Delaney v. Clifton

• Decision Date: 13 March 2002
• Citation: 41 P.3d 1099,180 Or. App. 119
• Parties: Michael DELANEY, individually and as Guardian Ad Litem for Bryan Delaney, Jason Delaney and Justyn Delaney, Appellants, v. Carol CLIFTON, Ph.D. and Mary Ellen Farley, M.A., Respondents.
• Court: Oregon Court of Appeals

41 P.3d 1099

180 Or. App. 119

Michael DELANEY, individually and as Guardian Ad Litem for Bryan Delaney, Jason Delaney and Justyn Delaney, Appellants, v. Carol CLIFTON, Ph.D. and Mary Ellen Farley, M.A., Respondents.

9609-07191; A101248

Court of Appeals of Oregon.

Argued and Submitted October 25, 1999.

Decided March 13, 2002.

Michael R. Shinn, Portland, argued the cause and filed the briefs for appellants.

Wendy J. Paris, Portland, argued the cause for respondent Carol Clifton, Ph.D. With her on the briefs were Kubik & Paris, Peter R. Chamberlain and Bodyfelt Mount Stroup & Chamberlain.

Peter R. Chamberlain, Portland, argued the cause for respondent Mary Ellen Farley, M.A. With him on the briefs were Bodyfelt Mount Stroup & Chamberlain, Wendy J. Paris and Kubik & Paris.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LINDER, J.

This is an action for professional malpractice and for intentional infliction of emotional distress (IIED) brought against two therapists, a professional counselor and a clinical psychologist.¹ The claims were brought by the former husband of defendants' patient, Lee Ann Delaney.² Plaintiff alleged that defendants misdiagnosed Lee Ann with multiple personality disorder and that plaintiff suffered from severe emotional distress as a result. The trial court dismissed plaintiff's professional malpractice/negligence claims and granted summary judgment in favor of defendants on the IIED claims. Plaintiff assigns error to both rulings. Defendants cross-assign error to the trial court's failure to dismiss the IIED claims. We conclude that plaintiff failed to state a claim for professional malpractice or ordinary negligence, because the complaint failed to allege facts establishing that defendants owed a duty to protect plaintiff from emotional distress. We further conclude, on defendants' cross-assignment, that defendants were entitled to dismissal of the intentional tort claims (i.e., claims for IIED). In that regard, we conclude that the allegations in the complaint were inadequate to allege conduct that is an extraordinary transgression of the bounds of socially tolerable conduct. We therefore affirm.

We begin by outlining the relevant facts as they are alleged in the complaint. Plaintiff and Lee Ann were married from 1985 to 1995 and had three children. In 1993, Lee Ann began to attend lectures and to read books about multiple personality disorder (MPD) and satanic cults. Based on her readings, she suspected that she was suffering from MPD and that she had been a victim of satanic ritual abuse. Plaintiff, too, became convinced of the existence of a satanic cult, of Lee Ann's and his own involvement in it, of the fact that Lee Ann was suffering from MPD, and of the validity of the treatment for the diagnosis. Later that year, Lee Ann retained the professional counseling services of defendant Mary Ellen Farley, a Catholic nun who specializes in the diagnosis, care, and treatment of mental health problems, including MPD and satanic ritual abuse. Farley used a form of treatment with Lee Ann known as "memory retrieval." During the course of that treatment, Lee Ann described "alter personalities" that surfaced in response to train whistles and telephone messages and that participated in ceremonies in which people and animals were tortured. Lee Ann also believed that she had buried her children in the backyard, that she saw angels, that her family members had ritualistic scars on their genitals, and that a cult leader planned to sacrifice her and her now-former husband, plaintiff. According to plaintiff's complaint, Farley continually assured Lee Ann that her memories were accurate.

In July of 1994, Farley referred Lee Ann to defendant Carol Clifton, a clinical psychologist who specializes in the diagnosis and treatment of dissociative disorders and satanic ritual abuse. Clifton diagnosed Lee Ann as suffering from a dissociative disorder (specifically, MPD) and began treating Lee Ann by attempting to "integrate" her alter personalities. Clifton also associated a "cult deprogrammer" to aid in Lee Ann's therapy. Clifton urged plaintiff to move out of their family home for two weeks so that the deprogrammer could more effectively "deprogram" Lee Ann by staying in the home with her. Plaintiff alleged that Lee Ann's paranoia and delusions were caused by defendant Farley's and defendant Clifton's treatment methods, which in turn strained the marriage and ultimately caused Lee Ann and plaintiff to dissolve their marriage.

