Expert Witness Blog
Dr. Martin Williams has twenty years experience as an expert witness on the standard of care in therapist-patient sex and other ethics matters involving psychologists, clinical social workers, marriage and family therapists, and psychiatrists. In Therapist-Patient Sex Twenty Years Later: A View From the Courtroom, the psychology expert witness writes:
One of the most significant changes over the years has been the advent of malpractice attorneys becoming knowledgeable about non-sexual boundary violations. Indeed, a specialty of lawyers has emerged-lawyers who sue psychotherapists-and these attorneys tend to know more about the ethics codes and practice guidelines of the American Psychological Association and other relevant professional organizations than many, if not most, of the professionals belonging to these associations. These attorneys file suits over non-sexual boundary violations-non-sexual touching, excessive self-disclosure, sessions outside the office, and non-sexual multiple relationships. A lawsuit against a psychotherapist for a non-sexual boundary violation was unheard of twenty years ago.
One very significant causal factor in the rise of lawsuits over non-sexual boundary violations was the termination or limitation of professional liability coverage for sex claims. One of the reasons attorneys took on the earlier cases of therapist-patient sex was the profit motive. Therapist-patient sex cases would reap million dollar or even multi-million dollar awards for plaintiffs. Large attorney fees came to an end when the malpractice insurers, who typically wrote policies with million dollar or higher coverage limits, recognized that therapist-patient sex was not a reasonable risk of psychotherapy, was not part of psychotherapy, and, consequently, did not need to be covered as part of the malpractice policy. Most malpractice policies today have a coverage limit of $25,000 for damages resulting from therapist-patient sex.
With the new coverage limits in place, the lawsuits for therapist-patient sex did not stop. Instead, attorneys adapted to the language of the new malpractice policies. Because numerous ethics experts have opined that non-sexual boundary violations precede therapist-patient sex, and because these non-sexual boundary violations are seen by many as harmful in and of themselves, a new kind of lawsuit arose: Therapists who had been sexually involved with patients began to be sued for all the non-sexual boundary violations that had preceded the sexual involvement. These boundary violations included sessions that focused on the therapist’s problems rather than the patient’s (excessive self-disclosure), meetings that were social and of no therapeutic benefit, exchanging gifts of substantial value as the relationship devolved from therapeutic to social, and a host of other activities that were incompatible with meaningful psychotherapy. The case was made that these non-sexual boundary violations had caused great harm to the patient-at minimum, depriving the patient of the needed treatment. The result of this new strategy was that cases of therapist-patient sex came to trial with hardly any mention of the sexual aspect of the relationship. Instead, they were tried based on the non-sexual boundary violations-the violations that were covered by the malpractice policy.
Not only did this provide attorneys with a new strategy to sue for sexual violations and recover damages, it opened the door for these same attorneys to become knowledgeable about non-sexual forms of malpractice and negligence. This, in turn, gave rise to a new set of lawsuits that focused on claims of harmful non-sexual boundary violations or non-sexual multiple relationships. These behaviors had always been unethical when they were harmful or exploitative, but they had not previously been the focus of lawsuits because attorneys and patients had been unaware that they could be.
Excerpted from National Psychologist, March 2008, with the author’s permission.