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Have
you experienced this abuse?
You are
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This site
has had 5,438,463 visitors since Jan. 1998.*
(* Visitor count since Jan. 28, 1998. Count is now based
on total user 'sessions', rather than home page visits.)
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FROM OUR EXPERTS…
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Stanley J. Spero, J.D.
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A dedicated trial attorney with twenty-five years of diverse litigation and legal experience litigating all aspects of complex and fact intensive medical and psychological malpractice cases across the United States involving doctors, clinics, hospitals, nurses, psychologists, social workers, drug and alcohol abuse counselors, and managed care providers. Stanley Spero established a new exception to the statute of limitations which has been used extensively in sexual abuse, incest and malpractice cases. He has for many years participated as a "trial judge" and advisor in Harvard Law School's Trial Advocacy Program, as well as lectured for Massachusetts Continuing Legal Education Program regarding proof of damages in tort actions.
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by STANLEY J SPERO, ESQ., S J SPERO & ASSOCIATES, A LAW FIRM SPECIALIZING IN THE REPRESENTATION OF VICTIMS OF PROFESSIONAL EXPLOITATION AND SEXUAL ABUSE SINCE 1983. on APRIL 30, 2010
You have started your lawsuit against the psychotherapist who engaged in significant boundary violations and caused you serious damage. The attorneys, following arduous and lengthy negotiations, have finally arrived at a dollar settlement amount satisfactory to you. But then, the attorney for the psychiatrist (psychologist, social worker or counselor) insists that the settlement and all underlying facts related to the failed therapy must be kept confidential.
“What?” you ask in anger. “I can’t talk about this with anybody? This is outrageous!”
Is it?
What are the vices and advantages associated with confidentiality agreements?
It is all and well good to condemn confidentiality agreements as against public policy. As a policy matter, there are certainly valid arguments against the use of settlement provisions of this type.
1. You never have to accept confidentiality or secrecy in a settlement!
First, it is ALWAYS the victim’s prerogative to reject a proffered settlement, with or without confidentiality, and proceed to trial. No attorney can or should enter into such a settlement, any settlement of any kind, without the client’s full prior understanding of its terms and unconditional consent. This is both a matter of legal ethics and client right.
2. Go to the licensing board! Check with a professional society or organization!
Second, prior to even considering confidentiality, the victim always has the right to complain to a licensing board and seek disciplinary action against an offending therapist. The victim may also seek redress, where available, from professional associations or societies to which the therapist belongs. Or, the victim can inform friends, colleagues, victims’ groups, legislators and the media through oral and written communications of the past abuse and the identity of the abuser.
There may be good reasons not to take one or more of these actions (e.g. potential impact on subsequent litigation, impeding settlement, possible defamation liability). Be sure talk to your attorney about potential consequences before proceeding.
3. Sometimes, the settlement is not so secret anyway!
Third, there are already certain regulatory limitations, which either mandate exposure of wrongful conduct or protect disclosure of abuse in certain instances.
For example, Massachusetts, G.L.c. 112, section 5C provides:
Every insurer or risk management organization which provides professional
liability insurance to a registered physician shall report to the board any
claim or action for damages for personal injuries alleged to have been caused by
error, omission, or negligence in the performance of such physician’s
professional services where such claim resulted in:
(a) A final judgment in any amount,
(b) A settlement in any amount, or
(c) A final disposition not resulting in payment on behalf of the insured.
Reports shall be filed with the board no later than thirty days following the
occurrence of any event listed in paragraph (a) , (b) , or (c) .
Such reports shall be in writing on a form prescribed by the board and shall
contain the following information:
(a) the name, address, specialty coverage, and policy number of the physician
against whom the claim is made; and
(b) name, address and age of the claimant or plaintiff; and
(c) nature and substance of the claim; and
(d) date when and place at which the claim arose; and
(e) the amounts paid, if any, and the date and manner of disposition,
judgment, settlement, or otherwise; and
(f) the date and reason for final disposition, if no judgment or
settlement; and
(g) such additional information as the board shall require. No insurer or its
agents or employees shall be liable in any cause of action arising from
reporting to the board as required in this section.
Similarly, Massachusetts, Ann. Laws ch. 112, @ 5E states:
Any registered physician who does not possess professional liability
insurance shall report to the board every settlement or arbitration award of a
claim or action for damages for death or personal injury caused by negligence,
error or omission in practice, or the unauthorized rendering of professional
services by such physician. Such report shall be made within thirty days after
any such settlement agreement has been reduced to writing thereto or thirty days
after service of such arbitration award on the parties and signed by all the
parties. Failure of the physician to comply with the provisions of this section
is an offense punishable by a fine of not more than five hundred dollars.
Knowing and intentional failure to comply with the provisions of this section,
or conspiracy or collusion not to comply with the provisions of this section, or
to hinder or impede any other person in such compliance is an offense punishable
by a fine of not less than five thousand dollars nor more than fifty thousand
dollars.
Further, the medical malpractice statute which governs some professional abuse cases against therapists, Massachusetts, G.L.c. 231, section 60B, provides:
Whenever the [medical malpractice] tribunal makes a finding, the clerk of the court
shall, no later than fifteen days after such finding, send a copy of the complaint and
finding to the board of registration in medicine. Upon entry of judgment, settlement,
or other final disposition at trial court level, the clerk shall, no later than fifteen days
after such entry, send a copy of the judgment, settlement or other final disposition,
to the board of registration in medicine. The terms of such judgment, settlement, or
other final disposition shall not be sealed by agreement of the parties or by any other
means and shall be available for public inspection, except, however, the identity of the
plaintiff may be kept confidential by the board.
