This article was originally published in Shepard's Expert and Scientific Evidence Quarterly Volume 2 Fall, 1994 Number 2 LAW OFFICES OF SKIP SIMPSON A PROFESSIONAL CORPORATION ATTORNEYS AND COUNSELORS 2828 WOODSIDE STREET DALLAS TEXAS 75204-2524 SKIP SIMPSON JULIE KAY BAKER Causes of Action against Health Care Providers by Retractors of Abuse Allegations I. Who is a "Retractor" A. Their needs are special 1. The attorney should keep in mind that the client is there because of problems with other trusted professionals, and will be wary of professionals. B. The attorney/counselor's role II. The Retractor's Case A. The Facts1 1. Patient's Presenting Problems: Eating Disorder, Depression, or difficulty in relationships; usually no memory of any abuse. 2. Therapist determines/suggests sexual and/or satanic ritual abuse; usually no memories of sexual abuse or SRA prior to therapy. The combination of the therapist's suggestions with the vague recollections of childhood causes the patient to become more vulnerable, and this vulnerability is facilitated and encouraged by the mental health treaters. Vague memories then become clear accusations. 3. Typically, the patient is diagnosed as having been sexually abused, then part of a satanic cult, then suffering from multiple personality disorder alleged as a result of this traumatic abuse. The MPD diagnosis is required to explain the patient's inability to recall the abuse and participation in cult activities. 1 Wakefield, Hollida, M.A. and Underwager, Ralph, Ph. D, Magic, Mischief and Memories: Remembering Abuse. 4. The patient then doubts this accusation diagnosis: doubts are treated as part of satanic cult programming and/or the patient's "being in denial." 5. The patient is urged to separate from family and friends. Separation from family of origin is stated to be necessary because of the abuse and the family's and friends' possible continuing participation in a satanic cult, which would inhibit the patient's recovery. The probable reality is that these individuals are usually the "voice of reason" whom would reinforce the doubts being voiced by the patient. 6. Continuing doubts, and increasing numbers of appearing "alters," lead to hospitalizations, stated to be necessary to "integrate" the personalities so that the patient may be a productive member of society. However, these hospitalizations typically worsen the patient's problems, as more "alters" or problems are created, and the treatment is extended so long as the insurance allows. Often the original treater has referred treatment to others who are alleged "experts" in the treatment of these conditions. 7. Some "outside" stimuli, news reports, magazine articles, television news or talk shows, eventually "awaken" the patient to the likelihood that the treatment has been an unnecessary sham. B. The Parties 1. The "therapist" -- whether M.D., Ph.D., L.P.C., M.S.W., or other 2. All doctors (M.D.'s) who were responsible for supervising the treatment of non-physician therapists. 3. The hospitals which admitted the retractor and gave treatment credentials to these "treaters. " 4. Any individuals who provided "advise" to the treaters or to whom the retractor was referred for an "expert" evaluation, including supposed experts in SRA. 5. Authors of self-help books utilized by the therapists as the basis of treatment, i.e., The Courage to Heal. C. Obtaining Evidence That Shows Memories Were Implanted and Evidence of Carelessness by the Treater 1. Thoroughly investigate the repressed memory claim by seeking: (a) All medical, psychiatric, and school records of the retractor from childhood to the present. (b) Interview the retractor's peers, parents, siblings, relatives, neighbors, friends, teachers, and anyone to whom the retractor was most likely to confide. (c) The nature and origin of the initial disclosure in as much detail as possible. (d) The nature of any current therapy of the retractor. Are techniques such as hypnosis and survivor groups used? (e) The training and background of the therapist. (f) Whether the therapist specializes in treating MPD or trauma-search therapy. (g) All books, television shows or workshops about sexual abuse of rape to which the retractor may have been exposed. (h) Any exposure of the retractor to recovered memory cases through a highly publicized case or through friends who may have reported that this happened to them. (i) The work history of the retractor, including any problems with supervisors or co-workers and claims of sexual harassment. (j) The psychological characteristics and social and family history of accused adults. A psychological history of the accused may be important. (k) Any criminal record or prior behavior in the accused adult which would support or make less probable the veracity or the allegations. (1) A detailed description of the behaviors alleged to have occurred. (m) Possible ways by which the retractor was told she could benefit from or receive reinforcement from making the accusation. (n) Whether the treater spoke about a possible civil law suit, told the retractor that the reason her life has not gone well is due to the sexual or satanic ritual abuse. (o) Information regarding the attention, acceptance, new friends, or the star-like qualities of the retractor gained by making the allegations. 