Chatman v. Millis

• Decision Date: 13 January 1975
• Docket Number: No. 74--139,74--139
• Citation: 257 Ark. 451,517 S.W.2d 504
• Parties: Jerry CHATMAN, Appellant, v. Willard MILLIS, Jr., Sppellee.
• Court: Arkansas Supreme Court

Page 504

517 S.W.2d 504

257 Ark. 451

Jerry CHATMAN, Appellant, v. Willard MILLIS, Jr., Sppellee.

No. 74--139.

Supreme Court of Arkansas.

Jan. 13, 1975.

Boyett & Morgan, P.A., by Comer Boyett, Jr., Searcy, for appellant.

Pickens, Boyce, McLarty & Watson by James A. McLarty, Newport, for appellee.

HARRIS, Chief Justice.

The question in this case is whether appellee, a psychologist, can be held liable to appellant for malpractice under the facts hereinafter set out. The facts as set forth in appellant's complaint are as follows. Mrs. Robbie Chatman was divorced from her husband, appellant herein. Appellant had visitation privileges with the couple's 2 1/2 year old son. Mrs. Chatman, partly because of actions of the child, became concerned that her ex-husband had subjected the child to homosexual conduct, and, as a matter of terminating the father's visiting privileges, sought the aid of appellee in evaluating appellant's conduct. After talking with Mrs. Chatman and the child, appellee wrote her attorney a letter advising that Mrs. Chatman and her child had been referred to him by Dr. Ben Lowery for the purpose of his providing assistance in determining whether or not the child (Christopher) had been sexually molested by his father, and if so, the future implications for Christopher's psychosexual development. In this letter, Dr. Millis, Jr. went into detail as to comment made to him by Christopher and concluded his letter by stating:

'While it will be the Court's decision, and not mine, I feel that it would not be a good idea to allow Chris to continue to visit his father at all. If it is necessary that visitation rights be continued, I would strongly urge that the presence of a third person, preferably a relative, be in their presence at all times.

'As I mentioned in our telephone conversation of April 10, 1973 I would be willing to testify in Court about my interview or the statements made in the letter above.'

Thereafter, chatman instituted suit in the Circuit Court of White County, home of Chatman, alleging both defamation of character, and malpractice against appellee. Service was had on appellee at his residence in Jackson County. Millis responded to the complaint with a special appearance and motion to quash asserting that venue in White County was improper in that appellee was neither a citizen nor resident of White County, and further, was not served in White County.

On hearing, the court held no action for malpractice exists in this state against a psychologist; that even if such an action were permitted in this jurisdiction, there would have to be a doctor-patient relationship or some similar relationship between the parties, and that the complaint in the instant litigation alleged, and counsel had admitted, that Chatman had never been examined by Millis, and in fact, was not even known to the doctor; accordingly, there could be no action for malpractice. The court then found:

'Since there is no cause of action for malpractice the only cause of action left is defamation of character the proper venue of which is not in White County the motion to quash the service of summons upon the defendant should be granted.'

Appellant admits after the holding of the court that there was a lack of relationship between the parties to support the malpractice action, the complaint was correctly dismissed because of improper venue on the remaining count of defamation.

It is not necessary, in determining this litigation, to pass on the question of whether there is a cause of action in Arkansas for malpractice available against a psychological examiner or psychologist, since we are of the view that, even though such a cause of action exists, the allegations of appellant's complaint do not state a cause of action.

We do not flatly state that a cause for malpractice must be predicated upon a contractual agreement between a doctor (psychologist) and patient, but we do say that a doctor-patient relationship must exist, i.e., there must be a duty, as a doctor, owed from the practitioner to the patient. Under the allegations before us, Millis made no examination of Chatman; in fact, he did not even know Chatman, and had never seen him. Appellant was not a patient of Millis, and the diagnosis reached was not for the benefit of Chatman. Even if the findings of the psychologist were negligently made, Chatman did not rely upon this diagnosis to his detriment.

