Answers To The Most Frequently Asked Questions In Therapist Abuse And Therapist Malpractice Cases
1. What is the difference between therapist abuse and therapist malpractice?
All cases of therapist abuse involve malpractice. However, not every case of therapist malpractice necessarily includes abuse. A case of psychotherapist abuse normally includes sexual or other exploitation of a patient for the therapist’s own advantage. A case can also be brought against a psychotherapist just as a case can be brought against any healthcare provider for violation of the standard of care in terms of negligently diagnosing and treating a patient. All licensed psychotherapists are held to the same standard of care, except psychiatrists who are also held to the standard of care of appropriately medicating patients. Sex with a current patient or a patient who has been seen for treatment within the last two years is strictly prohibited, whether or not the sexual relationship was consensual. A number of statutes in California prohibit such conduct, including California Civ. Code. Sec. 43.93, which creates a civil cause of action for sexual abuse of a patient. Business and Profession Code Sec. 729 which makes sexual exploitation criminal. Business and Profession Code Sec. 726 which allows for Licensing Board sanctions, and Code of Civil Procedure, Sec. 51.9 which makes sexual harassment of patients illegal.
2. What is meant by “transference” and “abuse of transference”?
Transference is the phenomenon which occurs in psychotherapy in which a patient, without realizing it, transfers perceptions and feelings which the patient had as a child on to the therapist. Thus, the patient reacts toward the therapist in a similar manner to which a young child would react toward a parent. This necessarily puts the therapist in an extremely powerful position and the patient in an extremely vulnerable position. For the therapist to take advantage of the transference phenomena by engaging in a sexual relationship or otherwise exploiting his or her patient is known as “abuse of transference” and sometimes is called “professional incest.”
3. What do the terms “therapeutic container” and “breach of boundaries” mean in a therapist malpractice and abuse case?
The therapeutic container is a term of art that refers to the way that psychotherapy is supposed to be practiced, that is, except in cases of analysis, the therapist should be sitting a reasonable distance away from the patient; there should be no physical contact other than a handshake or an occasional non-sexual hug; sessions should last for set periods of time and should occur in the office; there should be no intentional contact with the patient outside of the therapy office. This allows therapy to be “contained.”
A therapist must also maintain his or her “boundaries” at all times. This means that the therapy must be focused at all times on the patient, the patient’s problems and not the therapist. The therapist should not reveal any intimate information about himself or herself to the patient, and the therapist should not engage in any type of business, sexual, social or personal relationship with the patient other than psychotherapy. When a therapist fails to act in the above manner, it is a considered a breach of boundaries.
4. How can I win my case if all of the negligence and abuse occurred during therapy sessions or at other times in which there were no witnesses?
In this “he said, she said” situation, a patient can still win the case as long as the patient is credible and maintains their credibility throughout the lawsuit. There may be evidence of negligence in what is included or omitted from the therapist’s notes, and the patient will usually be able to prove that there were at least non-sexual breach of boundaries which will tend to indicate that the therapist had poor impulse control and thus was likely to have also entered into a sexual relationship.
5. Can I bring a civil, criminal or licensing board case against a therapist?
In a situation in which there is sexual abuse during treatment, a civil, licensing board and criminal case can all be maintained by the patient. In a civil case, the patient can seek compensation for monetary damages. In the licensing board case, the patient can attempt to have the licensing board revoke or suspend the therapist’s license. In a criminal case, the patient can seek to have the state fine the therapist or even imprison the therapist. The decision to pursue one or all of these cases should be made after consulting with an attorney who specializes in therapist abuse cases. The cases can dramatically affect each other and pursuing a licensing board case or a criminal case, under certain circumstances, can destroy a patient’s ability to recover damages in a civil case.
6. What injuries do the victims of therapist abuse most commonly develop?
The affects of therapist abuse are almost always devastating and life-long. It is critical that the plaintiff’s attorney retain an expert who understands the tremendous losses suffered by therapist abuse victims.
