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Malpractice, Disability, Sexual Harassment and Other Civil Claims Arising from Plaintiffs' Psychopathology

by Martin H. Williams, Ph.D

By Martin H. Williams, Ph.D Email: mw@drmwilliams.com

Our system of jurisprudence was not created by psychologists. It was not created by individuals who understood the unconscious, the irrational, the archetype, acting out, severe childhood trauma or primary process. Instead, our system is largely predicated on a belief in the rationality of humankind. Our adversarial system of justice is designed to ferret out those who are dishonest, who might file false claims because of criminal intent, or who might exaggerate their claims because of passionate feelings or confusion. However, it is not well-geared to respond effectively to individuals with Borderline or other severe psychopathologies. Many such individuals defy rationality. They tell falsehoods without being intentionally dishonest, and they create emotionally charged, credible and compelling scenarios of abuse about which they feel passionately, but which may never have occurred or which may be grossly exaggerated. How can a jury determine the truth when the plaintiff is neither telling the truth nor lying? This is the challenge for defense attorneys who may need to counter the carefully honed, sympathy-inducing abilities of Borderline plaintiffs.

Today we are going to be talking about how individuals with Borderline and other personality disorders approach litigation, provide examples of the claims they make and the responses to these claims by courts and licensing boards, and discuss defense strategies that have proven effective before civil juries and administrative law judges.

Two converging sets of experience have led to my interest in this issue of litigants with Borderline or other Axis II pathology. First, for about two years now, I have been co-leading a DBT Group. DBT stands for Dialectical Behavior Therapy. It was developed by Marsha Linehan at the University of Washington to treat individuals with Borderline pathology. It has been shown to be more effective than "therapy as usual" for Borderlines. The essence of DBT is its use of a skills training model to teach Borderlines the skill set that successful adults possess and which these individuals--who can from families of abuse and invalidation--have never learned.

The four categories of skills that members learn in DBT groups are: Mindfulness, Distress Tolerance, Emotional Regulation and Interpersonal Effectiveness. I have seen remarkable progress occur in some of the group members, and, as a psychotherapist, I can attest that working from this model I find it pleasurable and gratifying to work with Borderlines. In contrast, psychotherapists who work from traditional models will often complain about their Borderline patients, or, quite commonly, will say that they simply do not work with Borderlines. On a related note, psychotherapists in the past shied away from giving a Borderline diagnosis because it was a "kiss of death." Borderlines generally failed to improve and, to add insult to injury, were frustrating to work with. Thus, this diagnosis meant that working with the patient was simply going to be an unpleasant waste of time. Caring practitioners avoided saddling a patient with a diagnosis with such a dismal prognosis.

As an aside, I should mention that there still is very much a place for the individual psychotherapist to work with the Borderline patient even when she is in a DBT group. (I use the female pronoun, by the way, to refer to Borderlines because that diagnosis is much more likely to be made for a female patient. According to the DSM-IV, 75% of diagnosed Borderlines are females.) These patients need the stability of a single person in their lives who will be constant, supportive, and empathic. Personally, I prefer to be in the role of the DBT skills trainer, rather than the individual therapist, and later on we will be talking about the licensing risks of being the individual therapist for someone who is this disturbed.

My other set of experiences that has been relevant to this topic has been my expert witness testimony in malpractice, employment and other personal injury cases. I have noticed the remarkably high rate at which Borderlines both get themselves into the situations that will later lead to lawsuits and then become the plaintiffs in lawsuits in which they claim to have become emotionally damaged by a situation. In plenty of instances these Borderline litigants have perfectly legitimate grievances, and they have perfectly legitimate damages. In others, though, they create exaggerated claims that are fed by their pathology. For example, a plaintiff might claim to have developed PTSD from the most mundane of unpleasant, human workplace interactions. A manager raises his voice about a mistake that the Borderline-soon-to-be-litigant has made on the job, and later, in court, testimony from the plaintiff describes how, during that unpleasant interaction with the manager, she fully expected to be killed. As a result, she reports nightmares, flashbacks, hyper vigilance, and so on--hence, the PTSD diagnosis.

