 Answers
to the Twelve Most Frequently Asked Questions in Therapist Abuse and
Therapist Malpractice Cases
by John Winer
1. What is the difference between therapist abuse and
therapist malpractice?
All cases of therapist abuse involve malpractice. However, not
every case of therapist malpractice necessarily includes abuse. A
case of psychotherapist abuse normally includes sexual or other
exploitation of a patient for the therapist's own advantage. A case
can also be brought against a psychotherapist just as a case can be
brought against any healthcare provider for violation of the
standard of care in terms of negligently diagnosing and treating a
patient. All licensed psychotherapists are held to the same standard
of care, except psychiatrists who are also held to the standard of
care of appropriately medicating patients. It is important
that you check with a lawyer in your state.
Laws vary from state to state. For example, in the
state of California, sex with a current
patient or a patient who has been seen for treatment within the last
two years is strictly prohibited, whether or not the sexual
relationship was consensual. A number of statutes in California
prohibit such conduct, including California Civ. Code. Sec. 43.93,
which creates a civil cause of action for sexual abuse of a patient.
Business and Profession Code Sec. 729 which makes sexual
exploitation criminal. Business and Profession Code Sec. 726 which
allows for Licensing Board sanctions, and Code of Civil Procedure,
Sec. 51.9 which makes sexual harassment of patients illegal.
2. What is meant by "transference" and "abuse
of transference"?
Transference is the phenomena which occurs in psychotherapy in
which a patient, without realizing it, transfers perceptions and
feelings which the patient had as a child on to the therapist. Thus,
the patient reacts toward the therapist in a similar manner to which
a young child would react toward a parent. This necessarily puts the
therapist in an extremely powerful position and the patient in an
extremely vulnerable position. For the therapist to take advantage
of the transference phenomena by engaging in a sexual relationship
or otherwise exploiting his or her patient is known as "abuse
of transference" and sometimes is called "professional
incest."
3. What do the terms "therapeutic container" and
"breach of boundaries" mean in a therapist malpractice and
abuse case?
The therapeutic container is a term of art that refers to the way
that psychotherapy is suppose to be practiced, that is, except in
cases of analysis, the therapist should be sitting a reasonable
distance away from the patient; there should be no physical contact
other than a handshake or an occasional non-sexual hug; sessions
should last for set periods of time and should occur in the office;
there should be no intentional contact with the patient outside of
the therapy office. This allows therapy to be "contained".
A therapist must also maintain his or her "boundaries"
at all times. This means that the therapy must be focused at all
times on the patient, the patient's problems and not the therapist.
The therapist should not reveal any intimate information about
himself or herself to the patient, and the therapist should not
engage in any type of business sexual, social or personal
relationship with the patient other than psychotherapy. When a
therapist fails to act in the above manner, it is a considered a
breach of boundaries.
4. How can I win my case if all of the negligence and abuse
occurred during therapy sessions or at other times in which there
were no witnesses?
In this "he said, she said" situation, a patient can
still win the case as long as the patient is credible and maintains
their credibility throughout the lawsuit. There may be evidence of
negligence in what is included or omitted from the therapist's
notes, and the patient will usually be able to prove that there were
at least non-sexual breach of boundaries which will tend to indicate
that the therapist had poor impulse control and thus was likely to
have also entered into a sexual relationship.
5. Can I bring a civil, criminal or licensing board case
against a therapist?
You will need to check on the applicable laws in your
state. In a situation in which there is sexual abuse during treatment, a
civil, licensing board and criminal case can all be maintained by
the patient. In a civil case the patient can seek compensation for
monetary damages. In the licensing board case the patient can
attempt to have the licensing board revoke or suspend the
therapist's license. In a criminal case the patient can seek to have
the state fine the therapist or even imprison the therapist. The
decision to pursue one or all of these cases should be made after
consulting with an attorney who specializes in therapist abuse
cases. The cases can dramatically affect each other and pursuing a
licensing board case or a criminal case, under certain
circumstances, can destroy a patient's ability to recover damages in
a civil case.
6. What injuries do the victims of therapist abuse most
commonly develop?