Therapist abuse victims will normally suffer impairment in all areas in which they formerly functioned. In addition, they will suffer a multitude of symptoms including a sense of betrayal, loss of self-esteem, loss of identity, loss of hope, loss of spirituality, loss of independence, and the loss of ability to enjoy their family and their life. Further, they will suffer sleep and eating disturbances, anxiety, depression, and any other number of significant psychological symptoms.
7. Will the medical malpractice limitations in California apply to my therapist abuse case?
In a case in which the therapist has committed something more than mere negligence and has abused his or her patient, the limitations placed on medical malpractice cases such as a limitation on pain and suffering and emotional distress damages of $250,000 should not apply.
8. What damages are recoverable?
The patient should be able to recover damages for past and future medical expenses, past and future wage loss, and past and future pain, suffering and emotional distress, and in an appropriate case punitive damages, i.e. damages aimed at punishing the defendant. The issue of future medical expenses is particularly important in therapist abuse cases, since frequently a therapist abuse victim will require a lifetime of psychotherapy and sometimes long hospitalization. Frequently, the cost of this care will run into the millions of dollars. It is important that plaintiff’s attorney retains an expert who understands this concept and can provide testimony to a jury which will allow for a fair award for future medical expenses.
9. How does insurance coverage affect the settlement of therapist abuse cases?
Most therapists do not earn enough money to pay for the large verdicts and settlements that generally occur in therapist abuse cases. Thus, if the plaintiff is going to be fully compensated, he or she must establish insurance coverage. Insurance coverage is made difficult in therapist abuse cases since insurance policies regularly either exclude payment of damages for intentional or sexual misconduct, or limit the payment of the damages to a $25,000 sex cap. To maintain insurance coverage, the plaintiff attorney must understand the importance of pleading non-sexual negligence in the case and damage from that negligence. Further, the plaintiff’s experts should testify that most of the plaintiff’s damages stem from the therapist’s negligent misconduct as opposed to excluded sexual misconduct. Usually, this is the case. This will increase the chances of a plaintiff being able to overcome the sexual exclusions and the sex cap and receive a fair settlement.
10. How soon do I have to bring my case?
The statute of limitations in therapist abuse cases is extraordinarily complex. There are at least three different statute of limitations time periods which can apply to the case. Generally speaking, a patient should bring his or her case within one year of the date in which he or she should have first discovered the therapist’s wrongdoing and injury from that wrongdoing. Unfortunately, the same statute of limitations that applies to non-therapist healthcare providers also applies to therapist abuse cases. In most medical malpractice cases, the malpractice and the injury is obvious from the onset. Therapist abuse cases are different because of the transference phenomena and the amount of power most therapists have over most patients. It is not unusual for a therapist abuse victim to wait many years before working up the courage and health to attempt to bring a case against a former therapist. Unfortunately, the statute of limitations runs when the patient should have discovered malpractice and an injury and not when the patient is first “able” to bring a lawsuit. Thus, to be absolutely safe, a patient should consult with an attorney as soon as possible, and if at all possible bring a lawsuit within one year of the beginning of treatment or at least one year from the end of treatment. Even if a patient waits longer, he or she should still consult with an attorney because there are exceptions to the statute of limitations, and cases have been successfully pursued dozens of years after the therapy relationship terminated.
11. Is it important to retain an attorney who specializes in therapist abuse cases?
Yes. Therapist abuse cases differ from other types of personal injury cases and even other types of malpractice cases. Concepts of transference, the therapeutic container and breach of boundaries are unique and it is important that your attorney is familiar with the concepts. Many attorneys who are unfamiliar with therapist abuse cases would simply assume that a sexual relationship with a therapist was consensual and would not understand the extent of damages which you have suffered.
12. Will my case settle out of court?
Probably. The great majority of therapist abuse cases settle at some point before trial.
Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this website, research other legal articles and texts on the subject matter or consult with an attorney.