Figueiredo-Torres v. Nickel

CHASANOW, Judge. Appellant Silvio Figueiredo-Torres (Torres) filed a complaint on March 2, 1989, in the Circuit Court for Montgom ⁶⁴⁶ ery County, against Appellee Herbert J. Nickel (Nickel) seeking damages for negligence, gross negligence, intentional infliction of emotional distress and “outrage.” The complaint alleged the following facts: In July 1985, Torres and his wife sought the counsel of Nickel, a licensed psychologist, for the puipose of preserving and improving their marital relationship. Most of the therapy sessions with Nickel were joint sessions attended by both Torres and his wife; however, Torres also attended some individual sessions with Nickel. Apparently, Nickel conducted individual sessions with Mrs. Torres as well, for the complaint maintains that, during the course of Nickel’s treatment of Torres and his wife, Nickel commenced a romantic relationship with Mrs. Torres, engaging in “improper affectionate conduct” and “repeated sexual intercourse” with her, which culminated in the dissolution of the Torres’ marriage.

In therapy sessions with Torres, Nickel “consistently advised [him] to be distant from his wife, not to engage in intimate and/or sexual contact with her, and ultimately to separate from her.” The complaint further alleged that, as a result of his psychologist-patient relationship with Torres, Nickel knew that Torres was particularly sensitive emotionally. Torres also set forth numerous injuries, both emotional and physical, and damages allegedly sustained as a result of Nickel’s conduct. Nickel filed a Maryland Rule 2-322(b)(2) motion to dismiss the complaint for failure to state a claim upon which relief can be granted, relying on Gasper v. Lighthouse, Inc., 73 Md.App. 367 , 533 A.2d 1358 (1987), cert. denied, 311 Md. 718 , 537 A.2d 272 (1988). The motion was granted by the circuit court as to the gross negligence, intentional infliction of emotional distress, and “outrage” counts; the negligence count was dismissed with leave to amend.

Torres then filed an amended complaint for professional negligence. In his amended complaint, Torres set forth eleven constituents of the standard of care allegedly owed by Nickel to Torres as a result of their psychologist-patient relationship, as well as eleven ways in which Torres asserted that Nickel ⁶⁴⁷ breached that standard of care. Torres further averred that Nickel’s actions were motivated by “hate, spite, recklessness, malice” and were “done deliberately to injure and cause damage to [Torres].” Torres also enumerated physical and emotional damages allegedly caused by Nickel’s professional negligence. The circuit court dismissed the amended complaint, and Torres appealed to the Court of Special Appeals challenging the dismissal of the professional negligence and intentional infliction of emotional distress counts.

We issued a writ of certiorari before the intermediate court ruled on the case. The standard for review of Rule 2-322 motions was stated in Sharrow v. State Farm Mutual, 306 Md. 754, 768-69 , 511 A.2d 492, 499-500 (1986): “[I]n considering the legal sufficiency of [a] complaint to allege a cause of action ..., we must assume the truth of all relevant and material facts that are well pleaded and all inferences which can be reasonably drawn from those pleadings. On the other hand, any ambiguity or uncertainty in the allegations bearing on whether the complaint states a cause of action must be construed against the pleader.” (Citations omitted.) Id. Accord Smith v. Gross, 319 Md. 138, 141-42 , 571 A.2d 1219, 1220 (1990).

We further recognized that “[t]here is, of course, a big difference between that which is necessary to prove the commission of the tort and that which is necessary merely to allege its commission.” Sharrow, 306 Md. at 770 , 511 A.2d at 500 . In the instant case we do not pass on the merits of Torres’ actions for professional negligence or intentional infliction of emotional distress; we merely determine his right to bring these actions. I. PROFESSIONAL NEGLIGENCE We address first the issue of whether Torres’ complaint and amended complaint (hereinafter collectively referred to as complaint) allege facts that are sufficient, if proven, to support a cause of action for professional negligence. As Nickel admits in his brief, ⁶⁴⁸ “It is a fundamental rule that negligence exists only where there is a duty owed by one person to another and a breach of that duty occurs, causing injury.

In the instant case, as a psychologist, [Nickel] owed a duty of care to his clients to maintain their confidentiality and to act within the standard of care, i.e., to act as a reasonably competent psychologist in a similar situation would act.” (Citations omitted.) Nickel does not deny that a psychologist-patient relationship existed between himself and Torres; nor does he deny that he owed Torres a duty to observe the standard of care that a reasonably competent psychologist would exercise. He argues that he should be excused from liability for engaging in sexual intercourse with Torres’ wife and for counseling Torres to be distant from her because those activities constitute either “criminal conversation” or “alienation of affections,” and both of those causes of action have been abolished in Maryland. An action for alienation of affections “arose when a person induced a married woman to leave her husband or otherwise interfered with the marital relationship, even though no act of adultery was committed.” Kline v. Ansell, 287 Md. 585, 590 , 414 A.2d 929, 932 (1980). It was abolished by the Maryland Legislature in 1945 because “[t]he Legislature found that the action had been ‘subjected to grave abuses, causing extreme annoyance, embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free of any wrongdoing, who were merely the victims of circumstances____’” Gasper, 73 Md. App. at 370 , 533 A.2d at 1359 (quoting Chapter 1010 of the Laws of 1945).

