Homer v. Long

• Decision Date: 01 September 1991
• Docket Number: No. 371,371
• Parties: , 60 USLW 2496 James J. HOMER v. S. Eugene LONG. ,
• Court: Court of Special Appeals of Maryland

Page 1

90 Md.App. 1

599 A.2d 1193, 60 USLW 2496

James J. HOMER v. S. Eugene LONG.

No. 371, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Jan. 6, 1992.

Certiorari Denied April 9, 1992.

Gary I. Strausberg (Susan M. Fila and Janet & Strausberg, on the brief), Baltimore, for appellant.

Daniel C. Costello (Andrew E. Vernick and Wharton, Levin, Ehrmantraut & Klein, P.A., on the brief), Annapolis, for appellee.

Argued before WILNER, C.J., and MOYLAN and CATHELL, JJ.

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.

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."

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.

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 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. Gasper 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 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...