (1944) 25
Cal.2d 226.
Finally, remember that Code of Civil Procedure Section 364 intent
to sue letters only toll the statute of limitations on medical
negligence causes of action. Therefore, one should never rely upon a
Code of Civil Procedure Section 364 letter to toll the statute of
limitations on intentional tort causes of action.
5. How to Win the Case on a Respondeat Superior Theory.
Frequently, the only solvent or insured defendant in a therapist
abuse case will be a hospital or a therapy center or similar
organization for which defendant works or apparently works. These
defendants will undoubtedly claim that they bear no responsibility
for defendant's misconduct.
In a true employment situation, plaintiff may be able to prove
negligent hiring or negligent supervision and these theories should
always be pled and investigated.
Frequently, discovery will reveal that there was no actual
employment or agency relationship between the hospital/therapy
center and the perpetrator. The perpetrator may be a true
independent contractor; however, plaintiff should be able to survive
a summary judgment motion and perhaps win at trial on a theory of
ostensible agency if plaintiff can establish that the
hospital/therapy center gave her the impression that the perpetrator
was an agent or employee. Civil Code §2300; 1 Witkin, California
Law (8th Ed.); Agency §§133-138.
In cases where plaintiff can establish actual or ostensible
agency, plaintiff still must prove that defendant's actions were
within the scope of employment. As long as plaintiff pleads and can
prove separable acts of negligence, it is inconceivable that the
hospital/therapy center would not be responsible for the
perpetrator's separable negligent misconduct. Therefore, plaintiff
should be able to prevail on any summary judgment motion although
there may be a vulnerability on a summary adjudication of issues
that seeks to dismiss only the intentional tort causes of action.
However, there are several good arguments that can be made for
the proposition that the hospital/therapy center should be
responsible for the perpetrator's sexual and intentional misconduct.
Although there is no case directly on point, an analysis of
California law indicates that a therapist/patient sexual
relationship falls within the parameters of cases in which the
courts have held employers responsible under respondeat superior.
One test to determine whether respondeat superior applies to a
specific factual situation is the test of foreseeability: whether in
a context of the particular enterprise, an employee's conduct is not
so unusual or startling that it would seem unfair to include the
loss resulting from it among the other costs of the employer's
business. The fact that the employee is not engaged in the ultimate
object of his employment at the time of his wrongful act, does not
prelude assigning liability to the employer. (John R. v. Oakland
Unified School Dist. (1989) 48 Cal.3d 438, 447.) Another test which
has been utilized by courts to analyze respondeat superior is
whether or not either one, the act performed was required or
incidental to an employee's duties or two, whether the employee's
conduct could reasonably be foreseen by the employer. (Alma W. v.
Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139.)
Plaintiff should argue that within the context of providing
therapeutic services to patients, sexual misconduct by a therapist
is not so unusual or startling that it would be unfair to include
the loss resulting from such misconduct among the other costs of the
employer's business. Further, sexual misconduct by any
therapist/employee should reasonably be foreseen by the employer.
Since the early 1980's numerous studies indicate that somewhere
between 10% and 40% of male therapists have had sexual relationships
with their patients. Plaintiff can argue that the fact that therapy
takes place behind closed doors and the fact that it involves an
intimate exchange between therapist and patient makes it reasonably
foreseeable that therapist and patient will become sexually involved
with each other.
The Court in Richard H. v. Larry D. (1988) 198 Cal.App.3d 591,
held that a patient's cause of action for professional negligence
based on a psychiatrist's sexual misconduct with the patient's
spouse, was also good against the hospital which employed the
psychiatrist when the patient had alleged the psychiatrist was
acting within the course and scope of his authority at the time of
the misconduct.
The court in Dresser v. BMQA (1982) 130 Cal.App.3d 506, held that
the acts of a psychologist in having sexual relations with two
clients was not unrelated to his profession, reasoning that the
conduct of the psychologist was inextricably bound up with his
therapeutic relationship with his patients.
The California legislature found sexual misconduct by a therapist
to be a foreseeable risk of his duties when it took the
extraordinary step of passing laws outlawing this type of
misconduct. (California Civil Code §43.93, California Business and
Professions Code §§726, 729.)
The two leading California Supreme Court cases addressing the
issue of respondeat superior in the context of sexual misconduct are
John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438 and
Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202. In the Mary M.
case, the Supreme Court found the City liable for a police officer's
sexual misconduct after a traffic stop, and in the John R. case the
Supreme Court found the school district not liable for a school
teacher's molestation of a student.