Therefore, in Massachusetts, insofar as the statute concerns psychiatrists and physicians and following the initial phase of a malpractice tribunal, the Board of Registration in Medicine will be notified of the offending conduct and papers filed in Court will remain open for public inspection. This is mandatory disclosure in the malpractice litigation process designed to expose the abuse to the bright light of discipline.
There are also protections for those who are called to testify before the Board of Registration in Medicine. For example, Massachusetts G.L.c. 112, section 5 provides that, “no person . . . who provides information pursuant to this section or who assists the board at its request in any manner in discharging its duties [including obtaining information concerning settlement of malpractice actions] . . . shall be liable in any cause of action arising out of the receiving of such information or assistance.”
Caution: The above discussion involves Massachusetts law. Your jurisdiction has different rules, regulations, procedures and/or statutes which MAY govern this area. Further, even in Massachusetts, these statutory protections are not all inclusive and do not apply to non medical abusers. Further legislation should be enacted to extend these laws to other professional fields. We should vigorously support such efforts. Always consult an attorney.
BOUNDARY VIOLATIONS
The professional psychotherapeutic process depends on the maintenance of boundaries. Boundaries are restrictions and limits on the relationship and dealings of the patient or client with the psychiatrist, psychologist, social worker or mental health therapist or counselor. The patient has his or her role or duties in the professional treatment situation. It is the task of the treater to establish, maintain and enforce the formal parameters of the psychotherapeutic engagement. In practical terms, boundaries involve the setting of time limits for the therapy session, formal, scheduled appointments for office visits, and recognition of the respective roles and duties of the therapist and patient. Boundary enforcement requires that the relationship maintain its professional, therapeutic quality and that the treater adhere to the ethical strictures of his or her professional license.
Boundary crossings can take many forms. At SJ Spero & Associates, we have seen therapists overstep professional bounds when they:
· Routinely or repeatedly extend - or shorten- therapy sessions;
· Make and accept frequent telephone calls from patients which have little or nothing to do with therapy;
· Hire or engage patients to do personal chores, office work, shopping, errands, household responsibilities, etc.;
· Bill excessive amounts for therapy sessions not conducted;
· Enlisting the patient in defrauding health insurers;
· Reveal extraneous personal details about their marriages, affairs, finances, or business activities during therapy;
· Permit the patient to listen to the therapist’s emotional issues and problems instead of vice versa;
· Conduct therapy sessions over coffee, at lunch or dinner, or at meetings outside of a professional setting;
· Invite the patient to attend or participate in the therapist’s family activities;
· Solicit the patient’s funds or involvement in the treater’s commercial activities or investments;
· Accept or give personal gifts such as jewelry from or to the patient or the patient’s family;
· Make or dictate lifestyle decisions for the patient including employment choices, friendships, attire, purchases, and relocations;
· Alienate, by command, disapproval or otherwise, the patient from spouses, family members or relatives;
· Allow the patient to regard the therapist as an all knowing authority figure;
· Become the patient’s friend, colleague, or business partner.
One boundary violation may lead to others. Such violations of time, space or propriety can all interfere with therapy. When permitted or encouraged, treatment may be impeded or cease in its entirety. Patients may feel “special,” privileged, unique or different from others in psychotherapy. If or when the therapist changes course or loses interest in a patient previously singled out for unique or undue attention or begins to favor others in treatment or belatedly tries to re-create or establish nonexistent or frayed professional boundaries, the patient may feel betrayed, angry, rejected or resentful.
Probably the most serious boundary violations involve sexual exploitation. Sexual acts may relate to or follow a series of other boundary crossings. The friendly handshake becomes a hug. The hug becomes a prolonged embrace, etc. Typically, when sex begins, therapy stops. The consequences of sexual involvement between mental health professionals and patients are serious, often devastating and longstanding. This is often described as sexual abuse.
Boundary violations may be minor or serious, and patients react to them in different ways. If the violations are serious, the patient may be able to sue the therapist for damages. At SJ Spero & Associates, we recognize when boundaries are violated, and we know what to do when professional limits are not observed.
Internet Therapy with Out-of-State Licensed Social Worker
A divorced father with one child living with a domestic partner begins psychotherapy by the use of internet communication (predominantly emails) with a female licensed social worker in another state.
The patient had been struggling for years with symptoms posttraumatic stress due to emotional and sexual abuse from his childhood where the sexual abuse was perpetrated by his father. When his current partner engages in infidelity, the patient begins to question his sexuality. He searches the internet for help and finds a website offering therapy and counseling via email with the social worker.
Over the course of two years, the emails between the patient and social worker blossom into a friendship, where the two share personal and intimate details of their lives; exchange gifts and photographs; and celebrate holidays “together.” The social worker through therapy also encourages the patient to be “unforgiving” of his partner’s infidelity and shares her own marital and divorce problems with her husband.
The emails turn flirtatious. The patient confesses his love to the social worker.
At this point, the social worker begins to understand why the ethical rules of her profession forbid “dual relationships.” She seeks help and advice from a supervising social worker and is told to end the therapy. When she abruptly emails regarding termination, the patient is left with an overwhelming sense of loss, betrayal and feelings of abandonment. This improper treatment and termination process causes an aggravation of a pre-existing condition such as the symptoms of post traumatic stress disorder.
The patient had paid many thousands of dollars to the social worker for therapy which turned out to be useless and damaging. The internet therapy had compounded and magnified the problems which drove the patient into therapy in the first place. Over the next few years, the patient becomes isolated and unable to trust other therapists. He is despondent and retreats into an inner world of depression and despair uncaring of his child and his job; and suicidal at times.
