Simmons v. U.S.

Decision Date09 December 1986
Docket NumberNo. 85-3835,85-3835
Citation805 F.2d 1363
PartiesJerrie M. SIMMONS, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

David A. Summers, Seattle, Wash., for plaintiff-appellee.

Susan L. Barnes, Seattle, Wash., for defendant-appellant.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, TANG and REINHARDT, Circuit Judges.

TANG, Circuit Judge:

The Government appeals an award under the Federal Tort Claims Act (FTCA) to a woman who sued because her Indian Health Service counselor wrongfully engaged her in a sexual relationship. The appeal raises two basic questions: whether Ms. Simmons' claim was barred by the statute of limitations and whether, even if not barred, there was any substantive basis for the Government's liability. We affirm.


Jerrie Simmons, a member of the Chehalis Tribe, sought mental health consultation from the Indian Health Service and was counseled by Ted Kammers, a social worker. Ms. Simmons had a history of economic deprivation and of physical, sexual and emotional abuse as a child. When she started consultation with Mr. Kammers, she was divorced and pregnant with her fourth child. Ms. Simmons saw Mr. Kammers for counseling from 1973 until August 1980 and maintained the counseling relationship through telephone contacts from then until at least July 9, 1981, the date of her last face-to-face counseling session.

In October 1978 Mr. Kammers initiated romantic contact with Ms. Simmons during a counseling session, encouraging her to act on her professed feelings of attraction to him. In January 1979 he had sexual intercourse with her during an out-of-town trip and this romantic and sexual relationship continued during the course of Ms. Simmons' treatment.

In January 1980, the Tribal Chairwoman notified Mr. Kammers' supervisor, Victor Sansalone, of her concerns about the relationship between Ms. Simmons and Mr. Kammers. Sansalone took no action either to correct Mr. Kammers' improper counseling or to relieve him of his duties. In August 1980 Ms. Simmons moved to Seattle and began eventually to suffer a variety of emotional problems, ranging from anxiety to depression, which worsened until she was hospitalized for psychiatric treatment in May 1982. She finally attempted suicide in November 1982.

In February 1983 Ms. Simmons learned, through psychiatric consultation with Dr. Patricia Lipscomb, M.D., that her counselor's misconduct was the cause of her psychological problems and that her problems were due essentially to his inappropriate response to the normal "transference phenomenon" in therapy.

On May 23, 1983 Ms. Simmons filed an administrative claim under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346 and 2671-2680 (1982), based on Mr. Kammers' negligence while counseling her in his capacity as a social worker employed by a United States agency. More than six months elapsed without final disposition of her claim by the Public Health Service of the United States Department of Health and Human Services, so Ms. Simmons filed her tort claim in district court on December 23, 1983. 28 U.S.C. Sec. 2675(a). After a bench trial, the district court entered findings and conclusions (summarized above) and judgment for Ms. Simmons, awarding her damages of $150,000. The Government timely appeals.

I. Transference Phenomenon

The Government argues that Ms. Simmons' action is time-barred because she knew her injury and its cause more than two years before she filed her claim. The Government also contends Mr. Kammers' improper conduct was not within the scope of his employment and thus the Government cannot be held liable under the doctrine of respondeat superior. To answer the questions of when Ms. Simmons understood the cause of her injury and whether Mr. Kammers' conduct was within the scope of his employment requires an understanding of the nature of the transference phenomenon and the consequence of a therapist's mishandling of the phenomenon.

Transference is the term used by psychiatrists and psychologists to denote a patient's emotional reaction to a therapist and is "generally applied to the projection of feelings, thoughts and wishes onto the analyst, who has come to represent some person from the patient's past." Stedman's Medical Dictionary 1473 (5th Lawyers' Ed.1982). Transference "is perhaps regarded as the most significant concept in psychoanalytical therapy, and one of the most important discoveries of Freud." Zipkin v. Freeman, 436 S.W.2d 753, 755 n. 1 (Mo.1968) (quoting Noyes & Kolb, Modern Clinical Psychiatry 505 (6th ed. 1963)).

