John D. Winer, Esq.

San Francisco, California

I. INTRODUCTION.

This author has already written extensively on trial strategies, litigation techniques and client relation dynamics in psychotherapist abuse cases. Please see other articles by this author referenced in the footnote below. (1)

This article will provide the reader with several new ideas that can be utilized in litigating psychotherapist abuse cases as well as review new developments in the law.

II. HOW TO WIN AN AWARD OF ATTORNEYS’ FEES IN PSYCHOTHERAPIST ABUSE CASES.

The most important recent development in psychotherapist abuse cases is the passage in 1995 of C.C.C. §51.9. C.C.C. §51.9 extends California sexual harassment law to professionals including psychotherapists.

C.C.C. §51.9 basically states that a psychotherapist (along with other professionals) is liable in a cause of action for sexual harassment when the plaintiff can prove all of the following elements:

“…(2) The defendant has made sexual advances, solicitations, sexual requests, or demands for sexual compliance by the plaintiff that were unwelcome and persistent or severe, continuing after request by the plaintiff to stop.

“(3) There is an inability by the plaintiff to easily terminate the relationship without tangible hardship.

“(4) The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury as a result of the conduct described in paragraph (2). …”

This new remedy will have little or no impact on a plaintiff’s actual award for compensatory damages. C.C.C. §43.93 already provides plaintiff with a cause of action for psychotherapist sexual contact with a patient. (2) In fact, liability under section 43.93 is actually easier to prove since under that Code section the plaintiff does not have to prove that the sexual advances were “unwelcome, persistent or severe, continuing after request by the plaintiff to stop.”

C.C.C. §43.93 recognizes the fact that because of the inherent power imbalance between the therapist and a patient, a patient can never consent to a sexual relationship with a psychotherapist. On the other hand, C.C.C. §51.9 seems to indicate that plaintiff must make some effort to resist the sexual contact.

A problem in utilizing C.C.C.§51.9 is that because of the transference phenomenon wherein a patient transfers feelings or perceptions of their parents or significant people in their early life onto the therapist, psychotherapy patients often do not resist and in fact welcome the therapist’s sexual advances. Frequently the patients are themselves the aggressors. In those cases, section 51.9 may not be particularly helpful, although in our experience, most plaintiffs eventually resist sexual contact and most therapists eventually persist on a sexual relationship.

As an attorney representing psychotherapist abuse victims, it is critical to plead a section 51.9 violation if there are sufficient facts to justify this claim. The reason it is so important is because C.C.C. §51.9(b) states that

“In an action pursuant to this section, damages shall be awarded as provided by §52.”

C.C.C. section 52 allows for an award of attorneys’ fees.

It is virtually impossible to litigate a psychotherapist abuse case through trial without spending hundreds if not thousands of hours on the case. Thus, an attorney fee award can be substantial and the threat of an attorney fee award will increase the settlement value of a case.

Remember that one of the requirements of section 51.9 is that “the complaint and answer under this section shall be verified….” Be careful not to verify the entire complaint, but just that one cause of action.

III. INSURANCE COVERAGE.

One of the greatest challenges to plaintiff attorneys litigating psychotherapist abuse cases is to obtain insurance coverage for the defendant’s wrongful conduct. This is important because the vast majority of psychotherapists do not have substantial earnings or savings. Further complicating matters is the fact that every insurance company that writes insurance policies for psychotherapists excludes sexual or intentional misconduct.

The doctor-owned insurance carriers that insure MD psychiatrists generally offer to provide coverage for the psychotherapist’s negligence while excluding coverage for sexual or intentional misconduct. The way to make a psychotherapist’s misconduct insurable under these type of policies is relatively straightforward; that is, the plaintiff should plead at least one cause of action for pure negligence without any allegations of sexual misconduct or anything that led to sexual misconduct. We generally list between 20 and 40 acts of professional negligence committed by the defendant which having nothing to do with sexual misconduct. (A copy of our complaint can be obtained by contacting our office at 415/434-9300.)

