Legal News

Parents Make History With $1M False Memory Award

By Matthew Heller, Editor

In a blow to the rights of mental health patients, a Wisconsin jury has awarded $1 million to a couple who claimed malpractice by therapists caused their daughter to have false memories of childhood abuse.

Several patients have won settlements or jury awards of $11 million or more in false memory lawsuits against therapists. But the case of Dr. Charles Johnson and his wife Karen Johnson is the first in which the parents of a patient brought negligent therapy claims ? over the objections of the patient.

The Johnsons sued their daughter Charlotte's therapists for emotional distress, alleging they caused her to make unfounded accusations of sexual abuse and physical abuse against them. One of her memories ?recovered? in therapy was of her father raping her when she was three years old.

Charlotte opposed the lawsuit and testified that she began having memories of abuse before she began seeing the therapists. But a jury in Madison, Wisc., earlier this week awarded the Johnsons $1 million in damages, attributing 70 percent of the liability to therapist Jeff Hollowell, who treated Charlotte at a hospital in Oconomowoc, Wisc., and the remaining 30 percent to Madison therapist Dr. Kay Phillips.

The case took 15 years to get to trial, with the plaintiffs making a key breakthrough in 2005 when the Wisconsin Supreme Court ruled that the therapist-patient privilege did not apply to Charlotte's treatment records. The Johnsons used those records to support their claim that the defendants practiced the controversial ?recovered memory? technique on their daughter.

?They were critical,? the Johnsons' attorney, William Smoler (Hausman-McNally, Madison), tells On Point. ?That was the case.?

But the Johnsons may have opened a Pandora's box, shaking the confidence of patients in the confidentiality of their therapy sessions and forcing therapists to worry about how their treatment choices might affect third parties.

?[T]herapists 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,? a dissenting Supreme Court justice warned in Johnson v. Rogers Memorial Hospital, 700 N.W.2d 27 (2005).

The recovered memory technique is based on the belief that therapists can help patients recover repressed memories of trauma. The Johnsons alleged their daughter's therapists were not only liable for inducing her initial false memories but also for continuing the treatment to the point that she was accusing her parents of being Satanists.

?This case is about whether or not things went wildly astray when common sense wasn't used,? Smoler argued to the jury. ?Instead of dealing with legitimate issues that Charlotte had, this therapy went off into who knows where.?

Several states have found that therapists have no duty of care toward a non-patient based on their treatment of a patient. ?[T]he societal interest in encouraging treatment of child abuse victims and maintaining the trust and confidentiality within the therapist/patient relationship dictates against the imposition of a duty of care beyond that owed to the patient,? the  Pennsylvania Supreme Court said in Althaus v. Cohen, 756 A.2d 1166 (2000).

But in 1999, the Wisconsin Supreme Court recognized that duty, citing ?the great harm that accompanies an accusation of sexual abuse of a child.? Sawyer v. Midelfort, 595 N.W.2d 423. A 5-2 majority of the court then ruled in 2005 that the Johnsons could proceed with their case even though their daughter refused to waive the therapist-patient privilege.

?[T]here is a public policy exception to the therapist-patient privilege and to the confidentiality in patient health care records where negligent therapy causes false accusations against the parents for sexually or physically abusing their child,? the majority said.

Hollowell and Phillips denied using the recovered memory technique on Charlotte Johnson. But her parents were able to show treatment records to the jury in which, Smoler says, ?there were  multiple references to the patient recovering memories of abuse by her father.?

Smoler believes the case won't damage the therapist-patient relationship because of the procedural safeguards that the Supreme Court incorporated into the Johnson decision. Plaintiffs, it said, must show ?a reasonable likelihood that negligent therapy occurred? and the trial court must conduct an in camera review to ensure that ?the records contain relevant information regarding negligent treatment.?

?We had to get affidavits from mental health providers saying, 'This looks like negligent therapy,'? Smoler says.

But Justice Ann Walsh Bradley, dissenting in Johnson, said the majority had gone far beyond ?traditional privilege standards,? noting that courts in criminal cases can only disclose therapy records to a defendant with the alleged victim's consent. ?And yet the court today affords the privilege less protection, though the risk to the Johnsons is far less severe than the risk faced by any criminal defendant,? she said.

Rogers Memorial Hospital, where Hollowell worked, reached a pretrial settlement with the Johnsons. The jury cleared a third therapist, Tim Reisenauer, of liability.

By Matthew Heller
On Point

Full post as published by On Point News on January 26, 2011 (boomark / email).