*1 H47 impeach appellant’s appellees to allow declined to errors were abandoned and 6/9/97, credibility. slip opinion at 3. consider them. See argued appellant of 13 errors be- None admissibility challenged the also Appellant weight the trial court concern either fore at the of .25% of his blood-alcohol content sufficiency of or the the evidence. Accord- majority con- the accident. As time of appellant’s preserve these ingly, failure cludes, admissible show this evidence was precludes our issues review. pedes- negligence as a appellant’s own causal trian, corroborat- where there was additional Finally, appellant the trial contends that intoxication, including the evidence in entering court erred in a non-suit favor of appellant emanating from smell of alcohol appellee Appellant’s the Harris Fuels. scene, crossing his behavior and liability is ory supporting Harris Fuels’ that, Appellees presented evidence street. Taylor’s vicariously appellee it is liable for accident, appellant was cross- the time jury Taylor Because negligence. found major highway, in the middle ing a liable, this our and verdict withstood block, midnight, at about clothing dark review, appellant cannot recover signal, that he against a control and traffic Accordingly, Harris Fuels. this issue is oncoming in front traffic. With “darted” Brown, Quigg generally moot. See v. comments, join majori- I additional these (1996) (commenting Phila. 468 issue ty opinion. principal’s liability vicarious is rendered finding agent was not moot
liable). appellate An court will not consider question
a moot unless one several narrow exceptions applies. See v. Penn Rosenfield Ins., sylvania Aut. 387- ALTHAUS, L. a minor Richard Nicole 1138, 1141 exception 636 A.2d No Cheryl Althaus, and Renee T. ALTHAUS Thus, relevant here. we dismiss issue guardians, parents and and natural as moot. Cheryl T. Althaus and Renee Richard Judgment affirmed. Althaus, Appellees, v. BECK, J., concurring filed statement. COHEN, University Judith A. M.D. and Pittsburgh Psychiatric Western BECK, Judge, concurring. Clinic, Appellants. Institute and I concur in the in the result reached ma- join jority opinion generally in the dis- ALTHAUS, L. a minor Richard however, separately, therein. I cussion write Cheryl Althaus, T. ALTHAUS Renee clarify holding. further the reasons for our guardians, parents and natural First, agree trial did not court Cheryl Renee Richard T. Althaus its admitting abuse discretion evidence Althaus, Appellants, appellant’s history drug of alcohol and appellant placed expectancy where his life COHEN, University A. M.D. Judith injury. permanent issue with his claim of into Psychiatric Pittsburgh Western admission, however, An additional basis for Clinic, Appellees. Institute persuasive, one I even more believe impeachment purposes. Appellant tes- Pennsylvania. Superior Court of health” tified that he had been “excellent accident, prior he had had when fact Sept. Argued 1997. hospital numerous admissions for alcohol de- April Filed use, history drug pendency, long heroin, barbiturates, including intravenous amphetamines. trial court did
LSD history admitting of this
not err evidence
H49 result, psychological emotional and began to well-being deteriorate. information to one of confided this teachers, they be- Zappa, and Priscilla *3 Zappa close. assisted Nicole quite came provide calling support cancer hotline to support during Nicole further emotional Lap- spoke to Connie this time. Nicole then coincidentally pa, Renee’s counselor who was Magee support group Women’s a cancer conversations, Hospital. phone After several Silverman, Larry Pittsburgh, for S. Cohen Lappa that her father Nicole confided Psy- University Pittsburgh Western Lappa inappropriately. then re- her touched chiatric Institute and Clinic. ported allegations of abuse to Bailor, Pittsburgh, for Althaus. Martha S. County Allegheny and Youth Ser- Children (CYS). vices McEWEN, Judge, Before President to be removed then caused Nicole CYS CAVANAUGH, BECK, TAMILIA, KELLY, re- parents’ from home. CYS further HUDOCK, JOHNSON, EAKIN and Police ferred matter to the Mt. Lebanon SCHILLER, JJ. Department which Richard Althaus arrested sexually charged abusing him with Ni- JOHNSON, Judge: Nathan, a Subsequently, cole. Dr. Susan psychia- are to decide We asked whether to Dr. psychologist, clinical referred Nicole alleged trist who a child for treats and the Child Adolescent Judith Cohen abuse owes a care to the University Pitts- Sex Clinic Abuse psychiatrist negligently that child where burgh Psychiatric Institute Western then, diagnoses and treats the child and (WPIC). Clinic misdiagnosis, subsequently based on em- trial, length At Dr. testified at Cohen directly barks a course action that sexually treating about clime’s role parents, affects both the child and the as the that the children. Dr. Cohen stated abused alleged This an issue of first abusers. program clinic was a treatment and did impression. We have considered com- provide investigative evaluations. forensic involved, policies peting the case law of N.T., at 16-18. She December Pennsylvania jurisdictions, and other and the child further that the determination of stated particular In circumstances of this case. do- made before the came was so, that, despite we must conclude extent, re- the clinic treatment of psychiatrist-patient relationship absence investigations provided by [CYS] lied “on psychiatrist between in this indepen- evaluations done forensic and/or case, psychiatrist them a Family Cen- Intervention dent evaluators psychiatrist’s actions ex- because 17-18. accordance with ter.” Id. at well-beyond psychiatric treatment tended make deter- practice, Dr. Cohen did not Further, reviewing after all of child. allega- of Nicole’s mination about truth cross-appeal, parties’ we issues this Instead, Dr. relied on the con- tions. Cohen respects. judgment affirm the all Dr. Nathan clusions made CYS sexually Dr. ac- April 10, Cohen Nicole was abused. Lynn Nicole Althaus was bom (the despite fact cepted determination Althaus Richard Renee Althauses), Carrasco, physician who Mary that Dr. Beginning in series abuse, signs physical catastrophic fam- examined Nicole illnesses struck the Althaus about expressed diagnosed skin her concern ily when Renee Dr. Carrasco allegations. some mother was then of Nicole’s breast cancer. Richard’s made that Nicole had informed Dr. Cohen diagnosed pancreatic can- with diabetes and Dr. Carrasco disturbing allegations for which cer, eventually As a she died. abused; supporting physical no had found evidence. has been she further informed surprised Dr. Cohen stated that was not she officers it responsibility was their physical findings she, there no since N.T., determine whether was abused. too, skeptical was somewhat about Nicole’s supra, at 76-77. allegations regarding ritualistic abuse. Id. at Yet, prelimi- Dr. Cohen attended several However, skepticism Dr. Cohen’s did not nary hearings pro- related to the criminal acceptance affect her that Nicole was sexual- ceedings against the Althauses and testified ly independent abused. She also made under oath that she believed that Nicole had investigation reports regarding made Court, been abused. 