By: John D. Winer, San Francisco

I. THE GOOD NEWS ABOUT THERAPIST MALPRACTICE CASES.

Why are so many plaintiffs' attorneys hesitant to take on therapist malpractice cases? Although these cases can be very difficult to prove and labor intensive, they have certain distinct advantages over other types of medical malpractice actions.

First of all, jurors are far more motivated to bring in verdicts against therapists than they are against other types of doctors and health care professionals. Unfortunately, there is a natural mistrust for psychotherapists, and that mistrust works to the plaintiff's advantage in a malpractice case. Because of this distrust, a plaintiff does not have to prove gross negligence to win a therapist malpractice case the way you usually have to do to win other types of medical malpractice actions.

Secondly, therapist malpractice cases are difficult to defend. There will rarely be that one piece of key evidence, such as a fetal heart monitoring strip or a lab result which can destroy a plaintiff's case on liability or causation. Just as plaintiff's proof will necessarily be "softer" in a therapist malpractice case, the defense attorney is burdened with the same lack of hard evidence to defend their client. As plaintiff attorneys we are probably more comfortable in dealing with ambiguous situations and ambiguous evidence than are defense attorneys; therefore, I believe that we have a natural advantage.

Third, although there are notable exceptions, many malpractice defense attorneys do not like the idea of therapy and therapists. Frequently, an attorney who a malpractice insurance carrier hires to defend a therapist abuse case will think that psychotherapy is a bunch of garbage. This feeling, whether conscious or unconscious, will eventually come across to the defendant and the plaintiff's attorney should be able to exploit this conflict during the course of litigation.

Fourth, therapists are charged with treating the most precious, vulnerable aspect of human beings, i.e., the human mind. If we use as the theme of our case the delicacy of the human mind, then we should be able to raise the standard of care under which jurors determine whether or not a therapist acted appropriately.

Fifth, although damage to the human mind may not show up on an x-ray, it is the greatest damage that a human being can suffer, and it is the least treatable damage. Once a patient has fallen victim to therapist abuse, they not only will be significantly damaged, but they will usually be deprived of a cure since they will have lost faith in the one process that can help them, i.e., therapy. Without trust and faith, therapy cannot work. Once a patient has been abused by a therapist, they either cannot be helped or they will require years and years of intensive therapy and sometimes hospitalization to get back to where they were before they were injured by the therapist.

Finally, in the cases of therapist sexual abuse and other forms of exploitation, the MICRA limitations should not apply. See Waters v. Bourhis. It is a great luxury for a plaintiffs attorney to be able to prosecute a malpractice case outside of the oppressive claws of MICRA.

II. THE BAD NEW ABOUT THERAPIST MALPRACTICE CASES.

Just as therapist malpractice cases have their distinct advantages over other types of medical malpractice cases, they also have significant disadvantages.

First of all, you are frequently dealing with a patient's word against the therapist's word. This will be particularly problematic in cases in which the plaintiff has poor reality testing and/or is psychotic.

Secondly, there are so many different schools of psychotherapy that almost any type of treatment could be supported under a BAJI 6.02 "Two Schools of Thought" defense.

Third, causation can be a problematic issue particularly if the jurors are not angry at the defendant. In cases besides the sex cases, in which the jurors will be furious at the defendant and give you all the benefits of the doubt you need on damages, and drug cases, in which there may be some scientific evidence of a specific drug related injury, it may be difficult to prove how the patient was injured by the therapist's malpractice as compared to other stressors in his or her life.

Fourth, therapist malpractice cases can be extraordinarily time consuming to litigate. As a general rule, the plaintiff's deposition will last two to five days and sometimes much longer. It is difficult to take the defendant's deposition in less than one day. The defense may take the depositions of all of the patient's prior therapists and prior and current doctors as well as friends and relatives. Unless there is significant damages, it is rarely worth attempting to litigate a therapist malpractice case.

Fifth, therapist malpractice cases are always extraordinarily expensive. Since an expert has to review all of the documents and depositions in order to give an opinion — and there may be tens of thousands of pages of documents and deposition testimony — we have never held the expenses in a therapist abuse trial under $75,000 and we have spent a great deal more on certain cases.

III. SCREENING THE THERAPIST MALPRACTICE CASE.

Setting aside the sex and drug cases for a moment, the key to evaluating a therapist malpractice case lies in determining whether the therapeutic container was maintained or not maintained by the therapist.

