John D. Winer, Esq.
San Francisco, California
To litigate a therapist abuse case is to perform a balancing act between many seemingly contradictory forces. On the one hand, a plaintiff’s attorney must maintain the plaintiff’s credibility at all costs by demonstrating that the plaintiff is competent (to win on liability) while at the same time, convince the jury that the plaintiff is deeply disturbed (to increase damages). The plaintiff’s attorney must plead and present the case in such a way that the MICRA limitations are obviated (by demonstrating intentional misconduct) while at the same time, attempting to maintain insurance coverage (because defendant’s acts were negligent). If there is a statute of limitations issue, the plaintiff’s attorney must prove that plaintiff could not make the connection between defendant’s wrongful conduct and her injuries until within one year of the filing of the complaint while, simultaneously, attempting to prove through expert testimony that for years there was an obvious causal connection between defendant’s misconduct and plaintiff’s injury (to win on causation). The same records that may help win the causation case, i.e., the subsequent treaters’ records and testing that demonstrate that it was obvious that the plaintiff was injured by the defendant’s misconduct, may destroy the statute of limitations case if those records reveal knowledge of misconduct more than a year before the filing of the complaint.
We do not have enough space in this article to detail all of the intricacies of a therapist abuse litigation; however, we will touch upon ten key points. For more detailed discussions of trial strategies, litigation techniques and client relation dynamics, please see other articles by this author referenced in the footnote below. (1)
II. The Ten Steps to Success
1. Theme of the Case — Exploitation of a Patient by a Professional We license to Treat the Most Vulnerable Amongst Us
The theme in every therapist sexual abuse case should be as follows:
a professional who we, as a society, licensed to care for the most fragile amongst us — the mentally ill; a professional who is licensed to treat the most delicate part of our body and soul — the human mind — has exploited not only the plaintiff, but all of us, by gratifying his own needs at the expense of his vulnerable patient’s needs. (indented for emphasis only).
The theme, as stated above, serves to highlight the power of psychotherapist; the vulnerability of the plaintiff, and takes the focus away from the plaintiff, who may be unattractive to the jury, and puts the focus on the harm that the defendant has caused to all of us, not just the plaintiff.
Psychotherapists hold an extraordinary and unique role in our society: they work almost entirely behind closed doors; they often treat patients without any informed consent unless they administer medication; most patients have no idea how psychotherapy works; and most patients do not understand the critical transference process (see supra.). Psychotherapists frequently treat patients who have been badly abused or neglected by people who had power over them (e.g., parents). Patients reveal to psychotherapists their deepest, darkest secrets: secrets they frequently have told nobody else. Psychotherapists are trained to recognize a patient’s vulnerabilities and before a patient sees a psychotherapist, they are frequently in such bad shape that they often depend upon the psychotherapist for survival.
We as a society cannot really monitor how psychotherapy is practiced. Since most of their work is secret, we are dependent upon psychotherapists to monitor their own behavior and act ethically. When a therapist steps out of line and gets caught, it is up to the jury to right this wrong against the plaintiff and society by awarding a large verdict.
2. Understand the Transference Phenomenon.
Transference is the process by which a patient transfers feelings, perceptions and fantasies which she had for her (2) parents or significant people in her past onto the psychotherapist. It occurs in every single psychotherapy (as well as every relationship) and every therapist is trained to work with the transference and not to abuse or exploit the transference.
The transference phenomenon is extraordinarily powerful and yet the patient does not realize it is occurring, since it is an unconscious process. The therapist essentially becomes a parent in the patient’s eyes. Sexual feelings which the patient had for her parents, which have long since been stuffed into the unconscious, will come up during psychotherapy as a result of the transference. The patient will not experience these feelings as sexual feelings for her parents but, rather, as sexual feelings for the therapist.