197. At Juvenile result, Nicole to other As a individuals. place- she testified that Nicole’s continued though Cohen treated Nicole as she were *4 ment in Zappa appropri- foster care with was suffering post-traumatic from stress disorder ate, despite Dr. Axelson’s that Ni- concern depression secondary to sexual abuse. relationship Zappa cole’s unhealthy. was progressed through therapy, As Nicole her N.T., 80-82; 22, 1994, November at Decem- outlandish, increasingly stories became in- 5, 1994, explained ber 76-77. at Dr. Cohen cluding but also not abuse ritual- presence her at proceedings criminal istic torture and the murder of several babies stating therapeutic that treatment extended that Nicole claimed to have had via caesarian providing support to to emotional Nicole allegations section. Her of abuse widened to to regarding while she testified matters her include all members of family, her immediate despite knowledge Dr. Cohen’s that father, coworkers of her and eventually parts testimony proceed- of Nicole’s at these strangers. Consequently, Richard Althaus N.T., ings were untrue. December was arrested three times and Renee was at 72. during arrested twice the course Nicole’s against with Dr. When the criminal case Nicole’s treatment Cohen. before the Honorable Robert came Nevertheless, steadfastly Dr. Cohen re- ordered, Dauer, Judge E. Dauer over Dr. credibility fused to evaluate the of Nicole’s objection, psychiat- independent Cohen’s an throughout treatment, despite statements prosecution ric examination of Nicole. The her awareness of the criminal proceedings agreed and the Althauses’ counsel to retain against the Althauses fact that many and the Dr. Marshall Schecter. allegations Nicole’s of abuse could not be true. Dr. While Cohen was concerned about psy- Dr. Schecter retained two additional allegations, these fantastical Dr. gen- Cohen chologists, testing per- psychological was erally avoided direct confrontation with Ni- Nicole, formed on Richard and Renee Al- cole because of her that concern Nicole, thaus. Dr. Schecter interviewed longer would no trust her and because she Richard, Renee, Dr. Cohen numerous feared that Nicole would make even more of professionals provided health care who had such allegations. spoke grand- care to He Nicole. to Nicole’s treatments, mother, brother,
During therapist, Nicole’s Dr. Cohen re- her and Renee’s Althauses, input fused from Dr. as well as Schoor-Ribera. Dr. Schecter reviewed Axelson, psychiatrist Dr. Alan all of child re- Nicole’s scholastic records and writ- Althauses, ings, tained spoke great length. Dr. Hilda with her at Schoor-Ribera, Nicole, Renee sup- Althaus’s cancer Based on his extensive evaluation of port therapist. that, Despite Dr. Dr. hearing Cohen’s insis- Schecter testified at the opinion, tence that Nicole’s treatment his remained Nicole suffered from border- strictly therapeutic, actively she personality was involved line disorder. He stated that he against in the proceedings criminal did not believe Nicole was ever abused and placement and the that allegations continued of Ni- her of abuse stemmed from cole in a foster a meeting inability distinguish home. At with Nicole’s to from fan- fact ’ police investigation team, tasy. members of the Dr. Dr. Schecter further testified Ni- inability distinguish Cohen to from refused comment on Nicole’s credi- cole’s truth fan- bility tasy testify. ways incompetent or to discuss to detect if a rendered
H51 testimony relating compe- submitting Dr. Althauses from Cohen also testified Nicole’s that, lie tency Initially, Mr. Althaus’s detector hearing. she stated to the results of Nicole, therapeutic on treatment of was aware based and the fact Dr. Cohen test (3) it; position was in than Dr. Schec- passed she a better refused instruct that he had competence. Id. at damages; ter assess Nicole’s jury punitive issue of cross-examination, however, During Dr. (4) that Nicole Althaus concluded allega- many of Nicole’s Cohen conceded delay damages. not entitled to untrue, that, times, Nicole tions were first Dr. WPIC’s We address Cohen’s fantasy. distinguish fact could not argument that Dr. Cohen owed Judge Dauer When informed non- to the Althauses because distinguish fantasy ability fact from psychiatrist-patient relation- existence of a precedent testifying under condition Initially, we ship between them. note oath, testify. Cohen advised Nicole trial no error with the court’s while we find Consequently, testify Nicole did not instance, we do so imposition this Commonwealth withdrew criminal particular circumstances because charges filed the Althauses. Dissenting Opinion, our case. In his daughter Nicole The Althauses and their Schiller, colleague, Judge distinguished *5 present negligence brought then the action pose the issue in a formulation that seems WPIC, theory against Dr. on Cohen and the not, here, trying answer. do we are We diagnosed Dr. negligently that Cohen and conclude, Judge charges, that not as Schiller negligence treated Nicole that this exac- alleged for psychiatrist a child a who treats undiagnosed per- erbated Nicole’s borderline duty owes an absolute of care to sexual abuse sonality farther disorder. The Althauses negligent psychi- the of that child for duty contended that Dr. owed a Cohen them If that all atric treatment of that child. were many of because of her awareness that here, happened we not would find allegations of Nicole’s could not be true and Dr. Cohen a to the Althauses. knowledge allega- because of these conduct, however, far extended Dr. Cohen’s proceed- tions the basis of were the criminal beyond the of Nicole treatment ings against them. The case submitted Here, actively partici- Althaus. Dr. Cohen jury, to a of which returned verdicts favor proceedings against the pated the criminal parents. parties both Nicole and her Both preliminary several She attended Althauses. post-trial filed motions that the court denied. hearings request at Nicole’s remained appeal by This WPIC allegations passive as Nicole made outlandish cross-appeal by the Althauses and their others—allegations against daughter Nicole followed. Though knew not true. that Dr. Cohen were appeal, argue On Cohen and WPIC that, times, recognized at Nicole could she (1) trial court erred when it held fantasy, distinguish fact from she none- not alleged psychiatrist treating that a a child for testify Nicole to to these allowed theless a sexual abuse owes of care to non- so, essentially doing vali- allegations patient parents, alleged abusers testimony. unwittingly false dated Nicole’s (2) jury to instruct the on both refused ex- Accordingly, Dr. Cohen’s actions because daughter their al- Althauses’ and well-beyond psychiatric treatment tended contributory leged negligence. Nicole, a Dr. Cohen owed of we conclude that and that duty of care to the Althauses cross-appeal, In their the Althauses relationship does psychiatric-patient lack trial daughter argue that immunity to Dr. Cohen. (1) provide blanket it: court when concluded that erred immunity good provisions faith of the child forth the ba- Pennsylvania courts have set 6318, law, § protective 23 services Pa.C.S. negligence as follows: a claim sic elements of Dr. Co- precluded using the Althauses from recognized by obligation, testimony pro- duty, 1. A legal hen’s from the various law, requiring the actor conform purpose supporting their ceedings for the conduct, (2) precluded the certain standard allegations negligence; 1152 protection against of others unrea- A.2d at Because of the nature of the disease, patient
sonable risks.
court
stated that
must
precautions.
advised
take certain
2. A
on
part
[the
failure
to con-
actor’s]
precautions
noted that
court
such
are not for
required.
form to
standard
rather,
patient;
precau-
the benefit
reasonably
3. A
close eausal connection
parties.
tions are
the benefit
third
resulting
between
conduct and the
court,
supreme
imposing
Our
on
injury....
rejected
physician
partner,
to the
damage resulting
4. Actual loss or
physician-patient
notion that
the lack of a
interests
another.
relationship
party from
barred a third
main-
Ins.,
Fennell v.
Nationwide Mutual Fire
profession-
taining
against
cause of action
534, 539,
1066-67
A.2d
policies limiting
al in instances where the
(1992),
Prosser,
Torts,
§
citing
Law of
at
professional’s
comparison
liability “pale
(4th ed.1971).
n.
the harm issue.” Id. at 562
583 A.2d
n. 1.
