SOME  FREQUENTLY  ASKED   QUESTIONS  ABOUT  PSYCHOTHERAPIST  MALPRACTICE

            2.     How long do I have to bring my civil case?

            3.     How do I prove that my therapist had sex with me?

            4.     I think I have a claim against a health care
                    professional.  What should I do?

            5.    What are boundary violations ?

     Boundary Violations and Malpractice Litigation:
        Understanding Litigation From the Plaintiff's Side
        Stanley J. Spero, JD and Philip L. Cohen, JD

     Prevention of Boundary Violations: The Role of
        Education, Self-Monitoring, and Consultation
         Glen O. Gabbard, MD

     Boundary Concerns in Clinical Practice
         Thomas G. Gutheil, MD

     Rehabilitation of Sexual Boundary Transgressors: A Humane and
        Knowledge-Based Approach
         Andrea Celenza, PhD

           6.    What is a confidentiality, nondisclosure or secrecy agreement?

                                                             8.     What happens during litigation?
 

                                                                More Questions?Call Tel. (978) 318-9292

                                                                E-Mail:  speroandjorgenson@msn.com
 
 
 
 
 
 
 
 
 

No.

Sexual contact with a patient is certainly a boundary violation that is almost always harmful to the patient. There are numerous other boundary violations that can be harmful to the patient/client. These often include dual roles such as business relationships, social relationships and employment relationships.

The role of the therapist is to be a fiduciary to the patient/client. This means that the therapist has agreed to take on a "trust" relationship and to act only in the best interest of the patient/client. The fiduciary role is violated when the therapist acts in his or her own interests whether it be sexual, business, social or employment related.

The first successful case in the country finding therapist malpractice was Zipkin v. Freeman, 436 N.W.2d 753, 761 (Missouri, 1968). In that case, Mrs. Zipkin came to Dr. Freeman because she was having headaches, and after a few months these symptoms were gone. Dr. Freeman convinced Mrs. Zipkin that if she left his treatment, the symptoms would return. Mrs. Zipkin continued with Dr. Freeman. Mrs. Zipkin thought she had fallen in love with Dr. Freeman. She divorced her husband, invested in Dr. Freeman's farm, moved in above him, accompanied him on out of town trips, went swimming with him in the nude, and had sex with him.  The Court said, "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."

Thus, even in the first successful case, the law had recognized that the harm is not the sex itself but, rather, the breach of trust in a fiduciary relationship.
 

The time allowed for psychiatric patients to bring their suits varies from state to state. The majority of states have what is known as the "Discovery Rule." In other words, the Statute of Limitations does not begin to run until the patients [plaintiffs] have discovered that they have been injured and have determined who caused the injury. Patients are often unable to connect their abuse experience with their subsequent psychological injuries. The injuries suffered by the patients of therapist negligence are to the personality and mind. Patients sometimes attribute the symptoms experienced - such as emotional instability, depression, and guilt - to personal inadequacies rather than to the therapist's abuse of the relationship. In addition, mental injury frequently manifests itself in incongruous ways. For example, panic attacks, sleeplessness, and inability to concentrate - all symptoms of post traumatic stress disorder - do not intuitively flow from the act of sexual intercourse or other sexualized behavior.

Most clients need professional assistance to understand the results of exploitation.
 
 

The sexual contact itself is usually difficult to prove.  We look for other boundary violations in the therapy context and use them to prove that the therapist acted outside the parameters of his/her professional role.  Violations of other therapeutic boundaries, of course, do not prove that there was sexual contact.  The jury, however, is more likely to believe that if the therapist acted inappropriately or behaved negligently with other boundaries, it is possible that he/she acted out sexually as well.

Boundary Crossings and Violations

A therapist may perform negligent acts that are not sexually oriented.  For example, did the therapist have the patient perform services for the therapist such as performing office tasks, repairing personal property, baby sitting, house cleaning, chauffeuring, writing or editing?  Did the therapist treat the patient in a special way?  Did the therapist frequently extend therapy sessions?  Was the patient scheduled for the last appointment of the day?  Did the therapist have frequent and lengthy telephone conversations with the patient?  Did the therapist reduce normal fees?  Did the therapist direct the patient's career, academic choices or personal life? Did the therapist invite the patient to join in extra-therapeutic activities, such as dining or social visits?

Witnesses

Rarely will the therapist admit that he/she engaged in sexual activity with a patient.  The therapist, however, might have admitted he/she had sexual contact with a patient to a colleague or supervisor.  Check for other witnesses to the therapist's negligent acts or inappropriate behavior.  Are there witnesses to office irregularities between the therapist and patient?  Are there witnesses to personal telephone calls or social outings between the therapist and patient?  Are there any witnesses who were contemporaneously told of the sexual contact?

Role Reversal

Another area of boundary violations by therapists is role reversal.  What has the therapist revealed to the patient about himself/herself?  Does the patient know about the therapist's childhood, family, marital problems, fantasies or health problems?  What information does the patient have about the therapist's home, bedroom, or possessions that the patient could not have learned about any other way?

Other Evidence

Is there any specific information about the therapist's body such as a distinguishing birthmark, an uncircumcised penis or a scar?  Does the therapist have credit card records of the restaurant receipts that support the patient's story?  Did the therapist send the patient any cards or letters?  Were there messages left by the therapist on the patient's answering machine?  Were there any gifts or photographs exchanged?  Does the patient have knowledge of other patients who were abused by the same therapist?

Others Acts of Negligence

There are frequently other acts of negligence that the therapist commits that are independent of sexual contact.  Did the therapist give the patient illegal drugs?  Did the therapist breach the confidentiality of other patients to the patient, or of the patient to other patients?  Did the therapist invest in a business with the patient?  Was there a wrongful termination or abandonment of the patient by the therapist?
 
 

See:

1.     Oklahoma Law Review, Summer 1991, Volume 44, Number 2;
2.     "For Whom the Statute Tolls: Extending the Time During Which Patients Can Sue,"
         Hospital and Community Psychiatry, Law & Psychiatry, July 1991, Vol. 42, No.7,
         p.683;
3.      Riley v. Presnell, 409 Mass. 239, 565 NE2d 780;
4.      Sexual Abuse by Professionals: A Legal Guide, ch. 4, by Steven Bisbing, Psy.D.,

Linda Mabus Jorgenson, Esq. and Pamela K. Sutherland, Esq., Pub. by Michie Butterworth,  c. 1995.

   I think I have a claim against a health care  professional.
           What should I do?

           It is important to contact a law firm that is experienced in the litigation of
           health care related claims.   Litigation is a complicated matter.   It is essential to
           obtain representation by attorneys with substantial experience.

           The law firm of SJ Spero & Associates, P.C.  offers free, initial consultations.

            Our office can advise you of your legal rights as well as assist you in obtaining
            competent counsel in any geographic area throughout the United States.                                                 Top

---


Home  |  What We Do  |  Attorneys  |  Psych. Malpractice News  |  Firm News |  Links  | FAQ