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Malpractice claims against psychiatrists1 have steadily increased during the last decade. The number of these claims has multiplied, in part, because more people than ever before are seeking the guidance of mental health care professionals. The therapeutic relation ship between a psychiatrist and his patient is different from any other physician-patient relationship and "results" are often unforeseeable. Nevertheless, the basic elements of a claim of psychiatric malpractice are like any other malpractice claim. The plaintiff must establish that the psychiatrist departed from good and accepted medical practice, and that the departure was a proximate cause of the plaintiff's alleged injury. In mental health related litigation, it is often difficult for a plaintiff to prove these elements due to his or her preexisting emotional status. Even where a prima facie case of psychiatric malpractice can be established, it is sometimes difficult to quantify damages, as in the case of a therapist's sexual misconduct. The Transference Phenomenon
The "transference phenomenon"2 is an integral element of successful psychoanalysis. This phenomenon results when a patient transfers to the therapist feelings, attitudes and attributes which properly belong to a significant attachment figure of the past, resulting in an emotional reaction by the patient to the analyst which produces a relationship similar to that of a parent and child.3 The patient is then liberated of the need to interact on an adult level and is empowered to focus on innermost thoughts and feelings which are projected onto the therapist, who has come to embody some person from the patient's past.4 A powerful dependence by the patient upon the analyst is created by this transference process. The hallmarks of this relationship are a remarkable faith and trust which develop into a love relationship. If allowed to develop, such a relationship can deprive the patient of his or her independent judgment and ability to distinguish the reality of his or her interaction with the analyst. The transference phenomenon renders the patient vulnerable and susceptible to the influence and suggestion of the analyst. This vulnerability however, is an accepted aspect of psychotherapy in which trust allows candid and uninhibited conversation leading to the resolution of the patient's emotional conflicts. It is the responsibility of the therapist to reject the patient's erotic overtures and explain to the patient the true origin of his or her feelings. Given the nature of the psychiatrist/patient relationship, sexual misconduct by mental health care professionals is especially egregious. Although this claim is not the most prevalent type of claim asserted against an analyst, it accounts for the largest percentage of payout.5 Assuming the veracity of the plaintiff's allegations, it would appear that such a claim would prove to be indefensible.6 Even where there are accusations of sexual relations after the termination of therapy, plaintiffs have prevailed. In Noto v. St. Vincent's Hospital,7 for example, the trial court determined that sexual relations with a patient after the termination of the professional relationship was actionable. Moreover, both the California and Minnesota legislatures8 have created a cause of action for money damages against a psychotherapist for sexual contact, if the sexual contact occurred within two years after the termination of therapy. In Minnesota, however, the plaintiff must demonstrate that he or she was either emotionally dependent on the therapist, or the sexual contact occurred by means of therapeutic deception. Although no such statute exists in New York, the court in Noto determined that such a case was analogous to a cause of action for medical malpractice based on the seduction of a patient. Statute of Limitations
Nevertheless, a significant number of analysts have successfully defended such actions even where there has been an improper manipulation of the analysis for the purpose of engaging in sexual relations with their patients. An analyst's best defense is the statute of limitations.9 It is not unusual for patients claiming sexual misconduct to fail to file their claims within the relevant limitations period. To preserve their claims, plaintiffs often seek to invoke a toll of the statute of limitations by assertions that the transference phenomenon allowed their analyst to gain complete emotional control over them. This psychological control, plaintiffs argue, renders them mentally incapable of filing suit any earlier. The effect of the phenomenon deprives them of their ability to recognize the wrongful conduct or the resulting injury until much later when the statute of limitations has already expired. Plaintiffs have often asserted that it was not until a subsequent