Rather:
legal duty
Whether
exists under a
question
set of
facts is
of law. Huddleston
person
If a
in that
third
class of
Inc.,
America,
Infertility
Center
persons
likely to
whose health is
be threat-
(Pa.Super.1997).
A.2d
Our
patient,
if
ened
erroneous ad-
analysis depends
many
factors and is
given
patient
vice
ultimate
“necessarily
public
rooted in
policy consider
person,
detriment
the third
the third
ations, i.e.,
morals, jus
ideas
history,
our
person
has a cause of action
tice,
society in general
determining
physician,
physician
because the
should
where the loss should fall.”
v. Con
Gardner
recognize that the services rendered to the
445, 455,
Corp.,
solidated Rail
524 Pa.
patient
protection
necessary
are
for the
*6
1016,
(1990);
A.2d
1020
see
Troxel v.
also
person.
the third
Institute,
Dupont
71,
A.I.
Pa.Super.
450
80-
562,
Id. at
583
424-25. See
A.2d at
also
84,
314, 319-20,
denied,
appeal
675 A.2d
546 Troxel, supra (physician who treated mother
(1996).
Pa.
547
685 A.2d
we
Once
deter
cytomegalovirus
duty
child for
owed
and
to
legal
exists,
duty
impose
mine that a
we
persons to
patient
third
inform
about conta-
liability only in those instances where the
gious
spread
prevent
nature
disease to
its
consequences
harmful
of the
con
defendant’s
persons,
plain-
foreseeable
which included
reasonably
duct could
have been foreseen
tiff,
had
exposed
who
been
to virus while
prevented by
and
the exercise of reasonable
result,
pregnant
as a
her child had died
Jeke,
v.
care. Mohler
407
595
birth).
shortly after
1247, 1252
A.2d
Pennsylvania appellate
No
court has ever
begins
Our discussion of this issue
psychiatrist
whether a
owes a
addressed
involving
cases of this Commonwealth
com duty
patient’s family
care to a
where the
supreme
municable diseases where both our
psychiatrist
patient
misdiagnosed the
as hav-
court
Court
physicians
and this
have found
sexually
family
a
been
abused
mem-
liable
physician-
to individuals outside the
However,
ber.
the District Court for the
patient
relationship.
Lynch
DIM
arco
Pennsylvania
Eastern District of
has visited
Inc.,
County,
Pa.
Homes—Chester
Associates,
In Turnan
issue.
v. Genesis
(1990); Troxel,
supra.
A.2d
We find
(E.D.Pa.1995),
F.Supp.
parents
negligence analysis
set forth
these
daughter’s
of an adult child sued their
thera-
applicable
cases
presented
the facts
before
pists
negligence theory
aon
when their
us.
daughter falsely
that the
had
stated
DiMarco,
murder,
supra,
hepatitis patient
a
incest
and lead a
and
committed
physician
eventually
advised
could re-
satanie cult. The court
dismissed
she
activity
sume
claim
negligence
six weeks without
because
infecting
partner.
allege physical injury.
fear
Id.
The woman
failed to
at 189.
weeks,
However,
eight
partner
began
waited
but her
never-
the court
its discussion
hepatitis.
concluding
therapist
theless contracted
Id. at
that the
this instance
Caryl.
interviewing
After
Aman-
patient’s
Id. at
parents.
law,
determining that Ca-
reviewing Pennsylvania
grandparents
188. After
da’s
credible,
plaintiff gener-
not
“although
ryl’s portrayal
stated that
of the events was
court
relationship
family
professional
ally must show
to Amanda’s
recommended
Jones
negligence,
professional
only supervised
a claim for
guardian
maintain
that she have
court
relationship
Caryl
grandmother
the absence of such a
does
until
“ex-
with her
visits
plaintiff’s recovery
necessarily bar a
where
responsibility for her actions
some
hibit[s]
negligence causes substantial
the defendant’s
counseling for whatever
some
obtain[s]
readily
harm to an identifiable and
determin-
problems
may
she
have.” Id.
emotional
plaintiffs.”
able class
in the
subsequently deposed
Jones was
Family
to obtain
grandparents’
Court action
suggest,
As these cases
the absence
Amanda,
at that
and testified
visitation
physician-patient relationship
between
trial. Id.
plaintiff
defendant-physician
does not
the court
Caryl
petitioned
and her husband
negligence.
cause of action
bar a
based
damages
injuries suffered
Rather,
physician
to recover
determining whether
In their
persons
physician- by them as a result
Jones’s acts.
owes a
outside the
action, plaintiffs
relationship
set of
contended
patient
particular
under a
first cause
“
facts,
carelessly
recklessly
carefully weigh
‘negligently,
a court
should
Jones
C[aryl]
policy
might
...
considerations that
exist
reached the false conclusion that
liability
A[manda],’
limit
where the
sexually
those instances
abused
thereafter
consequences
physician’s ac
carelessly
recklessly
harmful
of the
in-
negligently,
reasonably
tions could
have been foreseen
of that
Id. at
formed others
conclusion.”
prevented by
the exercise of reasonable
plaintiffs
663. The
maintained that
words,
principles
In other
care.
traditional
it was
fact that
them resulted
“the
negligence
employed
should
to deter
reasonably
[Jones]
foreseeable that when
physician
whether a
out
mine
owes
Caryl
opinion
formed an
S.
negligently
physician-patient relationship.
of the
side
sexually
granddaughter
abused her
Amanda,
negligently
when
formed
Moreover, several
in other
cases decided
opinion
negligently
communicated
jurisdictions recognize
duty.
such a
We are
others,
relationship
plaintiffs
between
persuaded by
reasoning
Supreme
*7
‘adversely affect[ed]’
and Amanda would be
Caryl
Court
New York in
v. Child &
S.
of.
plaintiffs would be
Id. at 664.
and
harmed.”
