by Stanley J. Spero, J.D.
A dedicated trial attorney with twenty-five years of diverse litigation and legal experience litigating all aspects of complex and fact intensive medical and psychological malpractice cases across the United States involving doctors, clinics, hospitals, nurses, psychologists, social workers, drug and alcohol abuse counselors, and managed care providers. Stanley Spero established a new exception to the statute of limitations which has been used extensively in sexual abuse, incest and malpractice cases. He has for many years participated as a “trial judge” and advisor in Harvard Law School’s Trial Advocacy Program, as well as lectured for Massachusetts Continuing Legal Education Program regarding proof of damages in tort actions.
April 1, 2008 Learn more about Boundary Violations Psychiatric Times. Vol. 25 No. 4
Boundary Violations and Malpractice Litigation: Understanding Litigation From the Plaintiff’s Side
Stanley J. Spero, JD and Philip L. Cohen, JD
Mr. Spero is an attorney with offices in Concord and Cambridge, Mass, and is senior partner in the firm of SJ Spero & Associates, P.C.
Mr. Cohen is an attorney who has worked with Mr. Spero on numerous cases involving psychotherapeutic malpractice. He practices law in Concord. The authors report no conflicts of interest concerning the subject matter of this article. Disregard of professional boundaries is a leading cause of malpractice litigation. Boundary violations take many forms. Sexual involvement is a recurring problem that can cause serious damage.1 Even without erotic physical contact, material boundary crossings can, at least, destroy or interfere with therapy, and at most, injure the patient and lead to litigation. Generally, boundaries are violated by any act that alters or blurs the contours of the professional relationship (Table 1).
Professional malpractice (negligence) requires proof by a preponderance of evidence that first establishes the existence of a duty or standard of care, then shows a breach of that duty or standard of care, which proximately causes (ie, materially causes or substantially contributes to) damage. Boundary crossings often involve violations of professional ethical rules.
However, an ethical violation alone may be insufficient to constitute an actionable breach of duty or standard of care. A violation of a canon of ethics or a disciplinary rule is not in itself considered an actionable breach of duty.2 As with statutes and regulations, if a plaintiff can show that a disciplinary rule that was intended to protect him or her was violated, that may be evidence of negligence.2 In any event, the plaintiff must still prove the causal relationship between the negligent act or omission and the resulting damage.
While negligence provides the usual basis for malpractice litigation, other legal theories may also support such suits, including breach of fiduciary duty,3-6 invasion of privacy,7 outrageous conduct (negligent or reckless infliction of extreme emotional distress), and loss of consortium. Consortium claims are brought by the patient’s spouse and/or children to recover damages for the loss of affection, companionship, sexual relations, and society suffered by immediate family members and caused by therapist negligence.
Plaintiffs have also sued, with varying degrees of success, for battery, breach of contract, defamation, fraud, and violation of state consumer protection statutes. However, insurance coverage availability, laws governing damage recovery, and judicial precedents often limit use of the foregoing theories in malpractice litigation involving mental health professionals.
Causation and damages
Of course, all patients begin therapy as products of their past. Because negligent practitioners do not harm pristine humans, they are liable only for the aggravation of their patients’ underlying preexisting condition.8
Patients have difficulty understanding the calculation of damages, a major focus in litigation. Because the premalpractice condition is so critical, plaintiffs must understand that their entire lives will be examined, dissected, and analyzed. All documents concerning the patient’s previous civil and criminal litigation, education, employment, hospital, medical, and therapy experiences are relevant to the determination of the preexisting condition. All aspects of the patient’s life before the malpractice are considered highly relevant to the issue of future damages.
A plaintiff has only one opportunity to recover monetary damages from the defendant. Therefore, recoverable damages include past losses and those reasonably anticipated to occur in the future (Table 2).9
Negligently provided therapy defeats itself because the patient for-feits the opportunity to improve when treatment is substandard.9 The actual chance for improvement is patient dependent. Some patients begin therapy with historical burdens so great that prospects for meaningful alleviation are minimal. Translating this loss of chance into money is an imprecise exercise that should be buttressed by expert psychiatric opinion.
