Homer v. Long

WILNER, Chief Judge. The American Psychiatric Association has declared, in clear and unmistakable terms, that sexual intimacies between a psychiatrist and his or her patient are unethical and forbidden. 1 As noted by L. Jorgenson, R. Randles, and L. Strasburger, The Furor Over Psychotherapist-Patient Sexual Contact: New Solutions To An Old Problem, 32 Wm. and Mary L.Rev. 645, 647 (1991), the import of this ethical injunction, and others like it, is a clarion proclamation that “It’s Never O.K.” And yet, unfortunately, it occurs. According to Mr. James J. Homer, it occurred between the defendant, S. Eugene Long, M.D., and Mr. Homer’s wife, Vicki Homer, and it led, ultimately, to the breakup of the Homer marriage. He seeks damages from Dr. Long for breach of contract, negligence, fraud, negligent misrepresentation, and intentional infliction of emotional distress. ⁴ The Circuit Court for Howard County dismissed the tort claims in his complaint, believing that they were barred under the principles enunciated by this Court in Gasper v. Lighthouse, Inc., 73 Md.App. 367 , 533 A.2d 1358 (1987), cert. denied, 311 Md. 718 , 537 A.2d 272 (1988).

It kept alive the breach of contract claim but entered final judgment as to the tort claims under Md. Rule 2-602(b) so that this appeal could proceed. Mr. Homer contends that his tort claims are not barred under Gasper and that they are indeed permitted under the later decision of the Court of Appeals in Figueiredo-Torres v. Nickel, 321 Md. 642 , 584 A.2d 69 (1991). We disagree. Underlying Facts The case comes to us on the pleadings, and so we must take all well-pleaded allegations made by Mr. Homer as true.

The Homers were married in 1966; they have two children who, at the time of the relevant events here, were teenagers. In 1981, Ms. Homer began to suffer from depression which became more pronounced in 1985 following a series of particularly stressful events in her life. On October 25, 1985, she attempted to commit suicide and was taken to the emergency room at Howard County General Hospital. Mr. Homer, a veteran, arranged to have her transferred to Walter Reed Army Hospital as soon as a bed became available there but had her admitted in the meanwhile to the Howard County hospital.

He decided to retain a psychiatrist to perform an initial evaluation and assist in the transfer, and he eventually selected Dr. Long, who had privileges at the local hospital. Dr. Long informed Mr. Homer that Ms. Homer would not receive appropriate treatment at Walter Reed and persuaded him to keep her at Howard County under Dr. Long’s care. “In reliance upon Dr. Long’s representation,” Homer agreed that his wife would remain at the Howard County hospital, and he asked Dr. Long to provide “appropriate counseling and psychiatric treatment to Mrs. Homer.” ⁵ Mr. Homer states that, during the seven weeks of his wife’s hospitalization, he provided to Dr. Long, at the latter’s request, a detailed written statement of events relating to Mr. Homer’s and Ms. Homer’s problems that contained “sensitive and confidential information.” He also avers that, during that period of hospitalization, he and his daughters “were often precluded by Dr. Long from visiting Mrs. Homer” and that they were given little information about her status or treatment. In December, 1985, just before Ms. Homer’s discharge, Dr. Long counseled Mr. Homer that his wife’s “therapy required that she not return home immediately, but that she should live elsewhere.” He therefore made arrangements for her to live with a cousin temporarily. Ms. Homer was discharged on December 9, and began then to receive outpatient treatment from Dr. Long.

She returned home on January 15, 1986. In May, following a trip to Germany, Ms. Homer again attempted suicide and was readmitted to the Howard County hospital. How long she remained there is not clear. At some point — according to Mr. Homer during the period that Dr. Long was treating Ms. Homer — Dr. Long “used the personal and confidential information that he had received from Mr. Homer to seduce Mrs. Homer and become sexually intimate with her, apparently as part of his treatment of Mrs. Homer.” Homer asserts that his wife, at the time, was “dependent, needy, and vulnerable,” and that Dr. Long prevented her from seeing her family “so that he could embark upon a course of treatment which included an exploitative sexual relationship with her,” that he used the personal information supplied by Mr. Homer to “manipulate Mrs. Homer’s feelings, positively toward Dr. Long, and negatively, toward Mr. Homer,” and that he “effected and accomplished a ‘transference’ on the part of Mrs. Homer” pursuant to which she came to rely on him and to “perceive him as the most important person in her life.” As “part of his plan to control Mrs. Homer,” in May, 1986, Dr. Long employed her as a typist. ⁶ Between May and July, 1986, Ms. Homer’s demeanor changed.

