Risk Management

Are you suddenly hit with a “Repressed/False Memory” lawsuit?

About the Author
Eric C. Marine is Vice President of Claims for the American Professional Agency, Inc. and a frequent writer on topics or risk management in the mental health field. O. Brandt Caudill, Esquire is a prominent defense attorney with the firm of Callahan, McCune and Willis in southern California. He attended the “Ramona” trial as an observer. Mr. Caudill has published numerous articles on mental health care issues and the law. Sylvan Schaffer, J.D., Ph.D. is both a practicing psychologist and a lawyer in the greater New York City area. He serves as Legal Counsel for the New York State Psychological Association and has written extensively on risk management topics. 

This is the first of a series of articles discussing the growth of claims dealing with “Repressed/False Memory”. “Repressed/False Memories” expose the therapist to malpractice claims not only from the patient, but also from other parties who allege being damaged by the therapist’s activities. Perhaps no case in recent memory has been so publicized and, at the same time, so inaccurately described as the “Ramona” case. This suit occurred in Napa County, California. It involved an adult daughter who during the course of the course of therapy recalled being sexually abused by her father, Mr. Ramona, and subsequently confronted him with the allegations. This confrontation was facilitated by a therapist and a psychiatrist. Neither of the mental health professionals made a definitive statement about the father’s guilt. Only the patient made such an accusation. Her accusations were the basis for her father’s criminal prosecution by the district attorney’s office. The father was acquitted by a jury. However, the allegations and criminal prosecution cost Mr. Ramona his marriage and his well paying position as an executive. Mr. Ramona then sued the mental health professionals for malpractice. The daughter did not recant her allegations and testified for the defense in the trial. 

The Ramona case is widely perceived as being a precedent for the proposition that a parent may sue an adult child’s therapist when the adult child asserts the parent was engaged in sexual molestation in the past. In reality, Ramona is not a precedent in any significant sense. Furthermore, an accurate understanding of the case and the jury’s decision indicates that it is far different from the public perception of its importance. First, it is important to note that no trial court level decision is precedent unless it is appealed and the appellate court issues a formal decision. No trial court is obligated to follow the ruling of another trial court or any other jury verdict. In particular under California law, if an appellate decision is not certified for publication as an official decision, it disposes of the issue between the parties and has no precedent value. Assuming that the Ramona decision is not appealed, it will primarily be seen as an anomaly. A critical fact in the case was that there had been a confrontation session between the defendants, the daughter, and her father. Mr. Ramona paid for the session and subsequently alleged that this payment created a therapist/patient relationship between himself and the defendants. Obviously, if such a relationship existed, then duties flowed to him from the defendants independent of their duties to his daughter. It is only that he could assert the patient relationship that makes his case one exception to the rule that there are no duties owed to third parties. 

The existing precedential cases on this subject suggest that without the patient relationship alleged by Mr. Ramona, this case could and should have been dismissed. The jury’s decision must be closely scrutinized as well. The jurors were presented with a special verdict form asking specific questions of them. In the jury finding, only 55% of the fault was found against the mental health professionals. Mr. Ramona’s ex-wife, daughter, and former employer were 40% at fault. They were not defendants. It was particularly significant that the jury allocated 5% of the comparative fault to Mr. Ramona. In other words, the jury concluded that in some respects his conduct contributed to the situation. In a subsequent interview, the jury foreman commented that Mr. Ramona should not treat the verdict as a victory because it was unclear in the jury’s mind whether some improper conduct may have taken place. Furthermore, it was noted that the jury only awarded Mr. Ramona damages for economic losses and no damages for emotional distress. Specifically, he was awarded past and future lost wages as he had lost his job as a direct result of the abuse allegations. Since Mr. Ramona had settled a separate claim against his employer prior to the trial, this settlement could be used as an offset for the damage award made by the jury. 

A final note is that Mr. Ramona was awarded a total of $500,000. His lawyer has estimated that the costs Mr. Ramona incurred are approximately $1 million. Therefore, it was a losing money proposition for all. The lessons learned from the Ramona case will be discussed in the next two articles. There are steps therapists can take to reduce their risk exposure to such claims. Risk management requires forethought and recognition of the reality of our present legal climate. Nothing can stop someone from bringing a lawsuit alleging your professional misconduct, but there are ways to improve your risk of “winning” such a claim. What We Have Learned by Eric C. Marine and O. Brandt Caudill, Esquire In a previous article, we discussed what really happened in the first “False Memory” case tried in America. Using that case as a model, we will try to develop risk management strategies that will not interfere with the therapeutic process, but should provide insulation from a lawsuit arising out of alleged implantation of false memories. Since the California decision was handed down in the “Ramona” case, other “False Memory” type cases have been decided in Dallas, Texas and Pittsburgh, Pennsylvania. In these cases, the juries also found against psychologists and psychiatrists who were defendants in these cases. We believe the verdicts suggest that no branch of the mental health profession is immune from adverse public reaction when working with adult survivors of abuse. At least two other cases in Colorado and Illinois have created a specific right to sue a therapist who reports child abuse without hard evidence. To further complicate matters, lawsuits are now being filed in cases of reporting suspected child abuse claiming the implantation of the “memory”. 

