JOHN DOE, Appellee, v. BOBBIE McKAY, Ph.D., et al., Appellants.
No. 83094
Supreme Court of Illinois
June 18, 1998
October 5, 1998
183 Ill. 2d 272
James H. Knippen, of Walsh, Knippen, Knight & Diamond, Chrtd., and Zachary M. Bravos, all of Wheaton, for appellee.
Cynthia Grant Bowman, of Chicago, for amici curiae Alliance for the Rights of Children et al.
Thomas A. Pavlinic, of Annapolis, Maryland, for amicus curiae False Memory Syndrome Foundation.
JUSTICE MILLER delivered the opinion of the court:
The pseudonymous plaintiff, John Doe, brought the present action in the circuit court of Du Page County seeking damages relating to the psychological treatment rendered to his daughter by the defendants, Bobbie McKay, Ph.D., and McKay’s employer, the professional corporation of Bobbie McKay, Ph.D., Ltd. Following a hearing, the trial judge granted the defendants’ motions to dismiss various counts of the plaintiff’s amended complaint for failure to state a cause of action. The plaintiff appealed the circuit court’s dismissal of counts that sought recovery on theories of negligence and intentional interference with a family relationship. The appellate court reversed the dismissal of those counts, concluding that they stated causes of action. We allowed the defendants’ petition for leave to appeal (
According to the amended complaint, during a counseling session attended by McKay, Jane Doe, and the plaintiff on February 6, 1992, Jane Doe accused the plaintiff of sexually abusing her when she was about 11 years old. Also during this session, McKay suggested to Jane Doe that the plaintiff might harm her further. At that time, McKay told the plaintiff that his daughter’s memories of the alleged abuse had been repressed until they were retrieved during therapy, and that the plaintiff had repressed his own memories of the abuse. McKay recommended that the plaintiff commence treatment with another therapist; McKay spoke with the plaintiff the next day by telephone and recommended that he see Vicki Seglin, another psychologist employed by the McKay practice. The plaintiff saw Seglin individually until October 1992. The plaintiff further alleges that he later learned from his daughter that the February 6,
The amended complaint also alleges that at a counseling session on September 9, 1992, attended by McKay, Jane Doe, and the plaintiff, McKay told the plaintiff of the specific act of abuse he allegedly committed against his daughter. At that time, McKay again asserted that the plaintiff and his daughter had repressed their memories of the abuse. Later, at a session held on October 27, 1992, which was attended by McKay, Seglin, Jane Doe, and the plaintiff, McKay stated again that Jane Doe and the plaintiff had repressed their memories of the plaintiff’s alleged sexual abuse. On this occasion, McKay said that the only explanation for Jane Doe’s psychological condition was that she had been abused by the plaintiff.
Regarding the method of treatment employed in Jane Doe’s case, the plaintiff alleges that McKay believes that mental or emotional problems in adults are often the result of childhood sexual abuse, the memory of which has been repressed. The plaintiff further asserts that McKay believes that previously repressed memories of abuse can be recalled with the techniques she uses, and that “healing” can occur when a patient recovers those memories and resolves the ensuing emotional turmoil. The plaintiff asserts that McKay’s views regarding repression and the recovery of repressed memory are not supported by scientific evidence and are not generally accepted by the psychological community. The plaintiff further alleges that he paid a total of $3,208 for services rendered by McKay to his daughter from January through August 1992, and that he paid a total of $4,435 for services rendered to him by Vicki Seglin from February through October 1992. Jane Doe is not a party to
The plaintiff commenced the present action on September 9, 1994. The plaintiff sought recovery from McKay and Seglin individually and, under a theory of respondeat superior, from the professional corporation with which they were associated, Bobbie McKay, Ph.D., Ltd. The circuit court granted the plaintiff’s request to permit him to use the pseudonym “John Doe” in these proceedings; his daughter, the subject of the challenged treatment, is identified similarly as “Jane Doe.” The plaintiff’s amended complaint comprised 17 counts, and it sought recovery on theories of negligence—toward both the plaintiff and his daughter—intentional interference with a parent-child relationship, intentional infliction of emotional distress, defamation, and misrepresentation.
