P.S. v. Psychiatric Coverage, Ltd.

• Decision Date: 13 September 1994
• Docket Number: Nos. 64386,64577,s. 64386
• Citation: 887 S.W.2d 622
• Parties: P.S. and R.S., Plaintiffs/Appellants, v. PSYCHIATRIC COVERAGE, LTD., Defendant/Respondent. P.S. and R.S., Plaintiffs/Cross-Respondents, v. PSYCHIATRIC COVERAGE, LTD., Defendant/Cross-Appellant.
• Court: Missouri Court of Appeals

Page 622

887 S.W.2d 622

P.S. and R.S., Plaintiffs/Appellants, v. PSYCHIATRIC COVERAGE, LTD., Defendant/Respondent.

P.S. and R.S., Plaintiffs/Cross-Respondents, v. PSYCHIATRIC COVERAGE, LTD., Defendant/Cross-Appellant.

Nos. 64386, 64577.

Missouri Court of Appeals,

Eastern District,

Division Four.

Sept. 13, 1994.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Oct. 24, 1994.

Application to Transfer Denied

Dec. 20, 1994.

Mary Coffey, John J. Frank Partnership, St. Louis, for appellants.

Kenneth W. Bean, Roger K. Rea, and Jan E. Dodd, Sandberg, Phoenix & Von Gontard, P.C., St. Louis, for respondent.

AHRENS, Judge.

This is an appeal and cross appeal in a malpractice action brought by plaintiffs P.S. and R.S. against defendants Dr. Asiz Bouzrara and his employer, Psychiatric Coverage, Ltd. (employer). Plaintiffs challenge the trial court's application of § 538.230.2 RSMo1986 ¹ to the judgment in finding that employer was not jointly and severally liable with Dr. Bouzrara. In its cross appeal, employer claims the trial court erred in finding employer vicariously liable for Dr. Bouzrara's negligence and also claims instructional error. We reverse and remand.

Dr. Bouzrara is an unlicensed psychologist who works at employer's clinic. The principal owner of employer, Psychiatric Coverage, Ltd., is Dr. Fazil M. Yasin, a medical doctor and a licensed practicing psychiatrist. In April, 1994, plaintiff P.S. began seeing Dr. Bouzrara for therapy because she was experiencing panic attacks. At first, plaintiff P.S.'s sessions with Dr. Bouzrara seemed normal. However, Dr. Bouzrara soon began questioning plaintiff P.S. about the sexual details of her life, claiming her sexual frustration could be causing the panic attacks. Plaintiff P.S. visited Dr. Bouzrara on a weekly basis from April 18, 1989 through September 2, 1989.

During the session on June 7, 1989, the first sexual encounter between Dr. Bouzrara and plaintiff P.S. occurred. Plaintiff P.S. told Dr. Bouzrara that she had a "crush" on him. Dr. Bouzrara initially informed plaintiff P.S. that it was normal for her to feel that way, but it would be unethical and immoral for them to have any kind of personal relationship. Before the session ended, however, Dr. Bouzrara began touching her. From June, 1989, through September, 1989, plaintiff P.S. and Dr. Bouzrara had numerous sexual encounters during therapy sessions and away from the clinic.

In their action against defendants, plaintiffs alleged Dr. Bouzrara was negligent by becoming sexually involved with plaintiff P.S. under the guise of therapy. Plaintiffs further alleged employer was vicariously liable for Dr. Bouzrara's negligence and also liable for negligently hiring Dr. Bouzrara. The jury awarded plaintiff P.S. $210,000.00 in damages and plaintiff R.S. $50,000.00 for loss of consortium. In assessing the liabilities, the jury found Dr. Bouzrara 60% at fault, employer 35% at fault, and plaintiff P.S. 5% at fault. ² In addition, the jury found employer vicariously liable for the percentage of fault assessed against Dr. Bouzrara.

At the center of this appeal is the trial court's finding that employer is vicariously liable for Dr. Bouzrara's negligence under the theory of respondeat superior. Employer claims the trial court erred in denying employer's motions for directed verdict and judgment notwithstanding the verdict because employer is not vicariously liable as a matter of law. Employer argues that Dr. Bouzrara's intentional sexual misconduct was not psychological therapy and went beyond Dr. Bouzrara's scope of employment as a therapist. We agree.

Missouri courts have often stated the general principles governing cases of respondeat superior. Under this doctrine, an employer is held liable to a third person for a tort committed by the employee, even though not directed, commanded or expressly authorized by the employer, if the employee committed such act while engaged in an activity falling within the scope of the employee's authority or employment. Maryland Casualty Co. v. Huger, 728 S.W.2d 574, 579 (Mo.App.1987). The principles set forth in cases of respondeat superior focus on determining whether the act in question was committed within the employee's scope and course of employment. In applying these principles, courts examine the facts and circumstances of each particular case and no single principle is conclusive. Noah v. Ziehl, 759 S.W.2d 905, 909-10 (Mo.App.1988).

