Therapist who accused patient's parent of sexual abuse owed parent no duty of care.

Mental health workers using the controversial "recovered memory" theory to diagnose childhood sexual abuse in their adult patients need not fear legal reprisal by accused parents, according to a recent California appellate ruling. (Trear v. Sills, 82 Cal. Rptr. 2d 281 (Ct. App. 1999).)

Deciding a question of first impression in the state, the Fourth District Court of Appeals held in February that absent an agreement, therapists do not owe a professional duty to adult patients' parents. In the sexual abuse context, the court found, imposition of a third-party duty would hinder therapists' ability to determine whether their patients had been abused.

The decision arose from a 1992 case in which a then-47-year-old woman sued her adoptive father for having sexually abused her during childhood. The daughter claimed she had no memory of the alleged abuse until 1991, when her therapist diagnosed her as suffering from recovered memories of childhood sexual abuse. The father denied his daughter's charges but reportedly settled the suit before trial.

The father then sued the therapist--who, he said, had implanted the sexual abuse notions in his daughter's mind--claiming professional negligence and other allegations. The lawsuit asserted that had the therapist exercised reasonable care, she would have foreseen the harm to the father resulting from the diagnosis.

The trial court dismissed the case.

Affirming, the appellate court acknowledged that in light of the substantial body of evidence showing that many recovered memory claims are false, there is a temptation to allow parents damaged by the "damning horror" of these claims to sue for professional negligence. Nevertheless, the court said, "to extend the duty of a therapist to persons who have a relationship with the patient in the context of a perceived recovered memory of childhood sexual abuse is to saddle the therapist with a divided loyalty in an inherently adversarial situation."

Moreover, the court found that imposing such a duty would harm the community by discouraging therapists from diagnosing and treating the serious social problem of child abuse.

The court pointed out that the case raised the issue of a therapist's obligation to ensure the veracity of a patient's sexual abuse diagnosis. The court compared therapists to attorneys, who, it said, have no duty in negligence to their clients' adversaries even if the attorneys are unsure about the truth of their clients' positions.

Imposing a duty in the recovered memory context, the court pointed out, would require the therapist to choose between believing the patient or the alleged abuser. Also, forcing therapists to guarantee the accuracy of recovered memory diagnoses would only "chill" their ability to treat patients, the court found.

The court rejected the conclusions of courts in other states that have allowed similar suits against therapists to go forward. Those cases, the California court found, have not adequately considered the verification and conflict-of-interest issues presented by extending a therapist's duty to an alleged abuser.

In Hungerford v. Jones, a related case not cited by the Trear court, the New Hampshire Supreme Court reached a different conclusion. Finding that protecting children from abuse must be balanced with protecting families from false accusations of sexual abuse, the court held that a therapist owes a parent accused of child sexual abuse a duty of care in the diagnosis and treatment of an adult patient when the therapist encourages the patient to take public action regarding the alleged abuse. (722 A.2d 478 (N.H. 1999).)

The court cautioned, however, that breach of the duty is limited to where a therapist uses techniques not generally accepted in the mental health community or lacks professional qualifications.

Lynne Stern Feiges Associate editor, ATLA Law Reporters