UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
MARIO G. BENAVIDEZ,
Plaintiff - Appellant,
v. No. 97-2313
UNITED STATES OF AMERICA,
Defendant - Appellee.
Order
Filed June 8, 1999
Before PORFILIO, KELLY and LUCERO, Circuit Judges.
Appellant’s unopposed motion to delete the name of Cathleen Cain from
the caption of this appeal is granted. The revised slip opinion cover sheet is
attached to this order.
Entered for the Court
PATRICK FISHER, Clerk of Court
by:
Keith Nelson
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH MAY 20 1999
UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT
MARIO G. BENAVIDEZ,
Plaintiff - Appellant,
v.
No. 97-2313
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-95-823-LH)
Bruce E. Pasternack (Neil R. Blake and Valerie A. Chang with him on the briefs),
Pasternack and Blake, P.C., Albuquerque, NM, for Plaintiff - Appellant.
William G. Cole (Frank W. Hunger, Assistant Attorney General, John J. Kelly,
United States Attorney, and Robert S. Greenspan with him on the brief),
Department of Justice, Washington, D.C., for Defendant - Appellee.
Before PORFILIO, KELLY and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.
This appeal raises the issue of whether the intentional tort exception to the
Federal Tort Claims Act (“FTCA”) applies to a suit alleging that a government-
employed psychologist negligently mismanaged the patient-therapist relationship
by engaging in sexual contact and drug and alcohol abuse with his patient.
Concluding that the therapist’s actions constituted an intentional tort, the district
court dismissed appellant’s suit for lack of jurisdiction. See Benavidez v. United
States, 998 F. Supp. 1225, 1231 (D.N.M. 1997). We have jurisdiction pursuant to
28 U.S.C. § 1291 and reverse.
I
Appellant Mario G. Benavidez is a member of the Laguna Pueblo Indian
Tribe in New Mexico. As a teenager, Benavidez suffered from depression and a
drug and alcohol dependency problem that led to frequent arrests by the local
police. After attempting suicide, Benavidez was referred by the police and the
Indian Health Service (“IHS”) 1 to a government-employed psychologist, Dr.
David J. Bullis, for counseling. Bullis diagnosed Benavidez, who was then just
shy of his sixteenth birthday, as suffering from a variety of psychological
disorders, including depression with suicidal intent, polysubstance abuse, and
cannabis dependence.
Despite this diagnosis, Bullis allegedly told Benavidez that continued
alcohol and drug abuse would be appropriate and even therapeutic. Bullis also
The IHS is a division of the Public Health Service of the United States
1
Department of Health and Human Services.
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allegedly used therapy sessions to convince Benavidez that he was homosexual
and that he should have sex with Bullis. During the course of the patient-
therapist relationship, Bullis allegedly engaged in sexual contact with Benavidez.
Together, the two also allegedly used alcohol, marijuana and other illegal drugs. 2
The record includes testimony that Bullis had a reputation for using drugs
and alcohol with many of his teenage patients, and Bullis himself told one of his
supervisors that he had engaged in “some exploratory sexual contact” with
Benavidez. The supervisor never notified his superiors of Bullis’s conduct, but
merely wrote in his notes that he felt comfortable allowing Bullis to continue with
his regular duties. The IHS did not relieve Bullis of his clinical responsibilities
until January 1995, when Benavidez filed an administrative tort claim against the
agency.
In July 1995, Benavidez, acting pursuant to 28 U.S.C. § 2675(a), filed suit
in the United States District Court for the District of New Mexico, 3 alleging
various injuries as a result of Bullis’s conduct and seeking recovery against the
2
Benavidez claims that he was Bullis’s patient from February 1989 to October
1994. In granting the government’s motion to dismiss, the district court assumed “that all
of the acts alleged took place in the course and scope of Bullis’s employment.”
Benavidez, 998 F. Supp. at 1229. Because we are reviewing the district court’s dismissal
of Benavidez’s complaint, we also assume that Bullis acted within the course and scope
of his employment as a government psychologist.
3
As required by 28 U.S.C. § 2675(a), Benavidez first filed his claim with the IHS.
Because the IHS failed to dispose of the claim within six months of its filing, Benavidez
properly instituted this action in federal district court.
