Small Firm Specializes In Patient Abuse By Therapists
Far More Common Than Many Suspect
By Elaine McArdle
From the August 18, 2003 Lawyers Weekly USA
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.
Different From Medical Malpractice
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.
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.”
-Written by Elaine McArdle August 18, 2003. Questions or comments can be directed to: firstname.lastname@example.org