Services, Inc.,
Adolescent
Treatment
(N.Y.Sup.Ct.1994),
Misc.2d
N.Y.S.2d
examining
began
its inquiry
The court
'd,
H55 him as the child perform. diagnosing father prepared to When before adequately abuser; disregarded reports of other private deeply become enmeshed she citizens and, the professionals; advised mother to investigatory prosecutorial in or she activities rights. limit visitation Id. 287-88. police, functions of the the and take on Services], county [Department Social facts, the court concluded Based on these attorney, system or district counsel duty of care to the that owed a Bebensee objectivity, independence, suffers a loss of father: accountability. combina- balance and considering after We reach this conclusion public private players tion officials having great utility ther- both social roles, performing all side same on one suspected apists reports of child make reasons, has a momen- albeit for different significant risk of substan- abuse and the can, way, in tum of its own which its own injury may tial occur to one who is that any family. overwhelm falsely being a child abuser. accused also Id. at 176. The court concluded that Certainly, may that result from the harm “a therapeutic where a counselor abuses rela- readily negligent false accusations fore- members, tionship family causing injury seeable, placed while the burden children, emotional distress greater therapists is no than the parent, parent-child disrupting rela- professionals substantially that all are tionship, breach their duties of care Thus, a mental required to meet. health parent as the are as well children and any person, provider owes hable Id. at 177. to both.” any public report subject or who other recommendation adverse Bebensee, Finally, Montoya 761 P.2d provider, formulating to use due care (Colo.Ct.App.1988), the Colorado Court report opinion upon which such Appeals a father’s reinstated claim based. recommendation is daughter’s therapist. physical his With no abuse, therapist evidence sexual Barbara Id. at 288-89. Bebensee, perfunctory two after visits with that, reaching before These illustrate cases daughter daughter, concluded therapist owes a that a conclusion sexually had abused been her father. abuser, alleged court must balance contrary Her conclusion was both a social A court policy must various considerations. report of the events worker’s related to of uncover- great consider the social benefit child, and to the determination made time, at the same sexual abuse by a psychologist to whom Bebensee recognize that determinations opinion. the child for a second referred necessarily the victim and affect both at 286-87. abuser, alleged and that such determi- carefully made and should hearing At nation related father’s visitation should Spe- manner. rights, no not be reached Bebensee testified there was cifically, cases have exam- sexually the courts these doubt that the father had abused his However, may as a daughter. injury occur result appointed the court ined: abuser; the concern being labeled a child psychologist filed an affidavit with the court many therapists too involved become stating that he had serious concerns about abuser; alleged actions, legal proceedings against part “psycho- because Bebensee’s misdiagnosis devastating can logical she affect testing of the disclosed that *9 and, relationships; family fantasy have on the reality so that she confused misdiagnosis on of a fantasy appro- fact detrimental effect report could as and use therapist that a doing finding child. After priate body language in so.” The affi- (or grandparents), to the therapist davit also noted that did court, instance, that child; in concluded testing on the she did each psychological judg- reasonable therapist failed to exercise reports the made to investigate not child that sexual they reaching in the conclusion consis- ment parties other as to whether were result, and, alleged place took as a tent inconsistent with statements Thus, harm. foreseeable her; speak abusers suffered made to she refused times, these courts utilized a negligence accompanied prelimi- traditional other Nicole to analysis reaching in the merits of each claim. nary hearings she heard testify where Nicole against to facts which she knew analysis We find the in these cases could not further acknowledged be true. She provide approach determining workable in occasionally allega- she doubted Nicole’s therapist whether a owes a of care to an competency tions and conceded at Nicole’s alleged Pennsylvania. child abuser in More hearing that Nicole at times could not distin- over, wholly it is ap consistent with the guish fantasy. fact from proach by jurisdiction taken in courts this in Thus, determining physician Dr. whether owes a we cannot conclude that Cohen’s therapeutic individuals physician-patient solely part outside the actions were of her relationship Nicole; rather, in the context of communicable treatment Dr. Cohen be- DiMarco, Troxel, swpra; diseases. supra legal proceedings deeply came enmeshed words, In other policies and, so, where the limiting doing placed against the Althauses professional’s liability “pale in comparison to well-beyond herself in a role that extended issue,” psychiatrist- harm at lack therapeutic context. It treatment patient relationship recovery. should not bar adequately clear that Dr. Cohen was DiMarco, supra. fully prepared a role as she admit- for such performed diagnostic ted that she never Accordingly, based on the above case any never made evaluation on Nicole. She law and after considering competing poli allegations regarding determination Nicole’s involved, cies we conclude that Dr. Cohen conclusion of others that and relied on the owed a of care not to Nicole but However, sexually Nicole had been abused. (1) Althauses, also to the because Dr. Cohen role, take on this active because she chose to specifically parental treated Nicole for abusers, Althauses, alleged had a as (2) abuse; directly the Althauses were affect expectation that Dr. Cohen’s di- reasonable by ed properly diag Cohen’s failure to did, Nicole, agnosis as it affecting them (3) Nicole; nose and treat Dr. Cohen was not be carefully would be made and would both aware that proceedings criminal were Further, reached in manner. negligent against initiated the Althauses as a result of Cohen’s of Nicole com- treatment allegations actively partici Nicole’s and also of action subsequent bined with her course (4) pated them; reasonably it was against the Althauses resulted foreseeable foreseeable that the Althauses would be Althauses, specifically harm to the identi- negligent diagnosis. harmed Dr. Cohen’s parties. fied support The facts of this case such a con- conclusion, reaching reject In we repeatedly clusion. Dr. Cohen stated that approach Supreme taken the Texas Court she was not required credibility to make (Tex. W.C.W., in Bird v. S.W.2d regarding allega- determinations 1994). Bird, mother, In claiming her son so, doing tions. investigation she made no reported “daddy” sexually had reports made Nicole to other indi- him, sought counselling abused for her son. viduals to determine whether Nicole’s state- (Tex.Ct. Bird, W.C.W. 840 S.W.2d ments were consistent or inconsistent with rev’d, (Tex.1994). App.1992), her; S.W.2d completely the statements made to she therapist briefly boy examined the disregarded reports profession- of other the mother law als; Althauses; interviewed and her common spoke she never therapist husband. The child told the directly challenged she regard- never him, therapist “daddy” had abused but the ing allegations her outlandish of abuse de- if spite later admitted that she did not know “dad the fact Dr. Cohen knew Yet, dy” time, biological was the or his could not be true. child’s father the same she Despite constantly mother’s common law husband. pro- aware of the criminal doubts, ceedings therapist signed initiated the Althauses an affidavit stat fact, actively involved them. On the child had been abused his *10 occasions, biological investigation, numerous Dr. at Cohen testified father. After further court proceedings court-appointed therapist on Nicole’s behalf and at later concluded
1157 profession- boy accused based on had lengthier interviews that after therapist owes a judgment, al biological his father. Id. not been abused Here, to failed Dr. Cohen to the accused. 51-52. at and, consequently, properly diagnose Nicole therapist rejecting In the claim that her with substandard treatment. provided persons to outside of thera- owed Further, Dr. subse- conclude that Cohen’s we relationship, Supreme peutic the Texas Court the Althauses caused quent action directed at injury although the risk of from stated reasonably foresee- harm them that was occur, misdiagnosis is certain to there is that, Accordingly, under the able. we find utility encouraging great social mental ease, particular of this Dr. Co- circumstances professionals diagnose sexual health to the Althauses. hen W.C.W., supra, at 769. abuse. Bird v. We they argue that adopt analysis and WPIC next not in Bird because it do trial both the utility awarded a new on on one consideration—the should be focused negli- recog- daughter and their diagnosing we Althauses’ sexual abuse. While gence trial court erred great utility from al- claims because the nize that social arises abuse, jury to wheth- diagnose refusing to allow the consider lowing therapists to own shielding negligence er contributed to their utility no social can be derived their injuries. determining for therapists diagnoses that The standard who make cavalier contributory profound jury on have detrimental effects on the whether instruction family negligence is warranted is well-established. lives of accused and their as rec- S., Caryl ognized supra, the courts in contributory If some there is evidence W., supra Montoya, supra. Fur- James negligence, the issue should be submitted ther, concurring opinion as the Bird v. jury. McCollough [McCullough] Pa.Super. warns, the Etc., decision “should not be read as Ass’n, Home 270 Monroeville conferring immunity grant upon (1979). absolute 794, Howev 428, 795 A.2d 411 professionals.” mental health 772 at er, contributory establishing the burden of (Gammage, J., concurring, joined Doggett, rests Id. at negligence on the defendant. J.) Instead, opinion concurring noted Additionally, for 411 A.2d 795. that: plaintiff’s negligent his conduct to effect proximate
Every privilege
recovery,
carries
it a
his conduct must
responsi-
bility.
grant
injury.