The Mary M. court found respondeat superior responsibility for
policy reasons. The Court reasoned that the police officer used his
authority to enable him to commit the assault; the officer detained
the plaintiff while he was on duty, in uniform and armed; he ordered
the plaintiff into the patrol car and transported her to her home,
and, when the plaintiff screamed he threatened to take her to jail.
The Court found that the risk of sexual assault is reasonably
foreseeable, and is broadly incidental to the enterprise of law
enforcement.
Plaintiff can argue that there is a far higher frequency of
therapists/patient sexual misconduct, than there are incidents of
police officer/civilian sexual misconduct. In every therapist abuse
case, the therapist utilizes his position of authority to manipulate
the patient into the sexual relationship. Further, there is a high
degree of dependency between the patient and the therapist.
Frequently the patient believes that she is dependent upon the
therapist for survival. Clearly, the relationship between a
therapist and a patient is more analogous to the relationship
between a police officer and a civilian, than it is to the
relationship between a school teacher and a pupil.
Plaintiff can even find support for this position in the John R.
(supra) decision. In John R. the Supreme Court recognized that there
are situations in which courts have found that respondeat superior
liability should be applied to sexual misconduct of employees. Those
cases are cited in footnote 8 of that opinion. The cases cited in
footnote 8 include the cases of Richard H., supra, described in the
footnote as "liability of clinic where psychotherapist
consulted by married couple had sexual relations with the
wife," Simmons v. United States (9th Cir. 1986) 805 F.2d 1363,
described in the footnote as "liability of federal agency for
mental health counselor's sexual involvement with client," and
Marston v. Minneapolis Clinic of Psychiatry (Minn. 1982) 329 N.W.2d
306, described in the footnote as "liability of clinic for
therapist's sexual relations with patient."
Thus, three of the decisions cited by the California Supreme
Court in John R. for the proposition that in certain circumstances
the employer should be found liable for the sexual misconduct of
employee, are cases involving the sexual misconduct of therapists.
Therefore, it can be reasoned that the seemingly inconsistent
opinions of Mary M. and John R. are both consistent with the idea
that the employer/principal should be responsible for the sexual
acts of an employee/therapist, especially during therapy sessions.
6. What to Do If the Defendant Denies the Sexual Contact.
Since therapist/patient sexual relationships have been
criminalized, it has become increasingly frequent for therapists to
deny sexual contact. If the defendant denies sexual contact and
there is no proof of the actual sexual relationship (other than
plaintiff's testimony), plaintiff's attorney should take the
following steps:
a. Look for other provable boundary violations.
A therapist who will have sex with a patient will usually violate
other boundaries of psychotherapy. There will often be proof that a
therapist had some type of extra-therapeutic relationship with the
patient.
Except in the rarest of instances, therapy should take place
inside the therapist's office for a prescribed period of time, such
as 50 minutes. Further, therapy should consist of the patient
telling the therapist her problems. The intimate details of the
therapist's life and his problems should be kept out of the therapy.
Frequently, there will be proof that there was, one, some type of
relationship between the therapist and the patient outside of
therapy, two, that the therapist revealed intimate details of his
life to the patient and, three, that the therapist and patient
entered into some type of business relationship. Although this does
not indicate that there actually was a sexual relationship, it does
indicate that a defendant has poor boundaries and was likely to have
further exploited his patient by becoming sexually involved with
her. At the very least, proof of boundary violations should be
enough to win a case of negligence.
b. Make sure that plaintiff maintains credibility at all costs.
Although it is always important for the plaintiff to tell the
truth in all phases of the case, it becomes extraordinarily
important for the plaintiff's credibility to be beyond reproach if
the defendant denies the sexual conduct. The plaintiff must reveal
every dirty detail of her life without attempting to manipulate the
facts, not only to her treating therapist, but also to the experts
on both sides, to the defense attorney at her deposition, and to the
jury during her trial. Because of the nature of personal injury
litigation, the defendant has many more opportunities to attack a
plaintiff's credibility than vice versa. The defendant will be able
to conduct formal and informal discovery of the plaintiff's life
from birth to the time of the trial. If the defendant can develop a
theme that the plaintiff is a dishonest person, then the plaintiff
will lose. On the other hand, if the plaintiff is exquisitely
honest, and admits to details of her life that make her look bad and
may even hurt her case, then the plaintiff's attorney will be able
to make the argument that the plaintiff has been forthright in all
aspects of her life, even those that have hurt her case, why would
she lie about the sexual contact.
c. Have the plaintiff psychologically tested.
