Marston v. Minneapolis Clinic of Psychiatry, 81-447
| Decision Date | 03 February 1983 |
| Docket Number | No. 81-447,81-469.,81-447 |
| Citation | 329 NW 2d 306 |
| Parties | Barbara MARSTON, Appellant (81-447), and Nancy E. Williams, Appellant (81-469), v. MINNEAPOLIS CLINIC OF PSYCHIATRY AND NEUROLOGY, LTD., et al., Respondents. |
| Court | Minnesota Supreme Court |
Dayton, Herman, Graham & Getts and Philip W. Getts, Minneapolis, for Marston.
Gilmore, deLambert, Aafedt, Eustis & Forde, Warren P. Eustis, and Janet Monson, Minneapolis, for Williams.
Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, J. Richard Bland and Robert E. Salmon, Minneapolis, for respondents.
Heard, considered, and decided by the court en banc.
Both cases, brought against the same defendants, were tried separately in Hennepin County District Court. Case No. 81-447 (Marston) is an appeal from judgment filed on March 11, 1981, and an order dated April 3, 1981, denying plaintiff's and defendant Nuernberger's motions for judgment NOV or, in the alternative, a new trial. Plaintiff, Barbara Marston, brought this suit against defendants, Dr. E. Philip Nuernberger (Dr. Nuernberger) and Minneapolis Clinic of Psychiatry and Neurology (Minneapolis Clinic), for damages resulting from sexual acts committed during plaintiff's therapy sessions with defendant Nuernberger. The jury returned a special verdict, finding that the sexual conduct occurred outside the scope of employment, but that defendant Nuernberger was liable for $15,000 actual and $50,000 punitive damages. Plaintiff moved for judgment NOV on the issue of whether defendant Minneapolis Clinic was liable under respondeat superior; defendant Nuernberger, for judgment NOV on the issue of whether the award of $50,000 punitive damages was excessive. From the denial of these motions, the parties appeal.
Case No. 81-469 (Williams) is an appeal from the trial court's denial of plaintiff's motion for a new trial dated April 15, 1981. In this case, tried separately, the jury found that the plaintiff suffered damages as a result of the sexual acts committed by defendant Dr. Nuernberger, but that the defendant Minneapolis Clinic was not liable either under respondeat superior or directly for negligence in supervising Dr. Nuernberger. Plaintiff appeals from the order denying a new trial on the issue of liability under respondeat superior against the Minneapolis Clinic.
We reverse and remand for a new trial in each of these cases.
The facts in these consolidated cases are largely undisputed for the purposes of this appeal. In the Marston case, plaintiff Barbara Marston was referred to defendant Minneapolis Clinic for "biofeedback" therapy of chronic headaches and back pains. A friend suggested that she contact defendant Dr. Nuernberger, who, at all times relevant, was a licensed psychologist employed by the Minneapolis Clinic. Marston made an appointment to see Dr. Nuernberger for treatment. The first two sessions were routine and involved relaxation exercises and therapy on the biofeedback machine — a device that registers and measures the degree of muscular tension. On the third session, Dr. Nuernberger had Marston lie down on a sofa and instructed her to begin a relaxation exercise. Dr. Nuernberger later gave Marston a facial massage. He then reached over, put his arms around Marston and kissed her. Marston testified that, because of the trust she had placed in Dr. Nuernberger, she became quite upset and confused. She wrote a letter to Dr. Nuernberger explaining her feelings. Dr. Nuernberger persuaded her to continue treatment, however, and Marston scheduled a fourth session.
At the fourth session, as Marston was leaving, Dr. Nuernberger pulled her onto his lap, kissed her and commented: "There, that's not so bad, is it?" Marston, however, did not end her therapy relationship with Dr. Nuernberger and continued to make appointments. After the next session had ended, Dr. Nuernberger gave Marston a neck and shoulder massage, unbuttoned her blouse and engaged in petting. Eight more sessions followed, with heavy petting, kissing and sexual encounters occurring after the end of therapy. No sexual intercourse took place, however. Marston became increasingly depressed and finally terminated the therapy sessions. In March 1977, Marston called Dr. Maland Hurr, a neurologist at the clinic, and related the actions of Dr. Nuernberger.
