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Litigating Sexual
Misconduct Cases -- A Plaintiffs' Attorney's Perspective
C. Special Issues
1. Statute of Limitations
Discovery rule: Riley v. Presnell, 565 N.E.2d 780 (Mass. 1991). A jury would
have to determine when the plaintiff became aware of his injury: "Only if a
reasonable person in the plaintiff's position would have been able to discern the harm or
the cause of the harm will the cause of action accrue and the limitations period begin to
run." The Court also held, "'[I]f the defendant's conduct would, in an ordinary
reasonable person, cause an injury which by its very nature prevents the discovery of its
cause, the action cannot be said to have accrued."
2. Insurance Coverage[80]
For psychotherapists, under regular policies: L.L. v. Medical Protective Co.,
362 N.W.2d 174 (Wis. 1984). "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."
Sexual exclusions or "caps":
(1) Concurrent proximate cause: Cranford Ins. Co. v. Allwest Ins. Co., 645
F.Supp. 1440 (N.D. Cal. 1986). Court found that the therapist's "abuse of the
transference process by having sex with his patient and his abandonment [of his
patient] were each potential proximate causes of [the patient's] psychological
injuries." "According to [the plaintiff's expert], Dr. R. [the therapist]
terminated his treatment at a time when his patient [Ms. G.] had continuing psychiatric
problems requiring therapy. Dr. R. failed to take necessary steps to see that Ms. G.
consulted with another psychiatrist. This abandonment in and of itself may have
contributed to Ms. G.'s injuries. The malpractice the doctor committed in abandoning his
patient was wholly independent of his sexual intimacy with her, and consisted only of his
failure to see that she continued treatment."
(2) "Train of events": Jussim v. Mass. Bay Ins. Co., 415 Mass. 24
(1993).
Policies in which if erotic contact is alleged, all negligence subject to cap:
American Home Assur. Co. v. Cohen, 881 P.2d 1001 (Wash. 1994). Court found that the
following insurance policy language was void as a matter of public policy: "in the
event any [erotic contact is] alleged at any time, either in a complaint, during
discovery, at trial or otherwise, any and all causes of action alleged and arising out of
the same or related courses of professional treatment and/or relationships shall be
subject to the aforesaid $25,000 aggregate limit of liability and to all other provisions
of this clause."
For other professionals: (1) Usually not covered because sexual contact not a
"professional service" pursuant to the Marx test (Marx v. Hartford Acc.
& Indem. Co., 157 N.W.2d 870 (Neb. 1968)). See, e.g., Roe v. Fed. Ins. Co., 412
Mass. 43 (1992) (dentist's sexual molestation of patients not "professional
services" and therefore not covered), compare with Roe v. Lawn, 418 Mass. 66
(1994) (school bus driver's sexual assault of child arose out of the use of the school bus
and therefore was covered).
Theories of liability for coverage: (1) Partnership liability; (2) Breach of
institutional fiduciary duty; (3) Creative ideas, see, e.g., Doe v. Hutchinson, No.
107636 (California-Ventura Cty. Sup. Ct., Aug. 11, 1994): dentist and his partnership
liable for dentist's sexual assault of patient because (1) partnership did not have a
policy regarding dentists working alone with patients, and (2) dentist's assistant had
negligently failed to act when she found the dentist's door locked. See also, D.D.
v. Ins. Co. of North America, 1995 WL 694591 (Alaska 1995) (physician/building owner
referred patient to another physician in Physician A's building; Physician B sexually
assaulted patient; patient sues Physician A on the theory that as a building owner he had
a duty to protect her from a colleague whom he had reason to know might sexually assault
the patient; Alaska Supreme Court holds that as patient's injury was not caused by
Physician A's treatment (which was excluded from building owner's policy), building
owner's insurance company (INA) had a duty to defend Physician A and that the
"'medical treatment' coverage exclusion contained in [Physician A's] policy's is
inapplicable since [patient's] injuries caused by [Physician B's] assault did not 'arise
out of' medical treatment.").
3. Employer Liability
See generally, Linda M. Jorgenson, Pamela K. Sutherland & Steven B.
Bisbing,
Transference of Liability: Employer Liability for Sexual Misconduct by Therapists,
60 BROOKLYN L. REV. 1421 (1995).
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