Rehm v. Lenz

• Decision Date: 11 January 1996
• Docket Number: No. 19201,19201
• Parties: Linda REHM and Russell Rehm, Plaintiffs and Appellants, v. Eldon LENZ and West River Mental Health Center, a/k/a Behavior Management Systems, Defendants and Appellees. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 560

547 N.W.2d 560

1996 SD 51

Linda REHM and Russell Rehm, Plaintiffs and Appellants, v. Eldon LENZ and West River Mental Health Center, a/k/a

Behavior Management Systems, Defendants and Appellees.

No. 19201.

Supreme Court of South Dakota.

Considered on Briefs Jan. 11, 1996.

Decided May 8, 1996.

Steven C. Beardsley and Mary A. Gubbrud of Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, for plaintiffs and appellants.

Robert L. Lewis of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for defendant and appellee Eldon Lenz.

J. Crisman Palmer and Talbot J. Wieczorek of Gunderson, Palmer, Goodsell & Nelson, Rapid City, for defendant and appellee West River Mental Health Center.

¶1 MILLER, Chief Justice, delivers the majority opinion of the Court on that part of Issue I which applies a six-year statute of limitations to the claims against Lenz and reverses and remands for trial the summary judgment in favor of Lenz, and on Issue II.

¶2 SABERS, Justice, delivers the majority opinion of the Court on that part of Issue I holding that the two-year medical malpractice statute of limitations applies to a psychologist treating depression.

¶3 MILLER, Chief Justice, writing the majority opinion on that part of Issue I which applies a six-year statute of limitations to the claims against Lenz and reverses and remands for trial the summary judgment in favor of Lenz, and on Issue II.

¶4 Linda Rehm and Russell Rehm appeal from an order granting summary judgment to psychologist Eldon Lenz and granting partial summary judgment to his former employer West River Mental Health Center (West River). We affirm in part, reverse in part, and remand.

FACTS

¶5 The facts of this case are nearly identical to those which gave rise to Richards v. Lenz, 539 N.W.2d 80 (S.D.1995). Both cases involve the claims of a husband and wife who received therapy from Lenz while he worked for West River. The various claims are based on Lenz' alleged improper handling of the transference phenomenon ¹ in therapy sessions and the development of a romantic relationship between Lenz and the client wife. The facts of this case are so strikingly similar to those in Richards that only a summary is necessary here.

¶6 After being hospitalized for depression, Linda was referred to West River for treatment of her depression. In December, 1986, she began individual counseling at West River and was counseled by Lenz. At this same time, Russell was also counseled individually by Lenz for depression and feelings of guilt. During her therapy, Linda experienced the transference phenomenon, viewing Lenz as her father. Lenz allegedly responded by introducing a sexual overtone to Linda's therapy and developing a romantic (and at times physical) relationship with her. As in the Richards case, Lenz conducted these therapy sessions both at his home and at West River's office.

¶7 After Lenz left West River in September, 1988, he worked privately as a psychologist. He continued to counsel Linda at his private office and at his home. In 1990, Lenz moved to Indiana. Linda continued to seek out Lenz' professional help and romantic indulgences. She also returned to West River for counseling. In March, 1991, Lenz sent a letter to Linda stating that "there never has been and never will be a romantic relationship between them." On December 31, 1991, Linda and Lenz met for a "closure" session arranged by Linda's then-current therapist at West River, Ms. Karin Wood. Although Russell ended his therapy sessions at West River in 1989, Linda continued to seek counseling at West River until 1993.

¶8 In October and November, 1993, Rehms served Lenz and West River with a complaint containing the following claims:

1. negligence against Lenz and West River;

2. negligence against West River;

3. breach of fiduciary duty against Lenz and West River;

4. negligence against West River;

5. fraud and deceit against Lenz and West River;

6. alienation of affections against Lenz;

7. breach of contract against Lenz and West River; and

8. willful and wanton conduct (punitive damages) against Lenz and West River.

Although similar, the Richards complaint also included a claim for medical malpractice, which Rehms' does not. In addition, the Rehms' complaint added claims based on alienation of affections or willful and wanton conduct (punitive damages), which were not included in the Richards complaint. ² The trial court granted Lenz' motion for summary judgment, dismissing the entire complaint against him on the basis that it had been served after the expiration of the statute of limitations for medical malpractice. It granted partial summary judgment to West River on the same basis, and certified the matter pursuant to Rule 15-6-54(b). Rehms appeal.