The rules of ethics of the National Association of Social Workers states that social workers should not engage in dual or multiple relationships with clients or former clients in which there is a risk of exploitation or potential harm to the client. In instances when dual or multiple relationships are unavoidable, social workers should take steps to protect clients and are responsible for setting clear, appropriate, and culturally sensitive boundaries. (Dual or multiple relationships occur when social workers relate to clients in more than one relationship, whether professional, social, or business. Dual or multiple relationships can occur simultaneously or consecutively.)
When a patient enters therapy they expect help for the problems that brought them to therapy. Good therapy helps the patient with those problems without subjecting them to additional traumas . It is the therapist’s responsibility to monitor the relationship at all times to prevent what happened to the patient in this case. A few words early on at the beginning of therapy explaining to the patient that dual relationships are fraught with danger and must be guarded against might have saved this patient a world of harm and the costs of more therapy to attempt to correct that harm.
There was also negligence in this case because the therapist did not provide the information needed to obtain informed consent of the patient to have this psychotherapy.
Damages That May Be Caused By Professional Exploitation
When a former patient or client decides to seek damages from a mental health professional, what can be recovered?
Pain and Suffering
The law recognizes several categories of damages. First, there is pain and suffering. When a psychotherapist has acted unprofessionally, the patient suffers mental and physical symptoms which are often intermixed. The victim may endure feelings of depression, embarrassment, fear, guilt, humiliation isolation, paranoia, rage, remorse, and shame. He or she may cry uncontrollably, withdraw from normal work and social activities. The former patient may feel depression, despair or suicidal ideation. Preoccupation with the therapist and the abuse may create problems in concentration or focus. The patient may suffer a loss of self esteem and hope. Marked increases or decreases in weight are not uncommon. The patient may experience sleeping disorders sometimes manifesting as insomnia, nightmares or terrors. There may be an impact on religious or spiritual beliefs or adherence. Victims of sexual abuse often fall victim to Post Traumatic Stress Disorder. Patients often manifest an inability to trust others, particular other health care professionals. Conditions which preexisted the damaging treatment, such as anxiety, obsessive compulsive behavior or paranoia, may be aggravated and worsened.
Sexual misconduct with a psychiatrist, psychologist, or social worker often interferes with the patient’s familial relationships. As the sexually exploited former patient tries to recover from the earlier mistreatment, he or she is unable to relate to or properly parent their children, which can lead to further guilt. If the victim was married during the period of the sexual misconduct, he or she may try to rebuild the shattered relationship with the spouse, a difficult process because of inherent problems with trust. The nonpatient spouse may have a claim for loss of consortium against the offending therapist for what amounts to harm to the marital relationship. This is described in court as a third party victim of the sexual exploitation.
Formerly pleasurable activities-participation in sports, attendance at group events, vacations, other recreational pursuits, household errands or chores – are now of limited or no interest for the sexual abuse victim.
Ameliorative treatment is not easy. The patient who has been once abused or mistreated finds it difficult to repose trust a second time in a new psychiatrist or therapist. Thus, the work necessary to deal with the past sexual abuse is delayed, rendered more difficult or prolonged.
Impairment of Earning Capacity
Of course, the ability to earn a living is also impacted. The student drops out of college or a professional program. The once vigorous executive is unable to function or works at a much lower level or capacity. Opportunities for advancement are forfeited. Job loss may occur. The effects of vocational impairment, as with the other consequences of the unprofessional exploitive behavior, may long endure. An inability to trust authority figures may lead to poor employer-employee relationships, thereby inhibiting or preventing career advancement or increased compensation.
Therapy, Hospitalization, Medical Expenses, Medications
Victims of professional misconduct sometimes require hospitalization for their own good. Or, the physical manifestations of the trauma may aggravate or cause bodily traumas or injuries.
Victims may be prescribed medications, which, while necessary to address immediate symptoms, may cause unpleasant side effects.
Or, alone or in conjunction with the above, people who have been sexually abused by their therapists, may require years of expensive and difficult ameliorative psychotherapy.
The cost, duration and varieties of these treatments vary depending upon the individual victim.
The victim may be entitled to recover the expense of both the ameliorative treatment and the wasted monies spent on the harmful, destructive therapy which necessitated that treatment.
Determining the type, assessment, and valuation of patient damage from professional misconduct is complicated and is an integral component of our legal services at SJ Spero & Associates.
Psychiatric Malpractice & Privacy Expectations
by Stanley J Spero, Esq., S J Spero & Associates, A law firm specializing in the representation of victims of professional exploitation and sexual abuse since 1983. on March 11, 2010
If your psychotherapist publishes an article in which you recognize details of your history or treatment, this may be a breach of his/her fiduciary duty. Such patient exploitation is actionable in a court of law.
”Whatever, in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret” (Hippocratic Oath quoted in Hague v. Williams, 37 N.J. 328, 332 [1962]).
In medical ethics, confidentiality is the rule and disclosure is the exception. Hellman v. Board of Registration in Medicine, 404 Mass. 800, n.4 (1989).
A patient has a valid interest in preserving the confidentiality of personal medical facts relayed to a physician. Bratt v. International Business Mach. Corp., 392 Mass. 508, 522 (1984).
Physicians, including psychiatrists, psychologists, social workers and other mental health clinicians, share a duty not to disclose medical information, except to meet a serious danger to the patient or others.See, e.g., Alberts v. Devine, 395 Mass. 59, 68 (1985).
In Clinical Handbook of Psychiatry and the Law 2nd ed. (1991), the authors state:
“Patients’ privacy can be infringed by publication of data that are not sufficiently disguised to render them anonymous.…As the Group for the Advancement of Psychiatry noted, ‘Sometimes material may be so impossible to camouflage that it should not be published at all, in spite of its scientific value. Such ethical requirements take priority over research objectives.”