Philadelphia
If
we are to
mental
cause of his
Koelle
health
Co.,
35, 42,
443
professionals
privilege making
Pa.
277 A.2d
such
Electric
(1971).
accusations,
if
for
conduct
even
are
called
order
them,
injury it
upon
proximate
cause of an
to make
also should hold
be a
we
profes-
factual
appropriate
them to an
must be a substantial
cause
standard
sought.
Though
injury
damages
are
responsibility....
sional
we
Johnston,
58, 60,
Pa.
give
mental health workers in this
Dornon v.
should
(1966).
protection
field some latitude
their
A.2d
abuse,
efforts
eradicate
commensu-
Carter,
40, 43,
Pascal v.
professional
rate standards of
discretion
A.2d
apply,
should
and failure to adhere
such
alleged neg-
respect to
Althauses’
With
foreseeably result in
standards could
ligence,
argue
Cohen and WPIC
judicial recognition and enforcement.
Althauses
certain decisions made
Id,
Thus,
concurring opin-
at 772-73.
may
“lengthened
have
throughout
ordeal
suggests, therapists
not be afford-
ion
should
period
passed
time that
before Nicole
immunity
every
instance.
ed blanket
ulti-
testify
announced her refusal
Brief
duty mately recanted her abuse claims.”
Finally,
imposing
such a
we find
Appellant
Specifically,
Dr. Cohen
therapists
than what a
requires
on
more
(1)
to the fact that
the Althauses
therapist
already
provide—a
point
bound
WPIC
carefully
profes-
opportunity
to meet
competent
considered
day
charges
judgment.
therapist
then CYS to discuss the
When that
sional
chose
initially
and instead
made them
embarks
a course of action directed Nicole
*11
(2)
to meet
attorney;
with their
Mrs. Al- had the Althauses chosen a different course
thaus, who
given
options
action,
several
CYS
Dr. Cohen’s negligent treatment of
relating
placement,
to Nicole’s
daughter
should have
their
subsequent
action direct-
opted to remove Mr.
family
against
Althaus from the
ed
them would have
prevented
been
home;
(3)
or would
days
injuries. Thus,
Althauses waited six
have lessened their
attempting
before
to meet with
because we find no
Nicole and
evidence of causation
over eight months
between
requesting
psy-
alleged
before
the Althauses’
contributory
negligence
chiatric
injuries,
evaluation of Nicole.
and their
the trial court
did not err in refusing to
juiy
instruct the
on
Dr. Cohen and WPIC cite several cases to
contributory negligence
respect
support their contention that the Althauses’
parents’
Pascal,
(court
claims.
supra
See
conduct established some
negli
evidence of
in instructing
erred
jury
contributory
on
gence.
Rosen,
See Levine v.
394 Pa.Super.
negligence
physician
where
failed to show
178,
(1990),
512,
H59 AFFIRM the 984, foregoing, the we (Pa.Super.1997), appeal de Based on A.2d 990 — — - (1998). respects. nied, -, judgment in all Pa. A.2d the first and Accordingly, we find Althauses’ McEWEN, files Judge, a Con- President second issues to be waived. Statement, in curring Dissenting which majority’s respect joins decision he the appeal, third on the In their issue the by Dr. Cohen to to the owed argue Althauses that the court erred fail Althauses, respect but dissents with jury punitive damages. to the on instruct majority disposition of Althaus- decision’s cross-appeal. es’ punitive damages purpose of is to [T]he punish outrageous egregious conduct TAMILIA, J., Concurring files Dis- disregard another’s done in a reckless senting Opinion, which he dissents rights; as well as a it serves deterrence disposition of the of care majority’s Watkins, function. v. punishment Schecter Althauses, Cohen but owed Dr. to 363, 383-84, 585, A.2d Pa.Super. 577 395 respect to joins majority’s decision (1990). Therefore, 595 under law J., EAKIN, cross-appeal. the Althauses’ Commonwealth, may this a court award joins. damages only punitive if an actor’s conduct SCHILLER, J., Dissenting Opinion, files a malicious, willful, wanton, oppressive, was majority’s dis- in which he dissents from the or indifference to the exhibited reckless position Dr. of care Coal, v. rights others. SHV Inc. Conti BECK EA- Cohen to the Althauses. Co., 489, 494, nental Grain 526 Pa. 587 KIN, JJ., join. (1991); 702, Haines, A.2d 704 Rizzo v. 520 (1989). 484,
Pa.
A.2d 58
555
McEWEN,
Judge, concurring
President
America,
dissenting:
Hyundai
Johnson v.
Motor
698
631,
(Pa.Super.1997), appeal
A.2d
639
de
Opinion
join
I
rush to
well-reasoned
—
(1998).
nied,
-,
Pa.