therapist informed them of their prior therapist's abusive behavior that they were made to realize both the unprofessional conduct of their former analyst and the resulting injury.10 Generally, plaintiffs seek to toll the statute of limitations by asserting one of the following: (1) the continuous treatment doctrine, (2) the doctrine of equitable estoppel, (3] psychologically repressed memory,11 (4) wrongful concealment12 or (5) duress.13 The continuous treatment toll in a medical malpractice action applies where the treatment by the physician is continuous and where the physician's treatment is directly related to the alleged act of malpractice which forms the basis of the claim. The doctrine rests on the premise that it is in the patient's best interest that an ongoing course of treatment be continued, rather than interrupted by a lawsuit, because the doctor is not only in aposition to identify and correct his or her malpractice, but is best placed to do so.14 In several states, the statute of limitations in medical malpractice cases may be foiled by the "discovery rule." Rather than accruing upon each act of malpractice, the statute begins to run from the date that the plaintiff discovered or by reasonable diligence should have discovered the negligent act which caused his injury. Typically, in jurisdictions where the discovery rule is recognized, a plaintiff will seek to toll his claim by arguing that the statute of limitations should not have begun to run until he knew or reasonably should have known that he may have suffered injury because of the psycho-therapist's conduct.15 A few jurisdictions have held that the limitations statute will be foiled in cases of sexual assault where a plaintiff can demonstrate (1) that he or she had psychologically repressed the memory of the facts upon which the claim is predicated and (2) there is corroboration that the sexual assault by the therapist had in fact occurred.16 Other jurisdictions however, do not permit the use of either the "discovery rule" or the notion of "repressed memory" in order to toll the applicable limitations period for claims of sexual abuse. For example, New York's courts have explicitly precluded such claims staling that "absent statutory authorization, no delayed discovery rule exists..."17 As a result of this rigid posture, time-barred litigants have attempted to assert their cause of action under alternative theories which do allow for lolling of the statute. For example, in Anonymous v. Anonymous,18 the plaintiff asserted her delayed sexual abuse claim under an "insanity disability" which she argued prevented her from timely bringing suit. In the alternative, she argued that the defendant was barred by the doctrine of equitable estoppel from raising the statute of limitations as an affirmative defense, because his own misrepresentations, deception, coercion, and duress were the factors which prevented a timely claim. In order to raise equitable estoppel in a medical malpractice action, the plaintiff must establish that the action was brought within a reasonable time after the facts giving rise to the estoppel have ceased to be operational.19 For example, in some cases of sexual misconduct, psychologists falsely advise their patients that the patient's romantic feelings are not a result of the transference phenomenon in order to continue to sexually exploit them after the termination of the professional relationship. In such cases, the statute of limitations is tolled if the patient can demonstrate that he or she was unable to understand the nature of his or her therapist's malpractice until the love affair was finally denied. For instance, in one New York case,20 a sexual relationship between the therapist and patient although therapy terminated in 1981 continued until September 1985. Plaintiff commenced her action in March, 1986. The defendant argued that the cause of action for malpractice was time barred since the last treatment rendered was in April 1981, more than two and a half years before she filed the action. Nevertheless, the plaintiff demonstrated that, although her romantic feelings about her analyst were a result of the transference phenomenon, her psychiatrist falsely advised to the contrary in order to sexually exploit her. Plaintiff showed that she was unable to understand the defendant's actions as malpractice until he finally denied their love affair in September, 1985. Consequently, the plaintiff was able to justify the long delay between the accrual of the cause of action and the institution of legal proceedings. Therapists often prevail, however,21 because (1) plaintiffs "discover" their injuries long after their treatment has terminated, rendering the continuous treatment doctrine moot; or (2) plaintiffs fail to establish that they did not know and could not have known that they had been injured, rendering the discovery rule ineffective. Courts often conclude that the patient should have discovered their analyst's negligent treatment and the harmful effects on their mental and emotional well being long before filing suit. Moreover, in cases where patients argue that they did not recognize the extent of their injury, courts have found that such plaintiffs had sufficient knowledge of their analyst's wrongful acts and manifested some injury, thereby failing to file their claim within the applicable limitations period.22 A Plaintiff's Sexual History