In Clinical Psychiatry and the Law (1987) at 156, note 57, Dr. Robert Simon observed:
“Psychiatrists, unlike nonpsychiatric physicians, are obliged to disguise their clinical data, even to the detriment of the scientific value of the data in order to avoid recognition of the patient…. Without the patient being adequately disguised, consent of the patient is required for publication. If the psychiatrist does not obtain the patient’s consent, he or she may be subject to legal liability and ethical charges if the subject of the writing is recognized. [C]linical and other materials used in teaching and in writing must be adequately disguised in order to preserve the anonymity of the individuals involved.
…. The disguise should be sufficient so that even a close friend cannot recognize the patient’s true identity.” Id. at 157
In Psychiatric Malpractice: Cases and Comments for Clinicians (1992), the authors note at 67:
“…[A]any discussion or disclosure of patient information, without proper consent, that permits the patient to be identified by name, description, or appearance may result in a successful action for invasion of privacy. This is true even if information that is published for scientific or professional purposes, as opposed to commercial purposes…It is sound clinical and ethical practice for a psychiatrist to go beyond simply obtaining a patient’s consent. The psychiatrist should also make every attempt to sufficiently alter those details that will safeguard the identity and integrity of the patient without sacrificing the scientific purpose of the publication…Verbal disclosures can be just as damaging and actionable as those in writing.”
A breach of confidentiality may cause severe psychological damage and materially aggravate a preexisting psychiatric condition. Post Traumatic Stress Disorder (PTSD) can also result. Patients whose privacy has been invaded may experience suicidal ideation, severe depression, embarrassment, anxiety, humiliation, rage and shame.
by Stanley J Spero, Esq., S J Spero & Associates, A law firm specializing in the representation of victims of professional exploitation and sexual abuse since 1983. on March 19, 2010
The rules of ethics of the National Association of Social Workers state that social workers should not engage in dual or multiple relationships with clients or former clients in which there are risks of exploitation or potential harm to clients. Dual or multiple relationships occur when social workers relate to clients in more than one relationship, whether professional, social, or business. Dual or multiple relationships can occur simultaneously or consecutively. In instances when dual or multiple relationships are unavoidable, social workers should take steps to protect clients and are responsible for setting clear, appropriate, and culturally sensitive boundaries. When this is not done, the patient may suffer unnecessary exploitation and damage. Here is just one example:
A divorced father of one, living with a domestic partner, begins psychotherapy by the use of internet communication (predominantly emails) with a licensed social worker who is female and located in another state.
The patient had been struggling for years with symptoms of posttraumatic stress due to emotional and sexual abuse from his childhood where the sexual abuse was perpetrated by his father. When his current partner engages in infidelity, the patient begins to question his sexuality. He searches the internet for help and finds a website offering therapy and counseling, via email, with the social worker.
Over the course of two years, the emails between the patient and the social worker blossom into a friendship, where the two share personal and intimate details of their lives; exchange gifts and photographs; and celebrate holidays “together.” The social worker, through therapy, also encourages the patient to be “unforgiving” of his partner’s infidelity and shares her own marital and divorce problems with her husband.
The e-mails turn flirtatious. The patient confesses his love to the social worker.
At this point, the social worker begins to understand why the ethical rules of her profession forbid “dual relationships.” She seeks help and advice from a supervising social worker and is told to end the therapy. When she abruptly sends an email regarding termination, the patient is left with an overwhelming sense of loss, betrayal, and feelings of abandonment. This improper treatment and termination process aggravates a pre-existing condition, such as the symptoms of post traumatic stress disorder.
The patient has paid many thousands of dollars to the social worker for therapy, which turns out to be useless and damaging. The internet therapy has compounded and magnified the problems which drove the patient into therapy in the first place. Over the next few years, the patient becomes isolated and unable to trust other therapists. He is despondent and retreats into an inner world of depression and despair, neglecting his child and his job. He is even suicidal at times.
This patient might have been saved from a world of harm (and the costs of more therapy to attempt to correct that harm), had the social worker explained, early on at the beginning of therapy, that dual relationships are fraught with danger and must be guarded against at all times.
When patients enter therapy, they expect help for the problems that brought them to therapy. Good therapy helps the patient with those problems, without subjecting them to additional traumas. It is the therapist’s responsibility to monitor the relationship at all times to prevent what happened to the patient in this case. There was also negligence because the therapist did not provide the information needed to obtain informed consent from the patient to have this psychotherapy.
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April 1, 2008
Psychiatric Times. Vol. 25 No. 4
Boundary Violations and Malpractice Litigation:
Understanding Litigation From the Plaintiff's Side
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Stanley J. Spero, JD and Philip L. Cohen, JD
Mr Spero is an attorney with offices in Concord and Cambridge, Mass, and is senior partner in the firm of SJ Spero & Associates, P.C.
Mr Cohen is an attorney who has worked with Mr Spero on numerous cases involving psychotherapeutic malpractice. He practices law in Concord. The authors report no conflicts of interest concerning the subject matter of this article. Disregard of professional boundaries is a leading cause of malpractice litigation. Boundary violations take many forms. Sexual involvement is a recurring problem that can cause serious damage.1 Even without erotic physical contact, material boundary crossings can, at least, destroy or interfere with therapy, and at most, injure the patient and lead to litigation. Generally, boundaries are violated by any act that alters or blurs the contours of the professional relationship
Professional malpractice (negligence) requires proof by a preponderance of evidence that first establishes the existence of a duty or standard of care, then shows a breach of that duty or standard of care, which proximately causes (ie, materially causes or substantially contributes to) damage. Boundary crossings often involve violations of professional ethical rules.