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United States under the respondeat superior theory of liability. The district court
concluded that Benavidez’s allegations constituted a claim for assault and battery
rather than for professional negligence or malpractice. Applying the intentional
tort exception to the FTCA’s waiver of sovereign immunity, the court thus
granted the government’s motion to dismiss for lack of jurisdiction. 4
II
We subject to de novo review the question of whether a district court has
subject matter jurisdiction to hear a tort claim against the United States. See
Franklin v. United States, 992 F.2d 1492, 1495 (10th Cir. 1993), aff’d on appeal
after remand, 34 F.3d 1076 (10th Cir. 1994).
The FTCA provides that the United States can be sued for personal injury
resulting from:
[The] negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.
4
In addition to its motion to dismiss for lack of subject matter jurisdiction, the
government filed an alternative motion for summary judgment. Having granted the
motion to dismiss, the court denied the alternative motion as moot. It also denied as moot
a separate motion to dismiss Benavidez’s medical malpractice claim, and an alternative
motion for partial summary judgment as to limitation of damages.
-4-
28 U.S.C. § 1346(b)(1). But this waiver of sovereign immunity does not extend
to claims arising out of assault or battery. See 28 U.S.C. § 2680(h).
The issue before us, therefore, is whether, Bullis’s alleged conduct
constituted a “negligent, or wrongful act” rather than an assault or battery for
purposes of the FTCA. “[W]e assume Congress proceeded from an understanding
of established tort definitions when enacting and amending the various sections of
the FTCA.” Franklin, 992 F.2d at 1495. Thus, although the issue of whether a
claim falls within the FTCA’s waiver of immunity is a matter of federal law, a
resolution of that issue often turns on the “traditional and commonly understood
legal definition of the tort” that the plaintiff alleges. United States v. Neustadt,
366 U.S. 696, 706 (1961).
A
A review of relevant federal and state court cases shows that Bullis’s
conduct has traditionally been understood and commonly defined as negligent
malpractice, which does not fall within the intentional tort exception to the
FTCA’s waiver of sovereign immunity. See, e.g., Simmons v. United States, 805
F.2d 1363, 1368-71 (9th Cir. 1986); Andrews v. United States, 732 F.2d 366, 371
(4th Cir. 1984); Doe v. Samaritan Counseling Center, 791 P.2d 344, 348-49
(Alaska 1990); Corgan v. Muehling, 522 N.E.2d 153, 156-57 (Ill. App. Ct. 1988),
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aff’d, 574 N.E.2d 602 (Ill. 1991); Zipkin v. Freeman, 436 S.W.2d 753, 761-62
(Mo. 1968).
In Simmons, for example, an IHS therapist seduced his patient, a member
of the Chehalis Indian Tribe, into a sexual relationship. See Simmons, 805 F.2d
at 1364. The patient suffered a subsequent deterioration in her mental and
emotional health. Another therapist traced her worsening condition to the sexual
relations she had with the former therapist. The patient thereupon filed suit
against the government under the FTCA, and the district court entered judgment
in her favor. Dismissing the government’s appeal, the Ninth Circuit ruled that by
seducing his patient, the therapist had mismanaged the “transference
phenomenon” and thus engaged in negligent malpractice. See id. at 1365.
“Courts have uniformly regarded mishandling of transference as
malpractice or gross negligence.” Id. (citing cases); see also Greenberg v.
McCabe, 453 F. Supp. 765, 771-72 (E.D. Pa. 1978), aff’d, 594 F.2d 845 (3rd Cir.
1979); Samaritan Counseling Center, 791 P.2d at 348. The “transference
phenomenon” refers to the tendency of patients to become emotionally dependent
upon, and trusting of, their psychologist or psychiatrist. See generally Michael D.
McCafferty & Steven M. Meyer, Medical Malpractice: Bases of Liability
§ 10.18 (1985) (explaining that transference “is one of the most significant
concepts in psychoanalytic therapy,” and accounts for the “strong dependency of
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the patient upon the therapist”). Specifically, transference describes a patient’s
“projection of feelings, thoughts and wishes onto the analyst, who has come to
represent some person from the patient’s past.” Simmons, 805 F.2d at 1364
(quoting Stedman’s Medical Dictionary, 1473 (5th Lawyer’s Ed. 1982)).
