Zamstein v. Marvasti

BERDON, J.,

dissenting. The majority holds that, based upon what it presumes to be the public policy of this state, a psychiatrist or other mental health professional is absolutely immune from liability in an action brought by a parent as a result of the mental health professional’s negligence in accusing the parent of sexually abusing his or her children. I disagree that the public policy of this state sanctions such immunity from civil liability.

The plaintiff, Jacob Zamstein, in his complaint seeking damages from the defendant, Jamshid Marvasti, a psychiatrist, alleges1 a tale of horror caused by the defendant’s negligent conduct. On November 14, 1988, the plaintiffs wife, Sharon Zamstein, brought an action *568for dissolution of marriage against the plaintiff. The plaintiff and Sharon Zamstein entered into a stipulation to have James C. Black, a psychiatrist, appointed to evaluate parental roles and to prepare a custody evaluation.

Thereafter, while the custody of the Zamsteins’ minor children, J and R, was at issue, Sharon Zamstein accused the plaintiff of having sexually abused the two children. On September 14,1989, an arrest warrant was executed and the plaintiff was taken into custody on charges of sexual assault. Later that month, Sharon Zamstein was referred to the defendant by her attorney in the dissolution proceeding in order to evaluate R and J for evidence of sexual abuse. At the request of Sharon Zamstein, the defendant undertook the evaluation. At the time that the defendant agreed to perform the evaluation, he knew that the children were the subject of a custody dispute between the plaintiff and Sharon Zamstein, and that, on the complaint of Sharon Zamstein, the plaintiff had been arrested on charges involving the alleged sexual abuse of his children. The defendant evaluated R during five sessions and J during three sessions, and the defendant videotaped all of these sessions. During these sessions, the defendant used several improper techniques to elicit incriminating responses from R and J, including the use of coercive interview techniques, asking leading or suggestive questions, and offering candy as a reward. At no time during his evaluation did the defendant ever meet or speak with the plaintiff.

On December 20, 1990, Black, having found no evidence of sexual abuse, recommended that the criminal charges against the plaintiff be dismissed and that unsupervised visitation between the plaintiff and the minor children commence immediately. Thereafter, on January 3, 1991, the family court issued a judgment dissolving the marriage between the plaintiff and Sharon *569Zamstein. The family court awarded joint custody of the minor children to the plaintiff and Sharon Zamstein.

Subsequently, the defendant presented to the state’s attorney’s office in Hartford and to the plaintiffs criminal defense counsel an edited version of the videotapes of the sessions with R and J, which he believed demonstrated that sexual abuse had occurred. In the edited version of the videotapes, the defendant had deleted the children’s statements and actions exculpating the plaintiff from the allegations of sexual abuse.

Despite the findings of Black and the judgment of the family court, the state’s attorney’s office persisted with the prosecution of the plaintiff based on the defendant’s presentation of the edited videotape. The criminal trial lasted more than three months and was the focus of numerous newspaper articles and televised news stories. At trial, the only expert testimony presented by the state was that of the defendant. Only after cross-examination of the defendant by the plaintiff’s defense counsel at the criminal trial was it discovered that the defendant had edited the videotape to delete all of the exculpatory statements and actions by R and J. The plaintiff was subsequently acquitted of all criminal charges.

I agree with the majority that in determining whether a defendant owes a duty to another requires a two part inquiry: (1) whether it is foreseeable that harm of the general nature suffered by the plaintiff may result if care is not exercised; and (2) whether the imposition of such a duty is consistent with the public policy of this state. Clohessy v. Bachelor, 237 Conn. 31, 45-46, 675 A.2d 852 (1996). It is clear that the harm caused to the plaintiff in this case was foreseeable. The defendant was aware of the pending divorce proceeding and the criminal action during his evaluation of the minor children. Indeed, the defendant provided the edited video*570tape to the state’s attorney’s office for the purpose of assisting in the prosecution of the plaintiff for sexual abuse. Accordingly, the defendant knew or should have known that his actions would have a direct impact on the plaintiffs criminal prosecution and on the child custody proceedings, and could cause irreparable harm to the plaintiff and to his relationship with his children.