As attorneys, we live in a world of proof and evidence. If we cannot prove that the therapist did something wrong, then we cannot win the case. It may be that the plaintiff is so credible that his or her word will be enough; however, we can feel more comfortable if there is something to back up the plaintiff's word. The basic idea of the THERAPEUTIC CONTAINER is that therapy should be held inside a container in which the patient talks about his or her problems, feelings and perceptions while the therapist, always putting the patient's best interest first, discusses the patient's problems, feelings and perceptions with him or her and attempts to make appropriate insights and occasionally give advice. Except in the rarest of exceptions, these therapy sessions should be held in the therapist's office, for a set amount of time and in exchange for a monetary fee for service. Any other type of relationship between a therapist and patient is testing the bounds of the therapeutic container and is a sign of malpractice.

While there are some situations in which a therapist/ patient relationship can be stretched beyond the confines of the office, those situations are rare and must be part of a well thought out therapeutic plan on the part of the therapist. Under no circumstance can the therapy container be broken if it is only for the therapist's benefit and if it involves exploitation of the patient.

Somewhat related to this concept is the concept of the "dual relationship." It is generally inappropriate for a therapist to hold any role in a patient's life other than the role of therapist. The therapist should not go into business, social or romantic relationships with patients. This type of behavior is inherently exploitive and is not compatible with standard of care therapy. Further, even within the confines of the therapist's office, it is critical that the therapist maintains strict "boundaries" within the therapy. Boundaries are typically broken when the therapist enters into any type of dual relationship or sexual relationship with the patient, but also, they are broken in more subtle ways when the therapist introduces his or her own problems, needs or psychopathology into the treatment relationship. It is not unusual in exploitive therapeutic relationships to find the patient, essentially, becoming the therapist. Sometimes as part of the seduction and sometimes out of neediness and poor impulse control, the therapist unloads upon his or her patient all of his or her marital problems and sexual difficulties. This type of behavior is rarely, if ever, appropriate.

The analysis of all of the above actions is important when evaluating the case, not only because they are evidence of negligence, but also because they are usually provable. Business transactions will usually be evidenced by documents. Relationships outside of the therapist's office will usually be witnessed. Self-revelation on the part of the therapist will be proved when the patient can testify to intimate details of the defendant's life, which he or she could have only learned through the therapist's improper revelations.

In situations in which you can establish that the therapeutic container has been broken by the therapist, you probably have a good liability case. However, this does not necessarily mean that the case will be successful or profitable since there still may be significant causation and damage difficulties. Because of the difficulties inherent in proving causation and damages in psychological injury cases, as a general rule, one should not take a therapeutic malpractice case in which there are no drugs or sex unless the conduct of the therapist was clearly damaging or clearly exploitive of the patient. Without the "zip" that comes from a case in which you can establish that the therapist acted exploitively to his or her own benefit, or to fulfill his or her own sick needs, you may be stuck in a situation in which you are spending a lot of time and money in order to obtain little or no reward.

IV. SEXUAL ABUSE CASES.

I have already written extensively on handling and trying therapist sexual abuse cases, (1) so I will not deal with these types of cases in great detail here except there are a few principles which I will mention.

The key to success in therapist sexual abuse cases lies in two areas: one, a recognition of the extraordinary risk that these cases provide to the defendant, the defense attorney and the defendant's insurance carrier, and, two, how awful, evil and damaging it is for a therapist to enter into a sexual relationship with a patient.

With one exception, I believe that every therapist sexual abuse case that has been tried in California, in which the plaintiff has received a verdict, has resulted in a verdict of well over a million dollars. In all of these cases, the plaintiff's attorney faced significant difficulties which, under normal circumstances, would have caused the plaintiff to receive a low verdict or lose the case. However, in talking with the jurors after two of these cases, I discovered that they did not pay any attention to the difficulties in the case but rather were so angry at the defendant that they gave the plaintiff every benefit of the doubt and managed to punish the defendant through a compensatory damage award.

Therefore, in handling a therapist sexual abuse case, one does not have to be particularly impressed by all of the problems of the case which will be pointed out by the defense attorney and the defense expert. If the case is tried properly, i.e., as an abuse case and not a seduction case, then there should be a large verdict. This should hold true in both conservative and liberal counties. No matter how cocky a defense attorney acts up until the time of trial, that attorney has got to be scared to attempt to defend such despicable conduct on the part of his client.

Why is this conduct so despicable? Because therapists are the only professionals who are specifically trained not to sexually exploit their patients and they are further trained in the considerable damage that such exploitation can create.

There is a concept in psychology known as transference. Transference is the unconscious process by which the patient transfers feelings, desires and perceptions he or she had for his or her parents as a young child onto the therapist. Thus, in all therapy the therapist stands in the role of a parent. It is in every way as bad, and in many ways worse, for a therapist to sexually exploit a patient than it is for a parent to have an incestual relationship with a child. Once jurors learn of this concept and learn of the nature of the therapist's exploitation, they will overlook problems which you have with your client and your case.