The national insurance carriers who insure most Ph.D.s, MFCCs and LCSWs have a more insidious policy that attempts to obviate coverage by creating one form or another of a “sex cap.” Although the language differs from policy to policy based on the insurance carrier, the basic idea is this: the insurer states that it will provide somewhere between $250,000 and $2,000,000 worth of insurance to the defendant for professional negligence; however, if there is any allegation of sexual abuse (3) the company’s total liability for payment in the case, even for professional negligence, is limited to a total of $25,000. These policies were basically created to counter plaintiffs’ attempts to circumvent the exclusions by pleading separable negligence.

Even in the face of these “sex cap” policies we believe that the best way to obtain coverage is still to plead a separate cause of action for negligence, and then to argue in the underlying case and the coverage case that the sex caps are unfair and against public policy in California for a number of reasons including: the sex caps defeat a therapist’s expectation to be covered for his or her negligent acts and sex caps put the determination of coverage into the hands of the plaintiff and completely out of the control of the insured. What if the plaintiff is simply making up the allegations of sexual abuse? Is it fair under these circumstances for the insured to not be provided coverage for his or her negligent acts?

Below is an example of our coverage argument that we utilize in therapist abuse cases:

It is plaintiff’s position that any policy issued to defendant would obligate the insurance carrier to pay for all of the damages herein. In the first cause of action, plaintiff alleges that in the course of the therapeutic relationship with defendant, defendant’s diagnosis and treatment were improper and below the standard of care in the community. Hence, the claim is certainly covered by the terms of the professional liability policy. The first cause of action solely alleges conduct and resultant injuries which were not based upon any erotic contact. Should the insurance carrier contend that this special provision serves to nullify coverage for claims not specifically accepted by the special provision, plaintiff would argue that this position is contrary to the law and public policy of this State. Since one of the concurrent causes of injury alleged in this action is a covered claim, coupled with the unenforceability of any sexual capped provision, no court will find that the insurance carrier is limited to a sex cap.

California law prohibits an insurer which has issued a liability insurance policy to evade its contractual obligation to its insured regarding a covered risk, simply because an excluded risk has caused some additional harm:

The crucial question presented is whether a liability insurance policy provides coverage for an accident caused jointly by an insured risk … and by an excluded risk. … The insured could correctly contend that when two such risks constitute concurrent proximate cause of an accident, the insurer is liable so long as one of the causes is covered by the policy. State Farm v. Partridge (1973) 10 Cal.3d 94, 102. (Emphasis added.)

The Partridge rule was reaffirmed in Garvey v. State Farm Fire and Casualty Company (1989) 48 Cal.3d 395. There, the court explained why a third party liability contract of insurance should cover a claim where more than one cause contributed to the resultant injury:

If committed by separate individuals both actors would be joint tortfeasors fully liable for the resulting injuries. … The fact that both acts were committed by a single individual does not alter their nature as concurrent proximate causes. … We believe that coverage under a liability insurance policy is equally available to an insured whenever an insured risk constitutes a concurrent proximate cause of the injuries. 48 Cal.3d at 405.

The Garvey court went on to state:

Once the insured shows that an event falls within the scope of basic coverage under the policy, the burden is on the insured to prove a claim is specifically excluded. Moreover, exclusionary clauses are interpreted narrowly, whereas clauses identifying coverage are interpreted broadly. Garvey, supra, 48 Cal.3d at 406.

Plaintiff will also take the position that any sexual cap provision is voided as unenforceable as a matter of law and public policy.

The purpose of an insurance policy is to provide coverage to the insured for losses incurred as a result of wrongful acts committed during the policy period by the insured. A layperson would believe that an “all risk” policy, would afford coverage for those risks specifically stated to be covered by the policy. Additionally, it is understood that no special provision regarding sexual misconduct would limit coverage for any claims other than claims based on sexual misconduct.

Significantly, all of plaintiff’s causes of action, in part, contain allegations of non-sexual conduct. Therefore, not only will plaintiff be able to get to a jury on theories of negligent and intentional torts, but also the MICRA limitations for the intentional tort causes of action will be deemed inapplicable. (See Waters v. Bourhis (1985) 40 Cal.3d 424.)

In addition, the California Supreme Court in Horace Mann decision has stated unequivocally that a plaintiff can plead separable allegations of negligence even in a situation where there is a sexual molestation of a minor. It is inconceivable that, in light of Horace Mann and the decisions previously quoted, that a Court would not hold defendant’s insurance company responsible for paying all of the plaintiff’s damages arising out of defendant’s non-sexual conduct.

