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.

[The foregoing article is reprinted with permission by Psychiatric Times ]      Learn more about Boundary Violations