It is incestuous for a therapist to take advantage of this situation by entering into a sexual relationship with his patient. In many ways it is worse than a situation in which a father has a sexual relationship with a daughter because, one, therapists are trained to understand the damage that this exploitation creates and, two, once the therapist has violated a patient, the patient no longer has anywhere to turn to for help. That is why victims of abuse of transference are frequently irreparably harmed and suicidal.
3. Retain as an Expert a Therapist Who Specializes in Therapist Abuse.
Most therapists, even forensic experts, do not realize the extent of damage that is caused by therapist sexual abuse. Plaintiff must retain an expert who specializes or has considerable experience in this area. If the case is worked up properly, a plaintiff should be able to blackboard somewhere between $400,000 and $4,000,000 in future medical specials. Frequently, a patient who has been abused by her therapist will require long term hospitalization in a specialty hospital, such as Meningers Clinic in Kansas, to be able to get back to where she was before the sexual abuse by a therapist. A hospital like Meningers costs over $300,000 a year. In addition, or in lieu of hospitalization, victims of transference abuse will also require three-to-five-time a week therapy for five or ten years or, sometimes, for the rest of her life. It is inconceivable that a patient of therapist abuse will not need some type of psychotherapy for the rest of her life. Only a specialist will realize how damaged victims of therapist abuse are and how difficult they are to treat.
Frequently, subsequent treating therapists will not recognize the severity of their patient’s problems and will be under the mistaken belief that the patient will be able to be back to their pre-existing condition in two or three years. Unfortunately, studies indicate that this is unrealistic and, for a variety of reasons, victims of therapist exploitation require many years of intensive treatment to improve and, often, survive.
4. How to Overcome the Statute of Limitations Defense.
It is highly unusual for victims of therapist/patient sexual abuse to seek out the services of an attorney within one year of the termination of the relationship. Therefore, the great majority of therapist sexual abuse cases involve statute of limitations issues.
Code of Civil Procedure Section 340.5 states that a patient must bring a case against a therapist within three years of the date of the injury or one year of the date of the discovery of the injury, whichever is sooner. It is important to remember that 340.5 applies only to plaintiff’s medical negligence cause of action. All other causes of action do not have a three-year outside statute of limitations. Therefore, it is possible that a patient could lose on the statute of limitations issue as to medical negligence and win on intentional tort causes of action. Plaintiff’s attorney may want to mention to cumis counsel in a case in which the relationship terminated more than three years before the date of the complaint that if the insurance defense attorney is allowed to raise the three-year statute of limitations on a summary judgment motion or at trial, that could do the defendant irreparable harm by eliminating the one insurable tort while leaving the defendant exposed to a verdict on uninsurable misconduct.
All of the plaintiff’s potential causes of action besides fraud and negligent misrepresentation carry with them a one-year statute of limitations and the one year begins to run from discovery. A fraud and negligent misrepresentation cause of action have a three-year from the date of discovery statute of limitations Code of Civil Procedure §338(d); therefore, it is always wise to plead negligent misrepresentation and fraud in therapist sexual abuse cases. Generally speaking, there will be evidence that the defendant defrauded plaintiff into having or maintaining the sexual relationship.
As to the MICRA three-year statute of limitations, it is tolled by intentional concealment or fraud. (C.C.P. §340.5.) Further, it does not run until “appreciable harm was first manifested.” (Brown v. Bleiberg (1982) 32 Cal.3d 426.) Finally, it is tolled during the continuation of the treatment relationship. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 393.) However, plaintiff’s attorneys must be aware of the case of Marriage and Family Center v. Superior Court (1991) 228 Cal.App.3d 1647, 1654, which stands for the proposition that the three-year statute begins to run when a subsequent therapist recognizes an injury, even if the plaintiff has no such awareness.