In their final issue delay damages based a defendant’s reckless Althauses maintain that awarded rights of others. daughter should awarded to their indifference However, over the course of this three- pursuant to Pa.R.C.P. 238. Rule record created outrageous only applicable 238 is actions where a week trial contains evidence civil Cohen, if as accepted party “seeking monetary bodily relief for behavior injury, damage.” jury, true was more than sufficient property See death damages. 360, punitive Spe Pa.Super. support an award Hodges Rodriguez, 435 377- (1994) Cohen, 1340, objected to the 79, (collecting cifically, Dr. who had 645 A.2d 1349-50 proposed independent psychiatric examina compare Tempo non-applicability); cases of testified, raries, Krane, 103, 115, Nicole, majority Pa.Super. tion of Inc. v. 325 states, (1984) (tortious despite her knowl 668, matters interfer 472 A.2d 674 testimony of contact; edge portions of the oral applies only to ence with Rule 238 See, and untrue. encompass every Nicole herself were false certain actions and does not action). Corp., e.g.: v. Continental Grain Rule 238 to SHV Coal decline extend We (1991); 493-95, 702, 489, A.2d 704 587 party seeking relief for Pa. actions where (Pa.Su Miller, 232, 242 to Bannar v. A.2d mental illness and therefore find claim 1997); Metropolitan per. Takes v. Edison merit. be without 101, 116-18, Nicole, trial, Corp., 655 A.2d a minor at the time of (1995), April appellees grounds, rev’d on bom on 1975 to Richard other (the Althauses). Althaus Thus, and Renee Pa. 695 A.2d would diagnosed mother with skin find that it was error to refuse to submit the *13 cancer, which treated with sur- breast was punitive damages. issue of thereafter, gery chemotherapy. Shortly Moreover, I agree1 am unable to paternal grandmother diagnosed was Nicole’s party where a “has failed to authori- cite cancer, pancreatic from which she soon contention, ty support in the claim is of atmosphere “In this stress and un- died. However, while I reach th waived.” would certainty, psychologi- Nicole’s emotional and presented merits of two in the first issues well-being began cal (Slip to deteriorate.” appeal majority which Althauses’ deems 2.) McLean, J., 5/22/96, Op., During p. this waived, I, nonetheless, disposi- concur in the period, began spending great Nicole deal of majority tion of I since would find: time, school, both and out of one of teachers, In an Zappa. her Priscilla effort to appellants That have not demonstrated support obtain information and emotional for that the trial erred it court when concluded Nicole, Zappa phoned Mrs. Nicole good immunity provisions that the faith support spoke cancer hotline to a woman protective law, the child services 23 P.C.S. Lappa. talking named Connie After to Mrs. 6318, § precluded the from us- Althauses times, Lappa several Nicole mentioned that testimony Dr. from various Cohen’s father, Althaus, subjected her Richard had legal proceedings purpose sup- for the inappropriate touching. Lappa her to Mrs. porting allegations negligence, their reported this Allegheny information to Coun- appellants That have not demonstrated (CYS), ty’s Youth Children and Services as that the precluded trial court erred when it required 6311, § she was to do 23 Pa.C.S. submitting testimony from required suspected Althauses report Persons relating to results of Mr. lie Althaus’s abuse. detector test and the fact that Dr. Co- acquired rapidly The matter a momen- it, passed
hen was that he had aware all tum its own. CYS removed Nicole surely court in its the trial discretion could parents’ custody placed her properly prejudicial conclude that the ef- Zappa. Following in the care of Mrs. an fect of evidence the lie detector test Hospital, evaluation at Children’s Nicole outweighed probative its value. referred to the Child and Adolescent Pennsyl- Sex Abuse Clinic of Western TAMILIA, Judge, concurring and (WPIC). Psychiatric vania Institute Ni- dissenting: physical cole also had a examination at portion join majority While I during [Hospital], which Dr. Children’s Opinion which denies relief to the Althauses Mary Carrasco found no evidence of sexual cross-appeal, respectfully However, activity dissent or sexual abuse. the determination Dr. and the Judith Cohen Carrasco noted that sexual abuse cannot University Pittsburgh Psychiatric physical Western out lack of be ruled based on a (WPIC) therapist Institute and Clinic owed a Nicole’s evidence. WPIC was Cohen, care to the Althauses.1 Dr. Judith whom she saw at least 2119(a) pertinent provides, part, guments appropriately developed 1. Rule that are not argument portion 368, be divid- quot brief "shall A.2d at are waived.” at Sheridan, 666 1095 many parts questions ed into as argued; as there are to be 266, ing Gallagher Pa.Super. allo, have at the of each and shall head (1995), denied, A.2d part—in type point particular distinctive ...—the (1996)(emphasis origi 675 A.2d Pa. therein, treated followed such discussion and nal). pertinent.” citation of as are authorities deemed 2119(a)(emphasis supplied). The case Pa.R.A.P. clarity, purposes Cohen and 1. For WPIC by majority support finding cited waiver, appellants and the will be referred to as es, Althaus- turn, rely upon Mort- Bunt v. Pension child, appellees referred to as Associates, Inc., gage throughout Opinion. (1995), “Ar- A.2d 1091 wherein the Court held:
H61
mis-
performed
professionals negligently
health
a week. Dr.
mental
once
exacerbated,
Nicole,
Nicole’s
and then
diagnosed,
independent diagnostic studies on
personality disorder.
borderline
taking
delicate
instead
at face value the indicated
jury,
The case
submitted
report
filed CYS.
separate verdicts
favor of
returned
time[,]
allegations of sexu-
Over
were
parents. Post-trial motions
and her
grew
al abuse
to include
mother
denied.
filed and
couple
whom the Althauses
another
charges
WPIC,
met.
be-
appellants,
never
themselves
not
do
Dr. Cohen and
outlandish,
in-
progressively more
came
in favor
jury
challenge
verdict rendered
abusef,]
ritual-
cluding
Nicole,
but
not
contend
are
but rather
*14
torture and the murder of several
the harm which
parents
istic
to her
for
liable
claiming they
which
claimed to have had
negligence
babies
from such
flowed
Despite many ap-
non-patient
caesarian
duty
parents.
via
section.
owed no
stories,
parent
inconsistencies
Nicole’s
are
to a
Appellants also claim
entitled
credibility
challenged by Dr.
her
was never
to
trial based on the trial court’s refusal
new
input
Dr.
also
from
Al-
jury
Cohen.
refused
allow the
to consider whether
familyf,]
Nicole,
thauses,
contributorily
other member of the Althaus
were
and/or
Axelson,
Alan
a child
as well
from Dr.
negligent in this case.
by the
to
Althauses
retained
psychiatrist
to establish
It is well settled that
order
matter,
from
help them
elucidate
malpractice, a
prima
case of medical
a
facie
Sehorr-Ribera, Ph.D.,
Hilda
Renee’s can-
(1)
by
duty
a
plaintiff must establish
support therapist.
cer
(2)
patient;
physician to the
a breach
allegations!;,]
Rich-
As a result
Nicole’s
(3)
duty
physician
patient;
from
ard Althaus was arrested three times
proximate
was a
the breach of
[was
Renee
twice. Dr. Cohen
arrested]
factor in the harm
cause of or
substantial
accompanied Nicole to several criminal
(4) damages
patient; and
suffered
hearings
appeared
also
Juvenile
patient that were a direct
suffered
argue
contin-
Court
on behalf Nicole’s
Kamrin,
of that harm.
v.
result
Mitzelfelt
placement
Zappa.
Mrs.
ued
with
When
(1990).
gener
Pa.
ing therapy, string made unsubstantiat trial court erred in its would find the allegations ed of ritual abuse. The Turnan analysis regarding this issue and decision standing court determined the and, therefore, would reverse the court’s de- following sue because the four factors were correspondingly remand the termination and met: entry judgment in favor of the matter 1) therapist specifically The undertook to appellants. My review of the relevant case- parents; treat the child for the parties, law cited the trial court and 2) therapist; The relied majority leads me to believe that no
3) therapist parents’ was aware of the appellants, care existed behalf
reliance; WPIC, parents. Cohen and as to the 4) reasonably It was foreseeable that the duty, discussing general concept In of would be harmed the thera- Pennsylvania Supreme has it Court made pists’ conduct. particular that whether a clear defendant 6.) factors, (Slip Op. Applying these four plaintiff duty particular owes a of care to a is forseeability the trial court determined the dependent “many on factors”.
theory applies present in DiMarco duty determining In of the existence Specifically, case. the court determined care, con- it must be remembered that the sought Mr. and Mrs. Turnan
Whereas cept of amounts to no more than “the therapy daughter, on behalf of their adult policy sum total of those considerations of Dr. Cohen was retained as Nicole’s thera- say particular which led the law to that the pist by the Juvenile Court Children plaintiff protection” is from the entitled acting parentis. and Youth Services in loco Takasaki, Leong harm v. 55 suffered. effectively Mr. and Althaus were (1974). Mrs. 758, To Haw. 520 P.2d pendency barred of the Juvenile unduly give any greater mystique it would proceedings choosing Court their own hamper system jurisprudence of our It doctor for Nicole. is also worthwhile to adjusting changing times. The late preserving family unity note wherever expressed fol- Dean Prosser this view as possible goal proceedings is a stated of lows: involving dependent the Ju- children under sands, shifting These are and no fit foun- Act, seq., §
venile
Pa.C.S.A.
