Cathy Thayer was employed by the Lafayette Clinic, Inc., in a number of capacities from 1988 to 1997. The clinic was jointly owned by Michael OrRico (a psychologist) and Nizar El Khalili (a psychiatrist). During her employment at the clinic Thayer regularly sought advice from OrRico on her marital situation, as well as on raising her children. OrRico gave her advice on many issues including, for example, the discontinuance of anti-depressants that El Khalili had prescribed and the initiation of an herbal therapy recommended by OrRico. It was undisputed that Thayer never scheduled appointments with OrRico, nor was she ever billed for his services.
Sexual relations between a therapist and his/her client are forbidden by statute or regulation in many jurisdictions and by the standards of many mental health societies.
Thayer and OrRico initiated a sexual relationship in January 1997 that lasted for almost one year. OrRico terminated the affair after Thayer resigned from the clinic in September 1997. Thayer and her husband initiated a lawsuit against OrRico alleging medical malpractice, and specifically alleging that OrRico had a duty to manage the countertransference phenomenon, in which patients believe that they are in love with their therapist and that he/she reciprocates the feelings. Sexual relations between a therapist and his/her client are forbidden by statute or regulation in many jurisdictions and by the standards of many mental health societies.
OrRico moved for summary judgment on the grounds that there was no therapist-patient relationship between him and Thayer. The trial court granted the motion and dismissed the action. The court of appeals, however, determined that there were genuine issues of material fact regarding the existence of a professional relationship that a jury must decide. The court laid out the elements of the test for a therapist-patient relationship as follows: (1) whether the individual consulted with or was examined by the therapist for the purpose of receiving treatment; (2) whether the therapist made a recommendation to the individual regarding his or her condition or as to any course of treatment; and (3) whether the therapist performed some affirmative act which would support an inference that he or she consented to the establishment of a therapist-patient relationship. While the fact that Thayer never made appointments with OrRico nor was billed for his services may be factors that the jury can consider, they are not dispositive of the issue. Accordingly, the trial court's ruling was reversed.
Once the psychotherapist-patient relationship is established, then the practitioner has a duty to act toward the “patient” within the standard of care. In this case, that includes making proper adjustments of Thayer's medications, as well as handling the countertransference phenomenon appropriately. A deviation from the standard of care that leads to an injury can lead to a lawsuit. This problem is not frequently seen in litigation, but it is always lurking in the background for practitioners. Informal communications and informal relationships can cause problems that are not readily apparent. The practitioner may respond to a specific question without all of the necessary information on the person's history or co-morbid conditions, and this can lead to problems. Additionally, if the practitioner's insurance is obtained through an employer, does it only cover activities within the scope of employment, thereby excluding coverage for informal relationships?
Practitioners in these situations should always ask themselves: Where is the quid pro quo in this for me? If the benefit of giving the informal advice does not outweigh the risk of giving it, it might be best to refrain.
Thayer v. OrRico, 792 N.E. 2d 919 (Ct. App. Ind. 2003)
Editor's Note: TAP is pleased to introduce a new feature. Attorney John C. West has agreed to outline instructive malpractice suits which have actually occurred and are now part of the public record. The cases are intended to be useful for the practicing psychoanalyst or psychoanalytic psychotherapist. The cases chosen are intended to be educational and to highlight common areas of risk. Frenkel is the exclusive liability insurance carrier for members of APsaA.
John C. West, J.D., M.H.A., is a senior health-care consultant with Global Loss Prevention, Inc., a Chartis company. This column constitutes general advice not legal advice. Readers should consult with counsel for legal concerns. For questions or comments contact .