The statute of limitations is not a psychiatrist's only defense. For instance, a California Court of Appeal recently affirmed the trial court's decision to allow defense counsel to admit evidence of the plaintiff's sexual history for the purpose of determining proximate cause.23 The Court of Appeal reasoned that the trial court had discretion to admit evidence of the plaintiff's sexual history to prove an absence of injury upon a finding that the history was relevant and its probative value outweighed its prejudicial effect. Although plaintiff, in Patricia C. v. Mark D.,24 testified that her analyst had seduced her into committing multiple sex acts during her counseling sessions, the jury was also "informed" that Patricia was a 23-year-old, unemployed, homeless woman who had been abused by her father, had been a prostitute by the age of 13, and had previously worked as a topless dancer. Furthermore, the defendant alleged that his patient, Patricia, was possibly psychotic. Defense counsel argued to the jury that even if the allegations of sexual misconduct were true, there was no damage done to the patient. Defendant ultimately prevailed. Despite the court's analysis, which negated the possible harmful effects of this result, the admission of such evidence will certainly serve to discourage plaintiffs from bringing such claims "out of fear [that] sexual history will become the issue to be tried."25 Male Patients
In some jurisdictions, a party consenting to and participating in the illegal act of fornication cannot recover damages from the other participant for the consequence of that act.26 The rule is limited however, to the extent that the consent must be "freely given without fraud or duress."27 Despite this gender neutral rule, men and women may be treated differently in cases of sexual misconduct. In Trotter v. Okawa,28 a male patient, suffering from depression and a dependent personality disorder, commenced a medical malpractice action against a female clinical psychologist alleging that she initiated sexual contact and engaged in sexual intercourse with him during the course of treatment. Plaintiff argued that although he engaged in sexual intercourse, the circumstances surrounding its occurrence placed him squarely within the fraud or duress exception and allowed him to bring such an action. Although the majority of the Supreme Court of Virginia ultimately recognized that plaintiff's participation was encompassed by the fraud or duress exception and was caused by his therapist's exploitative treatment, three Justices, including the Chief Justice, dissented from the majority stating that:
Although the majority in Trotter ultimately found for the male plaintiff, it is evident that stereotypes of men and women may pervade our judicial system and may lead to an unfair distribution of justice. 1. For purposes of this article, the terms psychiatrist, psychologist, analyst and therapist are interchangeable except where specifically limited in the discussion.2. Mansfield v. Watson, 990 F.2d 1258 (9th Cir. 1993); S. Waldron-Skinner. A Dictionary of Psychotherapy, p.364 (1986) (cited in St. Paul Fire & Marine Ins. Co. v. Love, 459 N.W.2d 698 (Minn. 1990)); Simmons v. United States, 805 F.2d 1363(9th Cir. 1986). 3. See S. Waldron-Skinner, A Dictionary of Psychotherapy, p. 364 (1986) (cited in St. Paul Fire & Marine Ins. Co. v. Love, 459 N.W.2d 698 (Minn. 1990)). 4. See Schmidt, J.., Attorney's Dictionary of Medicine T-115 (1986). 5. See Blinder, M.D., Psychiatry in the Everyday Practice of Law 13.1 (Clark Boardman Callaghan 1993). 6. Omer v. Edgren, 38 Wash. App. 376, 685 P.2d 635 (1984); Mazza v. Huffaker, 61 N.C. App. 170, 300 S.E.2d 833(1983); Cotton v. Kambly, 101 Mich. App. 537, 300 N.W.2d 43 627 (1981); Roy v. Hartogs, 85 Misc. 2d 891, 381 N.Y.S.2d 587 (App. Term, 1st Dept. 1976). 7. 142 Misc. 2d 292, 537 N.Y.S.2d 446 (N.Y. County 1988), affd, 160 A.D.2d 656, 599 N.Y.S.2d 510 (lst Dept. 1990), app. denied, 76 N.Y.2d 718, 564 N.Y.S.2d 718. See also Roy v. Hartogs, 81 Misc. 2d 350, 366 N.Y.S.2d 297 (Civ. Ct., N.Y. County 1975), affd, 85 Misc. 2d 891, 381 N.Y.S.2d 587 (1st Dept. 1976). 