Nevertheless, the majority concludes that the defendant owed no duty to the plaintiff because the imposition of such a duty would be contrary to the public policy of this state. Although this court may assume what the public policy of this state is when the legislature is silent; see State v. Blasko, 202 Conn. 541, 559, 522 A.2d 753 (1987); once the legislature has spoken on a subject, it establishes the public policy of the state. Laurel Bank & Trust Co. v. Mark Ford, Inc., 182 Conn. 437, 442, 438 A.2d 705 (1980).

In my view, the legislature has recognized that it is not contrary to the public policy of this state to impose on psychiatrists and other mental health professionals a duty to persons they negligently accuse of abusing children. I agree with the majority that General Statutes (Rev. to 1995) § 17a-101 demonstrates the state’s strong public policy to report actual and suspected abuse. The majority, however, ignores the import of § 17a-101 (h), which provides in part that psychiatrists and others who “in good faith, [make] the report required by this section shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed . . . .” (Emphasis added.) In other words, even in those situations in which mental health professionals are required to report child abuse, the granting of such immunity is predicated on the exercise of “good faith.” Therefore, because the legislature in adopting § 17a-101 (h) refused to grant absolute immunity from civil liability to mental health professionals for reporting child abuse when required by law, it cannot possibly *571be the public policy of this state that mental health professionals owe no duty under any circumstances to persons they negligently accuse of child abuse.2

Under the allegations of the plaintiffs complaint, it is inconceivable that such immunity would be available to the defendant. For example, the plaintiff alleges that the defendant had: (1) coercively obtained statements from the children that they were sexually abused by the plaintiff; (2) videotaped the interviews; and (3) furnished to the state’s attorney’s office a videotape edited to delete exculpatory portions. If, as a result of the edited videotape, the state continued with its prosecution of the plaintiff for sexual abuse, requiring him to endure a three month criminal trial during which it was discovered for the first time that the videotape was edited and at which he was found not guilty, the defendant would be hard pressed to convince a trier of fact that he acted in good faith.

Other jurisdictions have held that mental health professionals owe a duty to individuals whom they negligently accuse of child abuse. See, e.g., Tuman v. Genesis Associates, 894 F. Sup. 183, 188 (E.D. Pa. 1995) (“a therapist owes a duty of reasonable care to a patient’s parents, where [1] the therapist specifically undertook to treat the child for the parents; [2] the parents relied upon the therapist; [3] the therapist was aware of the parents’ reliance; and [4] it was reasonably foreseeable that the parents would be harmed by the therapist’s conduct”); Montoya v. Bebensee, 761 P.2d *572285, 289 (Colo. App. 1988) (“a mental health care provider owes a duty of care to any person, who is the subject of any public report or other adverse recommendation by that provider, to use due care in formulating any opinion upon which such a report or recommendation is based”); Caryl S. v. Child & Adolescent Treatment Services, Inc., 161 Misc. 2d 563, 572, 614 N.Y.S.2d 661 (1994) (“where the determination of sexual abuse is made by a professional treating a child, with subsequent actions taken based upon that determination and aimed, whether in whole or in part, at shaping not only the conduct and well-being of the child but also the conduct of the suspected abuser, or the relationship between them, a duty of care is owed not only to the child but also to the alleged abuser”).

The majority opinion has serious repercussions.3 It will allow mental health professionals to act negligently in their evaluation without any civil restraint, even when one parent’s motivation for accusing the other parent of sexual abuse of his or her child is a dissolution proceeding involving a hotly contested custody issue. I, of course, agree with the majority that mental health professionals should not be discouraged from reporting child abuse. The concern that subjecting those professionals to civil liability for their negligent conduct could affect their professional judgment is allayed for several *573reasons. First, any parent who seeks to impose civil liability must prove that the mental health professional was negligent — that is, he or she failed to meet the appropriate standard of care. Indeed, if we were to apply the majority’s reasoning, it would be contrary to the state’s public policy to recognize that a physician has a duty to a patient not to commit malpractice because of concern that the physician would be reluctant to treat his patient aggressively when that treatment is in the patient’s best interest.4 More importantly, *574when mental health professionals report child abuse cases to the state as required by § 17a-101, they are granted absolute immunity in civil, as well as criminal, cases if they acted in good faith. Finally, requiring psychiatrists and other health care professionals to answer for their negligence would have a salutary effect of *575causing the profession to regulate itself by establishing appropriate standards of care.5 The substantial harm that could result to a person when a professional like the defendant is not subject to civil sanctions is demonstrated in this case. That harm affects not only the parent, but also the children who the majority purports to protect, because such negligent conduct could destroy the relationship between a parent and his or her children.6