6310 et
says
dation. There is a
if the court
to this extent Mr. and Mrs. Althaus as well
law,
duty;
there is a
like the Constitu-
as Nicole were foreseeable beneficiaries of
tion,
Duty
make it.
is
is what we
Dr. Cohen’s treatment.
word with which we state our conclusion
6-7.)
court,
liability;
it
(Slip Op.
Finally,
the trial
there is or is not to be
addressing
“specific undertaking” compo-
necessarily begs
question.
the essential
test,
duty,
damage,
distinguished
nent of the Turnan
this When we find a
breach
Brown,
word
analysis
everything
Court’s
in Heil v.
443 Pa.Su-
has been said. The
(1995),
directing
per.
pres-
purpose
atten-
Eventually,
charges
the
believe
against
criminal
equally applicable
its
is
conclusion
the father were dismissed and he retained
Texas,
Pennsylvania, like
custody
the
Althauses’ claim.
subsequent-
child. The father
outrage
expressed
has
its concern and
over
ly
suit
psychologist
filed
the child’s
him,
through
child sexual abuse
its enactment
employing
alleging
the clinic
that
Law, 23 Pa.
the
Protection Services
they were liable
father for
mal-
Child
to
medical
seq. Specifically,
§
the statute
C.S.
et
practice
psychologist
because the
mis-
“[ajbused
urgent
children are in
need
boy
sexually
reads
diagnosed
having
the
as
been
protective
to
of an
child
service
Summary
granted
effective
judgment
abused.
was
in
injury
prevent
suffering
from
further
them
psychologist
and the clinic be-
favor
6302(a). Clearly,
§
impairment.” Id. at
profes-
the trial court found that no
cause
Court,
im-
by this
would
decision
which
sional
to the father.
the
pose
psychiatrist
care on a
duty of
Affirming,
Supreme
the Texas
Court held
patient,
alleges abuse
who
professional
negli-
a mental
that
health
who
by
parents,
painful
must
the
the
consider
misdiagnoses
as
gently
having
a child
been
in the
troubling reality of child sexual abuse
sexually abused does not owe a
an
would
imposed
Such
United States.
parents despite
child’s
the
that
to that
fact
chilling
have a
effect on the treatment
may
suffer false accusations and ad-
children,
therapists
if
be-
particularly
these
legal
Specifically, the
consequences.
verse
to treat
of sexual
come reluctant
victims
of law
is
Court found
“as a matter
there
by
malpractice
the
claims
for fear
professional duty running
psychol-
from
accused.
negligently
ogist
party
to a third
to not
mis-
the first
process
The
from
patient.”
Id. at
which evolved
diagnose a condition of
took on
allegation of sexual abuse here
on to address the
Court then went
and other
factor,
Witch-hunt
foreseeability
stating:
attributes of the Salem
hysterical
Europe
determining
manifestations in
one
to consider in
wheth-
medieval
factor
persons charged
in
being
which resulted
duty, many
interplay.
is a
er there
factors
Beginning
the stake.2
with a
burned
Clearly,
the harm to the
out of
arose
child,
deeply
syndrome
disturbed
the rescue
charges
criminal
brought
false
operation
virtually
parties
came into
from
all
Pennsylvania,
the mis-
Commonwealth
who came
contact with
the child
diagnosis
respect
Dr. Cohen. It is in this
services,
protective
including
district at-
that I
find the
would
trial court’s reliance
torney’s office.3 Unfortunately,
instead of
Turnan,
DiMarco,
upon
supra,
supra,
dealing with the
aspects
incredible
of the misplaced.
allegations
looking
child’s
and instead of
to a
Nicole,
independent
The fact
after
mental
fundamental
disturbance which re-
psychiatrist,
diagnosed
evaluation
treatment,
quired
assump-
evaluation
having
borderline personality disorder5
underlying
tion was made that there was an
distinguish
and was unable
fact from fan-
pattern
sexual abuse
which
resolution
needed
thereby
tasy,
being incompetent
testify,
resolve
delusional behavior. The flaw
possibility
did not eliminate the
that she
process
permitted misapplica-
which
abuse,
suffered from
albeit not
by treating
tion of treatment
is the fear that
aggravated
degree
and incredible
relat-
she
problem
as a
victim
mental
rather than
might
argued
ed.
It
be
the district
person,
underlying
an abused
concern
office,
pressure
attorney’s
bolstered
victim being
wrong
blamed
county
agencies
and state
me-
and becomes twice
victimized would
real-
dia,
charges
precipitously
filing
acted
with-
frequently
approach
ized. This was
requiring
out
more definitive
evaluation
children,
pre-twentieth century treatment of
mental
child’s
conditions before rather
assiduously
avoided
modem
prosecution.
than after
Also, it
unlikely
times.
is not
that as the
support of the victim from
sources be-
all
Turnan,
binding
which I note is not
solidified,
comes
need
reinforce
Court,
grant-
the Federal District Court
support becomes an essential
in the
element
ed
health
the mental
counselor’s motion
feeling
resulting
victim’s
in her
self-esteem
dismiss,
predict
Pennsyl-
went on to
but
enlargement
expansion
of alleged abuse and
Supreme
vania
Court
impose
would
persons.4
of the numbers of accused
It is not
the counselors
circum-
under the
*17
occur,
inconceivable
actual
did
abuse
court,
present
the
stances of
case. The
how-
process
which in the
above was
described
ever,
Opinion
its
limited
as to
catastrophic
into
proportions.
exacerbated
where a
those cases
counselor is accused of
implanting
patient.
false memories
little
in
with its
find
merit
the trial
claim
court’s
Turnan,
Here,
supra
See
at 189 n. 11.
the
parents
were foreseeable victims of Dr.
implanted
allege
do
Cohen’s
treatment of Nicole and
false memories that
thus she owed a
of
them. Par-
care to
her,
invariably
ents are
abused
and therefore I
Turnan
by
effected
traumatic
find
thus,
happen
inapplicable. It is of
things
significance
to their
critical
children
sense,
generic
in a
allegations
are foreseeable victims.
abuse emanated from the
noted,
previously
As
foreseeability
psychiatrist,
while
not the
artie-
child and
and were
Emotionally
ways,
2. See The
Disturbed Child—Then
ended the matter in several
chose to
but
Now,
(1965),
Despert,
pp.
J. Louise
M.D.
proceed
by appellants.
with the treatment offered
82.
Psychiatric
Diag-
4. See American
Association:
Despite
impossible allegations
Nicole’s
of mul-
nostic
Statistical
Disor-
Manual Mental
tiple pregnancies, caesarian
and mur-
deliveries
DC,
ders,
Washington,
Fourth Edition.
Ameri-
embryos,
sufficiently
dered
she was
credi-
found
Association,
Psychiatric
can
1994. "Borderline
underlying
charges,
ble as
sexual abuse
instability
Personality
pattern
Disorder is a
in
Cohen,
independent
diagnosis
for
of Dr.
interpersonal relationships, self-image, and af-
CYS,
Hospital
Children’s
Court to
and Juvenile
fects,
impulsivity.”
and marked
Id. at 629.
finding
sustain
of abuse and removal Ni-
placement
her home
foster
cole from
in
care.