In the Williams case, plaintiff Nancy Williams was referred by another physician to the Minneapolis Clinic for biofeedback therapy to relieve severe chronic migraine headaches. Williams' first sessions with Dr. Nuernberger were uneventful. Eventually, the pattern changed. After approximately 45 minutes of therapy on the biofeedback machine, consultation and relaxation exercises, Dr. Nuernberger would begin a neck and back massage to help relieve tension. Dr. Nuernberger would then move Williams to a different room, have her lie down on a couch, and begin to caress and kiss her. This pattern continued from February to May. Sexual intercourse never occurred, although at one point Dr. Nuernberger suggested that Williams move out of her parents' home and get an apartment for the purpose of conducting nude body massages. Dr. Nuernberger never suggested that the sexual encounters had any therapeutic effect. He told Williams that she was his favorite patient, that he would see her regardless of her ability to pay for the therapy, and that she should not see any other psychologists. Williams further testified that the therapeutic value of her regular treatment suffered when she requested Dr. Nuernberger to cease his sexual advances and that she did not leave him because she was confused and desperate for help. Apparently Williams was severely depressed and seriously chemically dependent during this period.
Finally, in June 1977, Williams told Dr. Nuernberger that his sexual advances had to cease. Williams did not inform the Minneapolis Clinic of Dr. Nuernberger's actions.
At both trials, various experts testified as to the impropriety and seriousness of Dr. Nuernberger's actions. Dr. Nuernberger testified that facial and back massages are an accepted technique of biofeedback therapy and are generally used at the Minneapolis Clinic. Witnesses for the clinic, however, testified that any sexual contact or relationship with a patient is absolutely forbidden. Further, experts testified that sexual contact is so aberrant that effective therapy ceases. In addition, there was uncontradicted testimony that any sexual contact or relationship with a patient is totally unethical, of no therapeutic purpose, purely personal and strictly proscribed by the Code of Ethics of the American Psychological Association. One witness testified that the problem of a dual relationship between a doctor and patient is considered to be a well-recognized hazard.
In both cases, plaintiffs' requested jury instructions on scope of employment were denied. Instead, the trial court instructed the jury pursuant to JIG II 252. Both juries returned verdicts finding that Dr. Nuernberger violated his profession's standards of care. None of the parties contests these findings. The juries also found that Dr. Nuernberger acted outside the scope of his authority. In addition, in Williams, the jury absolved the Minneapolis Clinic of any separate negligence in its duty towards the plaintiff. The parties appeal only on the issue of respondeat superior and the amount of punitive damages awarded.
The issues raised on appeal are:
Appellants' Marston and Williams major argument concerns the correctness of the trial court's jury instructions and the validity of JIG II 252 on the issue of scope of employment. The trial court instructed the jury pursuant to JIG II 252 as follows:
An agent is acting within the scope of his employment when he is performing services for which he has been employed or while he is doing anything which is reasonably incidental to his employment. The test is not necessarily whether the specific conduct was expressly authorized or forbidden by the principal but rather whether such conduct should have fairly been foreseen from the nature of the employment and the duties relating to it and was brought about, at least in part, by a desire by the agent to serve the principal.
(Emphasis added.) Appellant Marston, however, proposed that the test is whether "the conduct occurs during the time of employment and at a place of employment." Appellant Williams requested that the court instruct the jury that the employer is liable when the employee is "doing anything which is reasonably incidental to his employment, and * * * within work related limits of time and place." Both instructions were refused.1
Appellants challenge the use of JIG II 252, arguing that it does not correctly state the rule enunciated in Lange v. National Biscuit Company, 297 Minn. 399, 211 N.W.2d 783 (1973) (hereinafter Lange). Appellant's argument is that Lange overruled prior cases requiring that the employee be "motivated by a desire to further the employer's business." Id. at 401, 211 N.W.2d at 784. Respondent, Minneapolis Clinic, however, contends that the appellants have misinterpreted Lange and emphasizes this court's recent decision in Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11 (Minn.1979).
Prior to Lange, the rule in Minnesota imposed liability only where it was "shown that the employee's acts were motivated by a desire to further the employer's business." 297 Minn. at 401, 211 N.W.2d at 784. Lange concerned a cookie salesman employed to sell cookies to grocery stores in a particular territory. At one store, an argument developed as to the amount of shelf space allotted for defendant's cookies....
To continue reading
Request your trial