In circumstances involving allegations of child sexual abuse, the mental health professional’s determination that abuse has occurred involves not only the child, but also the alleged abuser. “When, based upon that determination, a course of action is thereafter embarked upon by the professional, it is intended to, and necessarily does, affect both the child and his or her abuser, especially where a family relationship is involved. A suspected abuser surely has the right to a reasonable expectation that such a determination, touching him or her as profoundly as it will, will be carefully made and will not be reached in a negligent manner.” Caryl S. v. Child & Adolescent Treatment *576Services, Inc., supra, 161 Misc. 2d 571. Accordingly, I would hold that a mental health professional, in rendering an opinion with respect to allegations of child sexual abuse, owes a duty of care not only to the child, but also to the alleged abuser.

Accordingly, I dissent.

“In an appeal challenging a ruling on a motion to strike, we must take the facts to be those alleged in the plaintiffs complaint, and must construe the complaint in the manner most favorable to the plaintiff.” Mozzochi v. Beck, 204 Conn. 490, 491, 529 A.2d 171 (1987).

Furthermore, the majority of courts in other jurisdiction,s have concluded that, under the express language of child abuse reporting statutes similar to § 17a-101 (h), the immunity granted to mandatory reporters is limited to reports that were submitted in good faith. See, e.g., Michaels v. Gordon, 211 Ga. App. 470, 471, 439 S.E.2d 722 (1993); Viviano v. Moore, 899 S.W.2d 326, 328 (Tex. App. 1995); Dunning v. Paccerelli, 63 Wash. App. 232, 239-40, 818 P.2d 34 (1991); Elmore v. Van Horn, 844 P.2d 1078, 1084 (Wyo. 1992); see also annot., 73 A.L.R.4th 782, 826 (1989).

It is well documented that, in instances of sexual abuse claims in highly charged custody disputes, the determination that sexual abuse has occurred will have dire consequences. “ ‘More and more allegations of incest and [child] sexual abuse by husbands are being made by their wives during custody disputes. If the allegations are proven, the perpetrator, usually the husband/father, is excluded from contact with his children. . . . Child psychiatrists are frequently used by both sides to evaluate the child and malee a determination about the authenticity of the charges. . . . A mistake might jeopardize a child’s future or destroy a man’s family life and career.’ ” (Emphasis in original.) Caryl S. v. Child & Adolescent Treatment Services, Inc., supra, 161 Misc. 2d 570-71, quoting A. Green, “True and False Allegations of Sexual Abuse in Child Custody Disputes,” 25 J. Am. Acad, of Child Psychiatry 449 (1986).

Furthermore, the majority incorrectly relies on three cases that are simply not, determinative with respect to whether, in this case, public policy justifies the imposition of a duty on mental health professionals owed to alleged sexual abusers.

In Fraser v. United States, 236 Conn. 625, 630, 674 A.2d 811 (1996), this court considered whether a psychotherapist had a duty to control a patient from harming “a victim who was neither readily identifiable nor within a foreseeable class of victims.” We concluded that no duty was owed because the victim was not identifiable. Id., 634. The court further stated that balancing the relevant interests “counsels against the imposition of liability for harm to unidentifiable victims or unidentifiable classes of victims of outpatients with no history of dangerous conduct or articulated threats of dangerous behavior.” Id., 635. In the present case, however, this public policy determination is irrelevant because it is undisputed that the plaintiff was an identifiable victim of the defendant’s negligent act.