She became deceptive, untruthful, nervous, and argumentative, and began to talk of divorce. On July 1, 1986, she moved out, renting an apartment near Dr. Long’s office, but she returned in September and the Homers began marriage counseling. In October, however, she announced that she was hiring a divorce lawyer, and two months later she left the home again and filed for divorce. In January, 1987, she had her last therapy session with Dr. Long and began to see another psychiatrist, as, indeed, did Dr. Long.

At that time, Dr. Long left his home as well. In August, 1989, Long’s wife sued him for divorce; the following November, the Homers entered into a marital settlement agreement, intending it to be incorporated in an anticipated decree of divorce. Mr. Homer contends that, although he did not discover the sexual relationship between his wife and Dr. Long until the spring of 1987, the evidence that he then had of it showed that it had been on-going since June, 1986. The gravamen of his complaint, as set forth in the concluding paragraph of his “Background” allegations, is that: “In treating Mrs. Homer, Dr. Long wrongfully lulled Mr. Homer into believing that Dr. Long was providing his wife with appropriate psychiatric counseling, while Dr. Long, in fact, intended to and did embark upon a reprehensible and manipulative scheme to gain sexual access to Mrs. Homer, thereby destroying the Homer family unit, and causing Mr. Homer severe and permanent pain, suffering, mental anguish, and emotional, distress, past, present, and future.” Gasper and Figueiredo-Torres In Gasper v. Lighthouse, Inc., supra, 73 Md.App. 367 , 533 A.2d 1358 , we observed that, under Maryland common law, a man had a recognized property interest in both his wife and his marriage.

If he was cuckolded, he could sue the partner to his wife’s adultery for the injury to his feelings and his honor. This action, though a civil one for ⁷ damages, was known as criminal conversation; the basis of it was the wife’s adultery — the “defilement of the marriage bed.” If the defendant induced a man’s wife to leave or otherwise interfered with the marital relationship, whether or not any adultery occurred, the husband had an allied action for alienation of affections, not only for loss of consortium and injury to his feelings but, if the conduct was malicious, for punitive damages as well. We also pointed out that both of those common law actions had been abolished, the latter by the Legislature on policy grounds in 1945 and the former by the Court of Appeals, as violative of the State Equal Rights Amendment, in 1980. Mr. and Mrs. Gasper had been referred to the corporate defendant for marriage counseling.

In the course of that counseling by one of the defendant’s counselors, the counselor commenced an adulterous relationship with Ms. Gas-per that eventually led to a breakup of the Gaspers’ marriage. Mr. Gasper sued for breach of contract, malicious breach of contract, breach of fiduciary duty, negligence, intentional infliction of emotional distress, and loss of consortium. The complaint was dismissed and we affirmed that dismissal, concluding that the actions as actually pled by Mr. Gasper were in reality transparent attempts to recover for criminal conversation and alienation of affections. We stated first, at 372, 533 A.2d 1358 : “As a preface to our consideration of the issues 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 plaintiff’s spouse or because one effect of the alleged breach or tortious conduct was a disruption or breakup of his or her marriage____ What is precluded, however, is the refitting of the abolished actions into other forms.

One cannot sue to recover for injuries arising from ‘defilement of the marriage bed’ or from an interference with the marriage by simply casting the ⁸ defendant’s conduct as a breach of contract, or negligence, or some other intentional tort.” In examining Mr. Gasper’s claims, we concluded that, in each instance, what he was attempting to do was to recover damages either for the adultery itself or for the breakup of his marriage. As to some of the claims, this was apparent from their substantive basis; as to others, it became clear from the nature of the damages sought. Figueiredo-Torres also arose from a situation in which a husband and wife were undergoing marriage counseling, the defendant being a psychologist. During the therapy sessions, the defendant advised Mr. Figueiredo-Torres to distance himself from his wife, not to engage in any intimate contact with her, and ultimately to separate from her.

At the same time, he commenced his own sexual relationship with her. Mr. Figueiredo-Torres sued the psychologist for negligence, gross negligence, intentional infliction of emotional distress, and “outrage.” Unlike the result in Gasper , the Court of Appeals concluded that two of those claims as pled — professional negligence and intentional infliction of emotional distress — were cognizable and remanded them for trial. The Court noted and indeed quoted from Gasper , but found it distinguishable. Although Mr. Figueiredo-Torres certainly complained about the adulterous relationship and its effect, that was not the sole basis of his action.