Court,
particular,
The Juvenile
in
could have
5. Id.
added, “[w]e
at 1345. The
then
ulated
Dr. Cohen entered into
A.2d
Court
before
is not a communica-
course
treatment.
note here that diabetes
hepatitis.”
such
at
ble disease
as
DiMarco,
Secondly,
supra, a 4-3 decision
Clearly,
alleged obligation
A.2d at 1346.
Supreme
upon
our
which
Court
relied
Crosby
present
case
is more akin
(Second)
324A,
§
Lia-
Restatement
Torts
imposed in DiMarco.
than the
bility
Negligent
to Third Person for
Per-
sexual
treatment of child abuse and
The
Undertaking,
formance of
as the basis
society
fragmented,
in our
abuse
surround-
Troxel,
liability,
supra,
as
which is
well
confidentiality, anonymity
and circum-
ed
upon
supplemen-
by appellees
relied
rules,
regulations
and ethical
scribed
brief,
tal
involved issues of communicable
imposed
participants
all
in the
mandates
physicians provid-
Specifically, the
diseases.
segments
all
process
involving
regarding the
ed erroneous
information
system.
delivery
service
See The Child
transmission of communicable diseases
Law,
§
et
patients
parties justifiably re- Protective Services
Pa.C.S.
and third
implicates
In
also
seq.
undertaking,
on that
to their
This
lied
advice
detriment.
cases,
counseling
recognized
court
forms of
psychiatric
these
“the
other
impor-
the physician
upon
parameters,
based
is so much
com-
within its
more
community
pre-
tant role
the medical
com-
plex
dealing
than
with the effects of a
diseases,
venting the spread of communicable
failing to
municable disease or
hold and/or
duty that
all
extends to
those within
dangerous psychiatric patient
who
treat
Troxel,
violence,
foreseeable orbit of risk
harm.”
his
targets
has identified
supra
Clearly, duty
Althauses and that psychiatric- the lack of a § psychiatric patient’s Pa.C.S. 5944. A patient relationship provide did not blanket right privacy prohibits subpoena of rec- immunity to Dr. Cohen. Id. testimony ords or psychiatrist regarding patient treatment of his without the written majority The rationale of illogical B., patient. consent of the In re 482 Pa. unsupportable. outset, At the the be- presence A.2d Dr. Cohen’s Cohen, havior of Dr. in attending hearing hearings at the supportive of Nicole and request, may not be construed not in the expert role of a forensic for or any fashion any duty to be a breach of so, parents. If majori- this is parents. to the She was Nicole’s doctor and ty’s attempt exception to delineate an was required anything to do within reason to psychiatrist rule that the child’s owes no support patient and to make her ordeal parent has not been established. in participating in legal proceedings less practice traumatic. It is common for treat- point, What is more to majority persons accompany patients acknowledges allegations of Nicole are bizarre, clients to such hearings sup- patently emotional “unwittingly” untrue and *19 port, which is within the ambit by circumstances, of the thera- made her. Under these peutic relationship. majority then, The then takes require express it did not Dr. Cohen to huge step another by into causation credibility attribut- as to view Nicole’s or lack of it ing liability parents by for harm to the re- when charges presented, were and those maining “passive” “allowing” and in charge proceed- Nicole of the legal conduct of the testify thereby “validating” “un- ings steps Nicole’s should have taken to withhold willing false” I prosecution statements. believe this as- prima for lack of a case. facie liability sessment of any legal far exceeds credibility The determinations must be made basis in places established our law in may the fact-finder who not substitute the
1167
to tes-
Nicole was called
process
tonal
when
therapist
of the
that determina-
opinion
clearly distinguishable
responsibility
tify.
To focus
on
This case is
tion.
all of
silence, in the
passivity
majority.
for her
Cohen
from those cited
irrationality of
alle-
of absolute
face
appellants
owed a
In that
do not believe
gation,
incongruous.
Althauses, I
need
find no
duty of care
majority
great
to es
goes
length
The
parents
con-
their
were
to address
claim
person
be re
treatment
can
tablish
however,
Appellants,
tributorily negligent.
parties
sponsible for
to third
as a re
harm
in not in-
allege the
court erred
also
trial
misdiagnosis
in the
of sexual abuse
sult
they
jury that
could consider
structing the
physical
from state
evidence or
absence
contributory negligence
“[IJf
of Nicole.
Caryl
&
of the
S. v. Child
ments
child.
negli-
contributory
is some evidence of
there
Inc.,
Services,
161
Treatment
Adolescent
be submitted
gence, the issue should
563,
(N.Y.Sup.Ct.
Misc.2d
pelled to dissent. practice by psychiatrist treating sexually psychia- Clearly
We are asked to whether a decide abused child? not. The class of potential only by trist’s should extended be- victims is limited the child’s yond physician-patient relationship imagination professional’s willingness and the parents my suspend Why grand- view child. the answer disbelief. would a unambiguous: parent’s must be compelling have no case be less than independent right damages parents? Caryl to recover in a that of Nicole’s See S. v. witness, competence regard, excluding may Strong, As to her in this such a who be the William, (4th facts, only person
John McCormick on Evidence who available knows the ed.1992), provides guidance inept primitive. Though as follows: seems the tribu- unskilled, testimony Chapter Competency nal difficult to 7. The of Witnesses weigh, § it to let Incapacity Immaturity: is still better the evidence come 62. Mental worth, cautionary in for what Oath or Affirmation it is instruc- There is no rule excludes an insane tions. such, person any specified age, a child of Revised or Uniform Rule Evidence 601 and testifying, each case the but in traditional the first sentence Federal Rule of Evidence intelligence test is witness reasoning whether the has reflect the above additional enough by providing every person competent to make it worthwhile to hear him at to be a provided” all and to tell the whether he feels truth. witness unless in the "otherwise record, recollect, capacity perceive, Is his rules. Id., narrate, (footnotes omitted). probably bring he can such that major knowledge added facts? The rea- persons disqualification say might son for men- This is not to not have action, independent tioned in to take the stand is the other such this section causes as defa- ability judges’ juiy’s assay distrust of a mation or tress, intentional infliction emotional dis- beyond deranged person. scope words of a small child based on action taken deficiencies, Conceding jury's remedy diagnosis the medical and treatment. *21 Services, Inc., & Adolescent Treatment Child (N.Y.Sup.
161 Misc.2d N.Y.S.2d
Ct.1994) (finding therapist abuser). alleged
to grandmother who was aunt, An
Or an older brother’s? uncle
teacher’s? path my take.
This is a refuse to
view, majority creates a new decision impede appropriate will treat- very in the cases of sexual abuse where
ment expansion
it is most needed. Such an harm
privity outweigh does it will
cause. EAKIN, JJ., join.
BECK PACKAGES, INC.,
KEHR Charles and
Emily McMurtrie James
McMurtrie, Appellee, BANK,
FIDELITY NATIONAL ASSOCI-
ATION, Donnelly, Thomas Neil Cohen Noon, Appellant.
and James
Superior Pennsylvania. Court of
Argued 1997. Oct. April
Filed 1998.
Reargument June Denied