IV. HOLDING THE EMPLOYER OF A PSYCHOTHERAPIST ACCOUNTABLE FOR A PSYCHOTHERAPIST’S ABUSE.

Not infrequently, particularly in HMO, County and hospital settings, a plaintiff’s only real chance of recovery will be against the employer of a psychotherapist. As previously mentioned, frequently a psychotherapist does not have sufficient assets to cover a claim and, sometimes, particularly in a HMO or County setting, the therapist will not have any insurance coverage at all. Thus, it becomes particularly important to be able to hold the employer of the psychotherapist accountable. Please find below our respondeat superior argument that we utilize in psychotherapist abuse cases:

1. Respondeat Superior.

A. Respondeat superior applies in the instant matter.

The doctrine of respondeat superior holds an employer liable for an employee’s torts committed within the scope of his employment. West American Ins. Co. v. California Mutual Ins. Co. (1989) 195 Cal.App.3d 316.

B. Defendant’s actions were foreseeable.

One test to determine whether respondeat superior applies to a specific factual situation is the test of foreseeability: whether in the 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 principal justification for the doctrine is that the employer may spread the risk through insurance and carry the cost thereof as a cost of doing business. Id. at 322.

This “scope of employment” is viewed broadly in the context of respondeat superior. The fact that the employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude assigning liability to the employer. John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447.

C. Defendant’s actions were incidental to his duties.

Another test to determine whether an employee committed a tort during the course of his employment is whether or not either, (1) the act performed was either required or “incidental to his duties” or (2) 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.

Specifically, the County is liable under the theory of respondeat superior because in the context of the enterprise of providing therapeutic services to patients, sexual misconduct by a therapist is not so unusual or startling that it would seem unfair to include the loss resulting from such misconduct among other costs of defendant County’s business. Further, the sexual misconduct by the defendant therapist could be reasonably foreseen by defendant County.

2. The County is liable for defendant’s negligent misconduct by virtue of respondeat superior.

More importantly, though, is the inescapable fact that defendant committed acts of malpractice which were completely separable from his acts of sexual misconduct. Surely, abuse of transference and other “bad therapy” by its psychotherapist agents andemployees is foreseeable by the County. At least on the issue of non-sexual malpractice, defendant acted within the course and scope of his relationship with the County.

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 in Richard H. v. Larry D. (1988) 198 Cal.App.3d 591, when the plaintiff had alleged that the psychiatrist was acting within the course and scope of his authority at the time of the misconduct.

The acts of a psychologist in having sexual relations with two clients was not unrelated to his profession in Dresser v. BMQA (1982) 130 Cal.App.3d 506, 513, reasoning that the conduct of the psychologist was inextricably bound up with his therapeutic relationship with the clients to whom he was supposed to be affording psychological therapy.

The Dresser court discussed that past isolated acts unrelated to the licensee’s profession cannot alone be the basis for discipline against a professional, using the example of a real estate agent who was arrested for distributing cocaine as being an isolated act unrelated to the real estate agent’s profession. In contrast, the sexual acts of the psychologist in the Dresser case were not unrelated to his profession, but occurred several times with each of two clients during a period of time when the psychologist was treating them for related sexual psychological problems.

The basis for plaintiff’s action against the therapist and the County is medical malpractice, negligence and a variety of intentional causes of action. The County has chosen to focus on these intentional acts as allegedly being outside the course and scope of the defendant’s relationship with the County, while completely failing to examine the possibility that defendant’s professional negligence may indeed be related to defendant’s profession and thus may fall within the purview of the County’s enterprise.

3. The County may also be liable for defendant’s sexual misconduct by virtue of respondeat superior.

Whether the sexual misconduct of an employee may be the basis of liability against an employer under a theory of respondeat superior is an issue which has been addressed by courts in California and in other jurisdictions.

In Alma W., supra, an 11-year-old student was molested by the school custodian. The parents of the molested child brought an action naming the school district under a theory of respondeat superior. The Alma W. court discussed that an employee’s wrongful acts will be found to be committed within the course and scope of his employment when the employee’s misconduct could be reasonably foreseen by the employer. Foreseeability in the context of a particular enterprise means that the employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. Id. at 141-142. A crucial inquiry is whether the employee’s acts are foreseeable in light of the duties the employee is hired to perform.

