L.L. v. Medical Protective Co.

Decision Date21 December 1984
Docket NumberNo. 84-507,84-507
Citation362 N.W.2d 174,122 Wis.2d 455
PartiesL.L., Plaintiff-Appellant, v. The MEDICAL PROTECTIVE COMPANY, Defendant-Respondent, Barry Siegel, M.D. and the County of Milwaukee, Defendants. *
CourtWisconsin Court of Appeals

Fox, Carpenter, O'Neill & Shannon, S.C., Milwaukee, for plaintiff-appellant; Jeffrey A. Kremers, Milwaukee, of counsel.

Kluwin, Dunphy & Hankin, Milwaukee, for defendant-respondent; Michael J. Pfau and James G. Allison, Milwaukee, of counsel.

Before WEDEMEYER, P.J., and MOSER and SULLIVAN, JJ.

WEDEMEYER, Presiding Judge.

L.L. appeals from a summary judgment entered in her malpractice action against her psychiatrist, Barry Siegel, which dismissed from the action Siegel's malpractice insurer, the Medical Protective Company. The issue is whether L.L.'s claim for damages resulting from Siegel's engaging in sexual acts with her during the course of her treatment is a "claim for damages ... based on professional services rendered or which should have been rendered." We hold that because a psychiatrist's performance of sexual acts with a patient can constitute failure to give proper treatment, L.L.'s claim comes within the quoted policy language. We therefore reverse the judgment insofar as it dismissed the insurance company from the action and remand with instructions to reinstate the insurance company as a defendant. Because L.L. does not challenge the trial court's dismissal of her claim against the insurance company for punitive damages, we affirm that part of the judgment.

In April 1982, L.L. retained Siegel, a psychiatrist at the Milwaukee County Mental Health Complex, to provide treatment for certain emotional disorders from which she was suffering. The disorders stemmed from L.L.'s difficulty in maintaining healthy interpersonal relationships, particularly relationships with men. During therapy sessions in August and September of 1982, Siegel engaged in two acts of fellatio with L.L. After the September incident, L.L. reported Siegel's actions to the Milwaukee County Sheriff's Department. Sheriff's deputies outfitted L.L. with a hidden microphone which she was to wear to her next therapy session. L.L. was to say a code word into the microphone if Siegel initiated any sexual activity. When L.L. went into Siegel's office, the deputies discovered that the microphone was malfunctioning. They telephoned L.L. in Siegel's office and told her the microphone was not working, but they took no further steps to prevent a reoccurrence of the prior incidents. During this therapy session, Siegel engaged in a third act of fellatio with L.L.

L.L. brought a malpractice action for compensatory and punitive damages against Siegel and his insurer, and a separate claim against Milwaukee County, alleging negligent supervision of Siegel and the sheriff's deputies. The insurance company moved for summary judgment dismissing it from the action. It argued that the sexual acts were not professional medical services and therefore were not covered under the policy. It further argued that payment of punitive damages was precluded under a policy exclusion for "any punitive damages or damages over and above compensatory damages which may be assessed against the insured." The trial court held that the sexual acts were not professional services and therefore were not covered by the policy. It consequently dismissed L.L.'s claim against the insurance company. We reverse.

On a motion for summary judgment, the court must determine whether there is a genuine issue of material fact to be tried and, if not, whether the moving party is entitled to judgment as a matter of law. Sec. 802.08(2), Stats. In the present case, there is no dispute of material fact regarding what occurred; the only issue is whether the essentially undisputed events are covered by the insurance policy. Construction of an unambiguous insurance policy is a question of law which we may determine independently on appeal. Reserve Life Insurance Co. v. La Follette, 108 Wis.2d 637, 645-46, 323 N.W.2d 173, 177 (Ct.App.1982).

