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Recovered Memory and the Third Wave
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Friday, 30 November 2001 20:09

The first wave was plaintiff lawsuits against alleged perpetrators. Beginning in 1989, the State of Washington enacted the "delayed discovery rule"[1] thereby opening up the possibility for adult victims of childhood sexual abuse to sue their perpetrators, after having recovered memories of the abuse some 20 to 30 years later. The second wave involved plaintiff lawsuits against therapists for alleged recovered memory therapy.[2] Plaintiffs began filing these suits in 1993, with the height of the lawsuits occurring between the years of 1995 and 1998. The third wave began shortly thereafter-in 1994, when falsely accused parents began alleging spectral evidence. The first such successful third-party suit was the Ramona case wherein Holly Ramona accused her father based upon recovered memories of CSA.[3] While some feared the Ramona ruling would change the face of third-party lawsuits and open the floodgate to such suits by jeopardizing the confidentiality clause,[4] it should be noted that in the Ramon case, Holly Ramona waived her confidentiality rights, thereby allowing the plaintiff's attorney to subpoena the therapy records during discovery. As the third wave gathered steam, several issues with regard to third-party suits have entered into the debate. While the goal of the court has been generally to determine liability with regard to an "ex-patient" plaintiff, such determination, when considering these suits, rests upon the question of whether a therapist owes a duty to a third-party.[5] Numerous papers have been written addressing both the therapeutic and legal issues involved in these lawsuits (Bowman,[6] Finer,[7] Slovenko,[8] Loftus,[9] ). One such article is that written by Dr. Stephen Behnke, JD, Ph.D., "Old duties and new: recovered memories and the question of third-party liability."[10]

Dr. Behnke explores the issues put forth by both plaintiffs and defendants, carefully examining their claims. Unlike third-party suits based upon the Tarasoff ruling,[11] he points out that third-party RMT litigation tends to focus primarily on the question of reasonably foreseeable harm, grievous nature of the harm, protection of family integrity, along with issues of negligence with regard to standards of care. In order to acquaint the reader to the courts' differing views of reasonably foreseeable harm, he begins by introducing the reader to the Palsgraf case, wherein a woman was injured due to an indirect incident involving workers at the Long Island Railroad Co.[12] He also discusses at length the points in support of the defendants as well as those in support of the plaintiffs, by exploring the key arguments put forth by both sides in the cases of Doe v McKay,[13] Flanders v Cooper,[14] Trear v Sills,[15] and Hungerford v Jones,[16] noting that of the four cases, Hungerford was the only case to win. Of the remaining three cases, he examines to some degree the courts' reasons for judging in favor of the defendant[17] and concludes with a well-reasoned argument against third-party RMT suits. Among his arguments were those involving "provider-patient relationship, patient's autonomy, the quality of treatment, the prevention and detection of child abuse, and the effect on confidentiality" (p. 299) When taking into account the various plaintiff cases, both those discussed by Dr. Behnke, as well as numerous others, along with articles arguing both for and against third-party suits, Behnke's arguments are worthy of further investigation.

For example, while it is true that negligent therapeutic practices can cause egregious harm, to not only the client but to that of their family members as well, those practices that fall within the standards of care must be protected. The argument here is primarily based upon the requirement of protecting the therapeutic relationship. If this relationship is jeopardized, the benefits gained in a therapist-client relationship are lost due to potential privacy invasion via third-party litigation along with conflicts of interest on the part of the therapists. Furthermore, if the courts were to rule based upon foreseeable harm, then such a ruling insists therapists investigate and verify all claims of abuse before proceeding on a therapeutic path to assist their client in dealing with said abuse, or, in the case of a child, prevents the therapist from responding legally and responsibly to claims of abuse. It has often been put forth that a therapist is not an investigator. In order for the therapist to investigate claims of abuse requires not only time but in most states would require a private investigator's license as well. Clearly the therapist can neither confirm nor deny claims of abuse by a client. However, the purpose of the therapeutic relationship is to determine what these claims mean to the client regardless of whether they are true or not. Additionally, the complainant has often raised issues regarding loss of consortium. This is worthy of consideration with regard to a minor child, where the mother-patient is the primary caretaker. That the court be asked to hold a therapist accountable for the relationship between two adults however impugns the ability of the patient to make his or her own decisions and is unlikely to result in a restoration of the relationship regardless of the outcome of the suit. It also is understandable that the plaintiff may wish to reunite with their estranged adult son or daughter, however the courts have thus far ruled that therapists should not be held accountable for the estrangement if they cannot be shown to have actively engaged in advising their client to break contact with their family. The following questions raised figure prominently in many of the rulings as can be evidenced in the opinion by the Wisconsin Supreme Court, wherein the plaintiffs had filed a negligence suit and motioned for a judgment against their late daughter's estate.[18]

3. (1) May the parents of an adult child maintain third-party professional negligence actions wherein they allege that the defendants' negligent therapy and psychiatric care resulted in the implanting and reinforcing of false memories of sexual abuse in their child?