However, an ethical violation alone may be insufficient to constitute an actionable breach of duty or standard of care. A violation of a canon of ethics or a disciplinary rule is not in itself considered an actionable breach of duty.2 As with statutes and regulations, if a plaintiff can show that a disciplinary rule that was intended to protect him or her was violated, that may be evidence of negligence.2 In any event, the plaintiff must still prove the causal relationship between the negligent act or omission and the resulting damage.
While negligence provides the usual basis for malpractice litigation, other legal theories may also support such suits, including breach of fiduciary duty,3-6 invasion of privacy,7 outrageous conduct (negligent or reckless infliction of extreme emotional distress), and loss of consortium. Consortium claims are brought by the patient's spouse and/or children to recover damages for the loss of affection, companionship, sexual relations, and society suffered by immediate family members and caused by therapist negligence.
Plaintiffs have also sued, with varying degrees of success, for battery, breach of contract, defamation, fraud, and violation of state consumer protection statutes. However, insurance coverage availability, laws governing damage recovery, and judicial precedents often limit use of the foregoing theories in malpractice litigation involving mental health professionals.
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Causation and damages |
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Of course, all patients begin therapy as products of their past. Because negligent practitioners do not harm pristine humans, they are liable only for the aggravation of their patients' underlying preexisting condition.8
Patients have difficulty understanding the calculation of damages, a major focus in litigation. Because the premalpractice condition is so critical, plaintiffs must understand that their entire lives will be examined, dissected, and analyzed. All documents concerning the patient's previous civil and criminal litigation, education, employment, hospital, medical, and therapy experiences are relevant to the determination of the preexisting condition. All aspects of the patient's life before the malpractice are considered highly relevant to the issue of future damages.
A plaintiff has only one opportunity to recover monetary damages from the defendant. Therefore, recoverable damages include past losses and those reasonably anticipated to occur in the future
Negligently provided therapy defeats itself because the patient for-feits the opportunity to improve when treatment is substandard.9 The actual chance for improvement is patient dependent. Some patients begin therapy with historical burdens so great that prospects for meaningful alleviation are minimal. Translating this loss of chance into money is an imprecise exercise that should be buttressed by expert psychiatric opinion.
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Statutes of limitation |
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Every jurisdiction has laws restricting the time during which injured parties may sue for damages. Memories fade, witnesses die, and documentation is lost or destroyed. By requiring different types of lawsuits to start within specific time periods, statutes of limitation are intended to promote fairness.
Victims of therapeutic boundary violations face unique problems. Patients are conflicted, unable to come to terms with failed therapies, or afraid to confront former therapists in litigation. A patient's embarrassment, guilt, reluctance, shame, self-blame, or unwillingness to litigate may cause the lawsuit to be barred by expiration of the limitation period.10
Patients may suspect that ongoing therapy is deficient, but because of idealization, transference, trust, or vulnerability they may not act on that suspicion. Some jurisdictions recognize a "continuing treatment" doctrine for medical malpractice cases.11 Under this approach, the limitations period does not begin until treatment has ended.
Many states have a "discovery rule," which provides that the period for commencing litigation begins when a patient or a former patient first comprehends, learns, knows, or understands that he was harmed by the clinician's acts or omissions.10 The limitation period commences when the patient comprehends the negligence and its causal relationship to the attendant harm.10
Another exception to the statute of limitations emphasizes the fiduciary aspects of the therapist-patient relationship. Thus, a "fiduciary" treater's failure to reveal facts to the patient "ward" that are relevant to a potential claim stops the statute from running until the victim "discovers" them. The failure to disclose during treatment has also been characterized as fraud or fraudulent concealment.10 However, once the patient becomes aware or reasonably should become aware of the existence of the cause of action, the statute begins to run.10
It is sometimes argued that in situations involving improper or nonexistent termination, therapy does not end when office visits cease. In Massachusetts, the state regulatory board promulgated a rule that presumes that a licensed psychologist's relationship with a patient extends a minimum of 2 years from the date of the last professional service.12
Another exception involves the plaintiff's disability or mental disorder. If the patient is institutionalized for reasons of mental health, the limitation period may be suspended until the patient's release; the clock then resumes anew. In the case of minors who are victims of negligent therapy, most jurisdictions delay commencement of the limitations period until the patient reaches majority.
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Statutes of repose |
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Some jurisdictions have enacted statutes of repose governing malpractice litigation. A statute of repose places an absolute time limit on the liability of those within its protection and abolishes a plaintiff's cause of action thereafter, even if the plaintiff's injury does not occur, or is not discovered, until after the statute's time limit has expired.13 Connecticut courts begin counting the period of repose during treatment by, or continued duty of, a doctor for the same condition to which his alleged negligence is related.13 Other jurisdictions extend their statutes of repose until the end of a course of continuous treatment if the effects of a series of acts or omissions are so cumulative and inextricable as to render the series actionable as a single wrong.13
It has been argued that in situations involving improper or nonexistent termination, therapy does not terminate with the cessation of office visits. In Massachusetts, by administrative regulation, a therapist's relationship with a patient is presumed to extend a minimum of 2 years from the date of the last professional service.12
Still another exception involves the plaintiff's disability or mental disorder. If the patient is institutionalized for reasons of mental health, the limitation period is suspended until the patient's release, whereupon the clock resumes anew.
Of course, minors also suffer from negligent therapy. Most jurisdictions keep open the statute of limitations until the patient becomes an adult.
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Litigation considerations |
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Assuming the patient's damage is substantial and provable, can he handle litigation? A lawsuit entails an intensive examination of a plaintiff's life by opposing counsel, outside experts, including defense psychiatrists, the court, and the jury. After beginning litigation, victims of psychiatric malpractice may display unremitting hostility to defense counsel. In addition, they may experience or display any number of behaviors .
