Over the last fifteen years we have litigated hundreds of cases involving the misconduct or malpractice of therapists. During that time period I have lectured to many groups of attorneys on how to litigate therapist malpractice cases, and to many groups of therapists on the subject of how to avoid malpractice or abuse claims.

The lectures to both groups and questions asked after seminars are ironically similar. Attorneys and therapists alike seem to have little trouble understanding the inappropriateness of a genital sexual relationship between therapist and patient and the damage caused by such a relationship. Sexual relationships between therapists and patients are prohibited in the State of California both criminally (Business and Professions Code section 726 et al.) and civilly (Civil Code section 43.93).

As of January 1, 1995, sexual harassment by professionals, including psychotherapists has also been outlawed. Under California Civil Code section 51.9 and 52 a psychotherapist may liable for sexual harassment if he or she "has made sexual advances, solicitations, sexual requests or demands for sexual compliance by the plaintiff that were unwelcome and persistent or severe, continuing after a request by the plaintiff to stop. The addition of these code sections are important because, for the first time, a plaintiff can recover his or her attorney's fees, in addition to other damages, if he or she prevails in a sexual harassment litigation.

Setting aside the cases involving a clear sexual relationship between a psychotherapist and a patient and cases involving non-consensual touching, most claims for therapist abuse or negligence arise out of the therapist's failure to maintain the therapeutic container, particularly with patients who push the boundaries of therapy and out of suggestions by the therapist to a patient that he or she "must have" suffered from significant childhood abuse, despite the fact that the patient has no clear memory of the abuse, the so-called "false memory syndrome" cases.

The importance of the maintenance of the therapeutic container, by the psychotherapist, cannot be emphasized enough. With rare exception, psychotherapy should take place in a set place, at a set time, for a set length of time with a patient paying for reasonable services. Extra therapeutic relationships with a patient should be avoided and the therapist must set firm boundaries.

We have handled numerous cases in which the only negligence of the psychotherapist was to let the therapy "get out of control." It is probably no coincidence that the majority of plaintiffs and therapy boundary violation cases have a diagnosis of borderline personality disorders or have borderline traits. In the treatment of borderline patients, the therapist must go out of his or her way to maintain the strictest of boundaries even when the patient pushes to break the therapeutic container. Many a well meaning therapist has gotten themselves into a great deal of trouble by going "too far" to "help" a patient. A frequent genesis for malpractice cases involves a therapist who gives a patient "special" attention, such as home phone calls or extra long visits, only to have the patient to push more and more for contact outside of the therapy session or inappropriate contact inside the therapy session, only to have the therapist feel the need to terminate the therapy, which undoubtedly leads to the plaintiff feeling hurt and abandoned.

Another common phenomenon is for innocent hugs at the end of therapy sessions to turn into more extensive touching and a more extensive personal relationship. Although the psychotherapist may feel that the patient "needs" this type of special care and nurturing, it is very difficult to set appropriate limits on it and can lead the therapist down the "slippery slope" of therapeutic sexual abuse.

Next to boundary violations, the next most common source of therapist malpractice cases in recent years has been the "implantation of false memory" actions. These actions are typically brought by a patient who feels that they were "influenced" or "forced" by the therapist to believe that they had been molested as children, or by family members of the patient who believe that their relative has been wrongfully influenced to believe that they have been sexually abused by the relative. There has been a dramatic shift in the literature in recent years on the subject of recovered memories. Where once, it was in vogue for psychotherapists to write about theories of repressed and recovered memories, by this time, almost all of those books and studies have been challenged and the current wave of literature takes the position that there is no scientific evidence to support a "completely" recovered memory theory.

Most of the cases against therapists for the "implantation" of false memories, involve therapists who have convinced patients that they "must have been abused" based on their current symptomatology and difficulties in adult life. A particularly troublesome area is that of "body memories." I have seen a number of situations in which a therapist has convinced a patient that somatic symptoms, such as stomach pains, are indications of incest or other sexual abuse. In the course of my work with patients who have a brought a number of different kinds of sexual abuse cases, I have asked them if they were sexually abused as children. Literally hundreds of clients or potential clients have answered, "not that I can remember but my therapist thinks I must have been sexually abused." Whether or not the client is misinterpreting the therapist, it is evident that a therapist must be extraordinarily clear with a patient when a patient relates childhood memories and incidents. Virtually all negligence cases can be avoided if the therapist remains sympathetic to the patient's self analysis and discovery, while not confirming or denying that recovered memories are necessarily accurate.

Therapists who suggest or insist on confrontations with alleged childhood abusers are particularly vulnerable to lawsuits, when there is no documentary evidence to indicate that the patient's recovered memories are accurate.

To our knowledge, there have been very few therapist malpractice cases in which a therapist did not either overstep the boundaries of therapy or attempt to influence a patient with the therapist's own belief system.

This article was authored by John D. Winer. Winer, McKenna, Burritt & Tillis LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.