The Alma W. court determined that it is necessary to find some aspect of the employee’s duties that would make the sexual assault not highly unusual or startling: a sexual molestation is in no way related to the custodian’s duties of mopping floors, cleaning rooms, or any other tasks of a school custodian. The sexual molestation was an act too attenuated and not incidental to the employee’s duties as a school custodian.

In 1986, the California Appellate Court was presented with the case of Rita M. v. Roman Catholic Archbishop (1986) 187 Cal.App.3d 1453, in which a 16-year-old girl was seduced by seven priests. Again, the focus of the Rita M. court was on whether the priests’ misconduct could be reasonably foreseen as an outgrowth of their duties as priests. When focusing on whether sexual relations between a parishioner and seven priests is foreseeable, the Rita M. court determined that the foreseeable event must be characteristic of the activities of the enterprise. “It would defy every notion of logic and fairness to say that sexual activity between a priest and parishioner is characteristic of the Archbishop of the Roman Catholic Church.” Id. at 1461.

Two years after the Rita M. decision, the California Appellate Court again addressed employer liability for an employee’s sexual acts under a theory of respondeat superior in the case of Jeffrey E. v. Central Baptist Church (1988) 197 Cal.App.3d 718. In Jeffrey E., repeated acts of sexual assault were perpetrated on a minor by a Sunday School teacher and general church member.

In finding that the church was not liable under a theory of respondeat superior, the Jeffrey E. court stated: “there is no aspect of a Sunday school teacher’s duties that would make sexual assault anything other than highly unusual and very startling.” Id. at 722.

The Jeffrey E. court distinguished between a case in which conduct arises out of an abuse of the employee’s official authority versus conduct which arises out of a position of trust. The Jeffrey E. court found that there had not been an abuse of authority which had been established by reason of a special relationship created by the church, but rather, the teacher’s position of trust was developed through contacts sanctioned by the plaintiff’s mother. The position of trust did not develop because the employee was plaintiff’s Sunday school teacher or because the employee was a member of the church’s congregation. The Jeffrey E. court found the facts before it to be similar to those facts in Rita M., finding that sexual molestation is in no way related to teaching Sunday school, going on church-sponsored visitations, or any other task required to be performed by a Sunday school teacher or church member. Id. at 724.

The California Supreme Court addressed the issue of respondeat superior liability for sexual misconduct in the cases of John R. v. Oakland Unified School Dist., supra, and Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202.

The Mary M. court held the city liable under the doctrine of respondeat superior for a sexual assault perpetrated by a police officer. The police officer had detained the plaintiff after she failed a field sobriety test. The officer drove the plaintiff home in his squad car and told the plaintiff that he expected “payment” for taking her home. When she resisted the officer’s advances, he raped her.

The Mary M. court discussed that the doctrine of respondeat superior is based on a deeply-rooted sentiment that it is unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities. Id. at 208. The reasons for applying the doctrine have been articulated by the California Supreme Court to include: (1) to prevent recurrence of tortious conduct; (2) to give greater assurance of compensation for the victim; and (3) to ensure that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury. Id. at 209.

In applying the doctrine of respondeat superior to the police officer’s conduct, the Mary M. court found that the policy reasons underlying the doctrine justified its application. 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 her into the patrol car and transported her to her home. When the plaintiff screamed, he threatened to take her to jail. The risk of sexual assault is reasonably foreseeable, and is broadly incidental to the enterprise of law enforcement.

The John R. court discussed the application of the doctrine of respondeat superior, as follows:

The courts of other jurisdictions and our own Courts of Appeal have struggled in recent years over whether and how to apply the respondeat superior doctrine to the sexual assaults or misconduct of employees. The historical and perhaps still prevailing point of view declines to impose vicarious liability in such circumstances (fn7). But the other school of thought has its adherents as well (fn8), and what we must decide here is if such liability should be imposed in light of the law of this state and the purposes of the doctrine.