Psychological testing can add to the credibility of the
plaintiff's case. A number of the psychological tests have
true/false scales which can provide evidence that, at least in terms
of the testing, the plaintiff answered truthfully. Secondly, the
defense to sexual abuse cases will frequently be, not that the
plaintiff is lying but, rather, that she is somehow delusional.
Psychological testing can rule out delusion and psychosis.
d. Go on the attack.
Although plaintiff's attorneys are limited in formal discovery as
to how much information they can learn about the defendant, a
private investigator may be able to turn up a lot of useful
information regarding the defendant which will be helpful in the
litigation and admissible during trial. The recent California
Supreme Court cases of People v. Eweldt (Feb.28, 1994) 94 C.D.O.S.
1509 and People v. Balcom (Feb.28, 1994) 94 C.D.O.S. 1517 stand for
the proposition that plaintiff may be able to present evidence of
prior and subsequent uncharged misconduct of defendant with other
patients in order to show a common plan or design. Studies show that
therapists who sexually abuse one patient, frequently have sexually
abused others. A thorough investigation of the defendant using
creative, but legal, investigative techniques, may be able to turn
up other victims, and dramatically alter the outcome of plaintiff's
case.
7. How to Maintain Insurance Coverage.
As of this writing, there is no California appellate court
opinion directly addressing the issue of insurance coverage in cases
of therapist/patient sexual abuse. However, there are California
Supreme Court cases which provide guidance.
Horace Mann v. Barbara B. (1993) 4 Cal.4th 1076 stands for the
proposition that in a case of child sexual molestation, the
insurance carrier still owes a duty to defend if plaintiff has pled
legitimate separable acts of negligence. The cases of Garvey v.
State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395 and State
Farm Mut. Auto Ins. Co. v. Partridge (1973) 10 Cal.3d 94 hold that
when an insured risk combines with an excluded risk to concurrently
cause a single harm, the insurer is liable as long as one of the
causes is covered by the policy.
Keeping these cases in mind, there are several steps that
plaintiff's attorneys can take to help ensure that the entire
judgment obtained against a defendant for therapist sexual abuse
will be covered.
First of all, plaintiff must plead an entire cause of action of
separable negligence. In this cause of action plaintiff should list
20 to 30 acts of non-sexual negligence perpetrated by the defendant
and specifically exclude all of the sexual and intentional acts
alleged later in the complaint. At deposition and trial, make sure
that plaintiff's expert testifies to separable acts of negligence,
such as misdiagnosis, failure to monitor the therapy or improper
termination.
It is against the defendant's best interest to request a special
verdict in which a jury will be asked to award money for uninsurable
causes of action. While a general verdict may prevent the
enforcement of the MICRA limitations, it is certainly in the
defendant's best interest to have a larger verdict against him that
is insurable than it is to have a smaller verdict that is not
covered by insurance. Plaintiff's attorney may want to make sure
cumis counsel understands this principle.
8. Make Sure the MICRA Limitations Will Not Apply to Therapist
Abuse Litigation.
Waters v. Bourhis (1985) 40 Cal.3d 424 holds that a therapist
sexual abuse case is a hybrid case in which there may be negligence,
which would be subject to MICRA limitations, and intentional torts,
which would not be subject to MICRA limitations. Plaintiff should
always plead non-negligence causes of action in therapist sexual
abuse cases. If the defense insists on a special verdict and the
jurors find a defendant guilty of battery, intentional infliction of
emotional distress or some other related cause of action, or, if
there is a general verdict, then plaintiff will be able to receive a
general damage verdict in excess of the $250,000 MICRA cap and will
not have to have the verdict or fees altered by the other MICRA
limitations.
9. Settlement Strategy.
More than any type of case, therapist abuse cases should be
settled on the basis of a risk analysis. If plaintiff has worked up
the case properly, the defendant will be at risk for a multi-million
dollar verdict. On the other hand, plaintiff will generally have a
risk of losing the entire case on the statute of limitations or
receiving a large verdict and not being able to collect it because
of a lack of insurance coverage, lack of defendant's assets or a
combination of the two.
If the defendant denies the sexual contact, then the risks are
even higher. If the jurors believe the defendant, the plaintiff will
almost certainly lose. On the other hand, if the jurors believe the
plaintiff, then they will believe that the defendant has not only
exploited plaintiff, but has now lied about it and, therefore, there
is every reason to believe that the verdict in such a case could
rise even higher.
