Forensic Corner; Another Duty
Lee H. Haller, M.D.
By now, psychiatrists are well aware of the Tarasoff
decision and have come to accept the fact that, in many
jurisdictions, the therapist has a duty to the public,
as a third party, that supercedes the doctor's duty
to the patient. Now, two state appellate courts have
created another new "duty" to third parties.
In the first case, which occurred in Pennsylvania,
a minor accused her father of inappropriate sexual touching.
As a result, she was removed from the home. An investigation
was conducted by the state agency, which determined
that abuse had occurred. The agency referred the child
to a child psychiatrist for treatment. The doctor did
not do an independent evaluation of abuse, but accepted
the data from the social service agency and psychologist.
Diagnoses of depression secondary to sexual abuse and
PTSD were made and treatment was begun. During the course
of the therapy, the psychiatrist testified, in courtroom
proceedings against the parents, that they had abused
the child.
Another psychiatrist was hired to perform an independent
evaluation of the child. That doctor concluded that
no abuse had occurred. Subsequently, the child recanted
her allegations and her parents sued the child psychiatrist
for negligent treatment. The jury found in favor of
the patient and her parents. The ruling was affirmed
on appeal. The appellate court held that the lack of
a physician-patient relationship between the parents
and the psychiatrist did not bar the parents' suit because
the psychiatrist was treating the patient for sexual
abuse allegedly perpetrated by the parent. The negligent
diagnosis and courtroom testimony by the psychiatrist
directly affected the parents. It was reasonably foreseeable
that such actions by the psychiatrist would result in
harm to the parents (22 MPDLR 387).
A very similar decision came out of a Wisconsin case.
In that instance, a psychiatrist, as well as a therapist,
treated an adult female. The diagnoses were multiple
personality disorder and past sexual and child abuse.
During the therapy, in the presence of the therapists,
the patient confronted her parents about the abuse and
subsequently cut off all relations with them. Subsequent
to the patient's death, the mother, who was also the
administrator of the patient's estate, obtained copies
of the treatment records and, in conjunction with her
husband, sued both the psychiatrist and the therapist
alleging malpractice by virtue of having induced false
memories in the patient. The parents alleged that the
public accusations caused them pain and suffering.
Although the trial court granted summary judgment to
the defendants, the appellate court held that summary
judgment was improper. The court found that the parents
had stated a valid claim, because, even though the therapist
"had no duty to determine the truth of what her patient
is saying, she did have a duty to insure that her treatment
did not cause harm to others when (that) harm was foreseeable"
(22 MPDLR 388).
In both of these cases: a) the allegations were of
negligent diagnosis and treatment; b) the parents of
the patients alleged that they suffered emotional injury
as a direct result; and c) the courts held that the
therapists had a duty to these third parties, even though
the parents were not patients in the treatment.
The lessons to be learned from these cases are several.
First of all, if one chooses to do recovery memory work,
extreme caution must be taken so as not to encourage
the patient to produce memories. Secondly, if a patient
does recall incidents of abuse, the therapist should
not participate in encouraging the patient to act on
these memories. The therapist needs to maintain a neutral
stance, helping the patient look at, reflect on, and
work through the trauma that is believed to have occurred
or, if appropriate, to help the patient explore the
basis for producing fantasized "memories". Thirdly,
the treating psychiatrist should avoid testifying as
an expert witness in any court proceedings related to
the abuse. If such testimony becomes necessary, an independent
evaluator should be utilized. By following these principals,
one can lessen the likelihood of being the object of
this type of litigation.
Dr. Haller is in the private practice of forensic psychiatry
in Potomac, Maryland
AACAP
News/September-October 1998 |