Id. at 447-448. The cases cited in footnote 7 as examples of the prevailing view in declining to apply vicarious liability include the Jeffrey E., Rita M. and Alma W. cases discussed above. In contrast, the cases cited in footnote 8 in support of the other school of thought which applies the respondeat superior doctrine to sexual assaults or misconduct of employees, 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.”

The descriptions of the cases in footnote 8 of the John R. case are highly significant because these cases apply the doctrine of respondeat superior for the sexual misconduct of a psychotherapist, mental health counselor and therapist.

An additional case decided after John R. in which a counseling center was held liable on the grounds of respondeat superior for the sexual acts of one of its therapists, is Doe v. Samaritan Counseling Center (Alaska 1990) 791 P.2d 344. The Doe court’s discussion of the doctrine of respondeat superior includes how various courts apply the respondeat superior doctrine to the specific facts presented to each court. The Doe court specifically discusses the foreseeability test where an employer may be held liable for an employee’s acts that are “foreseeable” in light of the nature of the employment. “These courts reason that while the sexual acts themselves are purely self-serving, or caused by an unjustifiable loss of control by the aggressor, they have nonetheless been precipitated by the employee’s performance of assigned duties.” Id. at 348.

The Doe court discusses the case of Simmons v. United States (which is cited in footnote 8 of the John R. case) in which a patient sought mental health counseling from a social worker. In Simmons, the transference phenomenon was alleged to have occurred between the Doe plaintiff and her therapist. The Doe court held: “[g]iven the transference phenomenon that is alleged to have occurred in this case, we hold that it could reasonably be concluded that the resulting sexual conduct was ‘incidental’ to the therapy.” Id. at 348.

Transference is defined by the Simmons court to be “the term used by psychiatrists and psychologists to denote a patient’s emotional reaction to a therapist and is ‘generally applied to the projection of feelings, thoughts and wishes onto the analyst, who has come to represent some person from the patient’s past.’ (Citation omitted.)” Simmons, 805 F.2d at 1364. The mishandling of the transference phenomenon by becoming sexually involved with a patient is unanimously considered to be malpractice. Id. at 1365.

In discussing whether the therapist’s acts occurred within the scope of employment, the Simmons court focused on the importance of the transference phenomenon in therapy:

We believe the centrality of transference to therapy renders it impossible to separate an abuse of transference from the treatment itself. The district court correctly found that the abuse of transference occurred within the scope of [the therapist’s] employment.

Id. at 1370. The acts of the Simmons therapist occurred both during therapy sessions, and during off-duty hours, but regardless of where the acts occurred, they all arose out of the ongoing therapy relationship between the therapist and patient.

Similarly, the County is liable under the doctrine of respondeat superior for defendant’s acts. The therapist’s sexual misconduct with plaintiff was a tortious misuse of the transference phenomenon. His failure to treat plaintiff’s presenting symptomatology were examples of the therapist’s malpractice which existed separately and apart from the therapist’s sexual misconduct and was most certainly within the scope of the therapist’s authority with the County.

Plaintiff has pled causes of action based on negligent and intentional acts by the therapist, for which the County is vicariously liable. In so doing, plaintiff has pled a “hybrid” Complaint of negligent and intentional theories. Such pleading is permissible under California law. In Waters v. Bourhis (1985) 40 Cal.3d 424; 220 Cal.Rptr.666, a client filed an action against a psychiatrist based on both professional negligence and intentional sexual conduct; the plaintiff alleged that the psychiatrist had engaged in sexual misconduct. The court found, inter alia, that sexual misconduct cases against therapists may be pursued on a combination of causes of action involving both negligence and non-negligence theories. Additionally, in Horace Mann Ins. Co. v. Barbara B. (1993) 93 C.D.O.S. 1820, the California Supreme Court held that an insurance company must defend an underlying action for liability based on misconduct separable from sexual molestation, stating “[n]either precedent nor logic dictates that a molester cannot also be liable for torts of negligence against the victim which are apart from, and not integral to, the molestation.”

It is reasonable to conclude that the sexual conduct was incidental to the therapy, and was not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the County’s business.

Obviously, the California Legislature found sexual misconduct by a therapist to be a foreseeable risk of his duties when it passed legislation specifically addressing a therapist’s sexual contact with a patient as misconduct, Civ. Code §43.93, Bus. & Prof. Code §§726, 729.

