New Types of Lawsuits Result in Increased Liability for Clinicians
Marti Kranzberg, PhD, CGP

In “First Ever Criminal Charges Filed In Recovered Memory Case” (October/November 1999), I reported that the practice of recovering “repressed memories” in psychotherapy has spawned new types of lawsuits and increased legal exposure for therapists. The article described a Houston, Texas, criminal suit against five persons involved in an inpatient treatment program for people with multiple personality disorder, allegedly caused by ritualized sexual abuse in cults. Criminal charges were filed by the federal government alleging that group therapy was fraudulent because individual patient’s treatments were “contaminated” by other patients in a therapy group. The case ended in a mistrial before defense attorneys were able to present their case. Consequently, the allegation that group therapy tainted the individual therapy was neither proved nor disproved. Further, the implication that individual therapy is the “real” therapy and group therapy is experimental or scientifically untested was not legally challenged. The result is an unsettling, implied challenge to the validity of group as therapeutic treatment.

The story did not detail two other types of lawsuits—ones by former clients and ones by family members of clients. These lawsuits warrant exploration because they are putting clinicians at risk in some disquieting ways and may leave group therapists open to new charges of misconduct. 

Lawsuits by Former Clients 
Former clients’ legal standing to sue their therapists has never been in question, and over the years, clients have sued their therapists over a host of issues including sexual misconduct and other types of malpractice. In this relatively new area of litigation, however, former clients are charging that their therapists “implanted” false memories during the course of therapy. Furthermore, they are charging that their therapists failed to follow “acceptable procedures” in their attempt to help clients to recover memories. These “unacceptable” procedures include the use of sodium pentothal, misapplication of hypnotherapy, interpretation of “body memories,” trance writing, age regressions, guided visualization, sexualized dream interpretation and misleading bibliotherapy. Of special interest to AGPA members is the inclusion of “coercive group therapy” and “high pressure survivor groups” in this litany of questionable therapeutic procedures. In particular, survivor groups have been charged with implanting memories, encouraging intense dependency on the group, and discouraging people from graduating or leaving the group. 

In addition to malpractice, some recanters (clients who disavow their former beliefs that they were abused) have charged that therapists have focused more on the recovery of childhood sexual abuse than on the client’s presenting problem. Most of these suits have been filed recently at the lower court levels, and appellate courts have not had an opportunity to review them. Consequently the legal effects will not be known for several years.

Suits by Parents of Adult Clients
Typically, a legal duty exists only between clinician and client and does not extend to any outside party with the exception of a narrowly defined duty to protect an identifiable victim from imminent harm (the Tarasoff doctrine). Even Tarasoff, however, has been struck down by some state courts. In Texas, for example, the Texas Supreme Court ruled in the summer of 1999 that clinicians are not obligated to warn potential victims. In fact, if they do, they may be held liable for breach of confidentiality by the client who made the threat.

Until recently, only clients have been permitted to sue their therapists for harm. In a new area of litigation, family members accused of abusing their children have filed suits against therapists of their adult children for alleged harm done to the family members. Rulings in favor of these family members could mean that therapists are responsible for protecting not only clients, but also their families. Suits of this type have met with mixed judgments, and their value as legal precedents is yet to be determined. Nonetheless, some disconcerting lawsuits are making their way to the courts.

In a landmark case, Ramona v Ramona, a California court awarded $500,000 damages to the father of a client who uncovered “repressed memories” of molestation and rape by her father. Gary Ramona sued his daughter’s therapist charging that he had been harmed by the therapist’s behavior after the accusations of his actions spread throughout his community and resulted in the loss of his family, career, and reputation. This judgment was noteworthy because it was the first time that a therapist was held legally responsible for harm to someone who was not a client. 

The courts have also permitted family members to sue their adult children’s therapists for estrangement of patients from their families as a result of recovered memories in therapy. In Truman v. Genesis, parents of a client were permitted to sue for breach of contract because the parents had paid for their daughter’s treatment. In an unsettling attack on group therapy, the parents were also permitted to sue for slander because of statements their daughter made to group therapy members. This case only established grounds on which suits could be filed; the liability of the therapist had not yet been established in a 1996 article detailing the case. In another slander suit, a psychiatrist was held liable for telling family members about the alleged abuse of a client. 

Despite the unusual circumstances of the cases described in this article, it is uncertain whether third-party malpractice suits will become routine because no clear duty exists between clinician and the families of clients. Charges of slander, however, may become more commonplace especially if clinicians encourage family confrontations and, perhaps, when group therapy is involved.

Group Therapy
For group therapists, the inclusion of group therapy in the category of techniques that are “non-traditional,” “experimental,” or “coercive” is, indeed, troubling. Confusion between group therapy led by a well-trained, skilled clinician and leaderless peer groups or recovery groups may result in a contamination in which all groups become suspect. Knapp & VandeCreek (1996) wrote that survivor self-help groups are vulnerable to zealous leadership with pseudoscientific explanations and grandiose leadership with an intrusive impact on members. Therapy groups, led by professionally trained clinicians with scientific backgrounds and instruction in professional ethics, are less likely to result in the extreme dependency and isolation engendered by some self-help groups. 

Knapp & VandeCreek (1996) suggested that clinicians reduce their liability by adhering to appropriate boundaries, diagnosing carefully, using sound clinical techniques, obtaining informed consent and “showing concern for patients’ future relationships with their families” (p. 2). Furthermore, they suggested that clinicians be wary of retrieving lost memories and be aware that family confrontations should be carefully considered and handled cautiously. They warn clinicians to document treatment carefully and consult with other professionals as part of a self-monitoring and self-improvement process. 

Conclusion
In this litigious climate, lawsuits against clinicians are becoming alarmingly commonplace. New vulnerabilities exist as clinicians may be held liable for harm to persons not their clients or by former clients for unacceptable procedures. Specific treatments, including group therapy, are being challenged as negligent or fraudulent. For group therapists, the inclusion of group therapy in the category of techniques that are “non-traditional,” “experimental,” or “coercive” is, indeed, extremely troubling. While the impact of these cases on the practice of group psychotherapy is still unknown, the trend of increased liability and vulnerability for clinicians is clear. 

This article was published in the June/July 2000 issue of The Group Circle.