Expert Witness Blog

Dr. Martin Williams has twenty years experience as an expert witness on the standard of care in therapist-patient sex and other ethics matters involving psychologists, clinical social workers, marriage and family therapists, and psychiatrists. In Therapist-Patient Sex Twenty Years Later: A View From the Courtroom, the psychology expert witness writes:

One of the most significant changes over the years has been the advent of malpractice attorneys becoming knowledgeable about non-sexual boundary violations. Indeed, a specialty of lawyers has emerged-lawyers who sue psychotherapists-and these attorneys tend to know more about the ethics codes and practice guidelines of the American Psychological Association and other relevant professional organizations than many, if not most, of the professionals belonging to these associations. These attorneys file suits over non-sexual boundary violations-non-sexual touching, excessive self-disclosure, sessions outside the office, and non-sexual multiple relationships. A lawsuit against a psychotherapist for a non-sexual boundary violation was unheard of twenty years ago.

One very significant causal factor in the rise of lawsuits over non-sexual boundary violations was the termination or limitation of professional liability coverage for sex claims. One of the reasons attorneys took on the earlier cases of therapist-patient sex was the profit motive. Therapist-patient sex cases would reap million dollar or even multi-million dollar awards for plaintiffs. Large attorney fees came to an end when the malpractice insurers, who typically wrote policies with million dollar or higher coverage limits, recognized that therapist-patient sex was not a reasonable risk of psychotherapy, was not part of psychotherapy, and, consequently, did not need to be covered as part of the malpractice policy. Most malpractice policies today have a coverage limit of $25,000 for damages resulting from therapist-patient sex.

Dr. Martin Williams has twenty years experience as an expert witness on the standard of care in therapist-patient sex and other ethics matters involving psychologists, clinical social workers, marriage and family therapists, and psychiatrists. In Therapist-Patient Sex Twenty Years Later: A View From the Courtroom, the psychology expert witness writes:

In the current era, the patient, like the therapist, is probably aware that sexual behavior in the context of psychotherapy is considered unacceptable. Patients are more sophisticated today. They have likely read newspaper or magazine articles about therapist-patient sex or heard discussions on television talk shows, and are aware of the low regard with which the psychotherapy professions greet this behavior. Because no scientific methods of survey research can possibly determine how many unreported cases of therapist-patient sex exist, the following is my own unsubstantiated speculation. Therapist-patient sex, when it occurs, is more likely to be reported today than in the earlier era because patients are more likely to know that it is a licensing violation. Nowadays, I suspect there are far fewer victims of this practice who, believing themselves to have been harmed by the sexual relationship, elect to go off and suffer in silence without filing a licensing complaint. For one thing, in California, any subsequent therapist who treats a victim and learns of a prior instance of therapist-patient sex is required by law to provide a pamphlet that describes courses of legal and professional action that are open to the victim.

In an unusual case about which I testified at a California Board of Psychology hearing, the female patient intended, for whatever psychological reason, to have a sexual relationship with her male psychologist. She was knowledgeable about the laws and actually went to an attorney and attempted to draw up papers that would make it impossible for her later to sue or file a licensing complaint. Her purpose in creating this document was to reassure her intended sex partner, her therapist, that he could proceed without fear of subsequent repercussions. She was unable to find an attorney who would draw up such papers and was apparently legally unable to waive those rights. Ultimately, the two did become sexually involved, and she did later file a licensing board complaint.

Dr. Martin Williams has twenty years experience as an expert witness on the standard of care in therapist-patient sex and other ethics matters involving psychologists, clinical social workers, marriage and family therapists, and psychiatrists. In Therapist-Patient Sex Twenty Years Later: A View From the Courtroom, the psychology expert witness writes:

Despite the current ethics and enforcement climate-a climate that can best be described as zero tolerance for sex with patients-cases of therapist patient sex still occur. But while the cases continue to arise, they are different in certain regards from the earlier cases that came to light in the 1970’s and 1980’s. What follows is a description of some differences I have observed in my own consulting practice between therapist-patient sex as it occurred in the earlier, more naive era (let’s say, before 1980) and the current era (let’s say after 1995). One caveat is that numerous types of sampling error and bias are built into any such first-person account. I hope to provide illustrative examples that might lead to further discussion, and I acknowledge this is by no means a scientific survey.

In the earlier era, the therapist could convince himself-the male pronoun is used intentionally because most of the offenders were men-that the sexual behavior might be a helpful part of treatment. I believe that some, if not most of the offenders, who pitched this line to their female patients, actually believed it themselves. They told their patients that the patients needed to open up to intimacy, needed to overcome their fears regarding their sexuality, needed to break out of their shells, needed to learn body-acceptance, trust and so on.

In March the Arizona Supreme Court upheld the constitutionality of a 2005 law establishing minimum qualifications for medical liability expert witnesses who testify in. The court rejected arguments from the state trial bar that it was up to the courts — not lawmakers — to set rules governing expert witness testimony and that the statute violated the separation of powers between the legislature and the judiciary. The opinion states:

Although we maintain plenary power over procedural rules, we do not believe that power precludes the legislature from addressing what it believes to be a serious substantive problem — the effects on public health of increased medical malpractice insurance rates and the reluctance of qualified physicians to practice here — by effectively increasing the plaintiff’s burden of production in medical malpractice actions.

Amednews.com reports: “Because Arizona’s constitution prohibits any type of cap on damages in liability cases, “this is a very important decision for us,” said Chic Older, Arizona Medical Assn. executive vice president.