I observe two things about these plaintiffs once they enter the legal arena. First, they seem to be overly involved, in a very personal way with the legal process. It becomes a sort of psychodrama in which they make use of the court system to act out lifelong issues involving their good and bad internalized parental images. Second, and very much related to this issue of psychodrama, they can evoke powerful countertransferences in both the attorneys and experts who try to help them. It is not uncharacteristic for the Borderline litigant's attorney to feel, at the outset of discovery, that "I am finally going to help this unfortunate and abused victim." In sharp contrast, by the time the case gets to trial, the same attorney might feel that he or she has become the victim, as the attorney comes to loathe each and every painful interaction with his or her client. The attorney comes to dread the emotional manipulation and the infantile tantrums with which he or she must deal. Sometimes, a perfectly winnable case begins to unravel--not because of any problem with the facts, but simply because of the difficulty in managing the client. For example, you can't create a convincing claim of emotional damages if your client refuses to submit to a psychological evaluation.

To appreciate why this change comes about--with the client's own attorney going from great sympathy to great antipathy--consider the following chart which compares a hypothetical "rational" client with a client with Borderline or similar Axis II pathology with respect to various aspects of litigation:

"Rational" Borderline spectrum disorders
The world exists in shades of gray. Good people can make mistakes. The world is black and white, containing only good people and evil people.
Considers costs/benefits of suing Regardless of cost, feels must sue to "have my day in court"
Able to settle out of court Unable to settle because "my story must be heard"
Focuses on actual damages Sees damages as symbolic of a lifelong pattern of hurts, betrayals and wrongs
Will accept a reasonable financial award at the end of the case Demands the financial ruination of the defendant
Able to drop the case Must sue "to expose" the defendant and "to protect others"
Perceives the defendant as someone who failed to perform a duty and "owes me" Perceives the defendant as absolutely evil, someone who must be punished and exposed to the world
Able to cooperate with own attorney On the verge of feeling betrayed by own attorney, especially if the attorney considers compromise or out of court settlement an option.
Recognizes that the system is imperfect and must work within it Holds own attorney responsible for failures of the system to provide "absolute justice." May become enraged if attorney urges toleration of unfavorable or unsympathetic rulings by the judge.
Feels viewpoint is valid regardless of outcome of case Needs to win to validate own viewpoint
Realizes reasonable minds can disagree Anyone who disagrees is an enemy
Might feel uncomfortable suing if knows that he or she was contributory Has no awareness whatsoever of any shared responsibility, even if there was some. Blames the defendant "110%"
Provides credible testimony, expresses appropriate degree of doubt regarding facts that anyone would find cloudy Testifies with absolute certainty

br> The following example is made up from a conglomeration of several malpractice cases that involved Borderline or other Axis II plaintiffs and who either did or did not experience legitimate harm. In the example, the therapist really does do something wrong, and we can see how that fits into both the Borderline's views of justice as well as those of our regulatory boards.

A psychotherapist is a kindly, older man, quite handsome for his years. His patient is a much younger, very attractive woman. She is drawn towards his kindliness, partially because she never experienced such treatment in her family of origin where she was repeatedly sexually and emotionally abused.

As treatment continues over a period of several months, she starts bringing the psychotherapist small gifts to show her affection for him and comes to believe that she is a very special patient to him. In fact, she believes she is his favorite patient. She believes this only because he treats her kindly, and, in her experience, she would have to be someone's favorite to be treated so nicely.

One day, overcome with the love she feels for this older man and knowing no other way to express her gratitude and sense of attachment, she makes a sexual advance towards him. He is at the same time flustered, flattered and aroused. Although he knows that he never intends to become sexually involved with a patient, he weakens and allows himself to go along with her advance for a few minutes. They kiss but, before anything more occurs, he returns to his right mind and stops her. She bolts from the session. He writes her a note explaining that he has made a therapeutic mistake, that psychotherapy often brings out intense emotion and that he mishandled the situation. He explains further that she has done nothing wrong and that the events that took place should be discussed in subsequent sessions. He adds that if she feels uncomfortable discussing the matter with him, he will provide her with referrals to other psychotherapists. This note is later introduced as evidence at his malpractice trial. In fact, before she even received his letter of apology, she had contacted an attorney.