At issue in this appeal are counts alleging the negligent treatment of Jane Doe by McKay, which allegedly deprived the plaintiff of his daughter’s society and companionship (counts I and XI), as well as counts alleging intentional interference by McKay with the parent-child relationship (counts IV and XIV), and loss of his daughter’s society and companionship (counts V and XV). The defendants moved to dismiss those counts on the ground that Illinois does not recognize those theories of liability in the circumstances alleged here. The trial judge granted the motions to dismiss and made the requisite finding under
The appellate court reversed and remanded. 286 Ill. App. 3d 1020. The appellate court concluded that the plaintiff stated causes of action against McKay and her practice under the theories asserted in the counts chal-
I
We consider first counts I and XI of the amended complaint. Count I alleges negligence against Dr. McKay individually; count XI is based on the same allegations, but is directed against her practice, Bobbie McKay, Ph.D., Ltd., under an agency theory. Both counts allege that McKay committed negligence toward Jane Doe. Separate counts alleging negligence by McKay toward the plaintiff himself were not dismissed by the trial judge, and they remain pending in the circuit court of Du Page County. The defendants argue that the negligence counts at issue here did not allege a legally recognized duty toward the plaintiff.
To state a cause of action for negligence, a complaint must allege facts that are sufficient to show the existence
In Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507 (1987), this court ruled that a third party injured by a patient could not bring a malpractice action against the patient’s doctors, who allegedly failed to warn the patient that prescription drugs he was taking could impair his abilities. The plaintiff in that case was injured when the car in which he was riding struck a tree; the car was being driven by a recently discharged psychiatric patient who had received psychotropic drugs at a hospital and who had later consumed alcohol. The plaintiff sued the hospital, the manufacturers of the drugs, and two doctors. This court rejected the plaintiff’s contention that the doctors’ failure to advise the patient of the possible side effects of the drugs gave rise to a duty of care toward nonpatient third-parties such as the plaintiff. Kirk, 117 Ill. 2d at 529-32. The court believed that allowing the action against the doctors to go forward would improperly enlarge their duty of care, for “[s]uch a broad duty extended to the general public would expand the physician’s duty of care to an indeterminate class of
The plaintiff does not allege in counts I and XI, at issue here, that he was a patient of Dr. McKay. Elsewhere in the amended complaint the plaintiff separately alleges that he was a patient of Dr. McKay and seeks recovery on a malpractice theory, but those portions of the amended complaint are not involved in this appeal. Our only concern here is with the allegations in counts I and XI, which do not assert a therapist-patient relationship between Dr. McKay and the plaintiff. For the reasons expressed in Kirk, it would appear that these counts must therefore fail. See Eckhardt v. Kirts, 179 Ill. App. 3d 863, 874-75 (1989) (Reinhard, J., specially concurring) (decision in Kirk precludes recovery in wrongful death action brought against psychiatrist by estate of husband murdered by wife undergoing psychiatric treatment).
The appellate court below recognized that, as a general rule, a nonpatient may not bring a malpractice action against a healthcare professional. The court believed, however, that the present case fits within the concept of “transferred negligence,” as illustrated by this court’s decision in Renslow v. Mennonite Hospital, 67 Ill. 2d 348 (1977). The “transferred negligence” found in Renslow is a limited exception to the customary rule barring malpractice liability to nonpatient third parties. The appellate court believed that the present case comes within the Renslow exception because of the plaintiff’s parent-child relationship with his daughter and because the therapist involved the plaintiff in the treatment here, rendering him a “quasi-patient” of Dr. McKay.
In Renslow the plaintiff’s mother had received
In recognizing the child’s cause of action for malpractice, the Renslow court drew a narrow exception to the general rule of nonliability to third-party nonpatients. Focusing on the close physical relationship between the plaintiff, injured while a fetus, and her mother, the plurality opinion explained:
“The cases allowing relief to an infant for injuries incurred in its previable state make it clear that a defendant may be held liable to a person whose existence was not apparent at the time of his act. We therefore find it illogical to bar relief for an act done prior to conception where the defendant would be liable for this same conduct had the child, unbeknownst to him, been conceived prior to his act. We believe that there is a right to be born free from prenatal injuries foreseeably caused by a breach of duty to the child’s mother.” Renslow, 67 Ill. 2d at 357.