4. (2) Where a patient has not sustained physical injury, do claims of professional negligence on behalf of the patient's estate for "pain, suffering and disability, medical, psychiatric and psychological expense and loss of enjoyment of life," survive under Wis. Stat. S895.01 and/or are such claims otherwise barred on public policy grounds?

5. (3) Does Wisconsin's discovery rule extend the statute of limitations for the Sawyers' claim for negligent infliction of emotional distress sustained as a result of a meeting that took place in 1985?

6. (4) Does the doctrine of laches bar claims that the defendants engaged in negligent therapy and psychiatric care resulting in the implanting of false memories of sexual abuse in a patient where the patient's parents and the adult patient's Estate brought the claims after the patient's death?

The record shows the plaintiff's daughter may have raised issues of recovered memories of CSA before she entered into therapy. The resulting dismissal and the claims against the deceased's estate that was affirmed in part and reversed in part in the appeals court was affirmed in the Supreme Court of Wisconsin. Justice Wilcox opinion summarized the common issues that have been raised with regard to third-party suits when he wrote:

83. Despite the limited nature of the majority's holding, I am still concerned that by allowing this suit to go forward others will soon follow. From a public policy standpoint, such actions may place an unreasonable burden on therapists' treatment choices and on confidentiality between therapists and patients.

84. The majority dismisses the defendants' public policy concerns relating to the restriction of a therapist's choice of treatments. I however believe that the concerns expressed by the Illinois Supreme Court are well-founded.

Approval of the plaintiff's cause of action, however, would mean that therapists generally, as well as other types of counselors, could be subject to suit by any nonpatient third party who is adversely affected by personal decisions perceived to be made by a patient in response to counseling. This result would, we believe, place therapists in a difficult position, requiring them to answer to competing demands and to divide their loyalty between sharply different interests. Concern about how a course of treatment might affect third parties could easily influence the way in which therapists treat their patients. Under a rule imposing a duty of care to third parties, therapists would feel compelled to consider the possible effects of treatment choices on third parties and would have an incentive to compromise their treatment because of the threatened liability. This would be fundamentally inconsistent with the therapist's obligation to the patient . . . to the patient's ultimate detriment.

Doe v. McKay, 700 N.E.2d 1018, 1023-24 (Ill. 1998). The mere threat of a lawsuit may ultimately hinder beneficial treatment by therapists and/or counselors.

. . . .

86. As the United States Supreme Court has recognized, effective therapy "depends upon an atmosphere of confidence and trust" in which the patient is willing to completely disclose facts, emotions, memories and fears, generally of a very sensitive nature. Jaffee v. Redmond,[19] 518 U.S. 1, 10 (1996)(extending therapist privilege to social workers). Disclosure of such sessions may cause embarrassment or disgrace, and "the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment." Id.

87. By allowing third-party actions against therapists, patients may be faced with a difficult choice between preserving the confidentiality of patient-therapist communications or assisting the therapist in responding to the action. "The [physician-patient] privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance." Id. at 11. Because of the strong public interest in effective treatment, and in maintaining confidentiality between the therapist-patient, I believe we must be cautious in imposing a broad duty of care toward third parties.

Even with these considerations in mind, the question remains under what circumstances should third-party suits be allowed to move forward? When taking into account various rulings and in light of the very serious issues of allegations of CSA, there are some situations that warrant a ruling in favor of the plaintiffs. Such situations often involve a clinician who moves well beyond their requisite duty and into the courtroom.[20]

At Jones' direction, Laura ceased all contact with her father in October 1992. The following spring, Jones' continuing direction and support led Laura to file a complaint against her father for aggravated felonious sexual assault with the Amherst Police Department (police). Jones contacted the police to validate the truth of Laura's recovered memories, convey her belief that Laura was assaulted by Hungerford, and encourage his prosecution as a means of "empowering" her patient. Jones also met with the Hillsborough County Attorney to further assist in the prosecution.