Statutes of limitation
Every jurisdiction has laws restricting the time during which injured parties may sue for damages. Memories fade, witnesses die, and documentation is lost or destroyed. By requiring different types of lawsuits to start within specific time periods, statutes of limitation are intended to promote fairness.
Victims of therapeutic boundary violations face unique problems. Patients are conflicted, unable to come to terms with failed therapies, or afraid to confront former therapists in litigation. A patient’s embarrassment, guilt, reluctance, shame, self-blame, or unwillingness to litigate may cause the lawsuit to be barred by expiration of the limitation period.10
Patients may suspect that ongoing therapy is deficient, but because of idealization, transference, trust, or vulnerability they may not act on that suspicion. Some jurisdictions recognize a “continuing treatment” doctrine for medical malpractice cases.11 Under this approach, the limitations period does not begin until treatment has ended.
Many states have a “discovery rule,” which provides that the period for commencing litigation begins when a patient or a former patient first comprehends, learns, knows, or understands that he was harmed by the clinician’s acts or omissions.10 The limitation period commences when the patient comprehends the negligence and its causal relationship to the attendant harm.10
Another exception to the statute of limitations emphasizes the fiduciary aspects of the therapist-patient relationship. Thus, a “fiduciary” treater’s failure to reveal facts to the patient “ward” that are relevant to a potential claim stops the statute from running until the victim “discovers” them. The failure to disclose during treatment has also been characterized as fraud or fraudulent concealment.10 However, once the patient becomes aware or reasonably should become aware of the existence of the cause of action, the statute begins to run.10
It is sometimes argued that in situations involving improper or nonexistent termination, therapy does not end when office visits cease. In Massachusetts, the state regulatory board promulgated a rule that presumes that a licensed psychologist’s relationship with a patient extends a minimum of 2 years from the date of the last professional service.12
Another exception involves the plaintiff’s disability or mental disorder. If the patient is institutionalized for reasons of mental health, the limitation period may be suspended until the patient’s release; the clock then resumes anew. In the case of minors who are victims of negligent therapy, most jurisdictions delay commencement of the limitations period until the patient reaches majority.
Statutes of repose
Some jurisdictions have enacted statutes of repose governing malpractice litigation. A statute of repose places an absolute time limit on the liability of those within its protection and abolishes a plaintiff’s cause of action thereafter, even if the plaintiff’s injury does not occur, or is not discovered, until after the statute’s time limit has expired.13 Connecticut courts begin counting the period of repose during treatment by, or continued duty of, a doctor for the same condition to which his alleged negligence is related.13 Other jurisdictions extend their statutes of repose until the end of a course of continuous treatment if the effects of a series of acts or omissions are so cumulative and inextricable as to render the series actionable as a single wrong.13
It has been argued that in situations involving improper or nonexistent termination, therapy does not terminate with the cessation of office visits. In Massachusetts, by administrative regulation, a therapist’s relationship with a patient is presumed to extend a minimum of 2 years from the date of the last professional service.12
Still another exception involves the plaintiff’s disability or mental disorder. If the patient is institutionalized for reasons of mental health, the limitation period is suspended until the patient’s release, whereupon the clock resumes anew.
Of course, minors also suffer from negligent therapy. Most jurisdictions keep open the statute of limitations until the patient becomes an adult.
Assuming the patient’s damage is substantial and provable, can he handle litigation? A lawsuit entails an intensive examination of a plaintiff’s life by opposing counsel, outside experts, including defense psychiatrists, the court, and the jury. After beginning litigation, victims of psychiatric malpractice may display unremitting hostility to defense counsel. In addition, they may experience or display any number of behaviors (Table 3) .