Of course, all persons owe a duty to refrain from defaming others, but this is simply a duty that all citizens have toward each other, and has nothing to do with a doctor-patient relationship. After all, Chatman was not damaged by the allegdly negligent diagnosis--he was damaged by the alleged defamation. An example given by appellee appears pertinent to illustrate the point. Let us assume that a physician is engaged in lighthearted pleasure at a large cocktail party. Assume further that this physician openly refers to a non-patient individual, and by name, refers to him as a homosexual. Certainly, under these circumstances, the physician might be found to have slandered that person's character, and, if so found, held to be answerable to that person for damages sustained. However, the fact that the speaker happened to be a physician does not mean that what was said constituted malpractice.

Concisely stated, we simply reiterate that under the facts alleged, appellee owed no duty, as a doctor, to appellant, and this duty must be in existence before appellant can recover because of negligence, constituting malpractice.

Since we agree that, under the allegations, no action for malpractice exists, and it being admitted that the complaint was correctly dismissed because of improper venue on the defamation count, the judgment quashing the service is a affirmed.

It is so ordered.

JONES, J., concurs.

BROWN and FOGLEMAN, JJ., dissent.

FOGLEMAN, Justice (dissenting).

The peculiar manner in which the issues presented reach this court puts them in an odd perspective for proper treatment on appellate review. As I read the complaint the allegations pertinent to the issues are stated separately. The allegations relating to defamation are stated in Paragraphs I through VI. The allegations relating to negligence (or malpractice) are as follows:

VII

Defendant at all times mentioned in the complaint was either a psychological examiner or psychologist duly licensed under the laws of the State of Arkansas, with offices in Jackson County, Arkansas, as well as White County, Arkansas, On or about April 10, 1973, defendant diagnosed the plaintiff as a homosexual who had engaged in incestuous activities with his 1 1/2 year old son and such diagnosis was disseminated to plaintiff's former wife, Robbie Chatman, and Cecil A. Tedder, Jr.

VIII

Defendant was negligent and careless in making such diagnosis by failing to exercise the degree of skill and care, or to possess the degree of knowledge, ordinarily exercised or possessed by other psychological examiners or psychologists engaged in this type of practice in White County, Arkansas, or similar localities, in that he failed and neglected to ever interview the plaintiff and in fact did not even know him, failed to administer any diagnostic tests which would reveal any homosexuality tendencies or to use any of the proper methods that psychologists use in exercising ordinary care to protect others from injury or damage; the defendant acted in a manner willfully and wantonly in disregard to the rights of plaintiff.

IX

As a proximate result of the negligence and carelessness of the defendant as aforesaid plaintiff suffered excruciating mental anguish, humiliation, embarrassment and will continue to do so in the future; he suffered financial injury.

This complaint was not tested by demurrer. Appellee entered a special appearance and moved the summons be quashed because venue was not properly laid in White County. The grounds stated were that the complaint alleged a cause of action based upon defamation, pointing out that appellant had alleged in Paragraph V that the publication of a letter stating appellee's findings as to appellant's conduct was defamatory per se. Appellee did not then allege and has never contended he could not be liable for malpractice. Appellee responded in his brief here upon the sole ground that the allegations of the complaint did not show the existence of a physician-patient relationship, which was apparently a secondary basis for granting the motion to quash. If an action for malpractice was stated, then the motion to quash was not well taken, because the venue was proper. The trial court granted the motion to quash, saying (1) there can be no cause of action for malpractice against a psychological examiner or psychologist, and, (2) if there could be, the allegations of the complaint are insufficient to state a cause of action. The motion to quash was granted as pointed out in the majority opinion because 'there is no cause of action for malpractice' so that the 'only cause of action left is defamation of character'.

I see no way we can approach this problem except by determining whether a malpractice action was brought in this case. If it was, the venue was properly laid. It seems strange, to say the least, to dispose of this matter without determining whether the trial court's primary, if not sole, basis for granting the motion to quash was sound. It obviously was not, and even though appellee has insisted that this was not in issue in the case, his counsel admitted, in oral argument, that a cause of action for malpractice would lie under proper circumstances, against a psychological examiner or psychologist. This admission was certainly appropriate and consistent with the ethical standards required of a legal practitioner.

Malpractice has been defined as 'Any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral...