Zipkin v. Freeman

Citation436 S.W.2d 753
Decision Date31 December 1968
Docket NumberNo. 53160,53160
PartiesAda Margaret ZIPKIN, Respondent, v. Robert F. FREEMAN, Defendant, Medical Protective Company, Appellant.
CourtUnited States State Supreme Court of Missouri

George A. Spencer, Spencer & Petri, Columbia, for plaintiff-respondent.

William B. Anderson, Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, for garnishee-appellant.

SEILER, Judge.

In this garnishment proceeding the principal contention of appellant is that none of the activities and conduct of its insured, Dr. Robert F. Freeman, a psychiatrist, for which a jury awarded respondent $17,000 damages, amount to professional services rendered or which should have been rendered in the practice of his profession, for which the appellant insurer agreed to pay damages under its Medical Protective policies issued to Dr. Freeman, and hence the insurer was under no duty to defend the original damage suit or pay any judgment therein.

The policies contained this insuring agreement: 'In Consideration of the payment of the premium * * * the Company hereby agrees to DEFEND and PAY DAMAGES, in the name and on behalf of the Insured or his estate, A. IN ANY CLAIM OR SUIT FOR DAMAGES, AT ANY TIME FILED, BASED ON PROFESSIONAL SERVICES RENDERED OR WHICH SHOULD HAVE BEEN RENDERED DURING THE TERM OF THIS POLICY, BY THE INSURED OR ANY OTHER PERSON, IN THE PRACTICE OF THE INSURED'S PROFESSION: * * *.' It is admitted by appellant that Dr. Freeman notified it of respondent's suit against him and requested it to defend him, which appellant declined to do. Nothing was done about seeking a declaratory judgment or defending under a reservation of rights agreement or notice thereof. The damage suit was tried in May 1963, and Dr. Freeman was defended by counsel retained personally by him.

Ordinarily the insurer's duty to defend is determined from the policy provisions and the allegations of the petition, Northwestern Mutual Insurance Co. v. Haglund (Mo.App.), 387 S.W.2d 230, 233, although the insurer cannot safely '* * * ignore actual facts (known to it or which could be known from reasonable investigation) * * * (meaning) * * * the facts which were known, or should have been reasonably apparent at the commencement of the suit and not the proof made therein or the final result reached. * * *', Marshall's United States Auto Supply v Maryland Casualty Co., 354 Mo. 455, 189 S.W.2d 529, 531.

The petition in the damage suit which the defendant was called upon to defend alleged that the doctor was a practicing physician in Columbia, Missouri, holding himself out as being skilled in the field of psychiatric treatment; that plaintiff was troubled with a case of diarrhea and headaches and started treatment with Dr. Freeman about April 18, 1959; that the doctor, for a consideration, took charge of her as a patient to treat her and treated her during 1959, 1960 and part of 1960; that he by his treatment and counselling so aroused her emotions that she was in love with him; that he wrongfully manipulated the situation to the point where her feelings were no longer simply transferred feelings of love for the psychiatrist but direct feelings of love for him as a person, beyond the phenomenon of transference, 1 which was a departure from the accepted standard of practice; that the doctor negligently advised plaintiff she needed further treatment by way of personal and social contacts with him even though such a relationship went beyond accepted psychiatric standards.

The petition further alleged that as a result of the control the doctor exercised over her, plaintiff was unable to direct herself properly and at the doctor's direction under the guise of treatment moved first into his apartment over his office with her children and then to his farm, which was purchased in part by $14,000 which the doctor induced her to invest therein from her personal funds; that in the course of his treatment and therapy he demanded that she give him money received from her husband for support of the children, other sums of money, and crop money from her and her husband's farms, file spurious lawsuits against her husband and her brother, work as a hand in defendant's fields, take property from her husband's home under the doctor's directions to shoot anyone who got in her way and that she pay him $100 per month rent during all this time.

That as a part of his treatment, he had her attend social gatherings, skating parties, taverns and livestock sales with him and take trips with him outside the state, went with her to her husband's farm to get property, urged her to invest her money in his (the doctor's) enterprises, induced her to transfer her affections from her family and friends to him, failed to shun association with her after he knew she was in love with him, aroused her emotionally and convinced her that without him she and her childen would starve and she would be committed to a state hospital if she went back to her husband or brother.