For plaintiff it would be a mistake to engage the defense in an
issue-by-issue settlement evaluation of the case. The defense will
want to point out all of the deficiencies in the plaintiff's
causation and damage case in order to convince the plaintiff's
attorney that the case does not have a large value, even if the
plaintiff prevails. This type of analysis may make sense in most
medical malpractice cases, or even most accident cases; however, it
does not make sense in a therapist sexual abuse case because the
jurors' verdict will be based upon their anger and not their careful
analysis of the issues of causation and damages.
Therefore, plaintiff should assume that there will be a large
verdict if she does win and should then discount the value of the
case based upon an assessment of the chances of losing on liability
and the statute of limitations and further discount the case based
upon any perceived collection problems that will be encountered.
The defense has two additional risks: one, the risk of publicity
and, two, the risk that the defendant may lose his ability to
practice therapy. These two items will almost always end up in the
settlement mix. Further, they provide a great incentive for the
defense to settle cases early. For that reason, it is usually a good
idea to give the defense a chance to settle the case before filing a
lawsuit. If the statute of limitations is about to run, as it almost
always is, the plaintiff and defendant can enter into a
"standstill agreement," where the statute of limitations
stands still while an effort is made to settle the case. Standstill
agreements are authorized by Code of Civil Procedure §360.5.
The defendant, unless he denies the sexual contact, will almost
always be motivated to settle the case early; the problem more often
than not is the insurance carrier. If the defendant is going to
admit sexual misconduct, he may be highly motivated to settle the
case before his deposition is taken. However, if the plaintiff is
willing to discount the case in order to have it settle early, the
insurance carrier is realistic, and especially if the defendant is
willing to put some of his own money towards settlement, early
settlement can be reached. If there is any indication that the case
may be able to be settled, it may be wise for the plaintiff's
attorney to allow the defense to meet informally with the plaintiff
and the plaintiff's experts. This will give the insurance carrier an
opportunity to evaluate the claim and document its file while it
will also demonstrate plaintiff's confidence in her case.
10. Trial Strategy.
For a more detailed discussion on trial strategy, see Trying the
Therapist/Patient Sex Case (see Footnote 1). This article discusses
a few of the more basic strategy considerations.
In terms of jury selection, plaintiff always wants
psychologically minded, sophisticated jurors who like
psychotherapists and believe in psychotherapy. These are the people
who are most likely to have some compassion for the plaintiff and
the people who are most likely to become extraordinarily angry at
the defendant.
Plaintiff should not be present at the trial except for when she
testifies. It will be psychologically harmful for the plaintiff to
sit through the trial and it will be harmful to her case. The
plaintiff should be the last witness and, in no event, should the
plaintiff testify before the plaintiff's expert. It is an invitation
to disaster to allow the defense to cross examine the plaintiff
before the jury understands the concept of transference and before
the jury understands why the plaintiff was vulnerable to the
defendant's misconduct. Further, the plaintiff's expert should have
the opportunity to describe the plaintiff to the jury and to explain
to the jury the reason why plaintiff has the negative qualities
(whatever they are) which plaintiff's attorney believes could damage
her case.
Plaintiff's expert should be the first witness. He or she should
lay out the concepts of psychology and psychotherapy (including
transference) much like a mechanical engineer would lay out the
design aspects of an automobile in a products liability case. The
expert's testimony should cover all aspects of liability, causation
and damages.
The plaintiff should next call the defendant as an adverse
witness and do whatever is necessary to attack the defendant's
credibility. Further, the point must be made that the defendant was
trained in the concept of transference, and knew or should have
known that a transference existed between the defendant and the
plaintiff and, despite that knowledge and training, abused the
transference.
Plaintiff should call lay people or treating doctors as before
and after witnesses to describe the changes in the plaintiff before
and after her relationship with the defendant. This testimony will
be particularly important on the issue of damages. Although
plaintiff needs expert witnesses to prevail on liability and
causation, jurors are distrustful of the testimony of therapists
when it comes to damages. They are far more likely to be moved by
the testimony of lay witnesses than they are by therapists.
