P.W.P. v. L.S.

Decision Date18 December 1998
Docket NumberNo. 78,803,78,803
Citation969 P.2d 896,266 Kan. 417
PartiesP.W.P., Appellant, v. L.S. and Johnson County Mental Health Center, Appellees.
CourtKansas Supreme Court

Syllabus by the Court

1. The rules regarding granting of summary judgment are restated and applied.

2. The term "reasonably ascertainable" as applied in K.S.A. 60-513(b) and (c) suggests an objective standard based on an examination of surrounding circumstances.

3. In Kansas, objective knowledge of an injury, not the extent of the injury, triggers the running of the statute of limitations in nonmedical damage cases.

4. Under the undisputed facts of this case, plaintiff's alleged injuries were reasonably ascertainable more than 2 years prior to the filing of her causes of action. The trial court correctly ruled the statute of limitations had expired.

5. The transference phenomenon is a psychiatric doctrine which states that a patient will transfer his or her affections or hostile emotions to the patient's therapist. Under the facts of this case, application of the doctrine did not prevent the plaintiff from ascertaining her injury and is not applicable to toll the statute of limitations.

6. While the relationship between a patient and a therapist is not exactly that of a physician-patient, it is much more akin to that of a physician and patient than it is to that of an attorney and client.

7. In cases dealing with the providing of medical services, Kansas has held that continuing treatment after the realization of injury does not toll the statute of limitations.

8. An affidavit cannot be used to controvert a prior sworn statement in order to create an issue of material fact and defeat a motion for summary judgment.

9. The decision whether to permit withdrawal of an admission is a discretionary one.

James T. Wiglesworth, of Overland Park, argued the cause and was on the brief for appellant.

Scott K. Logan, of Logan & Logan, L.C., of Prairie Village, argued the cause, and M. Bradley Watson and Jeff K. Brown, of the same firm, were with him on the brief for appellee Johnson County Mental Health Center.

Todd A. Scharnhorst, of Blackwell Sanders Peper Martin L.L.P., of Overland Park, argued the cause, and Roger W. Warren and Stephen J. Torline, of the same firm, were with him on the brief for appellee L.S.


P.W.P (patient) appeals the trial court's determination that the statute of limitations expired on her claims for damages against L.S. (therapist) and the Johnson County Mental Health Center (JCMHC).

The petition filed on May 23, 1995, alleged patient obtained counseling services from JCMHC provided by its employee, L.S., a therapist and licensed social worker, who negligently and improperly entered into a social and sexual relationship with her commencing in 1985, causing substantial emotional damage. Patient asserted claims for negligence, intentional infliction of emotional distress, and refund of money paid for financial assistance she provided to therapist and her family.

The trial court found in granting summary judgment that, as a matter of law, injuries to patient were reasonably ascertainable prior to May 23, 1993. Summary judgment was granted on the action for money paid based on a lack of evidence of the claim and because the applicable statute of limitations had run.

Patient appeals, contending the trial court erred (1) in holding the statute of limitations had run against all her claims and (2) in holding, as a matter of law, that she had failed to establish a cause of action for money paid.

We will set forth with considerable detail the history of the interaction between the two parties because critical to the ruling is the applicable time when the existence of the alleged cause of action was reasonably ascertainable.

Facts, admissions, and deposition testimony

The parties' first involvement was on October 7, 1985, when patient sought treatment from JCMHC for emotional problems and a mental disorder.

A social and sexual relationship developed between therapist and patient with patient contending it began November 13, 1985, and continued until mid-1993. Therapist admits she attended social functions with the patient, including the patient's wedding in 1986. The record reflects the patient and therapist took vacations together, met for lunch and dinner through 1993, and jointly held Christmas parties.

After January 1986, neither patient, nor her insurance carrier paid any money to JCMHC. Patient is unable to point to any payments made to therapist after 1986 that were specifically intended to compensate her for providing therapy. Patient admits she did not make any requests to her insurance company for payment for therapy services provided by either therapist or JCMHC after 1986.