The insurance company argues on appeal that the coverage clause of the policy is not invoked because Siegel's sexual acts were not "professional services." In Zipkin v. Freeman, 436 S.W.2d 753 (Mo.1968), a case which involved identical policy language, the psychiatrist's malpractice insurer made this same argument when faced with a claim based on sexual, social, and other extra-therapeutic contact between the psychiatrist and his patient. The Zipkin court stated:

[I]t is an oversimplification to focus on the more spectacular and extreme acts of the doctor as determinative of the issue. Under the extremely broad terms of the policy before us, defendant agreed to pay damages "based on"--which would also mean resulting from, or caused by, or due to--professional services rendered or which should have been rendered.... Defendant would limit the damages to the very act itself of professional services, but the policy clearly covers the results and liability flowing from professional services rendered or which should have been rendered.

The gravamen of the petition is that defendant did not treat Mrs. Zipkin properly and as a result she was injured. He mishandled the transference phenomenon, which is a reaction the psychiatrists anticipate and which must be handled properly.

Id. at 761.

We find the reasoning of Zipkin persuasive. The language of the policy, "professional services rendered or which should have been rendered," covers malpractice both of commission and of omission--the rendering of substandard treatment and the failure to render indicated treatment. Medical authorities are nearly unanimous in considering sexual contact between therapist and patient to be malpractice. See Davidson, Psychiatry's Problem with No Name: Therapist-Patient Sex, 37 Am.J.Psychoanalysis 43, 48-49 (1977) ("[I]t is generally agreed that therapist-patient sex is psychologically deleterious for the involved woman patient and is unethical practice for the male practitioner...."); Stone, The Legal Implications of Sexual Activity Between Psychiatrist and Patient, 133 Am.J.Psychiatry 1138, 1139 (1976) ("[T]he experts would ... agree ... that 'there are absolutely no circumstances which permit a psychiatrist to engage in sex with his patient.' All such instances constitute misuse of the transference.").

The American Psychiatric Association has approved annotations to the American Medical Association's Principles of Medical Ethics which are directed specifically to psychiatrists. One of the annotations provides:

The patient may place his trust in his psychiatrist knowing that the psychiatrist's ethics and professional responsibilities preclude him from gratifying his own needs by exploiting the patient. This becomes particularly important because of the essentially private, highly personal, and sometimes intensely emotional nature of the relationship established with the psychiatrist.

The requirement that the physician "conduct himself with propriety in his profession and in all the actions of his life" is especially important in the case of the psychiatrist because the patient tends to model his behavior after that of his therapist by identification. Further, the necessary intensity of the therapeutic relationship may tend to activate sexual and other needs and fantasies on the part of both patient and therapist, while weakening the objectivity necessary for control. Sexual activity with a patient is unethical.

American Psychiatric Association, The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry, 130 Am.J.Psychiatry 1058, 1061 (1973). Disregarding this proscription can lead to expulsion from professional associations, see Riskin, Sexual Relations Between Psychotherapists and Their Patients: Toward Research or Restraint, 67 Calif.L.Rev. 1000, 1003 (1979), or to revocation of the psychiatrist's license to practice. See A. Holder, Medical Malpractice Law 345 (1975).

The "transference" referred to above is the emotional reaction which the patient in therapy has toward the therapist. The patient in therapy "unconsciously attributes to the psychiatrist or analyst those feelings which he may have repressed towards his own parents.... [I]t is through the creation, experiencing and resolution of these feelings that [the patient] becomes well." D. Dawidoff, The Malpractice of Psychiatrists 6 (1973). "Inappropriate emotions, both hostile and loving, directed toward the physician are recognized by the psychiatrist as constituting ... the transference. The psychiatrist looks for manifestations of the transference, and is prepared to handle it as it develops." Heller, Some Comments to Lawyers on the Practice of Psychiatry, 30 Temp.L.Q. 401, 401-02 (1957).

The development of the transference "may be coincident with an identification with the therapist whereby the patient learns to think, style and model himself after the therapist." Dawidoff, supra (footnote omitted). This gives the patient "a model to steer by and emulate"--something strong and healthy the patient may hold onto while in a state of search. Id. at 9. The patient "develop[s] extreme emotional dependence on the therapist." Masters and Johnson,...

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