Although it occurs in other professional relationships, “it is only in
psychotherapy that the management of this [transference] effect is so
critical—legally as well as therapeutically.” Joseph T. Smith, Medical
Malpractice: Psychiatric Care § 9.10 (1995). No other professional relationship
“offer[s] a course of treatment and counseling predicated upon handling the
transference phenomenon.” Simmons, 805 F.2d at 1366 (citing Alan A. Stone,
Law, Psychiatry, and Morality 199 (1984)). In order to manage the transference
phenomenon properly a therapist must avoid emotional involvement with a patient
who transfers feelings of affection to him. See Aetna Life & Cas. Co. v. McCabe,
556 F. Supp. 1342, 1346 (E.D. Pa. 1983).
Despite the wide acceptance of transference in the medical and legal
communities, the district court summarily dismissed the Simmons court’s reliance
on the phenomenon. See Benavidez, 998 F. Supp. at 1229 n.4. But we need not
rely exclusively on Simmons and other cases that employ the transference
phenomenon. Faced with a case very similar to the one before us, the Fourth
Circuit, without relying on transference, concluded that a therapist’s sexual
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relationship with his patient constituted grounds for a negligent malpractice
claim. See Andrews, 732 F.2d at 370-71.
In Andrews, a government-employed therapist diagnosed the plaintiff as
suffering from chronic depression. The therapist soon began using counseling
sessions to convince his patient that she needed an affair, and ultimately
succeeded in seducing her into a sexual relationship. See id. at 367-68. As a
result of the therapist’s conduct, the plaintiff’s emotional health worsened, and
she ultimately filed suit under the FTCA. The government argued that the suit
stemmed from an assault and battery for which sovereign immunity is not waived.
See id. at 371. The Fourth Circuit disagreed, and simply held that when a
therapist seduces his patient while purporting to provide counseling, “the
resulting cause of action is described as medical malpractice [and] not assault and
battery.” Id.
The government attempts to distinguish Andrews by arguing that the patient
in that case consented to her therapist’s sexual advances because he convinced her
that sexual intercourse with him was the best course of treatment for her. The
government contends that unlike the plaintiff in Andrews, Benavidez did not
consent to Bullis’s sexual contacts. Thus, this case involves the intentional tort
of assault and battery rather than negligent malpractice. The district court agreed,
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stating that “there is no doubt that Plaintiff does not allege that the sexual acts
were consensual.” Benavidez, 998 F. Supp. at 1229.
To state a claim for negligence rather than a claim for assault and battery,
Benavidez did not have to allege that he engaged in consensual sexual relations
with Bullis. One of the key distinctions between claims sounding in negligence
and those sounding in intentional tort like assault and battery is that the latter
requires an unconsented touching. See Restatement (Second) of Torts § 13 cmt.
d (1965) (“The absence of consent . . . is inherent in the very idea of those
invasions of interest and of personality which, at common law, were the subject of
an action for trespass for battery [or] assault.”). By alleging negligence, 5
Benavidez implicitly asserted that he consented to Bullis’s sexual advances, and
thus pleaded a claim for professional negligence or malpractice rather than for
assault and battery.
Of course, a mere allegation of negligence does not turn an intentional tort
into negligent conduct. See Wine v. United States, 705 F.2d 366, 367 (10th Cir.
1983); Naisbitt v. United States, 611 F.2d 1350, 1355-56 (10th Cir. 1980). To
determine the nature of an asserted claim, we focus not on the label the plaintiff
uses, but on the conduct upon which he premises his claim as supported by the
5
See First Am. Compl. at ¶ 15 (alleging that “Bullis engaged in . . . psychological
manipulation so as to negligently manipulate [Benavidez] into a long-term sexual
relationship which served Bullis’ needs”) (emphasis added).
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record. See Sabow v. United States, 93 F.3d 1445, 1456 (9th Cir. 1996). In
concluding that Benavidez asserted a claim for assault and battery, the district
court merely stated that “the complaint avers that Bullis forced himself on the
plaintiff by misusing the therapeutic relationship and by encouraging the Plaintiff
to use alcohol and drugs.” Benavidez, 998 F. Supp. at 1229 n.5. Nowhere in the
complaint or in the record, however, do we discern any support for the district
court’s conclusion that Bullis forcibly engaged in sexual relations with
Benavidez.
