Horak v. Biris

• Decision Date: 23 January 1985
• Docket Number: Gen. No. 84-33
• Citation: 130 Ill.App.3d 140,85 Ill.Dec. 599,474 N.E.2d 13
• Parties: , 85 Ill.Dec. 599, 58 A.L.R.4th 965 Harry J. HORAK, Jr., Plaintiff-Appellant, v. Dean BIRIS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 13

474 N.E.2d 13

130 Ill.App.3d 140, 85 Ill.Dec. 599,

58 A.L.R.4th 965

Harry J. HORAK, Jr., Plaintiff-Appellant, v. Dean BIRIS, Defendant-Appellee.

Gen. No. 84-33.

Appellate Court of Illinois,

Second District.

Jan. 23, 1985.

Clifford E. Lund, Harry Schaffner, Chtd., Dundee, for plaintiff-appellant.

McKenna, Storer, Rowe, White, Farrug, Francis A. Spina, Jay H. Tressler, Wheaton, for defendant-appellee.

HOPF, Justice:

In this appeal we are asked to recognize a cause of action for social worker malpractice under the facts presented in this case. Plaintiff, Harry J. Horak, Jr., filed a six-count amended complaint essentially alleging negligence and malpractice (counts I through IV) and breach of contract (counts V and VI) against defendant Dean Biris, a certified social worker, for defendant's having had sexual relations with plaintiff's wife during the course of marital counseling sought by the Horaks. Counts I through IV of the complaint were dismissed by the circuit court of Kane County based upon a Fourth District opinion, Martino v. Family Service Agency of Adams County (1982), 112 Ill.App.3d 593, 67 Ill.Dec. 714, 445 N.E.2d 6, which refused to recognize the tort of social worker malpractice under facts similar, if not identical, to those in the instant case. Plaintiff appeals from the dismissal of these counts, urging us to reject the reasoning in Martino. We note that counts V and VI were voluntarily nonsuited and a final and appealable order was issued as to counts I through IV.

Counts I through IV, although based on different theories, alleged the following essential facts in common: (1) that in February 1978, defendant held himself out to the general public as an expert in the field of psychology and mental therapy, and held himself out to professionally counsel individuals, couples, and groups for emotional problems, marriage difficulties, and other conditions which were treatable by the use of psychotherapy, psychiatric techniques, and mental therapy; (2) that on or about February 1978, defendant began to provide psychological counseling and psychiatric and mental therapeutic care for Dorothy Horak, plaintiff's then-wife; (3) that during his counseling defendant obtained significant information from plaintiff's wife about the personal profile of plaintiff and the Horak's marital relationship; (4) upon defendant's request and relying upon defendant's reputation in the community as a qualified psychological or mental therapist, plaintiff began a course of treatment with the defendant in October 1978, which treatments continued until March 1980 and were paid for by contractual arrangement costing approximately $170 per month; (5) that during this period, defendant had a close and confidential relationship with the plaintiff and that plaintiff therefore communicated numerous confidential facts about his life, personality, and marriage to the defendant; (6) that defendant administered a course of treatment ostensibly to cure and aid the plaintiff's sense of ill-being, but which was not in accordance with generally accepted standards of psychological, psychiatric and therapeutic care; and, (7) that defendant owed a duty to plaintiff to perform a course of treatment calculated to lead to the alleviation of plaintiff's condition of ill-being.

Counts I and IV, based upon theories of negligence and malpractice, further alleged that in violation of defendant's aforementioned duty, defendant committed numerous negligent acts or omissions, including the following: (1) failed to inform plaintiff that a conflict of interest existed in counseling both the plaintiff and his wife; (2) failed to terminate therapy with the plaintiff as soon as he realized that a conflict of interest existed; and (3) failed to understand and guard against the transference phenomenon which occurs between psychotherapists and their patients.

Counts II and III, based respectively upon wilful and wanton and intentional conduct, alleged that defendant committed one or more of the following acts: (1) failed to provide treatment calculated to lead to the alleviation of plaintiff's condition of ill-being; (2) appeased defendant's own self-interest, in disregard and in violation of professional standards and in detriment to plaintiff's condition; (3) caused plaintiff's condition of ill-being to deteriorate while under defendant's care without providing any psychological, psychiatric or mental therapeutic treatment; and (4) began and allowed a course of treatment to continue that was of such a nature as to do great harm to plaintiff's condition of ill-being. We note that plaintiff's original two-count complaint, based upon theories of breach of fiduciary relationship and malpractice, also alleged that defendant became emotionally and romantically involved with plaintiff's then-wife, had sexual relations with her, and thereafter continued to counsel plaintiff. The act of sexual involvement with plaintiff's wife was not specifically alleged in the amended complaint but was alluded to in plaintiff's allegation regarding the transference phenomenon in counts I and IV. This allegation will be further discussed later in this opinion.