8. Cal. Civ. Code 43.93; Minn. Stat. 148A.OI et seq. 9. See, e.g., Roe v. Jefferson, 875 SW.2d 653 (Tenn. 1994); Koren v. Weihs, 190 A.D.2d 560, 593 N.Y.S.2d 222 (1st Dept. 1993); Hickey v. Askren, 198 Ga. App. 718,403 S.E.2d 225 (1991); Lenhard v. Butler, 745 S.W.2d 101 (Tex. Ct. App. 1988); Docker v. Fink, 47 Md. App. 202, 422 A.2d 389 (1980). 10. See Riley v. Presnell, 409 Mass-239, 565 N.E.2d 780 (1991). The plaintiff was an epileptic male with some emotional difficulty. Some months into therapy the defendant introduced alcohol and marihuana into therapy sessions which continued throughout four years of therapy. Moreover, the defendant dispensed liberal prescriptions of valium and persuaded his patient to engage in sexual acts with him. The defendant told his patient not to tell anyone of their "special" therapy and then abruptly terminated the therapy without referring his patient to another analyst. The following year, Riley began therapy with another psychiatrist. Although Riley told his new therapist about his therapy with Dr. Presnell, and although his new therapist told him that the sexual acts were totally inappropriate, his new analyst did not tell him that any of his psychological problems were caused by the substandard treatment. Plaintiff claimed that it was not until 1984, four years after his treatment ended with Dr. Presnell, that he met a former patient of Dr. Presnell (who had been similarly abused) and realized the causal link between his condition and the treatment he received from Dr. Presnell. Accordingly, the court concluded that summary judgment in favor of Dr. Presnell was inappropriate because a reasonable fact finder could conclude that Riley did not make the causal link and his failure to do so until 1984 was reasonable. Hence, the statute of limitations was foiled by the discovery rule. 11. See Ulibarri v. Gerstenberger, 178 Ariz. 151, 871 P.2d 698 (1993). The defendant had a sexual affair with his patient while treating her in 1983 and 1984, but she did not file suit until 1990. Although Dr. Gerstenberger raised the statute of limitations defense, plaintiff argued that she did not discover and could not have discovered the wrongful acts until 1990, because her memory of events was impaired due to hypnotic suggestions made to her by the defendant. She alleged that be had conducted the sexual activity while she was under hypnosis and had given her posthypnotic suggestions that she would not remember his conduct. Despite the fact that defendant alleged that the affair was consensual, the court tolled the statute of limitations concluding that the defendant wrongfully concealed his malpractice by means of hypnosis causing a mental impairment which prevented her from timely discovering and filing her claim. Meiers-Post v. Schafer, 170 Mich. App. 174, 427 N.W.2d 606 (1988). 12. Id. 13. Id.; see also Trotter v. Okawa, 445 S.E.2d 121 (Va. 1994); Jones v. Jones, 242 N.J. Super. 195, 576 A.2d 316 (App. Div. 1990). 14. See Koren v. Weihs, 190 A.D.2d 560, 593 N.Y.S.2d 222 (1st Dept. 1993); Hickey v. Askren, 198 Ga. App. 718, 403 S.E.2d 225 (1991); Lenhard v. Butler, 745 S.W.2d 101 (Tex. Ct. App. 1988). See also Nykorchuck v. Henriques, 78 N.Y.2d 255,258 (1991). The Court reasoned that because a doctor of psychology was not enumerated as a health care provider pursuant to the Medical Liability and Insurance Improvement Act. the continuous treatment toll, afforded by the Act, was not available to plaintiffs. 15. See Roe v. Jefferson, 875 S.W.2d 653 (Tenn. 1994); Hickey v. Askren, 198 Ga. App. 718, 403 S.E.2d 225 (1991); Riley v. Presnell, 409 Mass. 239, 565 N.E.2d 780 (1991); Decker v. Fink, 47 Md. App. 202, 422 A.2d 389 (1980); Lenhard v. Butler, 745 S.W.2d 101 (Tex. Cl. App. 1988). 16. See Ulibarri v. Gerstenberger, 178 Ariz. 151, 871 P.2d 698, 704 (1993); Meiers-Post v. Schafer. 170 Mich. App. 174, 427 N.W.2d 606 (1988). 17. Bassile v. Covenant House, 191 A.D.2d 188, 594 N.Y.S.2d 192 (1st Dept. 1993). A thoughtful and compelling decision can be found in the lower court decision, 152 Misc. 2d 466, 575 N.Y.S.2d 233 (Sup. Ct., Nassau Co. 1991), affd, 191 A.D.2d 188 (1st Dept. 1993). 18. 154 Misc. 2d 46, 584 N.Y.S.2d 713 (Sup. Ct., Suffolk Co. 1992). 19. See Coopersmith v. Gold, 172 A.D.2d 982, 568 N.Y.S.2d 250 (3rd Dept. 1991). 20. Id. 21. See, e.g., Roe v. Jefferson, 875 SW.2d 653 (Tenn. 1994); Koren v. Weihs, 190 A.D.2d 560, 593 N.Y.S.2d 222 (1st Dept. 1993); Hickey v. Askren, 198 Ga. App. 718, 403 S.E.2d 225 (1991); Lenhard v. Butler, 745 S.W.2d 101 (Tex. Ct. App. 1988); Docker v. Fink, 47 Md. App. 202, 422 A.2d 389 (1980). 22. See Hickey v. Askren, 198 Ga. App. 718, 403 S.E.2d 225 (1991). 23. Patricia C. v. Mark D, 12 Cal. App. 4th 1213, 16 Cal. Rptr. 2d 71 (1993). 24. Id. 25. Id. 26. Zysk v. Zysk, 239 Va. 32, 404 S.E.2d 721 (1990). 27. Id. 28. 445 S.E.2d 121 (Va. 1994). 29. Id. (New York Negligence Reporter, Matthew Bender, Vol. 6, No. 10, October 1995)
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