|
|
|
|
D.C. COURT OF APPEALS HOLDS THAT A CHIROPRACTOR WHO ADOPTS THE ROLE OF A PSYCHOLOGICAL COUNSELOR MAY BE SUED FOR MALPRACTICE AS A PSYCHOLOGIST OR PSYCHIATRIST McCracken v. Walls-Kaufman, ___ A.2d ___ (D.C. 1998) The McCrackens alleged that the defendant chiropractor had sexually assaulted Mrs. McCracken during treatment, and that the defendant had been aware that she was taking medication which limited her ability to prevent the sexual assaults. They alleged that these sexual assaults violated applicable standards of care and ethical considerations, and constituted acts of malpractice, breach of fiduciary duty, and/or negligence. The defendant moved to dismiss based on the one-year statute of limitations for assault claims under D.C. Code §12-301(4) (1995). He argued that the complaint described only knowing, intentional actions, but failed to describe any negligent act or characterize any duty whose breach may have resulted in negligence. The McCrackens argued that the three year statute of limitations applied. They also argued that D.C. Code §22-4115 (1981), which makes it a crime under specified circumstances for an individual who purports to provide professional medical or counseling services to engage in a sexual act with a client or patient, provides a standard of care which the defendant breached. The trial court (Judge Alprin) granted the motion to dismiss, concluding that the McCrackens’ sole claim was for assault. The trial judge concluded that there was no claim for professional negligence because the allegations of sexual assault in no way related to the services provided by a chiropractor, and because plaintiffs had failed to allege that the defendant had breached any duty of care of her back or any medical service provided by a chiropractor. The D.C. Court of Appeals reversed. It reasoned that the same course of conduct may support both a claim of assault and battery and a claim of negligence, provided that it is established that the defendant, in the process of engaging in the conduct that included the intentional tort, was also breaching another recognized duty owed the plaintiff. The Court then considered an issue of first impression in the District of Columbia: Whether, and if so under what circumstances, a chiropractor may be liable for professional malpractice based on negligence for engaging in sexual activity with a patient that results in injury to the patient. The Court held that if a medical professional not practicing in the field of mental health enters into a relationship of trust and confidence with a patient and offers counseling on personal matters to that patient, thus taking on a role similar to that of a psychiatrist or psychologist, that professional should be bound by the same standards as would bind a psychiatrist or psychologist in a similar situation. Thus, in the McCrackens’ case, the chiropractor can be found liable if it is found that he engaged in sexual acts with his patient, and if plaintiffs have established the following: (1) that a relationship similar to a psychologist-patient relationship developed; (2) a breach of the standard of care resulting from the sexual acts during the course of or attendant to that relationship; and (3) that the breach proximately caused plaintiffs’ claimed injuries. The Court noted, however, that "Consent to the sexual acts, freely and competently given, would be a defense to such a theory of liability", and that issue would be one for trial. "It cannot be said as a matter of law that any patient who is involved to some degree in a relationship of trust and confidence with a medical professional and has received advice and counseling is incapable of consenting to a sexual relationship with that professional." The Court also noted that expert testimony will be necessary to establish the applicable standard of care and causation. The Court left it to counsel and the trial court to determine what kind of expert is needed. The Court deferred for a later day a decision on the issue whether the criminal statute making it a crime for someone who provides professional services of a medical, therapeutic or counseling nature to engage in a sexual act with a patient. The Court recognized that violation of a statute may give rise to a civil cause of action, and may constitute negligence per se if the statute is meant to promote safety, if the plaintiff is a member of the class to be protected by the statute, and if the defendant is a person upon whom the statute imposes specific duties. But it preferred to consider those issues on a full record. |
|
Send E-mail to info(at)jocs-law.com with questions
or comments about this web site.
General contact information.
|