STANDARD OF REVIEW

¶9 This case involves a challenge to the summary judgments awarded in favor of Lenz and West River. As such, the standard of review applicable to both issues is the same as enunciated in Richards:

The party moving for summary judgment has the burden to show that [t]here is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. The evidence, including all pleadings, affidavits and deposition testimony, must be viewed in the light most favorable to the non-moving party, and reasonable doubts should be resolved against the moving party. All reasonable inferences that may be drawn from the facts must be accepted in favor of the non-moving party. Summary judgment is a drastic remedy, and should not be granted unless the moving party has established the right to a judgment with such clarity as to leave no room for controversy.

539 N.W.2d at 83 (quotation and citations omitted). It is against this standard that we evaluate the merits of this appeal.

ISSUES

¶10 I. The trial court erred in granting summary judgment dismissing the Rehms' claims against psychologist Lenz.

¶11 The Rehms argue that the trial court should not have applied the medical malpractice statute of limitation. They also contend there are factual disputes remaining as to when the counselor/patient relationship with Lenz ended and whether his acts were continuing torts which would alter application of the statute of limitation. We conclude that the applicable limitation period is a 6-year period, within which the Rehms did file their claim. Thus, Lenz was not entitled to summary judgment.

¶12 As in Richards, the trial court ³ reasoned that the complaint essentially alleges medical malpractice and applied the 2-year statute of limitation for malpractice claims against practitioners of the healing arts to bar suit against Lenz. See SDCL 15-2-14.1. The court concluded Lenz was a "practitioner of the healing arts" because the definition of "healing art" includes treatment for any "mental condition." SDCL 36-2-1(3). ⁴ The trial court found the evidence clearly established there was no relation of physician and patient after March 1991 and, since Lenz was served with the complaint in November, 1993, the two-year limitation period had expired and the Rehms' claims were barred.

¶13 In Richards, we rejected this result based on our conclusion that a psychologist providing marriage counseling is not a practitioner of the healing arts, as defined by SDCL 36-2-1(3). Consequently, we held that the medical malpractice statute of limitation did not apply:

Under the facts presented in this case, negligent marriage counseling is not medical malpractice within the language of SDCL 15-2-14.1. We hold that the trial court erred in holding that the two-year statute of limitations provided in SDCL 15-2-14.1 is an affirmative defense to the Richards' amended complaints.

539 N.W.2d at 84. Thus, we concluded that the Richards' claim was not a medical malpractice claim.

¶14 In this case, none of the parties have argued that a separate analysis should apply to a psychologist when he or she is counseling a person for symptoms of depression rather than for distress caused by a failing marriage. A fair reading of Richards indicates that there might be a distinction between the Richards case where the clients sought joint and individual marriage counseling and this case where Linda and Russell each sought individual counseling and therapy for "depression." We recognize, however, that neither the trial court nor the parties had the benefit of our decision in Richards because it was not released until after the principal briefs in this appeal were filed. Nonetheless, the distinction between the nature of the services provided by Lenz was not briefed by the parties, and the trial court's decision only touched on the significance of the distinction. We cannot consider an issue not raised or briefed on appeal. Centrol Inc. v. Morrow, 489 N.W.2d 890, 893-94 (S.D.1992). Consequently, we should not speculate on whether it is possible for a psychologist to provide services in a specific instance which could be characterized as falling within the definition of the healing arts. Further, the Rehms did not couch their allegations in terms of medical malpractice (although they do refer to professional malpractice). Even if they had used that term, however, the analysis of Richards dictates that a psychologist providing counseling services is not the equivalent of a medical practitioner engaged in the healing arts. Thus, the 2-year statute of limitations for medical malpractice does not apply to the Rehms' complaint. Even if the medical malpractice statute of limitations did apply to psychologists providing counseling for depressed persons, as suggested by the concurrence in part, Lenz' conduct by its very nature was not undertaken to "treat" depression and is not entitled to the protection of the limitations period for practitioners of the healing arts.

¶15 In abiding by our decision in Richards, we must determine what is the applicable limitations period. As in Richards, the Rehms' allegations are based on negligence, breach of fiduciary...