Similarly, in Maloney v. Conroy, 208 Conn. 392, 393-94, 545 A.2d 1059 (1988), this court considered whether two physicians owed a duty to a patient’s daughter who allegedly suffered severe emotional distress as a result of witnessing the patient’s condition worsen because of the physicians’ negligent treatment. This court, concluded, as a matter of la,w, that there was no duty owed to the patient’s daughter because her harm was not, foreseeable. Id., 402. Indeed, this court, stated that imposing a duty in such circumstances would result in an “undesirable sequel.” Id., 403. Specifically, the court stated: “Medical judgments as to the appropriate treatment of a patient ought not to be influenced by the concern that a visitor may become upset from observing such treatment, or from the failure to follow some notion of the visitor as to care of the patient. The focus of the concern of medical care practitioners should be upon the patient and any diversion of attention or resources to accommodate the sensitivities of others is bound to detract from that devoted to patients.” Id. Similar to Fraser, the court, in Maloney hinged its public policy conclusion on the fact, that the harm to the plaintiff was simply not foreseeable.

The majority also relies on Krawczyk v. Stingle, 208 Conn. 239, 241, 543 A.2d 733 (1988), in which a decedent’s beneficiaries brought an action against *574the decedent’s attorney for failing to provide estate planning documents to the decedent for execution prior to Iris death. Although the court stated that the plaintiffs were the intended beneficiaries, and thus were foreseeable plaintiffs, the court held that “the imposition of liability to third parties for negligent delay in the execution of estate planning documents would not comport with a lawyer’s duty to undivided loyalty to the client.” Id., 246. In other words, the court concluded that the duty owed to a third party could not trump an attorney’s ethical obligations owed to his or her client. Id. Unlike Krawczyk, the duty owed to the plaintiff in this case is, in fact, compatible with the duty owed to the children. Indeed, a mental health professional’s duty to report in a nonnegligent manner that a parent sexually abused his or her children is in the best interests of the children.

In my view, these three cases on which the majority relies do not support the majority’s view that public policy demands that the defendant in this case owes no duty to the plaintiff.

Finally, the majority looks for support to the law journal article authored by Cynthia Bowman and Elizabeth Mertz, entitled “A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy,” 109 Harv. L. Rev. 549 (1996). That article, like the case law relied upon by the majority, is not relevant. The article addresses only those situations in which a parent seeks recovery against a mental health professional for negligence in the treatment of an adult child that results in the adult child believing that he or she was sexually abused by the parent during early childhood. This is emphasized in the authors’ conclusion: “[W]e conclude that the legal system should not permit third-party liability against the wishes of the therapist’s client. Parents who believe that their adult children have accused them falsely should address their problems directly with the adult women and men involved, with or without recourse to the law. The client should decide whether psychotherapeutic malpractice has occurred. The courts should not allow malpractice claims when fully competent adult patients or clients do not believe that they have suffered malpractice — such claims would misuse the courts’ time and power. If malpractice has indeed occurred, the patient or client can sue to redress the wrong. If a parent feels defamed, he or she can take action against the source — the child — rather than treating the now-adult child as the malleable dupe of a brainwashing therapist.” Id., 638. In the present case, the plaintiff alleges not the negligent treatment of an adult child, but, rather, professional misconduct that resulted in his minor children wrongfully accusing him of sexual abuse and, thereby, among other things, destroying the relationship between them.

As two commentators have observed, “[i]t is evident, from the kinds of testimony given by experts in the mental health and medical fields . . . that few safeguards exist for people, whether parents or surrogate care providers, who are wrongly but vigorously accused of having molested a child under their care or supervision." T. Horner & M. Guyer, “Prediction, Prevention, and Clinical Expertise in Child Custody Cases in which Allegations of Child Sexual Abuse Have Been Made,” 25 Fam. L.Q. 381, 382 (1991).

Imposing' liability on mental health professionals when they act negligently will result, in the profession policing itself and establishing professional standards. These standards will not only provide guidance for the conduct, of professionals, but will also have the salutary effect of safeguarding healthy relationships between parents and children, which could be destroyed when a parent is negligently accused of abuse.

The plaintiff alleged in part the following injuries: “As a further direct and proximate result of the aforementioned negligence and carelessness of the defendant, the plaintiff has had the companionship, support, love, affection and paternal relationship between himself and his children irreparably damaged.”