As to the one-year statute of limitations, it must be plaintiff’s position that there was no connection in her mind between the defendant’s misconduct (if she was aware of any) and any harm she suffered until within one year of the date of the filing of the complaint. This is frequently a sophisticated psychological argument and must be bolstered by testimony of an expert. The basic theme is that the abuse of the transference prevents discovery of the wrongdoing and the harm. The patient is so psychologically invested in believing in the goodness and righteousness of the defendant that any sense that the patient may have that something is wrong with the relationship ends up in self blame. Just as victims of child sexual molestation tend to blame themselves, victims of therapist sexual abuse go through the same self-blaming phenomenon. This is one more reason why it is imperative to retain an expert who specializes in therapist abuse cases. This expert will be able to testify that it is rare for a patient to realize misconduct and harm within one year of the termination of the relationship.
The case of Mason v. Marriage and Family Center (1991) 228 Cal.App.3d 537 deals with the one-year statute of limitations in therapist/patient sexual abuse cases. In that case, it was found that plaintiff complied with the statute of limitations because she did not realize she had been damaged by her therapist’s sexual misconduct until within a year of filing the complaint.
Even if plaintiff cannot prove that she complied with the three-year statute of limitations and/or she discovered the wrongdoing and the harm more than one year before the complaint is filed, the plaintiff may still be able to survive a statute of limitations defense if she can prove that the defendant should be estopped from raising the statute of limitations as a defense. The estoppel theory is simple: just as the abuse of transference frequently prevents a patient from discovering harm, it also prevents a patient from acting on the harm even if there is actual discovery. The defendant, through his abuse, has regressed the patient to a child-like state. It is just as difficult for a sexually abused patient to sue a therapist as it is for a child to sue a parent. The very abuse and imbalance of power prevents the patient from taking action. Further, frequently the defendant asks or demands that the patient keep the relationship secret. The plaintiff develops a fear that something horrible will happen to both her and the defendant (even when she stops seeing the defendant) if she tells anybody about the relationship or sues the defendant. Finally, there are often actual threats made by the defendant. Plaintiff should always plead estoppel and utilize this theory in responding to summary judgment motions.
Support for an estoppel theory on the statute of limitations can be found in 3 Witkin, California Procedure, §523, p.50 (3d Ed., 1990) which states:
“An estoppel to set up the defense of statute of limitations arises as a result of some conduct by the defendant, relied on by the plaintiff, which induces the belated filing of the action … whether there is an estoppel is chiefly a question of fact.” [Emphasis added.]
Additional support for this theory can be found in the cases of Atateeq v. Major (93 C.D.O.S. 3751); Kleinecke v. Montecito Water District (1983) 147 Cal.App.3d 240; Gaglione v. Coolidge (1955) 134 Cal.App.2d 518; and Pashley v. Pacific Elec. Ty. Co. (1944) 25 Cal.2d 226.
Finally, remember that Code of Civil Procedure Section 364 intent to sue letters only toll the statute of limitations on medical negligence causes of action. Therefore, one should never rely upon a Code of Civil Procedure Section 364 letter to toll the statute of limitations on intentional tort causes of action.
5. How to Win the Case on a Respondeat Superior Theory.
Frequently, the only solvent or insured defendant in a therapist abuse case will be a hospital or a therapy center or similar organization for which defendant works or apparently works. These defendants will undoubtedly claim that they bear no responsibility for defendant’s misconduct.
In a true employment situation, plaintiff may be able to prove negligent hiring or negligent supervision and these theories should always be pled and investigated.
Frequently, discovery will reveal that there was no actual employment or agency relationship between the hospital/therapy center and the perpetrator. The perpetrator may be a true independent contractor; however, plaintiff should be able to survive a summary judgment motion and perhaps win at trial on a theory of ostensible agency if plaintiff can establish that the hospital/therapy center gave her the impression that the perpetrator was an agent or employee. Civil Code §2300; 1 Witkin, California Law (8th Ed.); Agency §§133-138.