Invasive nature of pretrial discovery
Once pretrial discovery begins, the intimate details of the plaintiff’s life become fodder for discovery. The process almost always involves a multihour or multiday deposition (oral examination) conducted by opposing counsel. The plaintiff will be grilled about all factual circumstances bearing on the negligent treatment and damages. Where applicable, significant others, spouses, family, business associates, friends, and previous therapists may also be deposed.
The plaintiff should expect to undergo a private psychiatric examination by the defendant’s expert psychiatrist without counsel’s presence.14 These examinations should be divested as far as possible of any adversarial character.15 Anticipation of and participation in the independent medical examination can be particularly stressful for a previously victimized patient.
During pretrial discovery, the plaintiff will receive detailed, extensive document requests for income tax returns; employment history; and hospital, medical, school, and therapy records. If the plaintiff has confided intimate thoughts to a diary, journal, or correspondence, these mate rials are likely discoverable.
Plaintiffs frequently ask about proceeding anonymously or sealing court papers. These measures are difficult to implement, run contrary to the principle of “open courts,” and are rarely available in practice.16 While the very frequency of therapist malpractice claims has made them far less worthy of press coverage, victims contemplating litigation should recognize that some lawsuits garner public attention and could result in personal exposure.
Most patient-therapist communications are confidential and subject to legal protection against disclosure. After malpractice litigation begins, courts consider these privileges waived. Whatever the patient said, did, or wrote during therapy, regardless of date, becomes discoverable and open to scrutiny. Ongoing ameliorative therapy loses its privileged character, with even session notes generally being discoverable.
Notwithstanding this abrogation of patient-doctor confidentiality, attorney-client communications retain their privileged character throughout litigation. At this point, however, patients must remember to guard against revealing protected conversations with counsel within the newly unprotected confines of therapy. Likewise, therapists must exercise care in including only necessary treatment data in session notes obtainable through discovery.
Furthermore, past or current therapists may be required to testify at a deposition or trial concerning the patient’s history, treatment, diagnosis, prognosis, or injuries. While such opinions can significantly impact the settlement or trial, they may engender adverse patient reactions or deleteriously impact ongoing therapy and professional relationships.17
Expectations and realities
The purpose of civil litigation is to compensate the victim through settlement or trial. Former patients typically have highly unrealistic expectations about court proceedings and about the nature and extent of their involvement.
A lawsuit is not an open forum enabling plaintiffs to deride defendants with accounts of abuse, ethical failings, or misconduct involving nonparties. Likewise, nonexpert depictions of personal inner growth or psychological insights are considered irrelevant. Litigation is not therapy and is decidedly not therapeutic. Instead, it is a carefully controlled process requiring litigants to make extremely painful disclosures to often unsympathetic or hostile strangers in order to receive fair compensation for damages and injuries sustained.
Insurance coverage for sexual boundary violations is either extremely limited or nonexistent. Without adequate insurance, a plaintiff is limited to the defendant’s personal assets and future earnings as a source of monetary recovery. If such assets are insufficient, litigation could be financially impractical despite substantial harm to the patient. Following inordinate delay, the malpractice insurer may offer a monetary settlement that, despite extensive negotiation, will remain unsatisfactory to the plaintiff.
Plaintiff anger is a hallmark of malpractice litigation. Victims must adjust to the lack of control inherent in a civil suit. During even substandard therapy, the plaintiff was a key person, 1 of 2 featured participants. This attention level continues in ameliorative therapy and in presuit attorney interactions.
Following the start of litigation, however, the plaintiff becomes merely one player among many. The respective interests of the defendant, his defense counsel and malpractice insurer, and the court may be and often are contrary to those of the plaintiff.
Although the trial may be years away, the plaintiff is cautioned to maintain control, which is difficult in light of pretrial discovery and its interminable process of exposure, frustration, and indignity. As the plaintiff dredges up painful memories, disgorges private correspondence, and girds for depositions and independent psychiatric examinations, unhappy life events must be recounted, analyzed, and relived.