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Invasive nature of pretrial discovery |
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Once pretrial discovery begins, the intimate details of the plaintiff's life become fodder for discovery. The process almost always involves a multihour or multiday deposition (oral examination) conducted by opposing counsel. The plaintiff will be grilled about all factual circumstances bearing on the negligent treatment and damages. Where applicable, significant others, spouses, family, business associates, friends, and previous therapists may also be deposed.
The plaintiff should expect to undergo a private psychiatric examination by the defendant's expert psychiatrist without counsel's presence.14 These examinations should be divested as far as possible of any adversarial character.15 Anticipation of and participation in the independent medical examination can be particularly stressful for a previously victimized patient.
During pretrial discovery, the plaintiff will receive detailed, extensive document requests for income tax returns; employment history; and hospital, medical, school, and therapy records. If the plaintiff has confided intimate thoughts to a diary, journal, or correspondence, these mate rials are likely discoverable.
Plaintiffs frequently ask about proceeding anonymously or sealing court papers. These measures are difficult to implement, run contrary to the principle of "open courts," and are rarely available in practice.16 While the very frequency of therapist malpractice claims has made them far less worthy of press coverage, victims contemplating litigation should recognize that some lawsuits garner public attention and could result in personal exposure.
Most patient-therapist communications are confidential and subject to legal protection against disclosure. After malpractice litigation begins, courts consider these privileges waived. Whatever the patient said, did, or wrote during therapy, regardless of date, becomes discoverable and open to scrutiny. Ongoing ameliorative therapy loses its privileged character, with even session notes generally being discoverable.
Notwithstanding this abrogation of patient-doctor confidentiality, attorney-client communications retain their privileged character throughout litigation. At this point, however, patients must remember to guard against revealing protected conversations with counsel within the newly unprotected confines of therapy. Likewise, therapists must exercise care in including only necessary treatment data in session notes obtainable through discovery.
Furthermore, past or current therapists may be required to testify at a deposition or trial concerning the patient's history, treatment, diagnosis, prognosis, or injuries. While such opinions can significantly impact the settlement or trial, they may engender adverse patient reactions or deleteriously impact ongoing therapy and professional relationships.17
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Expectations and realities |
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The purpose of civil litigation is to compensate the victim through settlement or trial. Former patients typically have highly unrealistic expectations about court proceedings and about the nature and extent of their involvement.
A lawsuit is not an open forum enabling plaintiffs to deride defendants with accounts of abuse, ethical failings, or misconduct involving nonparties. Likewise, nonexpert depictions of personal inner growth or psychological insights are considered irrelevant. Litigation is not therapy and is decidedly not therapeutic. Instead, it is a carefully controlled process requiring litigants to make extremely painful disclosures to often unsympathetic or hostile strangers in order to receive fair compensation for damages and injuries sustained.
Insurance coverage for sexual boundary violations is either extremely limited or nonexistent. Without adequate insurance, a plaintiff is limited to the defendant's personal assets and future earnings as a source of monetary recovery. If such assets are insufficient, litigation could be financially impractical despite substantial harm to the patient. Following inordinate delay, the malpractice insurer may offer a monetary settlement that, despite extensive negotiation, will remain unsatisfactory to the plaintiff.
Plaintiff anger is a hallmark of malpractice litigation. Victims must adjust to the lack of control inherent in a civil suit. During even substandard therapy, the plaintiff was a key person, 1 of 2 featured participants. This attention level continues in ameliorative therapy and in presuit attorney interactions.
Following the start of litigation, however, the plaintiff becomes merely one player among many. The respective interests of the defendant, his defense counsel and malpractice insurer, and the court may be and often are contrary to those of the plaintiff.
Although the trial may be years away, the plaintiff is cautioned to maintain control, which is difficult in light of pretrial discovery and its interminable process of exposure, frustration, and indignity. As the plaintiff dredges up painful memories, disgorges private correspondence, and girds for depositions and independent psychiatric examinations, unhappy life events must be recounted, analyzed, and relived.
Hitherto carefully guarded secrets are revealed through discovery, which can exacerbate existing family and marital tensions. Pretrial disclosures add stress to already fragile relationships, and the critical opinions of the defendant, outside experts, and previous therapists force painful self-assessments. Occasionally, anticipation of the actual trial becomes unbearable, and plaintiffs find that the need for self-preservation requires abandonment of the litigation.
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Conclusion |
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Malpractice litigation negatively impacts victims and perpetrators alike. Its invasive aspects affect ameliorative treatment; ongoing patient-therapist, personal, and familial relationships; and professional reputations and livelihoods. Its delays, expense, emotional tolls, and inherent uncertainties suggest that it is in the interest of all parties to resolve such disputes before commencing suit or as early as feasible after litigation has begun.
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References |
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1. Weinberg v Board of Registration in Medicine, 443 Mass 679 (2005).
2. Fishman v Brooks, 396 Mass 643, 649 (1986).
3. Restatement (Second) of Torts §874 comment a (1979).
4. Restatement (Second) of Trusts §2 comment b (1959).
5. Bobinski MA. Autonomy and privacy: protecting patients from their physicians. U Pitt L Rev. 1994:55; 291, 355.
6. Alberts v Devine, 395 Mass 59, 69 (1984).
7. WL Prosser, WP Keeton. Torts §117, at 851-866 (5th ed. 1984).
8. Wallace v Ludwig, 292 Mass 251, 252-53 (1935).
9. Simon RI. Bad Men Do What Good Men Dream: A Forensic Psychiatrist Illuminates the Darker Side of Human
Behavior. Washington, DC: American Psychiatric Press; 1996:137-139.
