A Successful Malpractice
Action Against a Therapist
by Hollida Wakefield*
ABSTRACT: The following article describes the case of a successful malpractice action against a therapist.
The therapist prematurely
concluded the father had sexually abused his daughter and subjected the
child to suggestive and coercive questioning in therapy. The
visits were terminated and the mother and child disappeared. The father
sued the therapist for professional negligence. Midway through trial the
therapist's insurance company agreed to pay a substantial settlement.
The trial memorandum and the memorandum on
law on the legal
insufficiency of the immunity defense are reproduced.
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
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.
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
The flavor of the statements by these jury members on the videotape
also can be seen in letters that two jurors wrote to 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
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
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.
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.
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
Jane, I wish you all the luck and happiness in the world.
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.
* Hollida Wakefield is a psychologist at the Institute for
Psychological Therapies, 5263 130th Street East, Northfield,
Minnesota, 55057. [Back]