Whether an act was committed within the scope and course of employment is not measured by the time or motive of the conduct, but whether it was done by virtue of the employment and in furtherance of the business or interest of the employer. Id. at 910. If the act is fairly and naturally incident to the employer's business, although mistakenly or ill advisedly done, and did not arise wholly from some external, independent or personal motive, it is done while engaged in the employer's business. Id.

The sexual encounters complained of in this case occurred at employer's clinic, in public areas, in Dr. Bouzrara's car, and at Dr. Bouzrara's apartment. Plaintiff P.S. testified that Dr. Bouzrara became sexually stimulated while fondling and kissing her. The evidence revealed that plaintiff P.S. went to Dr. Bouzrara's apartment and showered with him and lay naked in his bed with him. Plaintiff P.S. testified that she did not believe this behavior was part of therapy. Several experts also testified that this type of behavior is not therapy. In addition, sexual relations with patients violates the ethical codes of both the American Psychiatric Association and the American Psychological Association.

Dr. Bouzrara was hired by employer to provide therapy to patients at employer's clinic. Regardless of whether sexual misconduct takes place during or in connection with therapy, it is not the general kind of activity a therapist is employed to perform. The sexual encounters between plaintiff P.S. and Dr. Bouzrara resulted from purely private and personal desires. The acts did not occur as part of any therapy program and they were not intended to further employer's business. Dr. Bouzrara was not acting within the scope of his employment when he engaged in sexual relations with plaintiff P.S.

Much of plaintiffs' case centers around the transference phenomenon which can develop between a therapist and a patient. ³ Plaintiffs rely on the Missouri Supreme Court decision in Zipkin v. Freeman, 436 S.W.2d 753 (Mo. banc 1968), which discusses the transference phenomenon in the context of a malpractice insurance case. The court in Zipkin was asked to interpret a clause in an insurance contract which stated that the insurer would defend and pay damages resulting from a claim "based on professional services rendered or which should have been rendered during the term of the policy." Id. at 754. Although the court discussed the psychiatrist's mishandling of the transference phenomenon, it specifically stated that it was limiting its holding to whether the claim was within the coverage of the insurance policy. Id. at 762.

The issue of whether an employer is liable under respondeat superior for an employee therapist's sexual misconduct is one of first impression for Missouri courts. We note, however, several jurisdictions have examined this issue and found the employer not liable. ⁴ We hold that employer is not liable under respondeat superior for damages resulting from Dr. Bouzrara's sexual relations with plaintiff P.S. because he was not acting within the scope and course of his employment as a therapist. We conclude the trial court erred in denying employer's motions for directed verdict and judgment notwithstanding the verdict because employer is not vicariously liable as a matter of law.

Additionally, employer claims the trial court erred in submitting a modified version of MAI 13.03 [1990 Revision] which defines the scope of employment in situations where the dual purpose doctrine applies. Employer argues MAI 13.02 [1978 Revision] stated the proper scope of employment. We have found, as a matter of law, that Dr. Bouzrara's acts of intentional sexual misconduct were not done in the furtherance of employer's business. Therefore, Dr. Bouzrara's acts were beyond the scope of his employment as defined by either MAI 13.02 or MAI 13.03. This point is moot.

Finally, employer argues that plaintiffs' verdict director for negligent hiring, Instruction 10, failed to instruct the jury to find that a particular act or omission caused plaintiffs' injuries. Employer claims Instruction 10 gave the jury a "roving commission" to speculate and determine in what manner employer negligently hired Dr. Bouzrara.

Instruction 10 provided:

In your verdict, on the claim of plaintiff P.S. for negligence against defendant [employer], you must assess a percentage of fault to defendant [employer] whether or not plaintiff P.S. was partly at fault if you believe:

First, Defendant [employer] hired Asiz Bouzrara; and

Second, defendant [employer] was thereby negligent; and Third, such negligence directly caused or directly contributed to cause damage to plaintiff P.S.

This instruction is a modification of MAI 21.01 [1988 Revision] (the verdict director for actions against health care providers in negligence) and MAI 19.01 [1986 Revision] (the verdict directing modification when there are multiple causes of damage when comparative fault is submitted).

If a Missouri Approved Instruction is applicable to a particular case, its use is mandatory. Rule 70.02(b) (1993). Karnes v. Ray, 809 S.W.2d 738, 740 (Mo.App.1991). Approved instructions, however, do not cover every factual situation and there may not be an MAI appropriate in a particular case. Karnes, 809 S.W.2d at 740. Rule 70.02(e) (1993) allows modification of existing MAIs and not-in-MAIs in situations where there is not an appropriate MAI. Id. The test of a modified MAI is whether it follows the substantive law and can be...