The Lawletter Vol 43 No 8
When individuals are accused of sexual misconduct on the basis of "recovered memories," courts must sometimes decide whether a therapist can be held liable for eliciting such memories from patients. In Mower v. Baird, 2018 UT 29, 422 P.3d 837 (as corrected July 11, 2018), the plaintiff's ex-wife took the couple's child to a therapist, who suspected child abuse. The therapist contacted authorities and was told to gather more information. Contrary to established guidelines, the therapist continued therapy instead of asking a forensic interviewer to talk to the child. Subsequently, there was a "supported" finding of sexual abuse against the plaintiff.
The plaintiff sued the therapist for medical malpractice and negligence, but the trial court found that the therapist owed no duty to him. The Mower court examined five factors in deciding whether a duty exists: (1) whether the allegedly tortious conduct consists of an affirmative act or merely an omission; (2) the parties' legal relationship; (3) foreseeability or likelihood of injury; (4) public policy as to which party can best bear the loss occasioned by the injury; and (5) other general policy considerations. Id. ¶ 17, 422 P.3d at 843.
The court found that a therapist's conduct is an affirmative act if he or she uses inappropriate treatment techniques or inappropriately applies otherwise proper techniques. Id. ¶ 21, 422 P.3d at 844. The affirmative act may create a duty even without a special legal relationship to a nonpatient parent. Id. ¶ 22, 422 P.3d at 844. Implanting false memories of sexual abuse may foreseeably injure a parent, and therapists can prevent harm because they control the instrumentality that creates nonexistent "abuse." Id. ¶ 29, 422 P.3d at 846.
The court decided that a therapist is liable only when he or she acts recklessly, and it declined to extend its ruling to cases where the therapist's patient is an adult. The court also limited potential liability by requiring objective evidence of "severe" emotional distress. The court declined to decide whether a therapist's liability would be ordinary negligence or an independent cause of action. Summarizing, the court stated:
The question before us today is "whether a [treating therapist] has the unfettered right to treat his or her patient using techniques that might cause the patient to develop a false memory [or allegations] of sexual abuse." Roberts [v. Salmi], 866 N.W.2d [460,] 472 [(Mich. Ct. App. 2014)]. We conclude that they don't. Treating therapists are obligated to conform to a standard of care when treating their patients. A therapist further owes a duty to a minor patient's parents to refrain from affirmative acts that recklessly violate the standard of care in a manner that gives rise to false memories or false allegations of sexual abuse committed by the plaintiff nonpatient parent.
Id. ¶ 114, 422 P.3d at 863.