Hitherto carefully guarded secrets are revealed through discovery, which can exacerbate existing family and marital tensions. Pretrial disclosures add stress to already fragile relationships, and the critical opinions of the defendant, outside experts, and previous therapists force painful self-assessments. Occasionally, anticipation of the actual trial becomes unbearable, and plaintiffs find that the need for self-preservation requires abandonment of the litigation.
Malpractice litigation negatively impacts victims and perpetrators alike. Its invasive aspects affect ameliorative treatment; ongoing patient-therapist, personal, and familial relationships; and professional reputations and livelihoods. Its delays, expense, emotional tolls, and inherent uncertainties suggest that it is in the interest of all parties to resolve such disputes before commencing suit or as early as feasible after litigation has begun.
1. Weinberg v Board of Registration in Medicine, 443 Mass 679 (2005).
2. Fishman v Brooks, 396 Mass 643, 649 (1986).
3. Restatement (Second) of Torts §874 comment a (1979).
4. Restatement (Second) of Trusts §2 comment b (1959).
5. Bobinski MA. Autonomy and privacy: protecting patients from their physicians. U Pitt L Rev. 1994:55; 291, 355.
6. Alberts v Devine, 395 Mass 59, 69 (1984).
7. WL Prosser, WP Keeton. Torts §117, at 851-866 (5th ed. 1984).
8. Wallace v Ludwig, 292 Mass 251, 252-53 (1935).
9. Simon RI. Bad Men Do What Good Men Dream: A Forensic Psychiatrist Illuminates the Darker Side of Human
Behavior. Washington, DC: American Psychiatric Press; 1996:137-139.
10. Riley v Presnell, 409 Mass 239, 248-249 (1991).
11. Harlfinger v Martin, 435 Mass 38, 52-53 (2001).
12. 251 CMR 3.10 (1996).
13. Rudenauer v Zafiropoulos, 445 Mass 353, 357 (2005).
14. Fed R Civ P. 35.
15.DiBari v Incaica Cia Armadora, 126 FRD 12, 13 (EDNY 1989).
16. Republican Co v Appeals Court, 442 Mass 218, 223 (2004), quoting Commonwealth v Blondin, 324 Mass 564,
571 (1949), cert denied, 339 US 984 (1950).
17. Ackerman MJ, Kane AW. Psychological Experts in Personal Injury Actions. 3rd ed. New York: Aspen Law and
18. Zipkin v Freeman, 436 SW2d 753, 755, n.1 (Mo Supreme Ct) (1968).
19. Gutheil TG, Gabbard GO. The concept of boundaries in clinical practice: theoretical and risk management
dimensions. Am J Psychiatry. 1993;150: 188-196.
20. Aronoff v Bd of Registration in Medicine, 420 Mass 830, 832 (1995).
21. Massachusetts Board of Registration in Medicine General Guidelines Related to the Maintenance of Boundaries
in the Practice of Psychotherapy by Physicians (Adult Patients), January 1994.
22. King v Conant, 20 Mass L Rep 223; 2005 Mass Super LEXIS 555 Suffolk Super Ct (2005), Docket Number:
03-2012 BLS or trading professional services for patient work.
23. O’Laughlin MJ. Dr Strangelove: therapist-client dual relationship bans and freedom of association or how I
learned to stop worrying and love my clients. Spec Law Dig Health Care Law. 2002;276:9-43.
24. 69 UMKC L. Rev 697, 698 (2001).
25. Epstein RS. Keeping Boundaries: Maintaining Safety and Integrity in the Psychotherapeutic Process. Washington,
DC: American Psychiatric Press; 1994:152-157.
26. Vranos v FranklinMedicalCenter, 448 Mass 425, n. 8 (2007).
27. American Medical Association, Physicians and Disruptive Behavior (July 2004).
*The foregoing article is reprinted with permission by Psychiatric Times ] Learn more about Boundary Violations