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[ Intro ] [ Next ]
Litigating Sexual
Misconduct Cases -- A Plaintiffs' Attorney's Perspective
I. Background
A. Overview
Sex between psychotherapists and patients is deemed unethical by the major mental
health organizations, considered unanimously to constitute malpractice, and in some
jurisdictions is a criminal offense.[1] Sexual contact
between other professionals--physicians, lawyers, and clergy--and their patients/clients
is also coming to be considered unprofessional at a minimum.[2] Despite these proscriptions, sexual misconduct by
professionals continues. Several self-reporting surveys report that "[a]s high as
13.7 percent of male [therapists responding] and 3.1 percent of female respondents have
reported engaging in some form of erotic contact with at least one patient."[3] The primary remedy sought by plaintiffs is a civil
lawsuit alleging negligence based on professional malpractice.[4]
A majority of such malpractice actions against therapists are based on allegations of
negligent mishandling of the psychological phenomena known as transference.[5] One court stated,
A sexual relationship between therapist and patient cannot be viewed separately from
the therapeutic relationship that has developed between them. The transference phenomenon
makes it impossible that the patient will have the same emotional response to sexual
contact with the therapist that he or she would have to sexual contact with other persons.[6]
While mishandling of transference often results in sexual contact between the therapist
and patient, malpractice can occur due to the therapist's mishandling of the transference
alone. The court in an early psychotherapist malpractice case, Zipkin v. Freeman,
stated with respect to this issue:
Once Dr. Freeman started to mishandle the transference phenomenon,...it was inevitable
that trouble was ahead. It is pretty clear from the medical evidence that the damage would
have been done to Mrs. Zipkin even if the trips outside the state were carefully
chaperoned, the swimming done with suits on, and if there had been ballroom dancing
instead of sexual relations.[7]
Another court in Cotton v. Kambly,[8]
stated, "[w]e see no reason for distinguishing between this type of malpractice [the
mishandling of transference] and others, such as improper administration of a drug or a
defective operation [-i]n each situation, the essence of the claim is the doctor's
departure from proper standards of medical practice."[9]
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