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Litigating Sexual
Misconduct Cases -- A Plaintiffs' Attorney's Perspective
Negligence or malpractice consists of four elements: a duty of care, deviation from the
standard of care, a causal relationship between the duty owed and the harm sustained, and
harm.[43] In Zipkin, the court identified the
therapist's sexual misconduct as the therapist's negligent failure to properly handle the
patient's transference and the therapist's own countertransference (the therapist's own
"transference" toward the patient).[44]
Other courts have consistently adopted this reasoning.[45]
Commentators have noted that engaging in sexual contact with a patient is not the only
way of mishandling transference.[46] For example,
therapists frequently engage in "boundary violations," actions that violate the
boundaries that properly exist between therapist and patient.[47] Sexual contact is a boundary violation, as is
taking one's patient on social outings or swimming parties as Mrs. Zipkin's therapist did.[48]
Therapists may also deviate from standards of care in ways other than mishandling
transference. Improper regression techniques, such as those alleged in the recent
Bean-Bayog case, also constitute negligence.[49]
Other acts of negligence may include a therapist's improper use of hypnosis, improper use
of drugs or alcohol with a patient,[50] failure to
appropriately refer,[51] and wrongful termination or
abandonment of patients.[52]
Fiduciary theory grew out of the relationship in trust and estate law between trustee
and beneficiary.[53] A fiduciary relationship exists
when one party reposes trust and confidence in the other, more powerful party.[54] The more powerful party then has a duty to act only
in the trusting party's best interest. Therapists have been found to have a fiduciary
relationship with their patients.[55]
Fiduciary theory provided the rationale for imposing liability on the psychiatrist in Roy
v. Hartogs.[56] Dr. Hartogs "treated"
his patient for her lesbianism by engaging in sexual relations with her. When his patient
sued him, the psychiatrist's defense was that her claim was essentially alienation of
affections, which was no longer a recognized cause of action. The court disagreed, holding
that, "[The plaintiff] alleges coercion by a person in a position of overwhelming
influence and trust."[57] Fiduciary theory has
continued to provide a basis for claims against therapists and has also been used to toll
the statute of limitations.
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