In cases where plaintiff can establish actual or ostensible agency, plaintiff still must prove that defendant’s actions were within the scope of employment. As long as plaintiff pleads and can prove separable acts of negligence, it is inconceivable that the hospital/therapy center would not be responsible for the perpetrator’s separable negligent misconduct. Therefore, plaintiff should be able to prevail on any summary judgment motion although there may be a vulnerability on a summary adjudication of issues that seeks to dismiss only the intentional tort causes of action.
However, there are several good arguments that can be made for the proposition that the hospital/therapy center should be responsible for the perpetrator’s sexual and intentional misconduct. Although there is no case directly on point, an analysis of California law indicates that a therapist/patient sexual relationship falls within the parameters of cases in which the courts have held employers responsible under respondeat superior.
One test to determine whether respondeat superior applies to a specific factual situation is the test of foreseeability: whether in a context of the particular enterprise, an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among the other costs of the employer’s business. The fact that the employee is not engaged in the ultimate object of his employment at the time of his wrongful act, does not prelude assigning liability to the employer. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447.) Another test which has been utilized by courts to analyze respondeat superior is whether or not either one, the act performed was required or incidental to an employee’s duties or two, whether the employee’s conduct could reasonably be foreseen by the employer. (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139.)
Plaintiff should argue that within the context of providing therapeutic services to patients, sexual misconduct by a therapist is not so unusual or startling that it would be unfair to include the loss resulting from such misconduct among the other costs of the employer’s business. Further, sexual misconduct by any therapist/employee should reasonably be foreseen by the employer. Since the early 1980’s numerous studies indicate that somewhere between 10% and 40% of male therapists have had sexual relationships with their patients. Plaintiff can argue that the fact that therapy takes place behind closed doors and the fact that it involves an intimate exchange between therapist and patient makes it reasonably foreseeable that therapist and patient will become sexually involved with each other.
The Court in Richard H. v. Larry D. (1988) 198 Cal.App.3d 591, held that a patient’s cause of action for professional negligence based on a psychiatrist’s sexual misconduct with the patient’s spouse, was also good against the hospital which employed the psychiatrist when the patient had alleged the psychiatrist was acting within the course and scope of his authority at the time of the misconduct.
The court in Dresser v. BMQA (1982) 130 Cal.App.3d 506, held that the acts of a psychologist in having sexual relations with two clients was not unrelated to his profession, reasoning that the conduct of the psychologist was inextricably bound up with his therapeutic relationship with his patients.
The California legislature found sexual misconduct by a therapist to be a foreseeable risk of his duties when it took the extraordinary step of passing laws outlawing this type of misconduct. (California Civil Code §43.93, California Business and Professions Code §§726, 729.)
The two leading California Supreme Court cases addressing the issue of respondeat superior in the context of sexual misconduct are John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438 and Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202. In the Mary M. case, the Supreme Court found the City liable for a police officer’s sexual misconduct after a traffic stop, and in the John R. case the Supreme Court found the school district not liable for a school teacher’s molestation of a student.
The Mary M. court found respondeat superior responsibility for policy reasons. The Court reasoned that the police officer used his authority to enable him to commit the assault; the officer detained the plaintiff while he was on duty, in uniform and armed; he ordered the plaintiff into the patrol car and transported her to her home, and, when the plaintiff screamed he threatened to take her to jail. The Court found that the risk of sexual assault is reasonably foreseeable, and is broadly incidental to the enterprise of law enforcement.
Plaintiff can argue that there is a far higher frequency of therapists/patient sexual misconduct, than there are incidents of police officer/civilian sexual misconduct. In every therapist abuse case, the therapist utilizes his position of authority to manipulate the patient into the sexual relationship. Further, there is a high degree of dependency between the patient and the therapist. Frequently the patient believes that she is dependent upon the therapist for survival. Clearly, the relationship between a therapist and a patient is more analogous to the relationship between a police officer and a civilian, than it is to the relationship between a school teacher and a pupil.
