Doe v. McKay

Annotate this Case
Doe v. McKay, No. 83094 (6/18/98)

Docket No. 83094--Agenda 11--March 1998.
JOHN DOE, Appellee, v. BOBBIE McKAY, Ph.D., et al., Appellants.
Opinion filed June 18, 1998.

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 (166 Ill. 2d R. 315(a)), and we now reverse the judgment of the appellate
court and affirm the judgment of the circuit court.
The circuit court dismissed the challenged portions of the amended complaint
under section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West
1994)) for failure to state a cause of action. Our review of that ruling is de novo
(Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997)), and it requires us to assume the
truth of all well-pleaded factual allegations in the plaintiff's amended complaint
(People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 11 (1991).
According to the allegations in the amended complaint, beginning in 1990 and
continuing through October 1995, when the amended complaint was filed, the
plaintiff's daughter, Jane Doe, underwent psychological treatment under the care
of defendant Bobbie McKay, a licensed clinical psychologist. During the course
of this treatment, Jane Doe supposedly discovered repressed memories of sexual
abuse allegedly committed by the plaintiff. Jane Doe, who was born in 1964, had
not been aware of these memories before beginning her treatment with Dr.
McKay.
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, 1992, session was arranged by the therapist
to maximize the shock effect of his daughter's accusation and to force from the
plaintiff a confession regarding the alleged abuse. The plaintiff denies that he ever
sexually abused his daughter.
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 this action, and she has not
alleged any malpractice by the defendants.
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
Supreme Court Rule 304(a) to permit an immediate appeal from that ruling. The
plaintiff did not appeal the dismissal of a number of other counts, and the trial
judge denied the defendants' motions to dismiss other parts of the amended
complaint.
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 challenged here, and the
appellate court therefore remanded the cause to the circuit court for further
proceedings. We allowed the defendants' petition for leave to appeal (166 Ill. 2d
R. 315(a)), and we now reverse the judgment of the appellate court and affirm the
judgment of the circuit court. We granted leave to the False Memory Syndrome
Foundation to submit a brief as amicus curiae in support of the plaintiff. 155 Ill.
2d R. 345. Also, we allowed the following organizations to file a joint brief as
amici curiae in support of the defendants: the Alliance for the Rights of Children;
the American Counseling Association; the American Professional Society on the
Abuse of Children; the Illinois Coalition Against Sexual Assault; Justice for
Children; The Linkup; the Marilyn Van Derbur Institute, Inc.; Mothers Against
Sexual Abuse; the National Alliance of Sexual Assault Coalitions; the National
Coalition Against Sexual Assault; One Voice, the National Alliance for Abuse
Awareness and the American Coalition for Abuse Awareness; Survivor
Connections, Inc.; Survivors and Victims Empowered; Voices in Action, Inc.; and
the Women's Law Project.

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 of a duty, a breach of the duty, and an injury
to the plaintiff proximately caused by the breach. Widlowski v. Durkee Foods,
Division of SCM Corp., 138 Ill. 2d 369, 373 (1990); Curtis v. County of Cook, 98 Ill. 2d 158, 162 (1983). Whether a duty exists is a question of law to be
determined by the court. Mt. Zion State Bank & Trust v. Consolidated
Communications, Inc., 169 Ill. 2d 110, 116 (1995); Gouge v. Central Illinois
Public Service Co., 144 Ill. 2d 535, 542 (1991); Cunis v. Brennan, 56 Ill. 2d 372,
374 (1974). In deciding whether a duty exists in a particular case, a court will
consider the foreseeability of the plaintiff's injury, the likelihood of the
occurrence, the magnitude of the burden of guarding against it, and the
consequences of placing that burden on the defendant. Ward v. K mart Corp., 136 Ill. 2d 132, 140-41 (1990); Lance v. Senior, 36 Ill. 2d 516, 518 (1967).
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 potential
plaintiffs." Kirk, 117 Ill. 2d at 532. As this court recognized in Kirk, the duty of
due care owed by a healthcare professional runs only to the patient, and not to
third parties. A similar rule applies in other contexts, such as legal malpractice.
McLane v. Russell, 131 Ill. 2d 509 (1989); Pelham v. Griesheimer, 92 Ill. 2d 13
(1982).
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 incompatible blood during a
transfusion, which had caused the mother's blood to become sensitized. The
mother did not learn of the problem until a number of years later, when she was
pregnant with the plaintiff, and the plaintiff was injured as a result of her mother's
condition. The Renslow court concluded that the defendants owed the plaintiff a
duty of due care, even though she had not been conceived at the time of the
alleged negligence, and therefore permitted the plaintiff to bring a malpractice
action against the defendants--a hospital and its laboratory director.
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 an adult child. Notably, the injury complained of in Renslow was
physical, traceable to the negligent treatment of the mother. In the present case,
in contrast, the injury is nonphysical and results from decisions made by the
daughter. We also note that the interests of the mother and the fetus in Renslow
were not adverse to each other, while in the present case the interests of the
plaintiff and Jane Doe are different.
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, even when the asserted liability is characterized
in terms of transferred negligence or a special relationship. Under the rule
expressed in Kirk, the defendant therapist owed a duty of care to her patient only,
and not to nonpatient third parties. Approval of the plaintiff's cause of action,
however, 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. This result would, we believe, place therapists in a difficult position,
requiring them to answer to competing demands and to divide their loyalty
between sharply different interests. Concern about how a course of treatment
might affect third parties could easily influence the way in which therapists treat
their patients. Under a rule imposing a duty of care to third parties, therapists
would feel compelled to consider the possible effects of treatment choices on third
parties and would have an incentive to compromise their treatment because of the
threatened liability. This would be fundamentally inconsistent with the therapist's
obligation to the patient. As one court has noted, "[D]octors should be free to
recommend a course of treatment and act on the patient's response to the
recommendation free from the possibility that someone other than the patient
might complain in the future." Lindgren v. Moore, 907 F. Supp. 1183, 1189 (N.D.
Ill. 1995). Hoping to avoid liability to third parties, however, a therapist might
instead find it necessary to deviate from the treatment the therapist would
normally provide, to the patient's ultimate detriment. This would exact an
intolerably high price from the patient-therapist relationship and would be
destructive of that relationship.
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
defendants point out that the therapist cannot properly defend the present action
without revealing confidences revealed to her by Jane Doe. These communications
are privileged and are subject to disclosure only in a limited range of
circumstances, as in cases in which the patient has sued the therapist. 735 ILCS
5/8--802 (West 1994) (privileged communications involving patients and
healthcare practitioners, including psychologists); 740 ILCS 110/3(a) (West 1994)
(under Mental Health and Developmental Disabilities Confidentiality Act, "[a]ll
records and communications shall be confidential and shall not be disclosed except
as provided in this Act").
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. ___, ___,
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 ___, 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 relationship to flourish. As this
case illustrates, the patient would be faced with a difficult choice between
preserving the confidentiality of patient-therapist communications and assisting the
therapist in responding to what must, to the patient's eyes, be a meritless action.
The patient could either waive the privilege and permit the therapist to defend the
action, while suffering the public disclosure of communications originally intended
to remain private, or assert the privilege and maintain the confidentiality of the
therapy, but at the price of denying the therapist, presumably a valued friend, the
use of potentially helpful evidence.
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 plaintiff may allege that he himself was a patient of Dr.
McKay, and counts to that effect remain pending in the circuit court of Du Page
County. They are not at issue in the present appeal, however.

