It is a known risk of therapy that a patient who is troubled, vulnerable, or suggestible may become overly attached to the therapist and may consent to sexual contact. This attachment to a therapist is so well known that it has been given a title. “Transference” describes a situation where a patient displaces feelings about another person and redirects them towards the therapist. Transference, while a normal and often important part of the therapeutic process, carries with it a great potential for abuse by the therapist.
The misuse of transference by engaging in sexual activity with a patient is potentially damaging to the patient. Therefore, the ethical standards of the psychotherapy profession prohibit all sexual contact between mental health professionals and their patients. The therapist owes a duty to a patient to avoid sexual contact even if the patient consents, and a sexual relationship between a therapist and a patient is considered malpractice in most states. Some states have concluded that this type of conduct is such a severe breach of trust that it is gross negligence.
A relationship between a therapist and a patient does not have to culminate in sexual activity in order to sustain a malpractice claim against the therapist. It is a generally accepted rule among psychotherapist that any interaction between a patient and a therapist that goes outside of established professional boundaries is inappropriate and may be harmful even without blatant sexual contact. Some courts have concluded that therapist malpractice may arise from boundary violations such as socializing, gift-giving, and even inappropriate telephoning. A claim of malpractice for sexual or boundary abuse may be strengthened by evidence of other non-sexual acts of malpractice such as overmedicating a patient, breaching confidentiality, failing to refer a patient when appropriate, or practicing while under the influence of alcohol or drugs.
In a claim for sexual or boundary abuse by a therapist, expert testimony is generally required to establish that the conduct in question is a violation of the applicable standard of care. Detailed expert testimony is necessary in overcoming inevitable juror bias against a patient who consented to the sexual activity.
In addition to malpractice claims, a therapist who engages in sexual activity with a patient may be held liable for damages under claims of intentional or negligent infliction of emotional distress, breach of fiduciary duty, and breach of contract.
In an assessment of damages in a medical malpractice claim resulting from sexual contact, the entire course of treatment should be carefully evaluated. Boundary violations will often lead to other violations of the standard of care, either because the therapist is trying to avoid outside knowledge of the sexual activity or because the therapist is unaware of the patient’s needs arising from the improper relationship. Specific harm resulting from sexual and other boundary violations may include: psychological disorders; aggravation of existing disorders; problems in marital or other family relationships; difficulty trusting professionals; psychosomatic symptoms; difficulty concentrating; impaired social functioning; mood disorders; lack of self-confidence; loss of employment; or emotional breakdown.
Patients who are sexually abused or exploited by therapists are usually classic “thin-skull” patients, which means that they may have come to the therapist with significant pre-existing injuries. However, if the therapist’s conduct would have created liability for injury to a person of normal sensibilities, he or she is liable for all damages to an unusually susceptible patient.