Topics: Civil Litigation

   
 

Civil Litigation for Negligence and Intentional Misconduct

This essay, excerpted from an extensive document written by a California attorney, explains the pursuit of negligent and intentional/sexual misconduct cases against psychotherapists.  Despite being based on California law, we have included it here because the majority of the content is applicable throughout the United States.  To view the entire document, go to www.johnwiner.com/publications.html, item 3.

A psychotherapist, under California law, owes a duty to use reasonable care in his or treatment of a patient or client.  When the psychotherapist violates that duty by either acting negligently toward the patient, intentionally harming the patient, sexually abusing the patient or defrauding the patient, it is considered a breach of the duty of care and the psychotherapist is liable to the patient for all allowable damages that the psychotherapist causes.

Most psychotherapist abuse cases involve a combination of negligent and intentional/sexual misconduct because negligence cases without additional intentional/sexual misconduct are difficult for patients to recognize and prove.

There are cases in which the psychotherapist is merely negligent and his or her behavior has not risen to the level of abuse.  These cases, under the law, would be considered to be therapist malpractice. The laws that apply to therapist malpractice are identical to the laws that apply to any medical malpractice case.

In a case against a therapist involving allegations of intentional, sexual, quasi-sexual or fraudulent misconduct, there would be additional causes of action that might include: 

  • Abuse of transference (which has elements of both negligence and intentional misconduct).
  • Intentional infliction of emotional distress.
  • Battery.
  • Sexual battery.
  • Breach of fiduciary duty.
  • Sexual harassment by a professional.
  • Breach of the California statutes prohibiting sexual conduct between a psychotherapist and a patient.
  • Fraud and fraud related causes of action.

A case involving negligence and allegations of one of the sexual or intentional causes of action listed above is sometimes called a “hybrid” case because it involves elements of negligence plus elements of intentional/sexual misconduct which are in some ways are separate and in some ways interact.  It is important, for the purpose of insurance coverage and avoiding the limitations on medical/therapist malpractice cases in California, for a patient who has been treated negligently and abused to simultaneously pursue negligence and intentional/sexual misconduct claims.

The existence of insurance coverage is normally the only way that a plaintiff can collect a large settlement or verdict against a psychotherapist, since very few psychotherapists make enough money to pay for a large verdict or settlement.  Further, not infrequently, a defendant psychotherapist will go into bankruptcy during the case; this creates further complications, although a patient can still recover from the insurance company of a bankrupt defendant.

There is almost always a “disconnect” between the “value” of a settlement in a therapist abuse case and the actual settlement number. Therapist abuse cases rarely settle for their full value because the therapist usually does not have enough money to pay full compensation. The plaintiff also has to recognize the possibility that insurance company exclusions and limitations will prevent them from recovering the full amount of a potential verdict against the therapist’s insurance company.

 A plaintiff’s attorney may take the following steps to increase the settlement value of a therapist abuse case:

  1. Plead many acts of negligence in the complaint, separate from the sexual misconduct.  This will increase the likelihood of insurance coverage.
  2. Establish that the plaintiff was extraordinarily vulnerable due to childhood trauma, but functioning fairly well at the time of the therapist’s abuse.
  3. Obtain evidence and make arguments that the therapist took advantage of a very vulnerable patient who came to the therapist for help.
  4. Ensure, as best possible, that the plaintiff will not lose on the statute of limitations.
  5. Retain an expert who specializes in therapist abuse cases to explain the power differential between a therapist and a patient and testify that plaintiff will suffer hundreds of thousands or millions of dollars of losses as a result of the therapist’s misconduct.

John D. Winer

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