During a custody dispute between therapist and her then-husband, patient testified under oath in a deposition and denied any sexual relationship with therapist.

During the course of her relationship with therapist, patient drafted numerous documents detailing her thoughts about the relationship. Patient admitted in deposition testimony as well as in response to request for admissions that the documents were written or expressed her thoughts in 1985 and 1986, showing how she felt at that time. Patient believed at the time she created the documents that she had sufficient evidence to sue JCMHC.

Therapist questioned the authenticity of the documents as well as the dates they were written. When three of the documents were examined by an expert, his report stated they could not have been written until sometime after May 1995.

Patient testified that the first time she and therapist had sex she knew it was wrong for them to engage in such activity. Patient admits that as early as 1986, she received notes from therapist referring to their relationship as "crossing the lines." Patient testified that she understood this to mean that the therapist had a conflict with the professional and sexual relationships occurring simultaneously.

Patient's handwritten notes setting forth her feelings in November 1985 contain statements such as "What the hell am I doing sleeping with my therapist? ... My God what have I gotten into?... Am I so desperate for love and acceptance that I can't tell this woman how wrong this is-for her to be having sex with a client--someone who asked to be healed--not preyed on ... she can never take back what she has done to me."

In a handwritten letter to therapist written by patient in approximately December 1986, she wrote: "I would win--hands down--If I wanted to I could destroy both of you both job-wise and personally--and financially.... If I hated you enough to do that in the first place--I would have more than enough 'evidence' to sue your place of employment."

Patient discussed her relationship with other therapists and with other counselors. In 1989 or 1990, Barbara Dickerson counseled patient and explained to her some of the ramifications of having a relationship with her therapist.

Before patient talked to Dickerson or other therapists she made each therapist agree in advance that they would not file an ethical complaint against therapist. Patient contends the agreements were necessary because therapist had threatened to commit suicide by putting "a bullet to the head" if patient revealed the relationship, and that would have devastated her emotionally.

Janet Culp, another therapist, informed patient that the relationship with her therapist was "inappropriate" and "unethical." The date she saw Culp is not clear, although patient also sought counsel from other therapists between 1987 and 1994. These included Rosalie Pompushko, who counseled patient from 1987 until 1993.

Patient contends the therapeutic relationship continued until late 1993 and that any payments made between 1986 and 1993 should be considered payment for therapy. Patient was unable to pinpoint any payment made to therapist subsequent to 1986 for therapeutic services. Patient's list of checks she claimed were payments were all dated prior to February 19, 1990, except for one $400 check written on September 26, 1993. Patient admitted that therapist wrote a lot of checks to her and she wrote a lot of checks to therapist. Patient contends the parties did not always repay the sums loaned but admits that repayment was never requested. When asked to identify the specific sums loaned, patient responded, "I didn't keep close track. A lot of money exchanged hands both ways." Patient admitted she had only a vague recollection that some amounts were not repaid, and she was unable to identify any specific amount owed to her by her therapist.

Therapist and JCMHC each filed separate motions for summary judgment, arguing that the letters written in 1985 and 1986, together with patient's sworn testimony, clearly showed that she had realized her cause of action and injury as early as 1985. Both defendants insisted patient's claims were barred by the 2-year statute of limitations.

Through an affidavit attached to her response to the summary judgment motions, patient attempted to controvert her own deposition testimony regarding the time that the letters were written. Patient's signed affidavit stated: "Between 1985 and until late 1993 or early 1994, I have experienced situations where certain places, songs, and occurrences would cause me to relive, like flashbacks, encounters between me and [therapist]. These episodes were real to me and it is possible I wrote [the documents] during one of these episodes."

Patient claimed her affidavit, together with the defendant's expert's report, created a disputed material issue of fact as to the time she could have reasonably ascertained her injury.

Patient argued her statement of December 1986, that she had "more than enough evidence to sue your place of employment," was taken out of context and was not related to any injury caused by her relationship with therapist, but was due to information...

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