James, the adoptive father of Kathleen, filed a lawsuit against Kathleen’s therapist, alleging that he was wrongfully accused of sexually abusing his daughter because the therapist implanted the idea in her mind. Father’s lawsuit for malpractice against the therapist was dismissed by the Court. An Appellate Court reviewing the case agreed. Trear v. Stills (1999) CA 4th; 1999 Daily Journal DAR 1478.
In 1992, the daughter sued father alleging that she had been raped and sexually assaulted by father commencing at age 6 months. Daughter was born in 1945and stated in her lawsuit that she had no memory of the abuse until 1991, when the Defendant therapist diagnosed her as having suffered from this childhood sexual abuse. Father further alleged that the therapist encouraged daughter to file a lawsuit against her father. In 1994, father sued the therapist, alleging that harm to him was foreseeable from the diagnosis rendered as a result of malpractice.
In upholding the dismissal of the lawsuit, the Appellate Court notes that the therapist had no duty to the parent of an adult patient. The idea that childhood sexual abuse may result in suppression of the memory is a matter of great controversy within the psychotherapeutic community. California, reacting to recovered memory issue, enacted in 1986 a statute of limitations for childhood sexual abuse, requiring that a lawsuit be filed within three years from the date the Plaintiff discovered or reasonably should have discovered a psychological injury or illness occurring after reaching adulthood was caused by sexual abuse. Code of Civil Procedure, Section 340.1(a). The recovered memory theory has been criticized severely. The False Memory Syndrome Foundation formed in 1992 by a group of families damaged by false accusations of child abuse, continues to combat repressed memory theory. The theory itself may not be well enough accepted to even be admissible in Court any longer.
The harm caused by a false allegation of child abuse is obviously substantial. Certainly the therapist was aware that a false allegation of sexual abuse would be crushing to father. However, the legal duty to protect against such harm is not based simply on the issue of how foreseeable the harm is. Father suing the therapist is not the same as the patient suing the therapist. It is also not the same as a case where a therapist would expand the relationship to include treatment of the parents.
The therapist should not be required to serve two masters. The debate concerning repressed memory of childhood sexual abuse goes back 100 years to Freud. As the argument reappeared in the late 1970’s and 1980’s, many states, including California, reacted by modifying their statues of limitations to accommodate such claims. The therapist did have the right to at least explore in good faith the possibility of abuse by a parent. If abuse is discovered, obviously there will be implications to it. Should the therapist be placed in a position of not diagnosing childhood sexual abuse and thereby protecting an alleged abuser above the need of the patient to advance? THerapy is not an exact science. It would be unworkable for a therapist acting in good faith to have to choose between a patient and a possible abuser if the therapist became liable to the alleged abuse for a false report. These inherent conflicting pressures on the therapist act to the detriment of the patient. Often times these claims of sexual abuse, unless reported immediately, will lack objective verification and must be settled based upon the testimony of the parties.
The California Court noted that other states have reached a different conclusion in considering this issue. The Appellate Court distinguished an earlier California Supreme Court case allowing a lawsuit against a university hospital where the therapist released a mental patient after the patient confided to a psychologist employed by the hospital an intention to kill a particular person. The murder did occur, and a lawsuit was brought. The Court allowing the suit made that decision based upon accepting the truth of the patient’s stated intention to do harm. The foreseeability of harm to a particular person. However, in the recovered memory of sexual abuse cases, the therapist making a diagnosis certainly will cause harm to the accused parent. However, in failing to make the diagnosis, the harm is to the patient.
It is important to note in looking at the case, the Court is not prohibiting a claim being made by the patient against the therapist. In fact, if daughter loses her lawsuit against father and father counter-sues daughter for malicious prosecution, daughter will likely sue the therapist for advising her to sue her father.