Let's look at what happened here from the point of view of the patient. She perceived the therapist to have fallen in love with her. She had fallen in love with him, largely in response to his kindness, his validation of her experiences, and his non-judgmental attitude. He allowed her to be who she really is and not to feel bad about herself. In part, he was acting therapeutically, but to a large extent, he was merely acting as he did because he was a caring, non-abusive person. She comes to believe that she is special to him, so special that they can transform their relationship from a psychotherapeutic one into a personal one. She comes to hope that they will always be together, as lovers, and that she will be able to feel as validated throughout her life as she has come to feel during her therapy sessions.

When she kisses him, she is convinced that her fairy-tale dream is about to come true. As he goes along with her, it never occurs to her that he feels emotional conflict between his own physical attraction towards her and his commitment to ethical practice. She has found ideal love, yet he is about to define what she has found as mere error of psychotherapy. Nothing, for her, could feel more degrading. When he puts a stop to their physical acting-out, she feels utterly and completely devastated and betrayed.

There is no doubt that he has made a mistake by accepting her advance, but his perception of what happened is vastly different from hers. He believes he has made a mistake. He believes it was in the realm of a painful misunderstanding between people, while she believes he intentionally, cruelly and maliciously took advantage of her. He wants to continue with treatment and to make use of these unfortunate events as grist for the therapeutic mill--as one more avenue to assist her in self-exploration. She wants revenge for the perceived abuse to which she has been subjected. She wants to pay him back, both for how he wronged her and how men have repeatedly wronged her throughout her life.

As we follow along with this example, I should also acknowledge that what happened here is made more complex by the evolving standard of care, laws and ethics codes regarding therapist patient sex. Although there is no doubt that this therapist made a mistake, our regulatory climate had elevated this mistake to that of a "capitol crime." It may seem to some that this example of a single kiss should not warrant the same degree of outrage or sanction as, for example, a premeditated effort to seduce a patient while intentionally, deviously and consciously leading her to believe that such seduction would be of great therapeutic benefit to her. Nevertheless, this therapist's actions violate the rules.

Perhaps in a regulatory climate that had not been shaped by the discovery and ultimate prosecution of multiple instances of egregious psychotherapeutic sexual abuse during the 1970's and 1980's, the unfortunate mistake that occurred between this therapist and this patient might be resolved in a reasonable, fair, humane and disinterested manner. But nowadays, this is not to be. In a regulatory climate that bends over backwards to validate those who really have been abused by their therapists, all mistakes that involve touching are deemed abusive, all such "abuse" is deemed highly damaging (and I have raised questions about the actual incidence of this harm in an American Psychologist article I published in 1992), and any attempts at rehabilitation for the therapist are deemed unconscionable because they may result in further "abuse" to another patient. We err on the side of protecting potential victims, even though that means that some number of psychotherapists, who made a single mistake that they would never repeat, may be permanently removed from practice.

This regulatory climate sets the stage for the patient to act out her need for revenge, fueled in part by her anger at having been deprived by her exploitative parents of a normal childhood. She has been abused in the past, now finds herself revictimized, and immediately is welcomed by our regulatory system that encourages her to initiate a process that might lead to severe, brutal punishment for someone who may have made a repairable mistake. The punitive, all or nothing, black and white regulatory climate, in a certain sense, replicates the punitive style of her family of origin. In that family, perceived wrongdoing was not remedied kindly, it was subjected instead to abusive attempts at utter annihilation. A lost schoolbook might result in an hour-long beating, a day without food, and being made to sleep in the unheated basement. This patient will find herself greeted with a red carpet as plaintiff's attorneys and deputy attorneys general depict her as an innocent and helpless victim of an evil, predatory therapist, and the patient will feel very familiar, based on her own childhood experiences, with the regulatory board's all-or-nothing, punitive response.

Thus, we arrive at a near perfect confluence of jurisprudence and psychopathology. This therapist is neither evil nor predatory, yet that is how his actions will be depicted. He is a human being who has made a mistake. To characterize him as evil is consistent with the black and white alternatives of idealization and devaluation that one observes in patients with Borderline Personality Disorder. Just as she suffers from the characteristic black and white thinking of the Borderline, so too does the licensing board that regulates her psychotherapist as does the plaintiff's attorney who hopes to prevail in a civil malpractice action. Our adversarial system of justice, with defense and plaintiff, right and wrong, winning and losing, perfectly recapitulate the black and white thinking that characterizes her pathology. It all comes together to provide her with a forum in which to put her family of origin symbolically on trial, a place in which her rage will be encouraged, and a place in which her primitive beliefs about people being either all good or all bad will be endorsed, along with her equally primitive belief that relationship issues are dealt with, not by compromise and resolution, but by absolute abusive annihilation. Forgiveness--something that many Borderline individuals need to learn--will not be taught in this forum.

