Present: Lacy, Keenan, Koontz, Kinser, Lemons, and Agee, JJ.,
and Russell, S.J.
JOHN DOE OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 050155 November 4, 2005
SHOMER ZWELLING, L.C.S.W.
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND JAMES CITY COUNTY
Samuel T. Powell, III, Judge
In this action to recover damages for professional
malpractice, the plaintiff alleged that, while being treated
by the defendant, a health care provider, the defendant
breached the applicable standard of care in several respects,
including engaging in “an inappropriate and extraprofessional
relationship with Plaintiff’s wife.” The sole question
presented on appeal is whether the plaintiff’s cause of action
for professional malpractice is barred by Code § 8.01-220, the
“heart balm” statute.
Facts and Proceedings
John Doe, the plaintiff,∗ brought this action against
Shomer Zwelling, a licensed clinical social worker, for
professional malpractice. The defendant filed a demurrer to
the original motion for judgment on the ground that the
plaintiff's cause of action, while ostensibly a claim for
∗
The trial court entered an order adopting the pseudonyms
“John Doe” for the plaintiff and “Sally Poe” for his wife, to
protect their privacy and that of their children.
professional malpractice, was, in fact, an action to recover
damages for alienation of affection, which had been abolished
by Code § 8.01-220. The court sustained the demurrer and the
plaintiff, by leave of court, filed an amended motion for
judgment.
Because the case comes to us upon a demurrer to the
amended motion for judgment, which is complete and does not
incorporate by reference allegations in the original motion
for judgment, we address only the allegations contained in the
amended motion for judgment. Fuste v. Riverside Healthcare
Assoc., 265 Va. 127, 129-30, 575 S.E.2d 858, 860 (2003). The
facts will be summarized as set forth in the amended motion
for judgment, and will be considered, along with those
reasonably and fairly implied from them, in the light most
favorable to the plaintiff. Id.
The defendant is a licensed clinical social worker in
Williamsburg, Virginia, providing professional psychotherapy
and counseling services. The plaintiff’s wife had been
treated professionally by the defendant from early 1999 until
2001, for psychological problems and to improve the
relationship between husband and wife. In 2001, the defendant
suggested that the relationship between husband and wife would
improve if the defendant were also to treat the husband
individually. The plaintiff then entered into a professional
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relationship with the defendant, who thereafter treated both
husband and wife separately. During the defendant's treatment
of the plaintiff, the defendant asked for intimate details
concerning the plaintiff's relationship with his wife and his
past sexual, emotional and social history. The defendant
cautioned that the substance of these confidences should never
be revealed to plaintiff's wife and intimated that she might
become suicidal if she learned of them. The defendant told
the plaintiff that his wife had been sexually abused as a
teenager and that she could not "express love in a normal,
healthy way due to the traumatic experiences she had
undergone." The plaintiff was unwilling to submit to the
defendant's suggested treatment consisting of "Buddhist
meditation" and "spiritual meditation retreats," and the
defendant then advised him to take psychotropic drugs. The
defendant referred him to a psychiatrist who prescribed such
drugs, which the plaintiff took.
The plaintiff concluded that both his emotional condition
and his marriage were deteriorating rather than improving
while he was under the defendant’s care. Consequently, he
withdrew from the defendant’s treatment in August 2002. At
about the same time, the plaintiff's wife told him that she
wished to terminate the marriage.
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The plaintiff thereafter discovered that the defendant
had been maligning him during the treatment of his wife,
disclosing to her intimate details that the plaintiff had
disclosed to the defendant in confidence and that before,
during, and after defendant's treatment of the plaintiff, the
defendant had been "engaged in an inappropriate and
extraprofessional relationship" with the plaintiff's wife. As
a result, the plaintiff stated that he had suffered severe
damage to his emotional health, had lost 23 pounds and had
begun a heavy reliance on tranquilizing medications. The
plaintiff attributed his damages entirely to the defendant's
breaches of the applicable professional standard of care.
The defendant again filed a demurrer based on the effect
of Code § 8.01-220. The trial court held that,
notwithstanding the form of the action, the "overriding
essential basis of the claim is one for alienation of
affection which is barred by Va. Code § 8.01-220." The trial
court sustained the demurrer and dismissed the case with
prejudice. We awarded the plaintiff an appeal.