10. Riley v Presnell, 409 Mass 239, 248-249 (1991).
11. Harlfinger v Martin, 435 Mass 38, 52-53 (2001).
12. 251 CMR 3.10 (1996).
13. Rudenauer v Zafiropoulos, 445 Mass 353, 357 (2005).
14. Fed R Civ P. 35.
15.DiBari v Incaica Cia Armadora, 126 FRD 12, 13 (EDNY 1989).
16. Republican Co v Appeals Court, 442 Mass 218, 223 (2004), quoting Commonwealth v Blondin, 324 Mass 564,
571 (1949), cert denied, 339 US 984 (1950).
17. Ackerman MJ, Kane AW. Psychological Experts in Personal Injury Actions. 3rd ed. New York: Aspen Law and
Business; 1998:81.
18. Zipkin v Freeman, 436 SW2d 753, 755, n.1 (Mo Supreme Ct) (1968).
19. Gutheil TG, Gabbard GO. The concept of boundaries in clinical practice: theoretical and risk management
dimensions. Am J Psychiatry. 1993;150: 188-196.
20. Aronoff v Bd of Registration in Medicine, 420 Mass 830, 832 (1995).
21. Massachusetts Board of Registration in Medicine General Guidelines Related to the Maintenance of Boundaries
in the Practice of Psychotherapy by Physicians (Adult Patients), January 1994.
22. King v Conant, 20 Mass L Rep 223; 2005 Mass Super LEXIS 555 Suffolk Super Ct (2005), Docket Number:
03-2012 BLS or trading professional services for patient work.
23. O'Laughlin MJ. Dr Strangelove: therapist-client dual relationship bans and freedom of association or how I
learned to stop worrying and love my clients. Spec Law Dig Health Care Law. 2002;276:9-43.
24. 69 UMKC L. Rev 697, 698 (2001).
25. Epstein RS. Keeping Boundaries: Maintaining Safety and Integrity in the Psychotherapeutic Process. Washington,
DC: American Psychiatric Press; 1994:152-157.
26. Vranos v FranklinMedicalCenter, 448 Mass 425, n. 8 (2007).
27. American Medical Association, Physicians and Disruptive Behavior (July 2004).
[The foregoing article is reprinted with permission by Psychiatric Times ]
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From the August 18, 2003 Lawyers Weekly USA. |
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Feature Story |
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Small Firm Specializes In Patient Abuse By Therapists
Far More Common Than Many Suspect
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By Elaine McArdle |
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In the late 1970s, Stanley J. Spero was a successful trial lawyer in Cambridge, Mass., with a typical roster of medical malpractice and auto product liability cases. That all changed when a deeply troubled young woman with a history of serious psychiatric problems told him that her psychiatrist had sexually abused her numerous times.
At the time, no one had ever successfully sued a therapist in Massachusetts for sexual abuse of a patient - and Spero's colleague Linda M. Jorgenson, who later became his law partner, had strong doubts about the case. The woman was a bi-polar schizophrenic and delusional; at one point, when they visited her in a mental hospital, she claimed George Washington had just dropped by.
"I'm embarrassed to say this now," recalled Jorgenson, "but I told Stan, 'You really want to be sure she's telling the truth.' She was very, very ill."
But Spero was certain that, in spite of her many delusions, the woman was telling the truth about her therapist.
"What made me decide to take the case is one of my strengths and weaknesses," he said. "I'm terribly sensitive to people being abused. Just because they have psychiatric problems doesn't mean they're not telling the truth."
Jorgenson, however, remained unconvinced. Her opinion didn't change until she reluctantly agreed to take the deposition of a doctor who treated the woman after the defendant psychiatrist.
"I asked him, 'Why do you believe what this woman is saying?' And he said, 'Because when I called up the psychiatrist, he told me he did it.'"
Jorgenson shakes her head at the memory, saying that she "decided at that moment" that she would never again doubt a victim's story without looking into the matter further.
Spero and Jorgenson set state precedent in 1983 when they won a $280,000 verdict against the psychiatrist. Since then, the team - who formally became partners in 1993 - have handled more than 400 cases of therapist abuse throughout the country and become national experts on the issue.
The five-lawyer firm currently has about 100 open cases a year, most of which settle for between $300,000 and $500,000. But if a case goes to trial the typical verdict is substantially larger. They've settled dozens of cases for more than $1 million, including a recent $1.7 million confidential settlement against a psychologist in a Western state, and they've landed dozens of verdicts of similar size.
"From that first case, it just turned into an incredible thing, as more and more people realized they had rights," said Spero.
Therapist abuse cases are plentiful, he noted. According to a national survey published in 1986 in the American Journal of Psychiatry, between 7 and 12 percent of therapists admit having sexual contact with one or more patients. Eighty to 90 percent of therapist abuse cases involved female victims, the partners note, usually with male therapists. Some therapists are serial predators, others may stray just once.
Studies have demonstrated irrefutable harm to most patients who enter into a sexual relationship with a therapist, including depression, isolation, relationship difficulties, and increased risk of suicide. For that reason, professional ethics strictly forbid therapists from having any sexual contact with patients, and for psychiatrists, the restrictions are even greater: they are forbidden from sexual contact with former patients, too.
Twenty-four states regard therapist-patient sex as a criminal act, because the power imbalance in the relationship makes it impossible for the patient to voluntarily consent. And in almost all states, proof of a sexual relationship with a patient will result in the therapist losing his license.