It is indisputable that the therapist’s misconduct was foreseeable in light of the duties defendant performed at the Clinic. The therapist occupied a position of authority and trust as a therapist. He had free rein as to the use of Clinic premises, and constantly referred to the Clinic as “we.” Defendant abused his position of authority as plaintiff’s therapist. Clearly, the therapist abused authority which had been established by reason of a special relationship created and fostered by the Clinic. The connection between the therapist’s duties as a therapist and his malpractice is too strong not to hold the County and Clinic vicariously liable.

No doubt defendant County will argue at some point that liability against the County is precluded by the ruling of Lisa M. v. Henry Mayo Newhall Memorial Hospital, (1995) 12 Cal.4th 291. However, Lisa M. did not eliminate liability against an employer in all situations where an employee engaged in acts of sexual misconduct. Lisa M. stands only for the proposition that a hospital cannot be held liable for the one-time sexual assault committed by one of its low-level technicians against a patient with whom the technician had not prior medical or personal relationship. Those facts are dramatically different from the facts alleged here, where the therapist and the plaintiff were acquainted intimately before the sexual conduct began.

In Lisa M., one of the primary reasons the Court found no liability accruing to the hospital was because it could find no relationship between the sex act and the defendant’s employment at the hospital. “A sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions.” Lisa M., supra, 12 Cal.4th at 301. The defendant ultrasound technician, who had never met Lisa M. before that day, simply took advantage of an opportunity to be with her and, for a brief period of time, sexually assaulted her during an exam. No emotional relationship had developed between them prior to that day, and thus it could not be said that his acts “arose out of” his employment at the hospital.

However, footnote 7 of the Lisa M. case specifically excludes factual situations such as the one presented by plaintiffs in this case:

“The American Medical Association has described and distinguished two broad types of sexual misconduct by physicians. First, misconduct arising from the physician’s inability properly to contain and control his or her emotional involvement with a patient; and second, conscious exploitation (citations omitted.) Tripoli, of course, was a technician rather than a physician. In any event, his conduct belongs to the second category — conscious exploitation — and we need not decide here whether sexual misconduct of the first type might, under some circumstances, create respondeat superior liability on the employer’s part.”

Lisa M., supra, 12 Cal.App.4th at 303, fn. 7.

The relationship between defendant and his patients was clearly of a therapeutic nature. Defendant administered therapy on a regular basis with a specific population of patients with whom he developed an extremely close, even intimate, personal relationship whose very nature was to invite secrets and confidences. Defendant saw plaintiff behind closed doors, and knew virtually everything about her to the point of travelling to a court to read her criminal and county psychiatric evaluations that were made. This is a far cry from the low-level technician who seizes a moment of opportunity in a private room and sexually assaults a woman he has never seen prior to that day. Clearly, Lisa M. is not controlling, and respondeat superior liability exists against the County.

V. CONCLUSION.

Although it is not always the case, generally, in the therapist sexual abuse cases which we have tried, we have been able to receive seven-figure verdicts. The reason why the verdicts are frequently so large is because we are able to convey to the jury that the a trained professional is preying upon the most vulnerable people in our society. Our clients go to the therapists looking for help but end up, through the therapists’ negligence and exploitation, being severely and permanently injured. In the right case, our experts are credibly able to estimate future psychotherapeutic and hospital treatment at somewhere between $500,000 and $1,500,000. If the jury believes in the case, it will award these special damages as well as significant damages for emotional distress.

Hopefully, this article has provided some helpful guidance in not only how to achieve a large award in a therapist malpractice case but, more importantly, how to collect that award as well as attorney fees on behalf of your client.

1. 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; Ten Simple Steps to Success in Litigating Therapist Abuse Cases, CTLA Forum 1994, Volume 24 #5.

2. 2 In addition to C.C.C. §43.93, plaintiff can plead numerous causes of action including professional negligence, breach of fiduciary duty, battery, sexual battery, fraud, constructive fraud and negligent misrepresentation.

3. 3 Sexual abuse is defined as broadly as possible to basically include something as innocuous as a therapist looking at the patient in a sexual way.

This article was authored by John D. Winer. The Law Offices of John D. Winer 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.