Plaintiff brought professional malpractice and IIED claims against both defendants based on the foregoing allegations. In the professional malpractice claims, plaintiff alleged that the memory retrieval techniques used by defendants, as well as the MPD diagnosis itself, are considered controversial and unreliable in the mental health profession. As a result of defendants' diagnoses and treatment of Lee Ann, plaintiff allegedly suffered "mental anguish, pain, suffering, anxiety, prolonged separation from Lee Ann, and permanent psychological damage." Plaintiff further alleged that it was "foreseeable" to defendants that their negligent treatment of Lee Ann would cause such harm. In separate claims for IIED, plaintiff realleged the above-described facts and asserted that defendants knew that their conduct was "substantially certain" to cause severe emotional distress to plaintiff.

Pursuant to ORCP 21 A(8), the trial court dismissed plaintiff's professional malpractice claim for failure to state a claim. The trial court later granted defendants' motion for summary judgment on plaintiff's IIED claims, concluding that plaintiff, as a "third-party" victim who was not present when defendants' conduct occurred, could not recover on such a theory as a matter of law. Plaintiff assigns error to both rulings, and we discuss each in turn.

Professional negligence, or malpractice, is the failure to meet the standard of care used in the reasonable practice of the profession in the community. Getchell v. Mansfield, 260 Or. 174, 179, 489 P.2d 953 (1971). To state a claim for professional malpractice, a plaintiff must allege that a particular duty arising from a special relationship runs from the defendant to the plaintiff, one that is distinct from the general duty not to engage in conduct that unreasonably creates a foreseeable risk of harm. Stevens v. Bispham, 316 Or. 221, 227, 851 P.2d 556 (1993); see also Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 14-17, 734 P.2d 1326 (1987)

(discussing elements of negligence action in the context of a special relationship). On review of a dismissal for failure to state a claim, we accept the facts alleged in the complaint as true along with all reasonable inferences that can be drawn from the allegations. Richer v. Poisson, 137 Or.App. 157, 159-60, 903 P.2d 932 (1995).

Plaintiff's complaint does not allege that defendants had a particular duty of care arising from a special relationship with plaintiff. Rather, it alleges only that Lee Ann sought professional counseling from defendants and that it was foreseeable to defendants that Lee Ann's relationship with plaintiff would be and, in fact, was damaged as a result of the counseling treatment. The allegations therefore fall short of what is required for plaintiff to state a claim for professional malpractice.

For related reasons, plaintiff's complaint is not sufficient to allege ordinary, common-law negligence. Here, plaintiff seeks redress for emotional injury alone. For plaintiff to have a negligence claim in that circumstance, liability for his purely psychic injury must have a legal source that goes beyond the common-law duty to exercise reasonable care to prevent foreseeable harm. See Hammond v. Central Lane Communications Center, 312 Or. 17, 22-25, 816 P.2d 593 (1991)

(relying on Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 558-59, 652 P.2d 318 (1982)); see also Spiess v. Johnson, 89 Or.App. 289, 748 P.2d 1020,

aff'd by equally divided court 307 Or. 242, 765 P.2d 811 (1988) (because the plaintiff did not have a doctor-patient relationship with the defendant psychiatrist, the plaintiff did not have a claim for negligence based on the psychiatrist's counseling and treatment of his wife). Again, plaintiff's complaint alleges only that it was "foreseeable" to defendants that their negligent treatment of Lee Ann would cause psychological harm to plaintiff, not a legal source for liability beyond the foreseeability of plaintiff's injury. Consequently, plaintiff's professional malpractice allegations also do not state a claim for negligence generally.

In arguing to the contrary, plaintiff relies on Zavalas v. Dept. of Corrections, 124 Or. App. 166, 861 P.2d 1026 (1993), rev. den. 319 Or. 150, 877 P.2d 86 (1994). In particular, he asserts that Zavalas stands for the proposition that a professional is liable to anyone to whom the professional unreasonably creates a foreseeable risk of harm, even in the absence of a therapist-patient relationship with the plaintiff. To be sure, the court in Zavalas held that professionals are not entitled to the benefit of an across-the-board "no duty" rule merely because they are not in privity with those whom their negligent conduct affects. Id. at 173, 861 P.2d 1026; see also Docken v. Ciba-Geigy, 86 Or.App. 277, 739 P.2d 591,

rev. den. 304 Or. 405, 745 P.2d 1225 (1987) (physician's liability for failure to warn of dangers of prescription drug extends to anyone foreseeably injured by that negligence). Zavalas, however, involved claims for personal physical injuries and did not purport to abrogate the settled case law involving purely emotional injuries. Because plaintiff in this case sought recovery for emotional distress alone, Zavalas is inapposite.

Beyond his reliance on Zavalas, plaintiff devotes a large portion of his brief to criticizing defendants' conduct and calling for this court to join a "national trend" of...