This next chart compares the possible reality of what literally took place in my example as compared to its symbolic, exaggerated meaning for the Borderline litigant:

"Defense Version" Borderline litigant "Justice"
A kiss occurred when the patient wanted it to occur. I am the victim of a vicious sexual assault and betrayal within a trust relationship
?
Therapist made a mistake Therapist is an abuser who victimized me and abused the trust I placed in him
?
Mistakes can occur, but can be repaired after appropriate amends are made. Abusers should be mercilessly punished
?
The therapist fully appreciates his mistake and why it occurred. It will never happen again. Patients must be protected against the possibility of abuse. The therapist must never practice again.
?
Therapist should receive retraining and sanction Therapist should never practice again
?
Therapist's honesty in immediately admitting, rather than minimizing or denying, his mistake should repair some of the damage Anything the abuser says becomes irrelevant once the crime has been committed
?

br> As you can see, the patient's prior abuse history causes her to conceptualize what occurred in black and white terms. In some cases, regarding some sorts of therapeutic errors, the patient's style of conceptualization would be simply grist for the mill. The patient's feeling and beliefs would be the focus of further treatment, either from this therapist or a subsequent one. However, because this particular mistake involved a kiss, a different scenario ensues. In today's enforcement climate there is no room for therapeutic error that involves any kind of boundary crossing.

In fact, there are now cases in which non-sexual boundary issues, in female therapist-patient dyads, are being prosecuted without regard to whether exploitation or harm was either intended or was really the outcome (beyond the degree to which the complainant asserts it was). One of the characteristics of patients with Borderline disorders is their tendency to need very close attachments to their primary therapists. Sometimes, these patients demand excessive contact in the form of lengthy sessions, lengthy phone calls between sessions, and treatment that endures for years. Often, such treatment allows these patients to function productively and advance in their careers while maintaining a relatively stable home life. One of the other characteristics of such patients is their tendency to experience extreme and lasting rage reactions upon feeling betrayed. In these non-sexual boundary cases, the perceived betrayal sometimes takes the form of a change in insurance coverage, such that the patient can no longer afford to continue to see her therapist. The patient feels abandoned--even if proper steps were taken to facilitate a referral for further treatment. Cases like this are now coming to licensing boards with claims of overly close relationships between therapist and patient, a lack of proper maintenance of boundaries, and, consequently, gross negligence. Some regulatory boards seem to be blind to the fact that these patients need such close and time-intensive therapeutic relationships if they are to be treated at all. When such complaints are investigated, the treating therapist comes to appear to be someone who had a pathological need to create an overly close relationship with her client. It is fascinating to observe how a therapist's caring commitment to her patient comes to appear to be exploitative once the patient stops appreciating it.

The Date Rape Case

Let me switch gears now to talk about a different case that illustrates how useful psychological testimony can be in defending false accusations of abuse lodged by a Borderline or other Axis II patient. The plaintiff in this case was a 30 year old woman who was a member of what the defense attorney called "a very fast crowd" in Los Angeles. She was tangentially associated with the entertainment industry, with many acquaintances who used drugs (although it was unknown whether she habitually used anything other than alcohol), and with a lifestyle that, according to some testimony, included nearly nightly "partying" at a variety of nightclubs as well as exhibitionistic sex with well-known celebrities on occasion. Her stated occupation was "model," and she spent most of her days either doing aerobic exercise, watching television, or visiting with friends. The defendant was also in the entertainment industry, was about the same age as the plaintiff and was part of the same circle of friends. The defendant came from a family of extraordinary wealth--making him appear to have the kind of "deep pockets" that could make a civil suit against him worthwhile. In fact, most likely unbeknownst to the plaintiff, the defendant had no access to the family money and probably could not pay any significant damage claim should the plaintiff have prevailed.

