Figueiredo-Torres v. Nickel

• Decision Date: 01 September 1990
• Docket Number: No. 16,FIGUEIREDO-TORRES,16
• Citation: 584 A.2d 69,321 Md. 642
• Parties: , 59 USLW 2526 Silviov. Herbert J. NICKEL. ,
• Court: Maryland Court of Appeals

Page 642

321 Md. 642

584 A.2d 69, 59 USLW 2526

Silvio FIGUEIREDO-TORRES v. Herbert J. NICKEL.

No. 16, Sept. Term, 1990.

Court of Appeals of Maryland.

Jan. 21, 1991.

Thomas J. Sippel (John G. Gill, Jr., Gill & Sippel; Damon Bernstein, Kupferberg & Bernstein, on brief), Rockville, for appellant.

Paul F. Newhouse (Jeri Lynn Balenson, Eccleston & Wolf, on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, ^* RODOWSKY and CHASANOW, JJ.

CHASANOW, Judge.

Appellant Silvio Figueiredo-Torres (Torres) filed a complaint on March 2, 1989, in the Circuit Court for Montgomery 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 purpose 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 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 "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 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 plaintiff's 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' "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. Biris, 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...