In situations such as this, the court has determined the therapists' involvement outside of the therapeutic setting was found to be actionable. While the Hungerford case elucidated the very real issues involved when a claim of CSA based upon recovered memories is acted upon, very few cases are as clearly defined. Such an example can be found with regard to the Johnson case.[21]

A major concern raised with regard to the Johnson case involves the confidentiality clause[22] in that the plaintiffs put forth a motion for access to their daughter's therapy transcripts. This request was denied and the case was dismissed on the basis of public policy.[23] Recently, however, the judgment was reversed and remanded on the basis of insufficient factual records to determine whether the original reason for the dismissal is required to proceed with the case.[24] The confidentiality clause[25] was the foundation of the case's original dismissal, and is by far the most compelling argument against such lawsuits. It should be noted, however, upon a closer examination of the Johnson case, that the reversal did not involve a question with regard to overriding the client's rights to confidentiality. The premise for the reversal involved the question with regard to whether the client's records are required for the plaintiff to move forward with their suit.[26] What is additionally obscured with regard to this case is the fact that the Johnson's paid for their daughter's treatment, which began when their daughter was a minor under their supervision. It was not until she reached the age of majority that she broke ties with her family on the grounds of alleged CSA. The Johnsons also met with their daughter's treators prior to her estrangement with them.

In summary, while third-party suits should not be summarily barred from being heard, the implications both for and against such cases add to the complexity of the final decision. The issues remaining under debate are those of patient autonomy, therapeutic relationship, as well as that of "alleged" mal-practice that, in and of itself, has far reaching implications, the least of which involves rapid deterioration of the patient, which in some instances, has resulted in death, along with potential life threatening consequences for an individual who is falsely accused. While arguments both for the plaintiff and for the defendant have merit to varying degrees, these cases must be evaluated individually due to their diverse levels of complexity, as can be evidenced by the preceding examples; whose outcomes will likely set new and perhaps unexpected precedents with regard to case law.


  • Wash. Rev. Code Ann. s 4.16.340
    West Supp. 1989

  • Carlson v Humenansky
    No. CX-93-7260, 2nd Dist., Ramsey Co., Minn. [December 29, 1995].

  • Ramona v Isabella
    Case No. 61898 [Cal. Super. Ct. 1994].

  • Rule 504. Psychotherapist-Patient Privilege
    Federal Rules of Evidence.

  • Althaus v Cohen
    710 A.2d 1147 [Pa. Super. 1996].

  • Bowman CG, Mertz E.
    A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy.
    Harvard Law Review, 109:551-639, January, 1996

  • Finer JJ
    Therapist's Liability to the Falsely Accused for Inducing Illusory Memories of Childhood Sexual Abuse Current Remedies and a Proposed Statute.
    Journal of Law & Health. 11:108-115. 1997

  • Slovenko R
    Legal Duty of Therapists to Third Parties
    Psychiatric Times. XVI[8]. August 1999

  • Loftus EF, Paddock JR, Guernsey TF.
    Patient-Psychotherapist Privilege: Access To Clinical Records In The Tangled Web Of Repressed Memory Litigation.
    University of Richmond Law Review. 1996

  • Behnke S.
    Old duties and new: recovered memories and the question of third-party liability.
    Journal of the American Academy of Psychiatry and the Law. 27[2]:279-300. 1999

  • Tarasoff v Regents of Univeristy of California
    551 P.2d 334, 345 [Cal 1976]

  • Palsgraf v Long Island R. Co.
    162 N.E 99, at 100 [NY 1928].

  • Doe v McKay
    700 N.E.2d 1018 [Ill 1998]

  • Flanders v Cooper
    706 a.2d 589 [Me. 1998].

  • Trear v Sills
    82 Cal. Rptr. 2d 281 [Cal. Ct. App. 1999]

  • Hungerford v Jones
    722 A.2d 478 [NH 1998].

  • Hungerford v Jones
    722 A.2d 478 [NH 1998].

  • Johnson, et al. v Rogers Memorial Hospital
    2000 WI App 166, 7 n. 3, 238 Wis. 2d 227, 616 N.W.2d 903. [Wisc. 2000].

  • Jaffe v. Redmond
    518 U.S.1 [U.S. Supr. Ct. 1996]

  • Hungerford v Jones
    722 A.2d 478 [NH 1998].

  • Johnson, et al. v Rogers Memorial Hospital
    2000 WI App 166, 22 n. 2, 238 Wis. 2d 227, 616 N.W.2d 903. [Wisc. 2001].

  • Rule 504. Psychotherapist-Patient Privilege
    Federal Rules of Evidence.

  • Johnson, et al. v Rogers Memorial Hospital
    2000 WI App 166, 7 n. 3, 238 Wis. 2d 227, 616 N.W.2d 903. [Wisc. 2000].

  • Johnson, et al. v Rogers Memorial Hospital
    2000 WI App 166, 22 n. 2, 238 Wis. 2d 227, 616 N.W.2d 903. [Wisc. 2001].

  • Rule 504. Psychotherapist-Patient Privilege
    Federal Rules of Evidence.

  • Johnson, et al. v Rogers Memorial Hospital
    2000 WI App 166, 22 n. 2, 238 Wis. 2d 227, 616 N.W.2d 903. [Wisc. 2001].


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