Jacobsen v. Muller

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion as far as it goes, I also concur specially to offer some additional observations concerning the propriety of granting summary judgment for the appellees.

In St. Paul Fire &c. Ins. Co. v. Mitchell, 164 Ga. App. 215 (296 SE2d 126) (1982), a medical malpractice insurer sought declaratory judgment that it had no duty to defend an action commenced by a woman who had sought treatment for sexual frigidity and who, in turn, (1) fell prey to the treating psychiatrist’s mishandling of the controversial Freudian1 “transference phenomenon,” (2) had sexual relations with the psychiatrist, and (3) consequently had a baby. This court held that the insurer did have the duty to defend because the plaintiff’s allegations asserted a valid claim, fit for jury resolution, for tortious rendition of professional services.

In the instant case, although the appellees maintain that Muller, despite being a licensed clinical psychologist, was nothing more than a career counselor, the appellant’s deposition testimony sufficed to *386demonstrate that Muller’s professed job duties on paper were not those he put in practice. According to the appellant, Muller explained that he would assist her in analyzing and assessing her assets and ascertaining job and career direction by concentrating on her psychological make-up. Muller emphasized their confidential, trust relationship, and encouraged her not to hold anything back as he proceeded to inquire into every little detail of her life, in particular any “life-influencing” and traumatic experiences. The appellant also recounted Muller’s intimation that he desired his own psychological counseling practice, but that his employment at DBM was the next best thing because he at least was able to practice his profession. This evidence would seem to preclude any finding as a matter of law that no therapist-patient relationship existed.

Nevertheless, even if a psychological therapist-patient relationship did exist, it appears that liability for malpractice could follow only if it were shown that this fiduciary relationship was exploited by (1) so gaining the trust and confidence of the patient as to deprive her of her free will2 (see OCGA § 16-2-4), and (2) the sexual intimacy is connected with the plan of treatment. That was the situation in St. Paul, but not the instant case. Reviewing the evidence in the light most favorable to the appellant, it is still obvious that her unhappy personal relationship with Muller was in no way connected with either his “career counseling” or his “therapy.” Accordingly, summary judgment for the appellees was appropriate.

Notwithstanding the reprehensible nature of Muller’s role in this human drama, to allow the appellant to recover under the facts of this case would in effect have this court endorse a quixotic view that the virtue of women must be defended whether it exists or not. It should be remembered that “[c]ourts do not attempt to guard men against their own rashness and folly, but will leave them as free agents to protect themselves.” Dyar v. Walton, Whann & Co., 79 Ga. 466, 469-470 (1887). The latter stated principle applies to women as well as men, and one coming into court seeking equitable protection and satisfaction must do so with clean hands.3

Anything to the contrary held in Long v. Adams, 175 Ga. App. 538 (333 SE2d 852) (1985), should be overruled by this court. Initially *387in the instant case, the objectives of providing job and career direction were both honorable and legal, although an illegal act of promiscuity and criminal fornication resulted, with this court providing no remedy or relief to the victim. A fortiori, where the original goals as in Long are promiscuity and the rashness and folly of fooling around with criminal fornication, and where herpes, syphillis, gonorrhea, or AIDS might result, parties assume the risks of their own indiscretion of walking in the dark. The courts must recognize these parties as “free agents to protect themselves,” and leave them where we find them without remedy or relief in their rashness and ruin. Long should hereby be disapproved and overruled, as it would be unconscionable to withhold aid to the initially innocent in the instant case, yet reward the initially promiscuous in Long.

The dissent disparages this writer’s position as (1) applying “turn-of-the century industrial revolution principles to the realities of the present world,” and (2) as canonizing a “laissez-faire approach to justice.” Regarding that observation, it is only suggested that more frequent modern application of some vintage principles might render the “realities of the present world” less bleak. Age does not necessarily translate into obsolescence. Further, the only laissez-faire approach to anything in this case appears to be that by the dissent, with regard to possibly canonizing social mores and morals. This writer’s position more accurately would be compared to the doctrine of caveat emptor. Even applying negligence principles, this is a plain and palpable case of at least equal negligence.

“A new secular and scientific religion for an elite which was to guide mankind ... I have tried to show that psychoanalysis was conceived as, and developed further into, a quasi-religious movement based on psychological theory and implemented by psychotherapy.” Fromm, Erich. Sigmund Freud’s Mission, An Analysis of His Personality and Influence.

Had the facts in this case been stronger toward designing a plan of treatment to improve her social, sexual, and personal life instead of limited to job counseling services, and had she been subsequently sexually subdued, jury issues would exist as to whether her free will was submerged, surrendered, and subordinated to his so that she was putty in his hands and the acts his by professionally overpowering her free will to resist.

The acts apparently consented to by the two adults here, under choices made by their own free will, amount to at least criminal fornication, and possible criminal adultery, as well as improper professional conduct by the counselor-therapist who was being paid for services rendered.