Plaintiff can even find support for this position in the John R. (supra) decision. In John R. the Supreme Court recognized that there are situations in which courts have found that respondeat superior liability should be applied to sexual misconduct of employees. Those cases are cited in footnote 8 of that opinion. The cases cited in footnote 8 include the cases of Richard H., supra, described in the footnote as “liability of clinic where psychotherapist consulted by married couple had sexual relations with the wife,” Simmons v. United States (9th Cir. 1986) 805 F.2d 1363, described in the footnote as “liability of federal agency for mental health counselor’s sexual involvement with client,” and Marston v. Minneapolis Clinic of Psychiatry (Minn. 1982) 329 N.W.2d 306, described in the footnote as “liability of clinic for therapist’s sexual relations with patient.”
Thus, three of the decisions cited by the California Supreme Court in John R. for the proposition that in certain circumstances the employer should be found liable for the sexual misconduct of employee, are cases involving the sexual misconduct of therapists. Therefore, it can be reasoned that the seemingly inconsistent opinions of Mary M. and John R. are both consistent with the idea that the employer/principal should be responsible for the sexual acts of an employee/therapist, especially during therapy sessions.
6. What to Do If the Defendant Denies the Sexual Contact.
Since therapist/patient sexual relationships have been criminalized, it has become increasingly frequent for therapists to deny sexual contact. If the defendant denies sexual contact and there is no proof of the actual sexual relationship (other than plaintiff’s testimony), plaintiff’s attorney should take the following steps:
a. Look for other provable boundary violations.
A therapist who will have sex with a patient will usually violate other boundaries of psychotherapy. There will often be proof that a therapist had some type of extra-therapeutic relationship with the patient.
Except in the rarest of instances, therapy should take place inside the therapist’s office for a prescribed period of time, such as 50 minutes. Further, therapy should consist of the patient telling the therapist her problems. The intimate details of the therapist’s life and his problems should be kept out of the therapy. Frequently, there will be proof that there was, one, some type of relationship between the therapist and the patient outside of therapy, two, that the therapist revealed intimate details of his life to the patient and, three, that the therapist and patient entered into some type of business relationship. Although this does not indicate that there actually was a sexual relationship, it does indicate that a defendant has poor boundaries and was likely to have further exploited his patient by becoming sexually involved with her. At the very least, proof of boundary violations should be enough to win a case of negligence.
b. Make sure that plaintiff maintains credibility at all costs.
Although it is always important for the plaintiff to tell the truth in all phases of the case, it becomes extraordinarily important for the plaintiff’s credibility to be beyond reproach if the defendant denies the sexual conduct. The plaintiff must reveal every dirty detail of her life without attempting to manipulate the facts, not only to her treating therapist, but also to the experts on both sides, to the defense attorney at her deposition, and to the jury during her trial. Because of the nature of personal injury litigation, the defendant has many more opportunities to attack a plaintiff’s credibility than vice versa. The defendant will be able to conduct formal and informal discovery of the plaintiff’s life from birth to the time of the trial. If the defendant can develop a theme that the plaintiff is a dishonest person, then the plaintiff will lose. On the other hand, if the plaintiff is exquisitely honest, and admits to details of her life that make her look bad and may even hurt her case, then the plaintiff’s attorney will be able to make the argument that the plaintiff has been forthright in all aspects of her life, even those that have hurt her case, why would she lie about the sexual contact.
c. Have the plaintiff psychologically tested.
Psychological testing can add to the credibility of the plaintiff’s case. A number of the psychological tests have true/false scales which can provide evidence that, at least in terms of the testing, the plaintiff answered truthfully. Secondly, the defense to sexual abuse cases will frequently be, not that the plaintiff is lying but, rather, that she is somehow delusional. Psychological testing can rule out delusion and psychosis.
d. Go on the attack.
