Judge to Rule on Suit Against Therapist

The first phase of a lawsuit began Thursday to determine if a former patient may sue a psychiatrist who is medical director of the San Diego County Psychiatric Hospital for an alleged sexual assault 14 years ago.

The alleged victim, a 58-year-old former Navy master chief petty officer who is now a therapist, sued Dr. David McWhirter earlier this year, claiming his memory of the attack surfaced in 1991 after having been repressed.

San Diego Superior Court Judge Kevin Midlam heard opening statements from attorneys, who will present evidence over the next few days to determine if the statute of limitations bars the man from seeking damages.

If Midlam rules that the lawsuit may proceed, a jury will be selected to decide if McWhirter committed medical negligence, if he obtained consent for the act of oral copulation and if he committed battery during the alleged attack.

“Our contention is the man was not injured until February, 1991, when his repressed memories were jogged to the surface,” attorney David D. Miller told the judge.

The man, who is identified as “Mr. Doe” in recent court documents, went to McWhirter in 1976 for treatment related to depression and marriage problems that were at least partially related to his alcoholic wife.

But as treatment continued, the man developed a mentor-student relationship with McWhirter, he testified later in the day.

The sexual event allegedly occurred in 1977 at McWhirter’s house, and “Mr. Doe was severely traumatized by the event,” so much so that he developed post-traumatic stress syndrome, Miller said.

Arguing that “this suit was filed within three years of the injury,” Miller asked Midlam to determine that an adult repressing memories of an adult incident “is a valid psychiatric phenomenon.”

McWhirter’s attorney, Jeff Barton, strongly disagreed and said there is not one documented case of an adult blocking an adult sexual memory. This type of repression “is theoretical at best,” he said.

“The plaintiff is asking the court to expand the law where it has not gone before--where science has not gone,” the attorney said.

Barton spent much of his opening statement attacking the plaintiff in the suit, saying he was a cross-dresser for 10 years and that he received many benefits from the treatment he received from McWhirter.

After working with McWhirter as a psychiatric assistant, Mr. Doe moved into McWhirter’s house, which caused his life to revolve around the power McWhirter had gained through his prestige as an expert in human sexuality and through his numerous political contacts, Barton said.

But as Mr. Doe came closer to achieving his counseling degree, he became more and more critical of the care McWhirter provided, according to Barton.

Attorneys in the case said they expect to conclude presenting evidence in the first phase of the trial during the middle of next week. If Midlam rules that the alleged injury occurred in 1977, then the lawsuit will effectively be dismissed.