Closing argument should focus on the theme of the case as
discussed in section 1. The idea is to let the jurors develop their
own anger at the defendant and then through argument convince the
jurors to convert that anger into a compensatory damage award. Any
request for money should be tied directly into the defendant's
misconduct, not just the nature of plaintiff's damages. A capsule of
a closing argument on general damages can look something like this:
Defendant was trained that transference is an explosive process
that can be used for good or can be used for evil. The defendant, in
order to gratify his own sexual needs, decided to misuse the
transference for his own evil purposes. The defendant was trained
that when a therapist sexually exploits a patient, the patient is
always seriously damaged. Despite that training, the defendant, who
we as a society entrusted to care for this fragile woman, took it
upon himself to destroy the most precious gift which God gave her
... her peace of mind.
The human mind is the most delicate of structures. It is little
understood, but it is so, so important. They make computers to
replicate almost every human function; however, they cannot make a
computer that comes even close to equalling the human mind.
We all have our travails in life. We all have our ups and downs,
victories and disappointments. As long as we have our peace of mind,
we can deal with the obstacles that are placed before us and we can
overcome our difficulties and life remains vital and rewarding.
However, once we lose our peace of mind -- once we lose the ability
to enjoy the little things in life -- a beautiful sunset, a child
sitting in our lap, an intimate phone conversation with a friend;
once we lose our ability to enjoy those moments, life is no longer
worth living. That is the position that the plaintiff is now in. She
has lost her peace of mind, her life has become a living hell. She
knows no enjoyment. She hates herself and does not want to live.
Why? Why is she in this position? So the defendant could have his
cheap sexual gratification.
The worst thing about the plaintiff's current condition is that
the defendant, through his negligent and intentional misconduct, not
only stripped her of her peace of mind but also, to a large extent,
took away the cure. The plaintiff can only be cured through
hospitalization and psychotherapy; yet, psychotherapy cannot work
without trust. How will plaintiff ever be able to trust again? The
plaintiff's mind has been destroyed and the defendant has taken away
the blueprint for fixing her mind, and it cannot be replaced. They
make artificial limbs, but they do not make artificial minds.
When you sit down to evaluate plaintiff's damages for emotional
distress, consider the plight of Ron Kovac. Ron Kovac, whose story
was featured in the movie "Born on the Fourth of July," is
a Vietnam veteran who became paralyzed during the war. The Vietnam
war and Ron's injury were not enough to strip him of his peace of
mind. He was able to fight back and lead a fulfilled and joyful life
as a veterans' advocate even though he suffered from the most severe
physical ailment known to mankind, quadriplegia. He was able to
fight back and live a joyful and fulfilled life because he had the
precious gift of peace of mind. The plaintiff, on the other hand,
has lost this precious gift forever. Why? So that defendant could
get his sexual kicks. And when you evaluate her damages, please
think of what you would have awarded her if the defendant had
rendered her a quadriplegic instead of stripping her of her peace of
mind. And I submit to you, the damages for this injury should be
greater than the damages you would award to a quadriplegic.
The defendant has not only violated the plaintiff, he has
violated all of us. He has violated every one of us who will someday
need the help of a therapist. He has violated each one of us who
someday may have to trust our spouse, mother or daughter in the
hands of a therapist. One of your neighbors has been injured because
this defendant decided to violate his oath and violate your trust.
You, through your verdict, can make your neighborhood whole again.
III. Conclusion
Despite the fact that therapist abuse cases are difficult and
extraordinarily expensive to litigate, they can result in very
satisfactory settlements and verdicts for plaintiffs if they are
skillfully prepared and presented. Following the ten steps outlined
in this article will hopefully lead to a successful outcome for
plaintiff.
1. "Medical Negligence -- Psychotherapist Sexual Contact
With Client" 14 AmJur Proof of Facts 3rd 319; "Helpful
Hints on Litigating Therapist Abuse Cases," CTLA 30th Annual
Convention Syllabus, 1991; "Trying the Therapist/Patient Sex
Case," CTLA 25th Annual Tahoe Seminar Syllabus, 1990;
"Understanding the Dynamics of the Attorney-Client Relationship
in Professional Abuse Cases," CTLA 1992 Convention Syllabus;
"An Overview of Handling Therapist Malpractice Cases: Sex,
Drugs, Suicide and Bad Therapy" CTLA 1994 Tahoe Syllabus.
2. Most plaintiffs in therapist sexual abuse litigation are women
and most defendants are men; therefore, for the sake of simplicity,
the female gender only will be utilized to describe plaintiffs and
the male gender will be used to describe defendants. However, the
same principles stated in this article will apply to male plaintiffs
and female defendants.
This article has been reproduced on AdvocateWeb with permission
from the author. Copyright © 2001 California Legal Info Center.
See AdvocateWeb's disclaimer.
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