Criminal conversation is the act of engaging in sexual intercourse with the wife of another. The cause of action for criminal conversation was abolished by this Court in 1980 in Kline . While we noted in Kline that this cause of action was anachronistic and “incompatible with today’s sense of fairness,” 287 Md. at 589 , 414 A.2d at 931 , we held that it was unconstitutional because it conflicted with the Maryland Equal Rights Amendment. Id. at ⁶⁴⁹ 593 , 414 A.2d at 933 ; see also Note, Judicial Abrogation of the Civil Action for Adultery, 10 U.Balt.L.Rev. 205 (1980).

Assuming, as we must, the truth of the allegations of the complaint in this case, it appears that Nickel engaged in both of these activities. Based on Gasper , Nickel argues that Torres’ complaint is merely a “refitting of the abolished actions into other forms.” Neither party contends that Gasper was incorrectly decided, so we need not address that issue. Gasper involved a suit by a husband against a marriage counselor who, in the course of counseling husband and wife, commenced an affair with the wife. The Court of Special Appeals held that the complaint was properly dismissed because it relied “ ‘as a substantial cause of action on alienation of affection and criminal conversation____’” 73 Md.App. at 372 , 533 A.2d at 1360 .

Nickel’s reasoning, that Gasper precludes a cause of action for professional negligence where the negligence consists of engaging in sexual intercourse with his patient’s wife, may be flawed. The Court of Special Appeals addressed this very issue when it declared: “As a preface to our consideration of the issue raised, we wish to make clear that abolition of the actions for alienation of affections and criminal conversation does not preclude a person from maintaining a traditional breach of contract action or a recognized tort action merely because the breach arose from an improper liaison with the plaintiffs spouse or because one effect of the alleged breach or tortious conduct was a disruption or breakup of his or her marriage. ” (Emphasis added.) Id. Torres’ complaint alleges that Nickel, a licensed psychologist “who held himself out as having expertise in the field of marriage-counseling, individual and family therapy, and as having the ability to provide psychotherapy that would aid couples in preserving and enriching their marriages,” undertook to counsel Torres, both individually and jointly with his wife, for the purpose of bettering Torres’ ⁶⁵⁰ “own mental and emotional health and to better the marital relationship.” The complaint avers that the therapy sessions were “designed to help and resolve marital problems and conflicts which the couple had been experiencing, and to treat them both from a psychological point of view so that their marriage would be preserved, enriched and fulfilled.” These allegations are sufficient to show that a psychologist-patient relationship arose between Torres and Nickel such that Nickel owed Torres a duty to exercise “that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which, he belongs, acting in the same or similar circumstances.” Shilkret v. Annapolis Emergency Hosp., 276 Md. 187, 200 , 349 A.2d 245, 253 (1975); see also Horak v. Bins, 130 Ill.App.3d 140 , 85 Ill.Dec. 599, 603 , 474 N.E.2d 13, 17 (1985) (the nature of the therapist-patient relationship “gives rise to a clear duty on the therapist’s part to engage only in activity or conduct which is calculated to improve the patient’s mental or emotional well-being, and to refrain from any activity or conduct which carries with it a foreseeable and unreasonable risk of mental or emotional harm to the patient”). We do not agree with Nickel’s contention that the affair was his private concern wholly separate from his professional practice.

The trier of fact may find it was professional malpractice for a psychologist engaged in marriage counseling to maintain a sexual relationship with his patient’s spouse. See Mazza v. Huffaker, 61 N.C.App. 170 , 300 S.E.2d 833, 838 , petition for discretionary review denied, 309 N.C. 192 , 305 S.E.2d 734 (1983). We doubt that the standard of care exercised by a reasonable psychologist permits the practitioner to treat a patient in the confines of the office and then undermine that treatment outside the therapy session. In Mazza , a case factually similar to the one at bar, “expert testimony tended to establish an obligation on the part of psychiatrists, as a part of their duties within the patient-psychiatrist relationship, to conduct themselves in a certain way and this obligation applies even ⁶⁵¹ beyond the office, clinic, hospital, or laboratory.” Id.

At trial, Torres should be given the opportunity to establish likewise that a psychologist’s duty to his patient does not stop at the office door. See also Rowe v. Bennett, 514 A.2d 802, 804 (Me.1986) (it was a psychiatrist’s opinion that a social worker breached her professional duty to her psychotherapy patient by seeing the patient’s companion socially while treating the patient for problems with her relationship with that companion). On the surface, the allegations of improper sexual conduct set forth in Torres’ complaint may constitute criminal conversation; however, if in addition, the sexual activity violated the professional standard of care which Nickel owed to Torres, it is sufficient to support a cause of action for professional negligence. Torres further avers in his complaint that Nickel advised him “to be distant from his wife, not to engage in intimate and/or sexual contact with her, and ultimately to separate from her.” These assertions resemble the abolished cause of action for alienation of affections.

We believe that they may also sustain the allegation that Nickel breached his professional duty of care. We caution, however, that we do not espouse the notion that a psychologist who, acting in the best interest of his or her patient and using proper professional standards, advises the patient to separate from his or her spouse may be liable for professional negligence. In this case, the complaint clearly avers that Nickel acted for his own self-gratification and not in the interest of his patient. Torres’ complaint raises an additional means, separate from the allegations which overlap amatory claims, by which Nickel may have breached the standard of care owed to his patient.

Torres maintains that Nickel demoralized him and engaged in conduct destructive to his ego development and self-respect in violation of the duty Nickel owed to his psychotherapy patient. Torres, of course, has the burden to prove by expert testimony at trial that these activities violated the requisite ⁶⁵² standard of care. We believe, however, that the allegations of