"The sex act itself isn't necessarily the damaging part," said Spero. "It's the invasion of all kinds of boundaries, and the violation of trust." "It doesn't matter if the therapist thinks he's in love or not," added Jorgenson. "They should never have sex with a patient. It displaces the primary purpose of the relationship, which is to treat that patient so that they can have healthy relationships with other people." The first order of business when trying these cases is to get a jury to understand these aren't about consensual affairs. "This is about a doctor's fiduciary duty to the patient, and the fact that this duty has been violated," said Spero.
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Different From Medical Malpractice |
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Therapist abuse cases carry their own peculiarities of law and trial strategy, the partners note.
Defendants almost always deny that sexual contact occurred. Since the victims suffer from emotional or psychiatric problems while the defendants are well-spoken, educated physicians or psychologists, it's critical to have corroborating evidence such as telephone records, hotel receipts, witnesses who've seen the therapist and patient together in social settings, gifts, or love letters.
For their first case, the one involving the bipolar woman, Spero and Jorgenson located a nurse who recalled the defendant psychiatrist visiting the victim's hospital room at odd hours. They also found neighbors who testified they saw the doctor's car at the victim's home. Without this kind of evidence, it's almost impossible to win what amounts to a she said/he said contest.
Spero and Jorgenson are currently suing the former director of psychiatry at a major Massachusetts hospital on behalf of two female victims. In that case, the doctor snapped nude photographs of one patient and had her take his photo, too, which shows him naked beneath his framed Yale medical degree, wearing nothing but a black condom that reads "lollipop."
But it's rare to have such clear-cut evidence.
"We say to the clients, 'It's your word against his. Do you have something to back you up?'" said Spero. "They have to understand how severe the risk is, and how intrusive these cases are. They're going up against a person who comes cloaked with a professional degree."
Defense attorneys delve into the victim's psychiatric history and every other aspect of his or her life - family relationships, romantic history, work failures - all touchy matters that often are the reason the person went into therapy in the first place.
"It's a very different kind of litigation," said Spero. "With regard to the revealing of intimacies and the invasion of privacy, nothing in med-mal compares to it."
The statute of limitations - three years, in most states - often kills many potential cases. But Spero again set precedent in Massachusetts in 1991 in Riley v. Presnell, which recognized that many plaintiffs don't realize until long after the incident that what the therapist did was harmful. (565 N.E.2d 780)
In the Riley case, the male plaintiff began therapy with Dr. Presnell, a male psychiatrist at Harvard who gave him alcohol and drugs and later engaged him in sex.
"Riley could never understand anything was wrong," said Jorgenson. "He was told this was good for him, that it was treatment, so he continued."
It wasn't until another young patient revealed that Dr. Presnell had sex with him, too, that Riley thought something might be amiss.
The defendant won summary judgment based on the contention that the statute of limitations had run out. But Spero and Jorgenson appealed the case to the Massachusetts Supreme Judicial Court, which changed the standard for determining when the patient "discovered" the abuse, and thus when the statute of limitations begins to run. Today, it is up to the jury to decide when the statute begins to run by determining when the plaintiff knew or should have known that the sexualization of the relationship was improper.
"It was a good decision for the victims. It recognizes that for some victims, it takes years to realize what happened," said Jorgenson. "A lot of them regard it as an affair. They never think that their inability to sleep at night or their depression is connected to this relationship [with the therapist]."
Another problem is insurance coverage. Most malpractice policies do not cover sexual abuse of patients, so the plaintiffs must pursue a defendant's assets, which is time-consuming and sometimes fruitless.
And these cases have much more emotional impact on the victims than typical medical-malpractice matters, the partners note. Often the plaintiffs have deeply mixed feelings about suing.
"Their self-blame is so powerful," Spero said. "They can hear every expert support them, and still they blame themselves. People don't like to feel they were victims."
It's hard on the lawyers, too.
"This litigation is so intense, very few lawyers could tolerate it," Spero said. "You have to spend a lot of time with the clients, where in a regular med-mal, your time is with the expert witnesses."
Spero typically spends a full day or longer on the initial interview with the client, getting to know her, garnering her trust, and determining whether she is credible.
Few cases ever get to the jury. Once there is credible evidence that a sexual relationship took place, defendants typically settle, since such behavior is a clear violation of medical ethics. The partners have lost just one jury trial, in a case involving a male patient and a female therapist who was a drug counselor, where the judge was clearly not sympathetic to the cause of action, Spero recalled.
"We've had other cases with male clients and female therapists, and except for a couple of them, all they wanted was their money back for the therapy," said Jorgenson. Male clients often are embarrassed to paint the relationship as anything but positive, she believes.
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Important Work |
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Many victims say their primary goal in these lawsuits is to protect other patients from a doctor's abuse, Spero said. "We have so many come in here where they don't even want to know the value of their case," he said. Often, clients choose not to sue civilly. Instead, they testify before the state board that licenses the therapist, hoping to see his license revoked.
Spero and Jorgenson believe therapists should be required to inform patients, at the start of therapy, that sex is never an appropriate part of the therapeutic relationship. They also believe all therapists should be required to meet regularly with a supervisor or a peer group, to discuss whether a patient relationship is becoming too personal and, if so, to get help.
Jorgenson continues her efforts to pass legislation in every state that criminalizes this behavior. In the meantime, the firm has a heavy caseload and continues to get calls from all over the country. But Jorgenson believes that things are slowing slightly, in large part because public awareness of the issue is making it harder for therapists to abuse their patients.
Both lawyers find the work deeply satisfying. "I don't see how you can't feel good about it," said Jorgenson. "In so many kinds of cases, like divorce, you really could take either side. But here there is clearly only one right side."
Spero saves the letters that his clients send him, thanking him for his help. "I want my children to know that you can make a difference in this world. Not always a big difference, but in your own way," he said. "I know we've made a dent in this problem."
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