Analysis
Clinical social workers are among the professions defined
as "health care providers" by Code § 8.01-581.1 and are thus
subject to the provisions of Title 8.01, Chapter 21.1 of the
Code, relating to medical malpractice. Actions against such
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persons for professional malpractice are subject to the same
laws as those governing such actions against physicians. In
the present case, the plaintiff phrased his allegations in
terms of the defendant’s departures from the applicable
standard of care. A substantial part of his claimed damages,
however, arose from the effect of the defendant’s conduct upon
the plaintiff’s marriage.
Code § 8.01-220(A) provides:
Notwithstanding any other provision of law to the
contrary, no civil action shall lie or be maintained in
this Commonwealth for alienation of affection, breach of
promise to marry, or criminal conversation upon which a
cause of action arose or occurred on or after June 28,
1968.
We applied that section in McDermott v. Reynolds, 260 Va.
98, 530 S.E.2d 902 (2000), to an action ostensibly brought to
recover damages for intentional infliction of emotional
distress. There, the plaintiff contended that the defendant
had carried on an adulterous relationship with the plaintiff’s
wife, had refused plaintiff’s demand that he desist and,
instead, had “flaunted it outwardly,” causing the plaintiff to
suffer severe emotional distress, loss of weight and
interference with his ability to perform the duties of his
profession. Id. at 100-01, 530 S.E.2d at 903. The trial
court sustained a demurrer, holding that the action was, in
reality, based on a cause of action for alienation of
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affection and was therefore barred by Code § 8.01-220. Id. at
100, 530 S.E.2d at 902. We affirmed, basing our analysis upon
the defendant’s alleged conduct rather than upon the
differences between the causes of action for alienation of
affection (now barred by statute) and intentional infliction
of emotional distress (still alive and well). We adopted that
approach to “foreclose a revival of the abolished tort of
alienation of affection asserted in the guise of an action for
intentional infliction of emotional distress.” Id. at 103,
530 S.E.2d at 904.
In McDermott, all of the plaintiff’s injuries were
ascribed to the effect of the defendant’s conduct upon the
plaintiff’s marriage. In the present case, that cannot be
said. Here, the plaintiff has alleged facts constituting
breaches of the defendant’s professional standard of care that
would be compensable in damages even if the plaintiff were
unmarried. Such breaches might include maligning him to a
third person and administering improper treatment, as well as
subjecting him to the humiliation and embarrassment of having
his most intimate confidences disclosed to a third party
without his authorization.
Conclusion
The amended motion for judgment thus presents a
combination of claims, some of which are barred by Code
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§ 8.01-220 and others which are not. Because a demurrer goes
to the whole pleading to which it is addressed, it should be
overruled if any part of the pleading states a cause of action
upon which relief may be granted.
“A demurrer to an entire declaration, . . . raises
the question, whether or no there be matter in the
declaration sufficient to maintain the action. If
the declaration contain several counts, and any one
be good, it follows that there is matter enough to
maintain the action. . . . The same rule applies
when there is a demurrer to a single count
containing several breaches, any one of which is
well assigned; or to a demurrer to a single count
containing a demand of several matters which in
their nature are divisible, and any one of which is
well claimed. . . . [I]f there be matter enough in
the declaration to maintain the action, the demurrer
must be entirely overruled.”
Henderson v. Stringer, 6 Gratt. (47 Va.) 130, 133-34 (1849).
We conclude that those claims not barred by Code § 8.01-
220 state a cause of action for professional malpractice and
that it was error to dismiss the entire case by sustaining the
demurrer.
Nevertheless, we adhere to the view expressed in
McDermott, that a revival of the abolished tort of alienation
of affection in the guise of another cause of action must be
avoided. Therefore, in any further proceedings upon remand,
the trial court should, by appropriate rulings on the
admissibility of evidence (and in the event of a jury trial,
by appropriate instructions), exclude from the fact-finder’s
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consideration any effect the defendant’s conduct may have had
upon the plaintiff’s marriage. We will therefore reverse the
judgment of the trial court and remand the case for further
proceedings consistent with this opinion.
Reversed and remanded.
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