FAQ

• 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

Does sex have to be involved?

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.

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

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

• Riley v. Presnell, 409 Mass. 239, 565 NE2d 780;
• 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.

April 1, 2008 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.

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.

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.

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 pre-suit 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.

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).
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20. Aronoff v Bd of Registration in Medicine, 420 Mass 830, 832 (1995).
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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.
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27. American Medical Association, Physicians and Disruptive Behavior (July 2004).

[The foregoing article is reprinted with permission by Psychiatric Times ]