B
The government argues, alternatively, that Benavidez admits to being so
incompetent during the course of his therapy as to render meaningless whatever
consent he may have given to Bullis’s conduct. 6 The government relies on
Benavidez’s testimony that his psychological condition rendered him unable to
6
Relying on our decision in Franklin v. United States, 992 F.2d 1492 (10th Cir.
1993), aff’d on appeal after remand, 34 F.3d 1076 (10th Cir. 1994), the government
argues that “an incompetent consent to the intentional invasions of one’s person has no
effect,” and that therefore this case involves a battery. Appellee’s Br. at 30 (quoting
Franklin, 992 F.2d at 1497). However, Franklin and the other cases on which the
government relies, including Thigpen v. United States, 800 F.2d 393 (4th Cir. 1986),
overruled on other grounds by Sheridan v. United States, 487 U.S. 392 (1988), and New
Mexico Physicians Mutual Liability Co. v. LaMure, 860 P.2d 734 (N.M. 1993), do not
involve a therapist engaging in sexual contact with his emotionally distraught patient
under the guise of therapy. Instead, they involve sexual relations between physicians and
patients. “[C]ourts do not routinely impose liability upon physicians [or other
professionals] for sexual contact with patients” or clients. Simmons, 805 F.2d at 1366.
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reject Bullis’s sexual advances, although he nonetheless felt emotionally raped by
Bullis’s conduct. The district court agreed, stating that “the Plaintiff was in no
condition at the time of the abuse to give his consent, and had essentially turned
his will over to Bullis.” Benavidez, 998 F. Supp. at 1229 n.5 (citing First Am.
Compl. at ¶¶ 11-14).
The district court’s finding and Benavidez’s testimony merely reveal
Benavidez’s confusion about how to respond to the unsolicited sexual advances of
a therapist upon whom he was so emotionally dependent, and whose suggestions
he was unable to resist. The plaintiff in Andrews displayed a similar “confused
dependency” and “ambivalence about continuing treatment” in the face of her
therapist’s sexual advances. Andrews, 732 F.2d at 369. Nonetheless, the Fourth
Circuit rejected the government’s argument that the therapist’s sexual relationship
with the plaintiff was nonconsensual.
Moreover, the court suggested that in such a case, consent may be
irrelevant because the egregious nature of the therapist’s conduct constitutes an
act of professional negligence separate and apart from the act of intercourse.
“‘[T]he injury to the plaintiff [is] not merely caused by the consummation of acts
of sexual intercourse. Harm [is] also caused by the [therapist’s] failure to treat
the patient with professionally acceptable procedures.’” Andrews, 732 F.2d at
371 (quoting Roy v. Hartogs, 381 N.Y.S.2d 587, 588 (N.Y. App. Term. 1976));
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see also Art. 4.05 Ethical Principles of Psychologists and Code of Conduct
(“Psychologists do not engage in sexual intimacies with current patients or
clients.”)
III
The gravamen of the complaint in this case is that under the guise of
providing counseling, a therapist violated professionally acceptable procedures
and induced an emotionally depressed and suicidal teenager, already prone to
alcohol and drug abuse, to indulge in the use of such substances and to engage in
sexual conduct. Given the settled federal and state law on this issue, we conclude
that the allegations in the complaint sufficiently support a claim for professional
negligence or malpractice. This sort of claim does not fall within the intentional
tort exception to the FTCA’s waiver of sovereign immunity. 7
REVERSED.
7
Benavidez argues that even if Bullis’s conduct fell within the FTCA’s intentional
tort exception, the district court still erred in dismissing his suit because (1) the
government was directly negligent in hiring and supervising Bullis; and (2) 42 U.S.C. §
233(e) nullifies the FTCA’s intentional tort exceptions so that the government is liable for
the intentional tort of public health employees like Bullis. Because we conclude that
Bullis’s alleged conduct constituted negligent malpractice, we do not reach the other
bases for Benavidez’s suit.
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