Concurring in the court’s decision, Justice Dooley thought that the harm to the later-conceived plaintiff was foreseeable. Renslow, 67 Ill. 2d at 367-68 (Dooley, J., concurring).
We do not believe that similarly compelling circumstances are present in this case, and thus we decline to apply Renslow’s concept of transferred negligence here. The relationship between a mother and a fetus is perhaps singular and unique, and it is demonstrably different from the relationship that exists between a parent and
Nor is the present appeal like O’Hara v. Holy Cross Hospital, 137 Ill. 2d 332 (1990). In O’Hara the plaintiff accompanied her son to a hospital emergency room for treatment of a facial laceration. The plaintiff injured herself when she fainted during her son’s treatment. The parties disputed whether the plaintiff was merely a bystander during her son’s treatment or whether she was invited to assist in the treatment. This court concluded that the defendants did not have a duty to protect the plaintiff, a nonpatient, from physical injury if she was only a bystander during the treatment. If the plaintiff was invited to participate in her son’s treatment, however, then the court believed that the defendants would owe her a duty to protect her from fainting. O’Hara, 137 Ill. 2d at 340-42.
The basis for liability in O’Hara was not the transfer of negligence from the 11-year-old patient to the parent or the existence of a special relationship between the child and the parent, but the breach of a duty of care owed separately to the plaintiff. O’Hara, 137 Ill. 2d at 339. The negligence counts at issue in this appeal, in contrast, allege malpractice not toward the plaintiff but toward his daughter. The plaintiff’s separate counts seeking recovery for negligence committed against him remain pending in the circuit court of Du Page County and are not at issue in this appeal.
A number of considerations relevant to the duty analysis strongly militate against imposition of a duty here,
Moreover, recognition of the plaintiff’s action could also be inconsistent with the duty of confidentiality that every therapist owes to his or her patients. The defen-
The Supreme Court recently underscored the importance of the psychotherapist privilege in a case that extended the privilege to social workers:
“Effective psychotherapy *** depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.” Jaffee v. Redmond, 518 U.S. 1, 10, 135 L. Ed. 2d 337, 345, 116 S. Ct. 1923, 1928 (1996).
The Jaffee Court concluded, “The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.” Jaffee, 518 U.S. at 11, 135 L. Ed. 2d at 345-46, 116 S. Ct. at 1929.
Allowing a nonpatient’s action against another person’s therapist to go forward would seriously intrude on the relationship between therapist and patient, jeopardizing the confidentiality necessary for the rela-
Thus, unless waived by the patient, the therapist’s duty of confidentiality would restrict the therapist in the way in which she could respond here to the plaintiff’s allegations. For example, the therapist could neither confirm nor deny that the patient told her certain things during the course of the patient’s treatment. We note that the record in the present case contains an affidavit from defendant Bobbie McKay, in which she states that Jane Doe has declined to waive the statutory privilege. Thus, Dr. McKay could not easily answer the present action, for her patient has effectively forbidden her to respond to some of the central allegations of the plaintiff’s complaint.
The considerations we have just discussed—the problem of divided loyalties, and the strong public interest in maintaining the confidentiality of therapist-patient communications—argue strongly against imposing on therapists a duty of care toward nonpatients. Accordingly, we believe that the rule in Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507 (1987), barring malpractice actions by third parties must be applicable here and requires that no duty be extended to the plaintiff for psychic injuries allegedly arising from the therapist’s treatment of Jane Doe. To be sure, the
II
We next consider whether the plaintiff may recover damages for lost society and companionship under theories of intentional interference with a family relationship, as alleged in counts IV, V, XIV, and XV of the amended complaint. The defendants argue that this court’s decision in Dralle v. Ruder, 124 Ill. 2d 61 (1988), should be construed as barring recovery for lost society and companionship of a nonfatally injured child. The plaintiff contends that Dralle does not bar recovery of these damages. Although we have considered the negligence counts separately, we note that the same defects discussed below would affect the negligence counts as well, for those counts also seek damages for lost society and companionship.