That by his treatment and counselling the doctor was guilty of professional negligence, by reason whereof she suffered remorse, humiliation, mental anguish, loss of respect of friends and family, was made nervous and unable to sleep, suffered headaches was irritable and suffered financially.

(It will be noted that mistreatment of the transference phenomenon and other mistreatment are the main base of complaints. As an insurer of psychiatrists, the defendant would know, or in the exercise of reasonable care in the operation of its business should know, that transference pertains to psychiatry and is important in treatment. 2 In addition, the petition is explicit as to the various harmful and damaging results allegedly flowing from the mishandling of the transference phenomenon under the guise of treament.)

Appellant's position, set forth in its reply to respondent's denial of answers to interrogatories, is in essence '* * * that whether or not plaintiff fell in love with the said Freeman when she was relatively free of headaches and diarrhea, and whether she engaged in social and business contacts with the said Freeman, and sued people, and moved from her husband's home, concerns matters extraneous to being treated by a medical doctor, and matters extraneous to receiving professional treatment * * *'; and that defendant's '* * * contracts entered into with defendant Freeman concern professional services rendered as a physician * * * (and) do not cover causing a woman to move out of her husband's home, sue people or making love * * * (or) the activities of two people, whether one is or is not a professional man and a physician, with respect to the relationship of male and female in any amorous capacity * * *.'

Both sides moved for summary judgment. Attached to appellant's motion was a partial transcript of the original trial here filed by stipulation as an exhibit. The trial court held appellant liable under its three three $5,000 policies for $15,000 and interest, a total of $18,025.47.

The facts contained in the partial transcript of the original case are these:

Respondent Ada Margaret Zipkin prior to April 1959, lived on a farm west of Columbia, Missouri for twelve years, as the wife of L. D. Baurichter. They had three children. She was active in community affairs such as PTA, the farm club, and in church. She and her husband entertained neighbors and friends, attended sports events, and one year were selected as the outstanding farm couple. About two years prior to April 1959, Mrs. Zipkin developed a chronic diarrhea, and about two months prior to that date she began to have severe headaches. Her regular doctor, Dr. Charles Lampke, treated her for these conditions but was not able to alleviate them, and, after many tests to try to find the causes, suggested she needed a psychiatrist and mentioned Dr. Freeman, of Columbia. She decided to see Dr. Freeman, made an appointment, took preliminary tests and saw him on April 18, 1959. There was a general discussion of what Dr. Lampke had reported to Dr. Freeman and he 'asked me questions about my home and my family.' She told him she had a good home, a good husband and thought she was very happy. During the first months the treatment 'was limited to conversations, general talking. Most of all he asked me about my husband, if I was sure that he really loved me and that we were as happy as we thought we were.'

After about two months of treatment the conditions for which Mrs. Zipkin went to Dr. Freeman 'were completely gone'. 3 She asked him if it was necessary that she stay in treatment, which cost $17.50 per hour, two treatments a week. Dr. Freeman told her she could leave if she wanted to, but that her symptoms would return, she would have diarrhea and headaches again, and that it would probably be better if she stayed until they got to the root of what was really the problem, so she continued treatment.

During this time, Dr. Freeman did not talk to Mrs. Zipkin about the phenomenon of transference, her feelings toward her family, and what would happen during treatment, but she gradually began to see that 'I absolutely felt nothing for my husband or my family. All the feelings that I had were for the doctor.' Dr. Freeman told her that she would probably start remembering her dreams, and to take careful note as to what she had dreamed because 'these were help in getting to my trouble and he would help me to analyze them.' About the dreams, Dr. Freeman began to tell her that 'it was obvious that I was so much better than my husband, and I was searching for a strong man in my life and that he was that man.'

In agreeing to continue the treatments after the headaches and diarrhea ceased, Mrs. Zipkin testified she was following Dr. Freeman's advice as to what she needed to correct her condition permanently. By this time 'I had begun to feel nothing for my family or my husband * * * thought I was in love with the doctor.' He told her '* * *...

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