As Dr. Laura Brown, the clinical psychologist who treated Ms. Simmons, testified at trial,

What the notion of transference assumes is that as therapy develops, and if therapy is working, the client comes to either consciously or unconsciously, or both, regard the therapist as a child might regard the parent. This is important because in order for a therapist to have positive powerful impact in helping the client to change and heal, the therapist has to have the same kind of authority power in a positive way with the client that the parents once had, or the parental figures once had in a negative way with the client while the client was growing up. And, so what happens when therapy is working ... is that this transference relationship grows so that the client comes to experience the therapist as a powerful, benevolent parent figure. And, what that means is that you've got a symbolic, sometimes conscious sometimes not, parent-child relationship existing in the therapy setting, even though you have two adults there.

Transference is crucial to the therapeutic process because the patient "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." L.L. v. Medical Protective Co., 122 Wis.2d 455, 362 N.W.2d 174, 177 (Wis.App.1984) (quoting 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." L.L., 362 N.W.2d at 177 (quoting Heller, Some Comments to Lawyers on the Practice of Psychiatry, 30 Temp.L.Q. 401, 401-02 (1957)). "Understanding of transference forms a basic part of the psychoanalytic technique." Zipkin, 436 S.W.2d at 755 n. 1 (quoting Blakiston's New Gould Medical Dictionary 1260 (2d ed. 1956)). The proper therapeutic response is countertransference, a reaction which avoids emotional involvement and assists the patient in overcoming problems. Aetna Life & Casualty Co. v. McCabe, 556 F.Supp. 1342, 1346 (E.D.Pa.1983).

When the therapist mishandles transference and becomes sexually involved with a patient, medical authorities are nearly unanimous in considering such conduct to be malpractice. L.L., 362 N.W.2d at 176-77 (citing 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.")). Dr. Brown explained at the trial that the reason sexual involvement with a patient is so harmful is due to the "parent-child" relationship symbolized by the transference. As she stated, "were a therapist to be sexual with a client it would be replicating at a symbolic level the situation in which a parent would be sexual with a child. The kinds of harm that can flow from those sorts of violations of trust are very similar."

Courts have uniformly regarded mishandling of transference as malpractice or gross negligence. See, e.g., Vigilant Insurance Co. v. Employers Insurance of Wausau, 626 F.Supp. 262 (S.D.N.Y.1986); Aetna Life & Casualty Co. v. McCabe, 556 F.Supp. 1342 (E.D.Pa.1983); Waters v. Bourhis, 40 Cal.3d 424, 709 P.2d 469, 220 Cal.Rptr. 666 (1985); Horak v. Biris, 130 Ill.App.3d 140, 85 Ill.Dec. 599, 474 N.E.2d 13 (1985); L.L. v. Medical Protective Co., 122 Wis.2d 455, 362 N.W.2d 174, 176-78 (1984); St. Paul Fire & Marine Insurance Co. v. Mitchell,, 164 Ga.App. 215, 296 S.E.2d 126 (1982); Cotton v. Kambly, 101 Mich.App. 537, 300 N.W.2d 627 (1980); Roy v. Hartogs, 85 Misc.2d 891, 381 N.Y.S.2d The crucial factor in the therapist-patient relationship which leads to the imposition of legal liability for conduct which arguably is no more exploitative of a patient than sexual involvement of a lawyer with a client, a priest or minister with a parishioner, or a gynecologist with a patient is that lawyers, ministers and gynecologists do not offer a course of treatment and counseling predicated upon handling the transference phenomenon. See A. Stone, M.D., Law, Psychiatry, and Morality 199 (1984).

                587 (1976);  Seymour v. Lofgreen, 209 Kan. 72, 495 P.2d 969 (1972);  Zipkin v. Freeman, 436 S.W.2d 753 (Mo.1968).  We note that courts do not routinely impose liability upon physicians in general for sexual contact with patients.   See, e.g., Smith v. St. Paul Fire and Marine Insurance Co., 353 N.W.2d 130, 132 (Minn.1984)

Against this background we turn to a consideration of when Ms. Simmons first learned of her injury and its cause and of whether Mr. Kammers was acting within the scope of his employment when he caused her...

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