19 Trial Lawyer • Fall 2023 ally, negligently, inadvertently” and so forth. In other words, this exclusion purports to deny coverage for anything that occurred prior to the sexual relationship. While I do not believe a court would interpret the exclusion that broadly, the best practice is to include non-sexual specifications of malpractice in the complaint and consider even removing the sexual allegations altogether. I also highly recommend engaging one of OTLA’s coverage experts. If you are in a position where you might have to advise a client to accept a lower recovery than what he or she would otherwise obtain without the potential coverage issue, you’ll want to know that you have taken every step to fully compensate your client. SOL challenges Given the intense dependence and emotional entanglement that results from combining a therapeutic and sexual relationship, it is not surprising that the patient may delay recognizing that what happened constitutes a legally cognizable harm. In Sara’s case, even though the defendant moved to dismiss the case as time-barred because it was filed over two years from the termination of Sara’s treatment, I easily defeated summary judgment using both delayed discovery and estoppel principles. I successfully argued that her claim did not, and could not, accrue while Sara was still living with the defendant, and that he was actively manipulating her into staying with him. For the right case, I encourage practitioners to look at ORS 12.118, which provides a five-year statute of limitations for cases involving sexual assault. It’s also worth remembering the “fraud, deceit or misleading representation” exceptions to the five-year statute of ultimate repose in professional malpractice cases. ORS 12.110(4). Challenges and hope These cases are always emotionally taxing for the client and often for the attorneys who handle them. People who have their trust violated by a professional often have trouble trusting other professionals, which can make the attorney-client relationship challenging. Moreover, many clients are still in the throes of despair following the end of these therapeutic relationships, often feeling some ambivalence or guilt about reporting the therapist. Some may not have sought mental health care from a new provider yet. Thus, establishing clear boundaries from the beginning is especially important in these cases, and you should not try to fill the void that has been left by the former therapist. Be a good listener, be empathetic, but you do not need to field numerous calls and emails every day from your client absent an emergency. It’s also incredibly important to assist your client with finding a new therapist and ensuring they are in the right mental space to move forward with litigation. But for all of the challenges, these cases are fascinating and righteous, and you often get the benefit of helping someone move from one of the lowest points in their life to a positive, hopeful path. Seeing the contrast between Sara’s first visit to my office with her last visit heartens me, as I see that while she continues to struggle and will be in therapy indefinitely, she feels lighter and more confident in her ability to make a life for herself without Dr. Smith. Barb Long represents survivors of sexual abuse and other crimes in civil actions against individuals and institutions. Long contributes to the OTLA Guardians of Civil Justice at the Rising Stars level and is the principal at Long Law PC, 101 SW Main St. Ste., 1900, Portland, OR 97204. She can be reached at barb@longlaw.com or 503-228-9858. 1 This article uses the term “therapist” to refer to any licensed professional (such as a psychologist, licensed clinical social worker, professional counselor, etc.) who provides therapy or counseling to individuals, couples, or families.
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