Defendant's motion to dismiss was originally filed in response to plaintiff's initial complaint and sought to dismiss count II of that complaint, which alleged malpractice, on the basis of the Martino decision. By court order, the motion was allowed to stand as to counts I, II, and IV of plaintiff's amended complaint. In answer to count III (alleging intentional conduct) and count V (alleging breach of contract), defendant admitted that he held himself out as a psychotherapist available for professional consultation, that he was a licensed psychotherapist registered with the State of Illinois, that he requested a consultation with the plaintiff, that plaintiff demonstrated a need for psychotherapy, that services were contracted for by plaintiff, that payment for such services was made, and that defendant administered a course of treatment for plaintiff's benefit. Defendant essentially denied all other allegations, including the allegation that the treatments were either psychological or psychiatric in nature. Additionally, on appeal defendant stated that at the time in question he operated a facility called the "Center for Psychotherapy" where he performed services defined as "psychotherapy."

In dismissing the counts in question, the circuit court noted that although it was bound by the Fourth District's opinion in Martino v. Family Service Agency of Adams County (1982), 112 Ill.App.3d 593, 67 Ill.Dec. 714, 445 N.E.2d 6 (see People v. Collings (1981), 95 Ill.App.3d 325, 329, 50 Ill.Dec. 886, 420 N.E.2d 203), it disagreed with the reasoning of that case. We have reviewed the Martino decision and agree with the circuit court that the tort of social worker malpractice should be recognized under the facts presented here.

In Martino v. Family Service Agency of Adams County (1982), 112 Ill.App.3d 593, 67 Ill.Dec. 714, 445 N.E.2d 6, the plaintiff, Janet Martino, filed a five-count complaint against the Family Service Agency of Adams County (Family Service) and Jane Balke, the chief executive officer of Family Service, essentially alleging that plaintiff and her husband sought and received marital counseling services from Family Service, that defendant Balke was assigned to and did counsel plaintiff, and that during this period Balke: (a) used against plaintiff's interest information obtained by Balke from plaintiff during counseling, (b) revealed those confidences to others, (c) fell in love with plaintiff's husband, pursued him, and engaged in "intimate relations" with him, and (d) after developing this conflict of interest failed to either inform plaintiff of the conflict or terminate her counseling relationship with plaintiff. (112 Ill.App.3d 593, 594-95, 67 Ill.Dec. 714, 445 N.E.2d 6.) Respecting her malpractice claim, Mrs. Martino argued that the situation was analagous to the medical profession, where a breach of duty has been held to arise from a psychiatrist having intercourse with his patient as part of her prescribed therapy (Roy v. Hartogs (1976), 85 Misc.2d 891, 381 N.Y.S.2d 587), and a hospital negligently failing to abide by licensing regulations (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill.2d 326, 211 N.E.2d 253). Plaintiff also urged the court to consider the code of ethics adopted by the National Association of Social Workers, which would have been violated by defendant Balke's conduct.

While noting that there was an inference arising from numerous authorities that the tort of malpractice is applicable to one engaged in the profession of social work, the Martino court nevertheless was unwilling to recognize such a tort, "at least when it arises from conduct not intended to harm." (112 Ill.App.3d 593, 597, 67 Ill.Dec. 714, 445 N.E.2d 6.) The court stated:

"Although the conduct alleged here was clearly improper, determination of the propriety of conduct of social workers and the relationship it might have to injury suffered by clients generally would be most difficult to ascertain. The damages a client might receive from the improper practice of social work are unlikely to be pecuniary in nature and extremely unlikely to be physical in nature." (112 Ill.App.3d 593, 597, 67 Ill.Dec. 714, 445 N.E.2d 6.)

The court then concluded that in the absence of Illinois precedence there was "no compelling policy reason to initiate the recognition of the tort of social worker malpractice for unintended 'hurts' most of which we deem likely to be 'slight hurts which are the price of a complex society.' " 112 Ill.App.3d 593, 597, 67 Ill.Dec. 714, 445 N.E.2d 6, quoting Knierim v. Izzo (1961), 22 Ill.2d 73, 85, 174 N.E.2d 157, 164.

Contrary to the reasoning set forth in the Martino decision, we believe that the facts alleged and admitted in the instant case are sufficient to...