While such suits may seem frivolous, they are designed to overcome the qualified immunity granted to mandated reporters of child abuse. With the scientific community split over the many issues related to human memory and the memory process, experts are available to support the position that memories can be implanted. Our legal system allows that anyone may file a lawsuit for any reason. The merits of the lawsuit are determined by the court or the jury based on the evidence submitted. The great majority of lawsuits alleging child abuse are found in favor of the alleged abuser. In criminal cases, the prosecution may not reach the standard for the burden of proof (beyond a reasonable doubt). Additionally, in criminal cases technical rules of evidence can preclude the introduction of evidence that would support a conviction because the evidence is too prejudicial. An acquittal in a criminal case, does not mean that the alleged abuser is “innocent” or that the abuse did not occur. An acquittal only means that the abuse cannot be proved to the requisite legal standard. However, civil cases which carry a penalty of monetary damages not imprisonment, have a less stringent burden of proof (preponderance of the evidence). Previous decisions serve to reinforce the basic concept of our legal system, there should be substantial evidence before a person is accused of a criminal act. No one should be accused upon one person’s testimony where there is no supporting evidence. In the “Ramona” case, the judge held that when dealing with a patient in the context of family issues, all members of that family can argue that they are “direct victims” of the wrongful acts of the therapist, even if they are not patients. The judge based this ruling on another California case which arose out of erroneous medical advice. The non patient was allowed to sue a hospital for information given to his wife. When Gary Ramona was summoned to the confrontation session, he had an expectation that the session was for joint or family therapy. Instead, he was accused of incest. The ensuing confrontation and its emotional impact on him allow Ramona to successfully argue that some duty flowed to him from the therapist, making him the direct victim of emotional distress. 

The preceding rationale and ruling poses a dilemma for the entire mental health community. It is incumbent upon all therapists to maintain the confidentiality of their patients. How is this situation to be handled when a third party, who the therapist does not consider a patient, joins the session? Informing the person joining therapy of the purpose of the session may dilute the therapeutic value, if not end the session before it begins. Another aspect that the court found to support its opinion is the fact that Gary Ramona paid for the confrontation session. This further buttressed Ramona’s position that he had the right to expect the therapist to protect him from harm. When the allegations made at this session were made public, he lost his job. Ramona contended he lost his job solely because of the allegations. Therefore he was able to argue that economic damages were directly caused by the session. While “Ramona” involved a marriage and family therapist, it broadly suggests what society expects from the entire mental health profession. Additionally, the “Ramona” case indicates the involvement of a psychiatrist in the treatment will not insulate the therapist from liability. This is an important point because one of the arguments advanced in claims against therapists treating “repressed memories” is that some of the patient’s conditions being treated by therapists are caused by biological factors which would be treated by physicians. This case and its outcome is an example of the debate over memory that is going on it our society. Unfortunately the debate has become polarizing. There seems to be no middle ground. 

In the “Ramona” case, the court is attempting to find a method of evaluating the merits of each party’s story. The jury finding is a message to the therapy community to be aware of all the ramifications of your treatment. Some suggested actions to reduce your expose to lawsuits stemming from treatment of patients with recovered memories are: 

1. When your patient begins the journey into the real of repressed memories, make sure the patient is fully informed about the memory process and both sides of the repressed memory issue. Point out the problems regarding memory and make sure they understand as well as possible; 

2. Rule out all physical or biological causes for the patient’s symptoms. This will strengthen the patient’s position and help protect you; 

3. Do not become your patient’s advocate. You are the therapist. Remain and objective observer; 

4. If you are going to allow a confrontation session, do not allow the non patient or invited guest to pay for the session; 

5. If at all possible, do not hold the confrontation session in your office. Pick a neutral site. With your patient’s permission, ask a co-therapist to be a neutral observer; 

6. If the confrontation is to take place, develop a disclosure statement and waiver form for the non patient to sign. This statement should explain that it is not a therapy session for the guest participant and may be distressing to him/her. the statement should point out that the session may lead to some discomfort on his/her part. the session may lead to a negative outcome and that possibility should be pointed out. If the guest participant chooses, he/she may leave with no discussion. If he/she participates, he/she should sign a waiver not to litigate over what happens during the session; 

7. Another option, with your patient’s permission, is to have a neutral observer conduct the joint session. This way, the boundaries and the duties between parties are more clearly defined. The aforementioned disclosure statement and waiver will delineate the roles and duties of the participants;

8. Keep in mind that your notes are your only evidence of what took place in therapy. Make sure your notes reflect how the memories surfaced and that you did not lead the patient to the conclusion that he/she was the victim of abuse; 

9. Since sodium amytal or sodium brevital are not “truth serums”, do not suggest that they are; 

10. Do not rely on statistics about frequency of child abuse or specific mental conditions being indicators of child abuse (i.e. eating disorders) Statistics are used to describe the probability of an event occurring in a random sample of larger population. Statistics cannot predict that a specific event will occur for a specific individual. 

Keep in mind that the jury is a arbiter of the appropriate standard of care which is only subject to review by appellate courts. If enough juries come to the same conclusion and the appellate courts concur, consequent law and the standard of care are established. If lay people, who serve on juries, conclude that the mental health profession is not meeting their expectations, they may, throughout their decisions as jurors, alter the practice of therapy.