A Successful Malpractice Action Against a Therapist

by Hollida Wakefield^*

John Doe, an attorney, had known his wife, Elizabeth, for several years when they renewed their relationship after their separations from their first spouses.  They were married a month after Mr. Doe's divorce was final and their daughter, Jane, was born in February, 1980.

John and Elizabeth shared an interest in metaphysics and mystical phenomena and went to a Chinese doctor who practiced acupuncture and treatment with herbs.  They attempted to raise Jane in an atmosphere of openness, permissiveness, and acceptance.  They let her make her own choices — she was not left with a baby sitter until she was over three and she did not attend nursery school until she told her parents that she was ready for it.  Elizabeth nursed Jane until she was three and Jane slept in bed with her parents.  The three saw each other nude and took baths together.  Later, in commenting upon their child rearing practices, Mr. Doe observed that it was a philosophical decision made by Elizabeth, but that he went along with everything she suggested.

Over time, the relationship became increasingly troubled.  Elizabeth, who had been raped as a young woman, was not interested in sex.  The couple argued over Elizabeth's overprotectiveness of Jane and once, when Jane was three years old, Elizabeth accused John of sexually abusing Jane.  They worked this out after much discussion and Elizabeth's eventual acceptance of John's adamant denial.  But the marriage conflicts continued and in December, 1984, Mr. Doe moved out of the house.

Mrs. Doe had temporary custody and Mr. Doe weekly visits.  In an effort to resolve the conflicts, Elizabeth contacted Mary Smith, a marriage and family therapist in training.  Mrs. Smith saw Elizabeth and Jane together and also met with John three times.  But the fights between the parents over Jane continued.  In April, 1985, Elizabeth noticed that Jane's genitals were redder than usual and feared John had abused her.  She told Mary Smith of her suspicions and Mrs. Smith told her to question Jane.  Elizabeth did so and Jane allegedly said, "It happens when Daddy rubs too hard."  Both Mary Smith and Elizabeth then questioned Jane in the next therapy session and Mrs. Smith became convinced that John had indeed sexually abused his daughter.  The weekly visits were stopped.  The allegations were a complete surprise to Mr. Doe, who deeply loved his daughter and was profoundly saddened by not being able to see her.

Sexual abuse became the focus of the play therapy sessions.  Elizabeth was present during most of these sessions, many of which were taped since Mary Smith was in training.  The tapes show that Mary Smith subjected Jane to highly leading and suggestive questioning and demonstrate how Elizabeth and Mary Smith taught Jane what to say about the alleged abuse.  They also show that Jane was taught to hate and fear her father.

Mary Smith reported the alleged abuse to child protection and told the police John Doe had sexually abused his daughter, had tortured a hamster, and had sexually molested his dog.  This resulted in Mr. Doe's arrest on criminal charges and several articles in the local newspaper detailing these accusations.

Mr. Doe fought back, retaining a competent attorney and seeking expert advice.  Court ordered psychological evaluations indicated significant problems in Elizabeth, who was seen as having a serious personality disorder characterized by emotional outbursts and difficulties in accurately perceiving events.  Mr. Doe was later evaluated as intelligent, idealistic, non-conforming, and independent but without serious psychopathology.  Mary Smith was given this information but ignored it.  Mr. Doe was unable to see his daughter during this time.

An independent psychological evaluation of the family was ordered but before it could take place, Elizabeth disappeared with Jane in February, 1986.  It was discovered later that Mary Smith apparently knew of this plan and agreed to store several boxes of Elizabeth's possessions.  Mr. Doe has not seen his daughter since 1985.

In 1987 John Doe sued Mary Smith for malpractice.  Efforts by Mary Smith and her insurance carrier to get the case dismissed failed and the case was tried in 1992, seven years after John Doe had last seen his daughter.  Mary Smith was on the stand for six days, still maintaining that John Doe had abused Jane.  But her incompetence and bias were apparent to everyone and after several weeks of evidence, Mary Smith's insurance company offered a significant settlement and the case did not go to the jury.

Afterwards, several jury members voluntarily met together and made a videotape for Jane telling her that what they had seen persuaded them that her father had not abused her in any way.  The jurors, who had listened to hours of the taped therapy sessions, agreed that Jane was told that things happened that never happened.  They saw Mary Smith as arrogant and inexperienced and saw from the tapes that the stories of abuse had come from her and Elizabeth.  They perceived Mr. Doe as extremely caring and compassionate and saw it as a "catastrophe" that Jane was deprived of the relationship with her father.

The flavor of the statements by these jury members on the videotape also can be seen in letters that two jurors wrote to Jane:

Dear Jane,

You and I will probably never meet, but I feel I know you quite well.