Although plaintiff’s attorneys are limited in formal discovery as to how much information they can learn about the defendant, a private investigator may be able to turn up a lot of useful information regarding the defendant which will be helpful in the litigation and admissible during trial. The recent California Supreme Court cases of People v. Eweldt (Feb.28, 1994) 94 C.D.O.S. 1509 and People v. Balcom (Feb.28, 1994) 94 C.D.O.S. 1517 stand for the proposition that plaintiff may be able to present evidence of prior and subsequent uncharged misconduct of defendant with other patients in order to show a common plan or design. Studies show that therapists who sexually abuse one patient, frequently have sexually abused others. A thorough investigation of the defendant using creative, but legal, investigative techniques, may be able to turn up other victims, and dramatically alter the outcome of plaintiff’s case.
7. How to Maintain Insurance Coverage.
As of this writing, there is no California appellate court opinion directly addressing the issue of insurance coverage in cases of therapist/patient sexual abuse. However, there are California Supreme Court cases which provide guidance.
Horace Mann v. Barbara B. (1993) 4 Cal.4th 1076 stands for the proposition that in a case of child sexual molestation, the insurance carrier still owes a duty to defend if plaintiff has pled legitimate separable acts of negligence. The cases of Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395 and State Farm Mut. Auto Ins. Co. v. Partridge (1973) 10 Cal.3d 94 hold that when an insured risk combines with an excluded risk to concurrently cause a single harm, the insurer is liable as long as one of the causes is covered by the policy.
Keeping these cases in mind, there are several steps that plaintiff’s attorneys can take to help ensure that the entire judgment obtained against a defendant for therapist sexual abuse will be covered.
First of all, plaintiff must plead an entire cause of action of separable negligence. In this cause of action plaintiff should list 20 to 30 acts of non-sexual negligence perpetrated by the defendant and specifically exclude all of the sexual and intentional acts alleged later in the complaint. At deposition and trial, make sure that plaintiff’s expert testifies to separable acts of negligence, such as misdiagnosis, failure to monitor the therapy or improper termination.
It is against the defendant’s best interest to request a special verdict in which a jury will be asked to award money for uninsurable causes of action. While a general verdict may prevent the enforcement of the MICRA limitations, it is certainly in the defendant’s best interest to have a larger verdict against him that is insurable than it is to have a smaller verdict that is not covered by insurance. Plaintiff’s attorney may want to make sure cumis counsel understands this principle.
8. Make Sure the MICRA Limitations Will Not Apply to Therapist Abuse Litigation.
Waters v. Bourhis (1985) 40 Cal.3d 424 holds that a therapist sexual abuse case is a hybrid case in which there may be negligence, which would be subject to MICRA limitations, and intentional torts, which would not be subject to MICRA limitations. Plaintiff should always plead non-negligence causes of action in therapist sexual abuse cases. If the defense insists on a special verdict and the jurors find a defendant guilty of battery, intentional infliction of emotional distress or some other related cause of action, or, if there is a general verdict, then plaintiff will be able to receive a general damage verdict in excess of the $250,000 MICRA cap and will not have to have the verdict or fees altered by the other MICRA limitations.
9. Settlement Strategy.
More than any type of case, therapist abuse cases should be settled on the basis of a risk analysis. If plaintiff has worked up the case properly, the defendant will be at risk for a multi-million dollar verdict. On the other hand, plaintiff will generally have a risk of losing the entire case on the statute of limitations or receiving a large verdict and not being able to collect it because of a lack of insurance coverage, lack of defendant’s assets or a combination of the two.
If the defendant denies the sexual contact, then the risks are even higher. If the jurors believe the defendant, the plaintiff will almost certainly lose. On the other hand, if the jurors believe the plaintiff, then they will believe that the defendant has not only exploited plaintiff, but has now lied about it and, therefore, there is every reason to believe that the verdict in such a case could rise even higher.