2. A suggestion of an implanted memory exists if: (a) There is no corroborating evidence of. abuse and the alleged behaviors are highly improbable. (b) An adult is claiming "repression" or"amnesia" and-has only recently "remembered" the abuse. (c) There are allegations of a series of abusive incidents across time in different places and situations. (d) The accusations only emerge following the exposure to The Courage to Heal, hypnosis, survivor's group participation or dream analysis. (e) The recovered memory is for abuse that occurred at a very young age. (f) There are any claims by a treater of special knowledge about detecting abuse based on subjective, personal, non-quantitative experience. (g) When the progression of the story across time is from innocuous, relatively innocent behaviors to ever more intrusive, abusive, and highly improbable behaviors. D. The Legal Claims 1. Professional Negligence (a) The treatment provided fell below the ''standard of care." (see discussion at length at paragraph IV B infra.) 2. Negligence (a) Includes negligent hiring, training and supervision if there is a hospital or other treating facility that is a party. 3. Gross Negligence (a) This means the "heedless and reckless disregard of the patient's rights" and "conscious indifference to the welfare of the patient." (b) May be established through the apparent greed of the treaters, and the use of techniques that are not supported by reliable scientific data. 4. Fraud (a) The fraud cause of action may arise under fact scenarios where the therapist was overcharging for therapy, charging for therapy not provided during in-patient treatment, and having a physician (MD) charge an insurance company for services provided by the therapist but which are not covered by the patient's insurance. (b) Fraud may also be established by evidence of the treater's failure to state accurately factual matters which they knew to be false, and/or their statements which were made recklessly without any knowledge of their truth or falsity, and/or their failure to state and disclose the truth regarding the representations or omissions. (i) The relevant omissions may include the lack of treatment being provided for the conditions for which the patient presents, the need for the extensive therapy and hospitalizations demanded of the patient, the amount and cost for the services to be provided, and the true problems and physiological conditions suffered by the patient. (ii) The retractor must show that the treaters made these assertions and omissions with the intent of inducing the patient to submit to therapy and treatment and to spend substantial monies for treatment and therapy with defendants. (c) The Retractor must show that she relied on these assertions of the treaters, or their failures to disclose certain facts, by submitting to treatment and spending substantial amounts of money for therapy and treatment which she would not have done but for defendant's assertions and omissions of material fact. 5. Civil Conspiracy a. Conspiracy requires proof that the treaters reached an agreement or understanding to control and dominate the patient, to breach or cause others to breach their duties to the patient, and to instigate and perpetuate a series of frauds and schemes designed to enrich themselves at the patient's expense. b. The theory involves proof that the conspiracy was furthered to defraud the patient by causing her to enter into and continue with mental health treatments and therapies which had no benefit to her, but which were entered into for the purpose of profiting the treaters. 6. Intentional Infliction of Emotional Distress III. The Defense A. Statute of Limitations Defense - the argument is that the patient has waited too long treated by several different treaters who referred her for further treatment, and more than two years has elapsed since the first treater ended his/her treatment. This may also arise where there was a time period between the end of treatment and the actual "retraction," or realization that no childhood abuse occurred. 1. Discovery Rule/Fraudulent Concealment (a) Most states have some version of a "discovery rule," which provides that the running of a statute of limitations may be tolled until the patient knows or should know of her injury. Ironically, this argument has been made often in cases by adult accusers against their parents for childhood abuse who have "repressed" their memories. This tolling in repressed memory cases has been upheld in a total of twenty-four (24) states. (Alaska, Arizona, California, Colorado, Illinois, Indiana, Iowa, Maine, Minnesota, Missouri, Michigan, Montana, North Dakota, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Rhode Island, Texas [courts are split - there is no Supreme Court decision on the issue to date], Vermont, Washington and Wisconsin). To date, six states have judicial decisions that provide that the statute of limitations is not tolled for the "repressed memory" phenomena. (Florida, Kentucky, New York, Pennsylvania, Texas [courts are split - there is no Supreme Court decision on the issue to date], and Utah. However, as happened in other states with such judicial decisions (i.e., Washington), the legislature reacted by enacting legislation which specifically allowed cases based upon this phenomena to go forward. (b) The argument may be made that the Retractor did not know that she had been improperly treated until she realized that the abuse had not occurred. This notion then triggers the acts of negligence detailed in paragraph IV D, infra. (c) It may also be argued that the Retractor was unable to know that the treatment being provided was improper because this was concealed until the end of treatment,i.e., fraudulent concealment. See Neagle v. Nelson, 685 S.W.2d 11 (Text 1985); Spoljaric v. Pangan, 466 N.E.2d 37 (Inc. App. 1984). 