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
been characterized as a "direct" interference with family relationships, as opposed
to the "indirect" interference alleged in Dralle. Dralle, 124 Ill. 2d at 72-73, citing
Kunz v. Deitch, 660 F. Supp. 679 (N.D. Ill. 1987) (allowing widowed father to
bring action against in-laws for attempting to have child placed for adoption
without father's knowledge or consent); Whitehorse v. Critchfield, 144 Ill. App.
3d 192 (1986) (denying parent's cause of action for loss of society resulting from
acts intended to induce child to leave parental home); Dymek v. Nyquist, 128 Ill.
App. 3d 859 (1984) (allowing divorced father to bring action alleging former
spouse and psychiatrist conspired to brainwash son in effort to destroy father's
relationship with child).
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, 666-61 (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 therapist's duty of care to nonpatients, permitting the plaintiff's action
here would considerably enlarge therapists' potential liability to persons affected
by the decisions made by patients in response to psychological counseling.
Ultimately, any person who advises another could be subject to liability for actions
taken on that advice. Again, this result would impose conflicting demands on
therapists, who would then have both a duty to serve the needs of their patients
and a duty to avoid harming the interests of unknown third parties. Also,
defending actions against nonpatients would, as we have discussed, undermine the
vital precept of confidentiality on which the therapist-patient relationship depends.
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. 735 ILCS 5/8--802(2) (West
1996) (privilege waived "in actions, civil or criminal, against the healthcare
practitioner for malpractice (in which instance the patient shall be deemed to have
waived all privileges relating to physical or mental condition)"); 740 ILCS
110/10(a)(3) (West 1994) ("In the event of a claim made or an action filed by a
recipient, or, following the recipient's death, by any party claiming as a
beneficiary of the recipient for injury caused in the course of providing services
to that recipient, the therapist may testify as to pertinent records or
communications in any administrative, judicial or discovery proceeding for the
purpose of preparing and presenting a defense against the claim or action").
We also recognize the difficulty in determining an appropriate recovery in
cases like this. A trier of fact considering damages for lost society and
companionship in these circumstances would in essence be asked to consider the
degree and duration of the estrangement between the plaintiff and his adult
daughter. Assigning a value to the impaired relationship would be a difficult task,
of course, and it is one that would be made even more complex by the possibility
that the estrangement could end at any time in reconciliation.

* * *
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 confidentiality and divided loyalty make no sense. It
was the therapist who orchestrated what happened here, she did so with the
patient's consent, and once John Doe began participating in the sessions at the
therapist's behest, protecting the patient's condition against disclosure to third
parties ceased to be a consideration. Divulging the patient's complaints to John
Doe was, in fact, the very foundation of the therapist's treatment plan. As the
majority notes, the therapist hoped that the shock effect of the patient's disclosures
would force Doe to confess.
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." Slip op. at 8.
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.
In O'Hara v. Holy Cross Hospital, 137 Ill. 2d 332, 342 (1990), this court
held that a hospital has a duty to protect a parent from harm where the parent is
invited to participate in her child's care and treatment. I see no reason why we
should not recognize a similar duty on the part of the psychologist who has been
sued in this case. I would further hold that the plaintiff should be allowed to seek
damages from that psychologist for lost society and companionship based on
intentional and direct interference with a family relationship. The judgment of the
appellate court should therefore be affirmed.