For plaintiff it would be a mistake to engage the defense in an issue-by-issue settlement evaluation of the case. The defense will want to point out all of the deficiencies in the plaintiff’s causation and damage case in order to convince the plaintiff’s attorney that the case does not have a large value, even if the plaintiff prevails. This type of analysis may make sense in most medical malpractice cases, or even most accident cases; however, it does not make sense in a therapist sexual abuse case because the jurors’ verdict will be based upon their anger and not their careful analysis of the issues of causation and damages.
Therefore, plaintiff should assume that there will be a large verdict if she does win and should then discount the value of the case based upon an assessment of the chances of losing on liability and the statute of limitations and further discount the case based upon any perceived collection problems that will be encountered.
The defense has two additional risks: one, the risk of publicity and, two, the risk that the defendant may lose his ability to practice therapy. These two items will almost always end up in the settlement mix. Further, they provide a great incentive for the defense to settle cases early. For that reason, it is usually a good idea to give the defense a chance to settle the case before filing a lawsuit. If the statute of limitations is about to run, as it almost always is, the plaintiff and defendant can enter into a “standstill agreement,” where the statute of limitations stands still while an effort is made to settle the case. Standstill agreements are authorized by Code of Civil Procedure §360.5.
The defendant, unless he denies the sexual contact, will almost always be motivated to settle the case early; the problem more often than not is the insurance carrier. If the defendant is going to admit sexual misconduct, he may be highly motivated to settle the case before his deposition is taken. However, if the plaintiff is willing to discount the case in order to have it settle early, the insurance carrier is realistic, and especially if the defendant is willing to put some of his own money towards settlement, early settlement can be reached. If there is any indication that the case may be able to be settled, it may be wise for the plaintiff’s attorney to allow the defense to meet informally with the plaintiff and the plaintiff’s experts. This will give the insurance carrier an opportunity to evaluate the claim and document its file while it will also demonstrate plaintiff’s confidence in her case.
10. Trial Strategy.
For a more detailed discussion on trial strategy, see Trying the Therapist/Patient Sex Case (see Footnote 1). This article discusses a few of the more basic strategy considerations.
In terms of jury selection, plaintiff always wants psychologically minded, sophisticated jurors who like psychotherapists and believe in psychotherapy. These are the people who are most likely to have some compassion for the plaintiff and the people who are most likely to become extraordinarily angry at the defendant.
Plaintiff should not be present at the trial except for when she testifies. It will be psychologically harmful for the plaintiff to sit through the trial and it will be harmful to her case. The plaintiff should be the last witness and, in no event, should the plaintiff testify before the plaintiff’s expert. It is an invitation to disaster to allow the defense to cross examine the plaintiff before the jury understands the concept of transference and before the jury understands why the plaintiff was vulnerable to the defendant’s misconduct. Further, the plaintiff’s expert should have the opportunity to describe the plaintiff to the jury and to explain to the jury the reason why plaintiff has the negative qualities (whatever they are) which plaintiff’s attorney believes could damage her case.
Plaintiff’s expert should be the first witness. He or she should lay out the concepts of psychology and psychotherapy (including transference) much like a mechanical engineer would lay out the design aspects of an automobile in a products liability case. The expert’s testimony should cover all aspects of liability, causation and damages.
The plaintiff should next call the defendant as an adverse witness and do whatever is necessary to attack the defendant’s credibility. Further, the point must be made that the defendant was trained in the concept of transference, and knew or should have known that a transference existed between the defendant and the plaintiff and, despite that knowledge and training, abused the transference.
Plaintiff should call lay people or treating doctors as before and after witnesses to describe the changes in the plaintiff before and after her relationship with the defendant. This testimony will be particularly important on the issue of damages. Although plaintiff needs expert witnesses to prevail on liability and causation, jurors are distrustful of the testimony of therapists when it comes to damages. They are far more likely to be moved by the testimony of lay witnesses than they are by therapists.