2. Continuous Treatment (a) Where the treatment for a certain condition has been ongoing by an individual or individual(s), the argument may be made that treatment provided in early stages by a therapist was part of a "continuing course of treatment" and thus that the statute of limitations should not begin to run until the date treatment by all negligent therapists ended. For example, the Texas Medical Liability Act provides that a medical negligence lawsuit must be filed "within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is complete." Tex. Rev. Civ. Stat. Ann. art. 4590i � 10.01 (emphasis added). See e.g., Kimball v. Brothers, 741 S.W.2d 370 (Tex.1987); Weinberg v. Bess, 638 N.E.2d 841 (Ind.App.1994); Caughell v. Group Health Coop. of Puget Sound, 876 P.2d 898 (Wash. 1994); Blancheffe v. Barreff, 229 Conn. 256, 640 A.2d 74 (1994); Watkins v. Fromm, 488 N.Y.S.2d 768, 108 A.D.2d 233 (1985); Green v. National Health Lab. Inc., 316 Ark. 5, 870 S.W.2d 707 (1994); Farley v. Goode, 219 Va. 969, 252 S.E.2d 694 (1979); Fabio v. Bellomo, 504 N.W.2d 758 (Minn. 1993). Contra Jones v. McDonald, 631 So.2d 869 (Ala. 1993); McKechnie v. Stanke, 122 Or. App. 249, 857 P.2d 870 (1993). 3. Tolling of statute via "disability" (a) Many states have statutes which provide that the statutes of limitation in medical negligence cases are tolled for persons under a disability until that disability has ended. Often this holding is made on the basis of the lack of the patient's "conscious awareness." See, e.g., Arthur v. Unicare Health Facilities, 602 So.2d 596 (Fla.App. 1992); Southard v. Miles, 714 P.2d 891 (solo. 1986); Harrington v. County of Ramsey, 279 N.W.2d 791 (Minn. 1979). Contra Gooley v. Moss, 398 N.E.2d 1314 (Ind.App. 1979). (b) The argument that may be made is that the patient was under a mental disability that was continuous and uninterrupted from the time of injury through time suit was filed. Palla v. McDonald, 877 S.W.2d 472 (Text App.--Houston[1st Dist.] 1994, no writ). Sometimes the patient has actually been determined by the court of some other entity to be "disabled," usually for purposes of hospitalizations and benefits to the treaters. However, it is often not necessary for the plaintiff to be formally adjudicated incompetent to toll the running of the statute of limitations. See Casu v. CBI NA-Con, Inc., 1994 W.L.178830 (Text App. - Houston [14th Dist. May 12, 1994], no writ). B. "Illness": Attack the Retractor 1. The treaters often attempt to defend these accusations by attacking the Retractor, and the Retractor should be prepared for this prior to filing a lawsuit. 2. The attorney and Retractor should keep in mind that the defendant, supposedly a trained professional, was trusted with intimate details of the Retractor's life, which will be used as a sword against her. Also, the defendant is particularly aware of the issues that will effect the Retractor most on an emotional level. Thus the defense will often be conducted in a way to make the Retractor want to simply drop her lawsuit rather than continue being "attacked." 3. This "attack" may come in many forms: (a) Prior medical history, including suicide attempts, drug overdoses and/or abuse, and emotional problems. (b) Sexual problems and habits. (c) Difficulties in relationships, whether with husband, children, partners, etc. 4. This tactic of the defense is a dangerous one. The very reason that the patient came to the defendant was for treatment of a mental or emotional condition. A jury is not likely to approve of the defense using that very condition to hammer on the former patient. 5. What the defense hopes to show is that the Retractor was already "damaged goods" when she got to him/her, and therefore that he/she did not cause the Retractor any further damage. When one recalls that the treater failed to treat the condition with which the patient presented, instead creating new problems for treatment, the damage to the Retractor is evident, regardless of her prior emotional and/or mental problems. C. "Truth": Attack the Retractor's Family 1. Another tactic used in these cases is to assume, as was assumed in the improper treatment, that the "memories" of sexual and/or satanic ritual abuse were true. Thus an attack is made on the Retractor's family, using the accusations made by the Retractor during therapy. 