The facts of the case were unusual in terms of how little in dispute most of them were. Both sides agreed that the plaintiff had spent the night sleeping on the couch in the defendant's living room. Both sides agreed that plaintiff and defendant had had sexual intercourse at around seven o'clock the next morning and that this occurred in the defendant's bed. Both sides agreed that at a certain point during this sexual encounter, the plaintiff told the defendant she wanted to stop and that he complied. All that was at issue were the exact circumstances under which that sexual encounter had begun.

She was claiming to have been the victim of date rape. (The district attorney had already recognized that there was insufficient evidence to move forward with a criminal case.) The defense position was that sex had been consenting, and that the plaintiff had instigated it upon entering the defendant's bedroom in the morning. In contrast, the plaintiff claimed that she had been in the midst of an alcohol induced blackout, that the defendant had dragged her into the bedroom while she was unconscious and legally unable to give consent. The plaintiff testified that she had told the defendant to stop when she awakened from her alcohol-induced blackout to discover that they were having sex. He had testified that she was a fully active participant in the sexual encounter, even to the extent of suggesting a change of position when he stated that he couldn't continue, as he was feeling bad about cheating on his girlfriend.

Much of the testimony by witnesses was unhelpful to her. She was not observed to have been drinking excessively the night before--the sexually contact occurred at 7AM the following morning, long after the plaintiff had fallen asleep on the defendant's couch--and she had been observed to behave in a fully alert and coherent manner at least a couple of hours after she had her last drink for the night. Other testimony established that her drinking that night had been similar in quantity and timing to her usual pattern when she goes out.

Two kinds of expert testimony were very damaging to the plaintiff's case. First, a forensic toxicologist testified that according to the plaintiff's deposition testimony, the police report, and witness accounts, the plaintiff had not consumed enough alcohol to deprive her of the ability to consent to sex or drive a car when the alleged assault occurred. Calculations placed her blood alcohol at the time in question in an unimpaired range, even when the most liberal estimates were made concerning her probable alcohol consumption the night before.

In addition, I offered psychological testimony indicating that I would not find it inconsistent that this woman would lie or violate the law for her personal gain. I had not set out initially to evaluate her "character." I had been retained to independently assess her degree of emotional damages, assuming that her version of the events had indeed occurred. However, my interview and testing of her had led me to conclude that she very likely had an Axis II disorder, with strong borderline and anti-social elements.

Before trial, I had assumed that my testimony would be largely superfluous. What difference would psychological testimony make when witnesses who were intimately acquainted with this woman's past would testify, in a very compelling manner, about her history of dishonesty--especially dishonesty that led to profit? Witnesses were prepared to testify about prior embezzlement, prior blackmail, other prior crimes for profit, as well as a pattern of lack of impulse control, manipulativeness and self-indulgence.

There was also deposition testimony that would call into question her contention that she had been left traumatized by the single episode of sex that was at issue in this case. For example, she had publicly given oral sex to a very famous actor at party, had told friends she was planning to seduce another by holding his hand during prayer at church, and testimony indicated that she had bragged about her expectation to become rich as a result of this case. She would not appear to the average juror to be someone who could, even under the circumstances she claimed, suffer significant trauma as a result. Her history and characteristics were not likely to win her many supporters on the jury and, at times, seemed more consistent with her as the victimizer than as the victim.

Much to my surprise, the psychological testimony turned out to be important, because most of the key testimony concerning her dishonest, self-indulgent and manipulative past and her character was excluded as being prejudicial. Thus, I found myself in the position of having psychological test data that I had reason to believe had been validated by independent sources, but I would be allowed to talk only about the psychological findings themselves while making no reference to the list of facts about the plaintiff's past that had been ruled inadmissible. The text regarding her 2-4, 4-2 MMPI-2 profile was introduced as evidence, and it basically allowed into court the very same of conclusions about the plaintiff's character that had been excluded by the judge's order regarding prejudicial testimony.

I don't really believe this testimony strongly affected the jury's verdict, but it gave them a way to place all the conflicting testimony they heard in an understandable context. It gave them a way to understand why this woman had said and done what she did and why the defense case and plaintiff's case were in conflict.