Closing argument should focus on the theme of the case as discussed in section 1. The idea is to let the jurors develop their own anger at the defendant and then through argument convince the jurors to convert that anger into a compensatory damage award. Any request for money should be tied directly into the defendant’s misconduct, not just the nature of plaintiff’s damages. A capsule of a closing argument on general damages can look something like this:
Defendant was trained that transference is an explosive process that can be used for good or can be used for evil. The defendant, in order to gratify his own sexual needs, decided to misuse the transference for his own evil purposes. The defendant was trained that when a therapist sexually exploits a patient, the patient is always seriously damaged. Despite that training, the defendant, who we as a society entrusted to care for this fragile woman, took it upon himself to destroy the most precious gift which God gave her … her peace of mind.
The human mind is the most delicate of structures. It is little understood, but it is so, so important. They make computers to replicate almost every human function; however, they cannot make a computer that comes even close to equalling the human mind.
We all have our travails in life. We all have our ups and downs, victories and disappointments. As long as we have our peace of mind, we can deal with the obstacles that are placed before us and we can overcome our difficulties and life remains vital and rewarding. However, once we lose our peace of mind — once we lose the ability to enjoy the little things in life — a beautiful sunset, a child sitting in our lap, an intimate phone conversation with a friend; once we lose our ability to enjoy those moments, life is no longer worth living. That is the position that the plaintiff is now in. She has lost her peace of mind, her life has become a living hell. She knows no enjoyment. She hates herself and does not want to live. Why? Why is she in this position? So the defendant could have his cheap sexual gratification.
The worst thing about the plaintiff’s current condition is that the defendant, through his negligent and intentional misconduct, not only stripped her of her peace of mind but also, to a large extent, took away the cure. The plaintiff can only be cured through hospitalization and psychotherapy; yet, psychotherapy cannot work without trust. How will plaintiff ever be able to trust again? The plaintiff’s mind has been destroyed and the defendant has taken away the blueprint for fixing her mind, and it cannot be replaced. They make artificial limbs, but they do not make artificial minds.
When you sit down to evaluate plaintiff’s damages for emotional distress, consider the plight of Ron Kovac. Ron Kovac, whose story was featured in the movie “Born on the Fourth of July,” is a Vietnam veteran who became paralyzed during the war. The Vietnam war and Ron’s injury were not enough to strip him of his peace of mind. He was able to fight back and lead a fulfilled and joyful life as a veterans’ advocate even though he suffered from the most severe physical ailment known to mankind, quadriplegia. He was able to fight back and live a joyful and fulfilled life because he had the precious gift of peace of mind. The plaintiff, on the other hand, has lost this precious gift forever. Why? So that defendant could get his sexual kicks. And when you evaluate her damages, please think of what you would have awarded her if the defendant had rendered her a quadriplegic instead of stripping her of her peace of mind. And I submit to you, the damages for this injury should be greater than the damages you would award to a quadriplegic.
The defendant has not only violated the plaintiff, he has violated all of us. He has violated every one of us who will someday need the help of a therapist. He has violated each one of us who someday may have to trust our spouse, mother or daughter in the hands of a therapist. One of your neighbors has been injured because this defendant decided to violate his oath and violate your trust. You, through your verdict, can make your neighborhood whole again.
Despite the fact that therapist abuse cases are difficult and extraordinarily expensive to litigate, they can result in very satisfactory settlements and verdicts for plaintiffs if they are skillfully prepared and presented. Following the ten steps outlined in this article will hopefully lead to a successful outcome for plaintiff.
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; “An Overview of Handling Therapist Malpractice Cases: Sex, Drugs, Suicide and Bad Therapy” CTLA 1994 Tahoe Syllabus.
2. Most plaintiffs in therapist sexual abuse litigation are women and most defendants are men; therefore, for the sake of simplicity, the female gender only will be utilized to describe plaintiffs and the male gender will be used to describe defendants. However, the same principles stated in this article will apply to male plaintiffs and female defendants.
This article was authored by John D. Winer. Winer, Burritt & Scott, 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.