He too was the defendant’s patient, and the defendant’s conduct was not only inappropriate as to the wife, but negligent as to him. As the Court stated at 650: “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.” Continuing on 651, the Court concluded that, although on the surface the allegations of sexual misconduct may constitute criminal conversation, “if in addition, the sexual activity violated the professional standard of care which Nickel owed to [the plaintiff], it is sufficient to support a cause of action for professional negligence.” ⁹ In that regard, the Court observed that, in addition to the “amatory claims,” the plaintiff maintained 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” and that the plaintiff himself suffered specific physical and psychological injury as a result. Similarly, with respect to the intentional tort, the Court concluded, at 657, that the gravamen of the claim “is not merely the sexual act or the alienation of his wife’s affections. It is the entire course of conduct engaged in by his therapist, with whom he enjoyed a special relationship.

This conduct constitutes more than the abolished amatory causes of action.” With this background, we turn to examine the specific actions pled by Mr. Homer, although not quite in the order presented in the complaint. Negligence (Count I) In his negligence claim, Mr. Homer makes four basic averments: (1) that “[i]n promising to treat Mrs. Homer and accepting payment for the treatment by Mr. Homer, Dr. Long was under a duty to Mr. Homer in his care and treatment of Mrs. Homer, not to take advantage of either Mr. Homer or Mrs. Homer by virtue of his position as a psychiatrist”; (2) that he violated that duty and was negligent (i) in attempting to achieve improper purposes which he “knew or should have known were harmful to Mr. Homer,” (ii) in coercing Mr. Homer to allow him to continue treating Ms. Homer and to provide confidential information so that Long could enter into a sexually intimate relationship with her, (iii) in counseling Ms. Homer to enter into that relationship, “to leave her home, and to divorce Mr. Homer as part of her treatment,” and (iv) in certain of his other conduct alleged in the Background allegations; (3) that these acts of negligence were “gross, aggravated, reckless, and malicious”; and (4) that as a proximate result of that conduct, Mr. Homer “has suffered great mental anguish, reduction of his income, impairment of his emotion ¹⁰ al and psychological health and well-being, financial expenses and losses, and has otherwise suffered and continues and will continue to suffer severe injury and damages.” This count suffers from two deficiencies, each of which is fatal to it. To recover in an action for negligence, the plaintiff must show, first, that the defendant owed a duty to him which was breached. That duty, moreover, must be one that the law is prepared to recognize.

The duty claimed here is not to “take advantage of” either Mr. Homer or Ms. Homer by virtue of the defendant’s position as a psychiatrist. That is a rather general statement, devoid of specifics. Unlike the situation in either Gasper or FigueiredoTorres, Mr. Homer was never Dr. Long’s patient, and so the normal duty that a doctor has to act in conformance with accepted standards of medical practice would not ordinarily flow to him. Miller v. Schaefer, 80 Md.App. 60 , 559 A.2d 813 (1989), aff'd, 322 Md. 297 , 587 A.2d 491 (1991); Weaver v. Union Carbide Corp., 378 S.E.2d 105 (W.Va.1989); Spiess v. Johnson, 89 Or.App. 289 , 748 P.2d 1020 (1988).

Compare Hoover v. Williamson, 236 Md. 250 , 203 A.2d 861 (1964), where a doctor retained by an employer to treat the employer’s employees was held to have a duty of care to an employee whom he actually treated. There are some limited circumstances in which a doctor or other therapist has been held to have a duty to persons other than his patient, mostly involving situations in which the patient has, or is thought to have, a communicable disease or otherwise presents a clear danger to a specific person. See, in general, 70 C.J.S. Physicians and Surgeons § 79, 87, 88, pp. 481, 493, 495; DiMarco v. Lynch Homes —Chester County, 384 Pa.Super. 463 , 559 A.2d 530 (1989), aff'd, 525 Pa. 558 , 583 A.2d 422 (1990); Shepard v. Redford Community Hosp., 151 Mich.App. 242 , 390 N.W.2d 239 (1986); Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916 , 167 Cal.Rptr. 831 , 616 P.2d 813 (1980); Tarasoff v. Regents of University of California, 17 Cal.3d 425 , 131 Cal.Rptr. 14 , 551 P.2d 334 (1976); compare Furr v. Spring Grove State Hosp., 53 Md.App. 474 , 454 A.2d 414 ¹¹ (1983), cert. denied, 296 Md. 60 ; and cf. Henley v. Prince George’s County, 305 Md. 320 , 503 A.2d 1333 (1986). That is not the case here.

It would appear that the provision of individual psychotherapy to a married