I served on the jury in your Dad's case against Mary Smith and I had an opportunity to hear some of the tapes of your therapy session with her back in 1985.  My impression was of a very bright, imaginative and thoroughly delightful 5-year-old, I can only hope your maturation has continued along the same lines.

We all agreed that Mary Smith was not qualified in any way to help you work out your anxieties about divorce and separation, and [we all] obviously felt your Dad was falsely accused and much maligned.

I have been a daughter and the mother of a daughter and I'd like to tell you not to miss one more phase of your life without your father.  For a little girl, for a big girl and for a woman there is something very special about her relationship with an adoring father.

I earnestly hope you have a very early opportunity to discover this for yourself.

Sincerely,

(Juror)

My name is __________, and I am sure that hearing from a bunch of strangers is a bit odd — to say the least.

Let me start off by telling you a little bit about myself.  I am 25 years old and grew up in Connecticut. My husband and I were living in Florida for awhile, and just moved back a couple of months ago.  There is nothing like moving back home, especially when it's a place as nice as Connecticut.

I just spent 5 weeks sitting on a jury in the trial between your father and Mary Smith.  Our jury was made up of 10 people; men and women, blacks and whites, successful and not, young and old, and ... everything in between.  We could not have been a more assorted group of people, with seemingly very little in common, except that we all took the case very seriously.

What a wonderful 5-year-old you were!  My husband and I cannot wait to have children, and you made me even more excited.  Our whole jury fell in love with you, adoring your creativity, imagination, and enthusiasm.

When I first heard what the case was about I was terrified.  I was terrified to hear about horrible things happening to you and was not sure I was mature enough emotionally to hear details.  Or, that I was mature enough to be honest, fair, and not too quick to judge.  So, every day was hard, as I had to keep reminding myself that I had to wait until the end to make a fair decision.

If I were to be honest, I would have to admit that I was not very open to the possibility at the beginning that your father was a good, decent dad.  As unfair as it was, in my subconscious he had to prove it to me.  And, as tough as it was, he did.  The amazing thing was that it was little, barely noticeable things that did convince me.  Anyway, I was a tough judge.

The thing is that after listening to everything I heard, I found myself so utterly convinced of quite the opposite of what I expected.  What scared me to death, was the fear of deciding on the evidence, but still not knowing, since I was not there at the time, and therefore, not being entirely sure.  I never would have thought at the beginning of the trial that at the end I would have no reservations whatsoever.

I think that at some point in your therapy Mrs. Smith got a little bit overeager and ahead of herself, and lost her ability to think clearly.  This ended up terrifying your mother, as any parent would feel.  Somehow, I think you know and always knew, what really happened, or, in this case, did not happen.

All of the jurors were concerned about you, and, when we finally sat down and talked about it, all 10 of us felt that, in the end, you had just gone along with everything (it's certainly easier that way), but had not allowed Mrs. Smith to influence you.  We all believe you are smart enough to not allow yourself to forget the truth.

Jane, from the depth of my heart I beg you to try and rebuild your relationship with your father.  You have so much to gain from a relationship with him.  He impressed me over and over and his obvious love for you certainly touched me.

I remember the first time we heard your voice on tape.  Your father was sitting across from me and I looked up and saw that he was smiling and had tears in his eyes.  It was simple things like that that helped me to realize how much your father loved you, how much he misses you, and how much joy you bring to him.  He sort of reminds me of a lost man, living and going on with his life, seemingly everything is fine, but then you get past the surface and realize that it truly is not.

I beg you to sit back and try to remember what happened before you left.  Not what anyone has told you, but what you know in your heart to be true.  I'm not trying to convince you to come home or call your dad for him.  I'm doing this for you.

My father is the most wonderful, loving man.  We share a truly special bond and our relationship adds so much to my life.  He has always been there for me, one hundred percent, no matter what I did.  I consider myself exceedingly lucky, as I've married a man just like him, and as wonderful as my husband is, there is nothing quite as loving and simple as the relationship between father and daughter.

You deserve a relationship with your father that is just as special as the one I share with mine.  It will certainly take some time to reach that point, but in the end there will be nothing in your life more worth the time and work.

I'm not sure what else to say to you, but this; as much as your mother loves you and no matter how good a relationship you may have, having a strong relationship with both of your parents is an unmeasurable gift.

Jane, I wish you all the luck and happiness in the world.

Most Sincerely,

(Juror)

John Doe has not seen Jane for nine years, and her whereabouts are still unknown.  The jurors' videotape and letters will be given to her if and when she is ever found.

Very few similar cases ever get to trial, despite the fact that professional incompetence and negligence damages both the falsely accused and the children caught in the middle.  The therapist invariably claims immunity; which is often granted.  The plaintiffs' trial memorandum and memorandum of law concerning the defendants' immunity defense, are therefore reproduced below.