April 1, 2008 Click to 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.
Litigation considerations
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.
Settlement issues
Settlement negotiations bring further
discontent and frustration. In all likelihood, the claim will be
valued far lower than hoped. Arriving
at a settlement is a complex function of witness credibility,
reciprocal discovery, patient history
and harm, expert opinion, available insurance coverage, laws,
attorney skill, and perseverance.
Mediation can play a useful role in resolving monetary disputes by
exposing unrealistic trial expectations
and illuminating each party's strengths and weaknesses.
Assuming that agreement can be reached
on the settlement amount, other issues arise.
Understandably, defendants insist
on confidentiality in settlement documentation. Conversely, plaintiffs
commonly oppose such restrictions
out of concern for other potential victims and a disdain for secrecy.
Although litigation may lead to
professional sanctions, licensing boards mete out discipline. In many
jurisdictions, a suit or a settlement
automaticalthizaidesly mandates notification to licensing authorities
by the court, defendant, or insurance
carrier, which results in disciplinary proceedings. Plaintiffs can
be called to testify via involuntary
process by a governmental entity; they therefore must retain this
right during settlement negotiations.
Any out-of-court resolution should expressly acknowledge and
allow for such an occurrence when
the issue of confidentiality is raised.
Victims contemplating malpractice
litigation should initiate disciplinary proceedings with counsel's direct
involvement. Statements made for
or during the disciplinary process must be carefully prepared.
Exaggerated or reckless board submissions
inevitably generate inconsistencies and credibility
problems in related civil litigation.
Conclusion
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.
References
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
Business; 1998:81.
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 Franklin Medical Center, 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
SJ Spero & Associates, P.C. Home
| What We Do
| Attorneys
| Psych. Malpractice
News | Firm
News |Links
|
FAQ