The affects of therapist abuse are almost always devastating and
life-long. It is critical that the plaintiff's attorney retain an
expert who understands the tremendous losses suffered by therapist
abuse victims.
Therapist abuse victims will normally suffer impairment in all
areas in which they formerly functioned. In addition, they will
suffer a multitude of symptoms including a sense of betrayal, loss
of self-esteem, loss of identity, loss of hope, loss of
spirituality, loss of independence, and the loss of ability to enjoy
their family and their life. Further, they will suffer sleep and
eating disturbances, anxiety, depression, and any other number of
significant psychological symptoms.
7. Will the medical malpractice limitations apply to my therapist abuse case?
You will need to check with a lawyer. Laws vary in
each state. For example, in California, with a case in which the therapist has committed something more
than mere negligence and has abused his or her patient, the
limitations placed on medical malpractice cases such as a limitation
on pain and suffering and emotional distress damages of $250,000
should not apply.
8. What damages are recoverable?
The patient should be able to recover damages for past and future
medical expenses, past and future wage loss, and past and future
pain, suffering and emotional distress, and in an appropriate case
punitive damages, i.e. damages aimed at punishing the defendant. The
issue of future medical expenses is particularly important in
therapist abuse cases, since frequently a therapist abuse victim
will require a lifetime of psychotherapy and sometimes long
hospitalization. Frequently, the cost of this care will run into the
millions of dollars. It is important that plaintiff's attorney
retains an expert who understands this concept and can provide
testimony to a jury which will allow for a fair award for future
medical expenses.
9. How does insurance coverage effect the settlement of
therapist abuse cases?
Most therapists do not earn enough money to pay for the large
verdicts and settlements that generally occur in therapist abuse
cases. Thus, if the plaintiff is going to be fully compensated, he
or she must establish insurance coverage. Insurance coverage is made
difficult in therapist abuse cases since insurance policies
regularly either exclude payment of damages for intentional or
sexual misconduct, or limit the payment of the damages to a $25,000
sex cap. To maintain insurance coverage, the plaintiff attorney must
understand the importance of pleading non-sexual negligence in the
case and damage from that negligence. Further, the plaintiff's
experts should testify that most of the plaintiff's damages stem
from the therapist's negligent misconduct as opposed to excluded
sexual misconduct. Usually, this is the case. This will increase the
chances of a plaintiff being able to overcome the sexual exclusions
and the sex cap and receive a fair settlement.
10. How soon do I have to bring my case?
Again, you will need to check on the laws in your state. The statute of limitations in therapist abuse cases is
extraordinarily complex.
In California, there are at least three different statute
of limitations time periods which can apply to the case. Generally
speaking, a patient should bring his or her case within one year of
the date in which he or she should have first discovered the
therapist's wrongdoing and injury from that wrongdoing.
Unfortunately, the same statute of limitations that applies to
non-therapist healthcare providers also applies to therapist abuse
cases. In most medical malpractice cases, the malpractice and the
injury is obvious from the onset. Therapist abuse cases are
different because of the transference phenomena and the amount of
power most therapists have over most patients. It is not unusual for
a therapist abuse victim to wait many years before working up the
courage and health to attempt to bring a case against a former
therapist. Unfortunately, the statute of limitations runs when the
patient should have discovered malpractice and an injury and not
when the patient is first "able" to bring a lawsuit. Thus,
to be absolutely safe, a patient should consult with an attorney as
soon as possible, and if at all possible bring a lawsuit within one
year of the beginning of treatment or at least one year from the end
of treatment. Even if a patient waits longer, he or she should still
consult with an attorney because there are exceptions to the statute
of limitations, and cases have been successfully pursued dozens of
years after the therapy relationship terminated.
11. Is it important to retain an attorney who specializes in
therapist abuse cases?
Yes. Therapist abuse cases differ from other types of personal
injury cases and even other types of malpractice cases. Concepts of
transference, the therapeutic container and breach of boundaries are
unique and it is important that your attorney is familiar with the
concepts. Many attorneys who are unfamiliar with therapist abuse
cases would simply assume that a sexual relationship with a
therapist was consensual and would not understand the extent of
damages which you have suffered.
12. Will my case settle out of court?
Probably. The great majority of therapist abuse cases settle at
some point before trial.
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