In Dralle this court declined to recognize a cause of action by parents to recover for loss of society and companionship in a products liability action against the manufacturer of a drug that allegedly caused nonfatal birth defects in the plaintiffs’ child. The court mentioned “the appropriate scope of tort liability” (Dralle, 124 Ill. 2d at 69) and the interests that other relatives besides parents could assert in bringing similar claims to recover for lost society caused by nonfatal injuries to a relative. The court also cited the availability of the injured child’s own cause of action, which could be duplicated by the parents’ own claim. Dralle, 124 Ill. 2d at 70. Finally, the court referred to the problems that inevitably arise in determining damages for lost society and companionship resulting from nonfatal injuries. Dralle, 124 Ill. 2d at 70-71. Although Dralle rejected the parents’ claim, the court did not address recovery in actions based on what has
The plaintiff maintains that he is alleging an action for direct interference, and it was on that ground that the appellate court below permitted the plaintiff to proceed on these portions of the amended complaint. 286 Ill. App. 3d at 1026-27. We do not agree that the asserted distinction between “direct” and “indirect” forms of interference support a different result in this case, for we believe that the same considerations that led the court to deny recovery in Dralle must also preclude recovery for lost society and companionship here. In our view, the considerations cited in Dralle as grounds for barring recovery of psychic damages are applicable whether the interference with the relationship is characterized as direct or indirect. See Alber v. Illinois Department of Mental Health & Developmental Disabilities, 786 F. Supp. 1340, 1364-65 (N.D. Ill. 1992); but see Sullivan v. Cheshier, 846 F. Supp. 654, 660-61 (N.D. Ill. 1994). Accordingly, we conclude that the concerns raised in Dralle must also preclude recovery here.
First, allowing recovery by the plaintiff would greatly expand the potential liability of therapists and other counselors. As we noted above, in declining to extend the
Moreover, we note that a tort remedy is available to a patient who believes that he or she has been the victim of professional malpractice. Although the plaintiff’s daughter is not a party to the present action, she may, if she chooses, bring her own suit for malpractice. In that event, she would be placing her own treatment at issue, waiving the statutory privileges protecting patient-therapist communications, and the confidentiality concerns mentioned earlier would no longer restrict the therapist in defending the action.
***
In sum, we do not believe that the plaintiff has succeeded in stating a cause of action under the theories at issue in this appeal. Accordingly, the judgment of the appellate court is reversed, and the judgment of the circuit court of Du Page County is affirmed.
Appellate court judgment reversed;
circuit court judgment affirmed.
JUSTICE HARRISON, dissenting:
My colleagues expound at length about the need to protect medical providers from liability to some indeterminate class of nonpatient third parties. They fail to see that that is not what this case is about at all. Plaintiff here was not a chance bystander or random member of the general public. He was a relative of the therapist’s patient, he was the alleged cause of the patient’s psychological difficulties, and, according to the complaint, the therapist specifically arranged to have him participate in the patient’s therapy sessions as part of the patient’s treatment program.
Where a third party has the kind of relationship with the patient that John Doe had here and the therapist chooses to make that third party an integral part of a patient’s treatment, as the therapist in this case did, the majority’s concerns about compromising patient confi-
As it turned out, no confession was forthcoming. The plan failed. The damage that John Doe allegedly sustained as a result was foreseeable by any meaningful standard. The likelihood of injury was great, the burden of guarding against that injury was slight, and there would be no significant adverse consequences from placing that burden on the therapist.
The majority claims that approving plaintiff’s cause of action
“would mean that therapists generally, as well as other types of counselors, could be subject to suit by any nonpatient third party who is adversely affected by personal decisions perceived to be made by a patient in response to counseling.” 183 Ill. 2d at 282.
This is patently untrue. A cardinal principle of our common law system is that a holding can have no broader application than the facts of the case that gave rise to it. Cates v. Cates, 225 Ill. App. 3d 509, 513 (1992), aff’d, 156 Ill. 2d 76 (1993), citing Nix v. Smith, 32 Ill. 2d 465 (1965). The case before us today does not involve “therapists generally,” but a licensed clinical psychologist. As previously indicated, plaintiff was not simply “any third party,” but a family member who was used as a tool in plaintiff’s treatment program. Moreover, the harm alleged here did not result from “personal decisions perceived to be made by a patient,” whatever that means. It was the product of a failed course of treatment formulated by a mental health professional.