18 Trial Lawyer • Fall 2023 defendant to the plaintiff; 2) breach of that duty; 3) a resulting harm to the plaintiff measurable in damages; and 4) a causal link between the breach of duty and the harm. Zehr v. Haugen, 318 Or 647, 653-54 (1994).1 Sexual misconduct We’ll start with the most clear-cut malpractice in the scenario: the sexual relationship. Sexual contact with patients is always unethical and creates clear liability. See, e.g. American Psychological Association (APA), 2017, Standard 10.05. Expert testimony is not even required to determine it is a deviation from the standard of care, though proving the degree of injury may require or at least benefit from it. The APA even prohibits sexual contact with a former client for two years following the termination of treatment, and after two years, only under “the most unusual circumstances.” APA, 10.08. In 24 states (not including Oregon), it is actually illegal for a therapist to have sexual contact with a patient. Perhaps surprisingly, in light of these stakes, it’s a common occurrence. A 2019 issue of the Journal of Counseling & Development found that sexual relationships with clients were the third-highest type of ethical violation leading to disciplinary action by state licensing boards. So, what’s the big deal? It’s just sex between two consenting adults, right? Wrong. To begin with, most people who start therapy have done so because they have at least a moderate, if not severe, mental health or life challenge. Anecdotally, the clients whom I’ve represented in these cases came to the therapeutic relationship with severe mental health challenges such as histories of sexual trauma, PTSD, depression, suicidality and self-harm behaviors. Moreover, therapy generally unearths more vulnerability, revealing past events that might carry embarrassment or shame, thoughts that are confusing or frightening, or past transgressions for which the patient feels guilty or remorseful. Pairing this vulnerability with the inherently unequal power dynamic in the therapist-patient relationship is a recipe for exploitation. The damage caused by these sexual relationships is also severe. For one, patients essentially lose their therapist once the sexual relationship has commenced, even if the parties continue to meet in a professional setting. Whatever the treatment goals were, they have now been usurped by the sexual relationship. A therapist cannot effectively provide therapy when objectivity has been lost, judgment clouded, and the therapist has begun to rely on the patient to meet his or her needs. Moreover, therapists who engage in this conduct rarely make an appropriate referral for the patient to a new therapist, fearing the improper relationship will be discussed and reported to the authorities by the new therapist as that therapist is required to do under Oregon law. See ORS 676.150. As a result, the patient often becomes completely dependent on the therapist to meet all the patient’s needs. Additionally, the patient’s trust in the therapeutic process is often shattered, making it that much more difficult to get the help they need and to return to where they were before the improper relationship. Non-sexual malpractice In Sara’s case, there were also numerous instances of non-sexual malpractice. First, Dr. Smith’s improper management of transference (the patient transferring feelings of desire or expectation onto the therapist) and counter-transference (the therapist transferring those feelings onto the patient). The high risk of these improper relationships is precisely why therapists are required to undergo training throughout their career to avoid exactly what happened in this case. Second, whatever your religious beliefs, Dr. Smith conducted the past-life regression therapy improperly, because he also participated in the regressions and told her that they were together in a past life. Third, he failed to properly diagnose and treat Sara’s severe dissociative events and PTSD and, rather than treating these conditions, aggravated them. Her subsequent provider was appalled at Dr. Smith’s conduct. Lastly, Dr. Smith’s failure to refer Sara to a new therapist and ensure continuity of treatment once he lost objectivity constitutes actionable abandonment and is malpractice across the medical spectrum. Coverage exclusions You might wonder why, given the clear liability for the sexual relationship, it’s worth bothering with claims based on the non-sexual malpractice. The answer is simple: insurance. Most insurance policies limit or exclude coverage for sexual misconduct. A common clause excludes sexual abuse as well as “licentious, immoral or other behavior that threatened, led to or culminated in any sexual act; whether committed intentionWeaponizing Care Continued from p 17
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