Many therapists attempt to defend their sexual actions by claiming that there was no transference in the therapy or that the sexual relationship did not begin until after therapy and somehow the transference had worn off. This is complete garbage. Although there are some therapeutic relationships which involve more or less intensive transference, transference is inherent in every therapy relationship. I do not believe that a defendant, or defense expert, will be able to sell a no transference theory to a jury. At least they have not done it yet.

The only two problems which we face in therapist sexual abuse cases are the statute of limitations and insurance coverage. The statute of limitations is a problem because it is extraordinarily rare for a patient to be able to sue his or her psychotherapist within one year of the termination of the sexual relationship. One of the inherent damages in the abuse of the transference is that patients become extraordinarily dependent upon the defendant and tend to blame themselves for any difficulties that they feel stem from the sexual relationship with their therapist. We spend several pages in the complaint pleading around the statute of limitations. Our basic theory is that the therapist's abuse prevented discovery and in the cases in which there is actual discovery, the defendant should be estopped from raising the statute of limitations as a defense since it was his or her abusive conduct that prevented the patient from acting sooner. In the three therapist/patient sexual abuse cases I have tried, we had significant statute of limitations difficulties, but the jury found for us on this issue in all three cases. As long as you can get by a summary judgment motion, I do not think that a jury is very likely to want to let the defendant off on a technicality. If you need a copy of our complaint or oppositions to demurrers or summary judgments on the statute of limitations, please call me and we will be happy to provide you with a copy of our written material.

The other real problem in therapist sexual abuse cases is insurance coverage. Since 1986, virtually every therapist insurance policy has some type of sexual act exclusion and/or cap on damages flowing from sexual misconduct. The way we handle this difficulty is by pleading a separate cause of action for negligence. Our negligence cause of action specifically excludes all references to sexual misconduct pled later in the complaint. Although there is no appellate or supreme court case specifically on point, we believe that the Horace Mann decision stands for the principle that negligence which is separable from sexual misconduct is insurable. We plead usually 20 to 40 acts of specific negligence which are entirely separable from the defendant's sexual misconduct in our complaint.

Secondly, we take the position that under Garvey v. State Farm, if two acts combine to cause an injury and one act is insurable and one is not, then the entire harm should be insurable. Under the Garvey principle, we believe it is to your advantage to have a general verdict at the trial. If cumis counsel is intelligent, he or she will realize that it is to his or her client's advantage to also have a general verdict so that the entire award will be covered by insurance. This will mean that the defense may have to give up the MICRA defense since there will be no special verdict on special damages versus general damages. It is clearly to the defendant's advantage to have a larger verdict against him that is insurable than it is to have a smaller verdict which he or she will have to pay out of pocket.

V. THE DRUG CASES.

There are several important factors to understand within the world of psychotropic medications.

First of all, any physician can prescribe psychotropic medications, not just psychiatrists. Frequently the best misprescription of psychotropic medication cases will be against internists and other non-psychiatrists who frequently prescribe non-therapeutic doses of medications because they are too scared to prescribe therapeutic doses and because they really do not know what they are doing with these types of medications. They tend to prescribe them because it enables them to hold onto the patient and increase their profit as opposed to losing control of the patient to a psychiatrist and for the more legitimate reason that many patients are hesitant to treat with psychiatrists. In any event, if they are going to prescribe psychotropic medication, they have to prescribe it to the standard of care in the community and there is one standard for psychiatrists and non-psychiatrists when dealing with psychiatric medications.

Secondly, there is a huge battle going on within psychiatry between those who believe in the old school of talk therapy and those who would like to move psychotherapy more into the realm of treatment of the brain by prescribing medications for essentially all psychiatric conditions. When choosing an expert for a case and attempting to evaluate the case, be careful to choose an expert who is appropriate to evaluate a particular defendant's conduct. You will always be able to get a talk therapist to criticize a psychiatrist's prescription of medications and you will always be able to get a more psychopharmacologically-trained psychiatrist to criticize a talk therapist's failure to medicate. You want to find somebody from the same school of thought as the defendant to evaluate the appropriateness of the defendant's treatment.

A few hints on handling psychiatric drug cases:

1. Many therapists keep no notes or poor notes. The standard of care requires any psychiatrist prescribing medication to keep careful notes of the prescriptions, refills and, usually, the effect that the medication had on the patient. Most psychiatrist notes are inadequate in this regard, particularly those who are not used to taking notes. You should be able to use this to your advantage in prosecuting the case.

2. Many psychiatrists, out of laziness, and HMOs, to save money, prescribe patients psychotropic medication and provide refills without appropriate follow up. If a client comes to you who has been receiving medication for a long period of time, often as long as several years, without seeing a psychiatrist, this is probably a standard of care violation.