2. It is unlikely that the defense will ever be able to "prove" that the events "recovered" in therapy occurred. However, every family has its "skeletons" which will likely come out in discovery under intense cross-examination. These "skeletons" will be used to try to show that the Retractor's memories were real, and that she is still in denial or that significant damage was done to the Retractor by her family during childhood or later, thus "decreasing" the damage suffered at the hands of the treaters. IV. The Experts A. Memory is the Issue: The Nature of Memory 1. Repression 2. How Memory Works B. Treatment was Below the Standard of Care2 1. "Standard of Care" (a) The term "standard of care" is not naturally part of the physician's/therapist's vocabulary. (b) A standard of care is, in essence, that which one abstracts from the idealized intellectual process of the physician/therapist, when applied to a very specific clinical situation. (c) Due to the formal education and training of the physician, there is a natural conflict between the physician's philosophical orientation and intellectual process on the one hand, and any external pressure to codify that process in any manner, independent of the assessed needs of an individual patient. That is, the doctor is accustomed to developing the care needed on an individualized basis, not by using a rigid system of treatment. 2. Two approaches (a) The Idealist's Standard of Care: an idealistic standard applicable to the clinical assimilation and decision-making expected of a physician in a given situation. (i) Promotes improvement in care. (ii) Flexible to specific situation. (iii) What"should" be. (iv) Assumes idealistic physicians. (v) Is a hierarchical series of standards. (vi) Defined abstractly. Davies, Al, M.D., Finding Standards of Care. (b) The Pragmatist's Standard Care: what the usual physician actually does, unmodified by idealistic considerations. (i) Protects the status quo. (ii) Is rigid. (iii) What usually is, whether it is good or bad. (iv) Assumes most physicians are reasonable. (v) Is undimensional. (vi) Is defined statistically. 3. "Standard of Care" (Idealist) vs. "Standard Care" (Pragmatist) (a) The idealist's view is the actual "standard of care"-- the minimum expected of a physician who takes all abstract and practical factors into consideration and weighs them carefully. This should not be confused with "ldeal care," which is the care as performed in the most ideal circumstances by a perfect physician staff. (b) The pragmatist's view is only "standard care" -- a perception, not based upon any valid statistical evaluation, of what a group of physicians actually does. The weakness of this approach is that it assumes that the presumption of common practice is, in fact, equivalent to what common practice actually is. 4. The standard relevant in these lawsuits is the idealist's standard of care. (a) What a "reasonable physician" or "reasonable therapist" would do refers to a physician who reasons things out extensively and decides what would be done if every consideration were made. (b) The idealist's standard seems to be least influenced by fad and fancy in medicine and behavioral science. 5. Sources that reflect the idealist's standard of care: (a) Sources from Academic Medicine (b) Hard-bound textbooks (c) Ethics committees (d) Practice parameters (e) Pharmacological literature 6. Sources that reflect the pragmatists standard care: (a) Soft-bound, pocket-sized handbooks (b) Non-peer reviewed literature (c) Policies responsive to economics (d) Presidential councils (e) Federal agencies C. Experts Duties Regarding Standard of Care 1. A good expert should recognize whether the standard being employed is regional or national, and whether pragmatic standard care statistically defined versus the idealist's standard of care is being employed. D. The Duties Owed to the Patient 1. A therapist, as a professional, owes his/her patients a duty to conform to certain standards. 2. The duties owed to a patient include, but are not limited to: (a) Duty to examine patient correctly. (b) Duty to recognize symptoms. (c) Duty to diagnose properly (child abuse victim). (d) Duty to order proper diagnostic procedures. (i) Proper testing that stands up scientifically. (ii) Proper testing that withstands intense scrutiny under cross examination. (e) Duty to perform diagnostic procedures properly. (f) Duty to analyze diagnostic procedures properly. (g) Duty to make proper decisions in light of the results of the diagnostic procedures. (h) Duty to know whether results indicate a specialist should be consulted. (i) Duty to know the type of specialist that should be consulted or reasons they should not be consulted. (j) Duty to provide proper treatment. (k) Duty to properly hospitalize. (l) Duty to give proper advice, instructions, and warnings. (m) Duty to keep proper records and reports. (n) Duty to accurately make/keep medical charts and records. (o) Duty not to abandon patient - i.e., no more treatment when insurance runs out. (p) Duty not to make any unauthorized disclosures and invade privacy. V. The Damages A. Financial Damages 1. Medical expenses, including doctors, therapists, hospitalizations, medications, etc. -- WHETHER COVERED BY INSURANCE OR NOT. 2. Lost wages and/or loss of earning capacity. 3. Every financial obligation incurred by Plaintiff as a result of the injury. 4. Loss of time from occupation or employment. 5. Loss or impairment of earning power. B. Emotional damages 1. Emotional damages including distress, anguish and humiliation. 2. Damage to good name and reputation. | HOME | ASSOCIATES | MEDIA | SKIP'S WORK | CONTACT INFORMATION | 2828 Woodside Street Dallas, Texas 75204-2526 (214) 922-7078 [EMAIL PROTECTED]
