Therapist Safe From Lawsuit, Judges Rule

An Orange County man falsely accused of molesting his child, based on “repressed memories” allegedly recovered during therapy, cannot sue the child’s therapist, a state appeals court has ruled.

A three-judge Court of Appeal panel in Santa Ana ruled unanimously that a therapist must act solely in the interests of the client, not a third person, and can be sued only by the client for negligent diagnosis or treatment.

This is the first California appellate ruling on the issue, but it has come before courts in eight or nine other states, of which about half have allowed a suit, said O. Brandt Caudill, attorney for the therapist, Beverly Sills.

California therapists should be relieved by Tuesday’s ruling, Caudill said.

Tom M. Allen, lawyer for the Orange County man, James Trear, whose suit against his daughter’s therapist was dismissed, said no decision has been made on whether to appeal further.

But he contends that a therapist whose diagnosis lacks any scientific support and who encourages a client to accuse an innocent third person of a crime should not be immune from damages.

The theory that victims of childhood trauma can “forget” abuse for decades and later be cured of adult disorders by recovering their memories has lost much of its credibility among scientists and might well be barred as evidence in California courts, the appeals panel said.

Still, the justices said, a therapist is entitled to examine the possibility of past sexual abuse and is required by state law to report child abuse to state authorities. A therapist shouldn’t be inhibited by the possibility of a suit by the alleged abuser, the court said.

“A therapist should not be required to serve two masters,” Presiding Justice David Sills, who is unrelated to the therapist, wrote in the opinion. “The therapist risks utter professional failure in his or her duty to the patient if possible childhood sexual abuse is ignored.”

The case stems from accusations that Kathleen Searles, 47, made against her father. She sued Trear in 1992 alleging he had raped and sexually abused her during her childhood, starting when she was 6 months old. She said she recalled the abuse in 1991 during sessions with her therapist. Trear denied the claims but settled the suit by paying his daughter $7,500.

Trear sued the therapist in 1994, accusing her of encouraging his daughter to sue him as an aid in her recovery. A trial court judge dismissed the lawsuit, and Trear appealed.

In rejecting the case, the appellate panel stated that the therapist was entitled to do what she believed was best for her patient without facing a suit from Trear--even assuming that Searles’ accusations were false and the therapist encouraged her to sue.