3. Most patients taking antidepressants and mood stabilizers and other medications need to have their blood and serum levels checked at regular points in time. Frequently a psychiatrist, as a result of laziness or arrogance, will fail to check blood and serum levels.

4. Some medications, particularly sedatives and major tranquilizers, should not be prescribed endlessly without some type of break. If a person comes to you who has not at least had a psychiatrist try to take a vacation from the medication, this may be an area of malpractice.

5. Frequently a psychiatrist will leave it up to a non-medical treating therapist, such as a MFCC or a psychologist, to follow the patient for side effects of the medication. This is not appropriate. The patient should be seen on a regular basis by a medical doctor to check for side effects and to determine whether or not the medication is working or not working. You will have a field day cross-examining a non-doctor on the chemical properties of a given medication, its potential side effects and how those side effects manifest themselves.

VI. SUICIDE.

A plaintiff's attorney must carefully screen a suicide case before accepting it and litigating it. Suicide cases are filled with problems and it is extraordinarily difficult to prove that but for a defendant's negligence, a patient would not have tried to kill himself or herself at one time or another.

Further, generally speaking, the survivors, particularly a spouse or parents, are not going to be in a very good position to ask for damages in front of a jury since, undoubtedly, they at least in part contributed to the patient's suicidal depression.

In any event, the following factors will strengthen a suicide case:

1. If the patient survives a suicide attempt. Jurors are much more willing to bring in verdicts for plaintiffs who survive suicide attempts than they are for the survivors of those who don't. The reason for this might be part philosophical, i.e., a belief that if somebody wants to kill themself so badly that they actually succeed at it, that there was nothing that a doctor could have done to stop them. And, it may be part evidentiary — i.e., if a patient is alive, he or she will be able to testify that but for the defendant's failures, he or she would not have attempted suicide.

2. The more situational the depression, the better the case. If a patient has a relatively sudden onset of depression and seeks help, jurors are going to be more likely to believe that the patient could have been saved by appropriate treatment, rather than a case in which a patient suffered from chronic depression that had resisted treatment.

3. If a patient had expressed an actual suicidal plan to the therapist or personnel at a psychiatric hospital, the case will be much improved. The standard of care goes way up when a patient has a plan that they intend to act out on as opposed to simply having suicidal ideation (thoughts). Many people have suicidal thoughts, and such thoughts do not represent a particularly suicidal outcome. On the other hand, it is relatively rare for patients to have a plan that they state they intend to act out on.

4. Cases involving in-patient hospitalization are far better than cases involving out-patient care. There is a general expectation amongst jurors that if a family chooses to hospitalize a suicidal family member for their own protection that they are entitled to expect to be protected from themselves by the hospital. Jurors will believe that it is much more difficult for doctors to control suicidal behavior on an out-patient basis.

5. There are different types of wards in psychiatric hospitals. There are closed wards in which patients are more carefully watched and there are open wards in which, essentially, a patient has the right to walk out of the hospital if they want to. Assuming that the initial placement in an open ward is appropriate, it is more difficult to win a case against a hospital with a placement in that type of ward than it is placement of a patient in a closed ward where the hospital clearly recognizes the fact that the patient is a danger to themselves.

6. If a patient is suicidal and begun on a new anti-depressant (or an anti-depressant for the first time), their suicide risk is far greater for a period of time than a patient who has been on steady doses of anti-depressant medications or even a patient who is not being medicated. The reason is that it is a well known phenomenon that once a severe depression begins to lift, a suicidal patient is a greater risk than when they are severely depressed. The lifting of the depression, particularly through medication, will often give the patient the energy and incentive they need to kill themself. It is hard for severely depressed people to work out the motivation to take their own lives. Therefore, if a suicidal patient, on either an in-patient or out-patient basis is started on a new anti-depressant, they must be carefully followed by the treating doctor. If they are not carefully followed and monitored, there may be a good case of malpractice.

7. If a patient has attempted suicide in the past, they must be watched far more carefully during a new suicidal episode.

Because of jurors natural dislike for suicide cases, you are almost always better off trying the suicide cases in front of a judge or arbitrating them if at all possible.

1. "Medical Negligence — Psychotherapist Sexual Contact With Client" 14 AmJur Proof of Facts 3rd 319; Helpful Hints on Litigating Therapist Abuse Cases, CTLA 30th Annual Convention Syllabus, 1991; Trying the Therapist/Patient Sex Case, CTLA 25th Annual Tahoe Seminar Syllabus, 1990; Understanding the Dynamics of the Attorney-Client Relationship in Professional Abuse Cases, CTLA 1992 Convention Syllabus.

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.