A.  What Is Therapist Abuse and Malpractice.

         i.  Basic duty of care not to harm a patient.

    A psychotherapist, under California law, owes a duty to use reasonable care in his or treatment of a patient or client. When the psychotherapist violates that duty by either acting negligently toward the patient, intentionally harming the patient, sexually abusing the patient or defrauding the patient, it is considered a breach of the duty of care and the psychotherapist is liable to the patient for all allowable damages under California law that the psychotherapist causes.

         ii. Most cases against psychotherapists involve a combination of negligent and intentional acts.

    Most psychotherapist abuse cases involve combination of negligent and intentional/sexual misconduct. This is because negligence cases without additional intentional/sexual misconduct are difficult for patients to recognize and prove.

         iii.     Pure negligence cases.

    However, there are cases in which the psychotherapist is merely negligent and his or her behavior has not risen to the level of abuse. These cases are still viable and would be considered under the law to be therapist malpractice cases. The laws that apply to therapist malpractice are identical to the laws that apply to any medical malpractice case.

    A therapist has the duty to practice up to the standard of care of the therapist’s specialty and a failure to do so is negligence, i.e., malpractice.

         iv. Unique aspects of therapist malpractice/abuse cases.

    Even though the law of a therapist malpractice case and a malpractice case against another health care provider is similar, the cases themselves can take on a very different character and therapist malpractice cases require special expertise on the part of the attorneys. This article will discuss some of the special factors involved in litigating, settling and trying therapist malpractice and therapist abuse cases.

         v.  The transference phenomenon makes understanding and litigating therapist abuse cases more difficult than other malpractice cases.

    An attorney handling a therapist malpractice/abuse case must have a thorough understanding of the critical transference phenomenon which occurs during psychotherapy. Transference will be described in more detail later; however, it essentially describes the process by which a patient in psychotherapy transfers feelings and perceptions which he or she had for people in his or her past onto the psychotherapist. This is an unconscious process and results in a situation in which the patient, without really knowing or understanding it, relates to the therapist in a similar way to the way the patient related to his or her parents or significant others in the past.

    Therapists are trained to recognize and understand the transference phenomenon and work with it to help the patient. This makes therapists different than most other health care providers. Transference exists in all relationships, but only psychotherapists are trained in its recognition and use. It puts the psychotherapist in a position of tremendous power over the patient and if the therapist is not careful, it can easily lead to a situation of abuse. This abuse, particularly if it is sexual abuse, can lead to a devastating long term injury for the patient.

    However, because of the transference phenomenon, the fact that a patient reveals to a therapist the patient’s deepest darkest secrets, and the power differential between the therapist and the patient, even negligent acts of a therapist or sexual or quasi-sexual acts sometimes included in the term “boundary violations” can also result in very serious injury to a patient with lifetime consequences.

    B.  Therapist Malpractice/Therapist Abuse and the Various Theories of Recovery.

         i.  Negligence versus other causes of action.

    Lay people, and sometimes attorneys, use the terms “therapist malpractice” and “therapist abuse” interchangeably. Technically, under California law, a therapist malpractice case would be limited to a professional negligence cause of action. In a case against a therapist involving allegations of intentional, sexual, quasi-sexual or fraudulent misconduct there would be additional causes of action (i.e., theories of recovery under the law). Additional causes of action might include:

         ►    Abuse of transference (which has elements of both negligence and intentional misconduct).

         ►    Intentional infliction of emotional distress.

         ►    Battery.

         ►    Sexual battery.

         ►    Breach of fiduciary duty.

         ►    Sexual harassment by a professional.

         ►    Breach of the California statutes prohibiting sexual conduct between a psychotherapist and a patient.

         ►    Fraud and fraud related causes of action.

         ii. Hybrid cases.

    A case involving negligence and allegations of one of the sexual or intentional causes of action listed above is sometimes called a “hybrid” case because it involves elements of negligence plus elements of intentional/sexual misconduct which are in some ways are separate and in some ways interact. It is important for the purpose of insurance coverage and avoiding the limitations on medical/therapist malpractice cases in California for a patient who has been treated negligently and abused to simultaneously pursue negligence and intentional/sexual misconduct claims. The reasons for this will be explained later.

         iii.     Ordinary negligence and premises liability.

    Also, sometimes, particularly if there has been misconduct outside of the psychotherapist’s office, it is important for the plaintiff to pursue a cause of action for “ordinary” negligence (i.e., non-professional negligence) and if there is misconduct in the defendant’s home, to plead “premises liability.” The theory behind these causes of action is that at some point in a boundary violation and abuse of transference case, a therapist steps outside of his or her role as a professional; yet, because of the prior relationship, the therapist still owes the “patient” the same duty as a professional would owe a patient. Thus, any breach of that duty in a non-professional context might be considered “ordinary” negligence. The importance of pleading ordinary negligence or a premises liability cause of action is that it may bring a homeowner’s insurance carrier into the case to provide the defendant a defense and perhaps pay all or part of a plaintiff’s settlement or verdict. Plaintiff may also be able to bring a comprehensive general liability (CGL) insurer into the case by pleading wrongful negligent acts that do not fall under the umbrella of professional negligence.

         iv. “Pleading into insurance coverage.”

    Insurance coverage will be discussed in detail later in this article, but suffice it to say that the existence of insurance coverage will normally be the only way that a plaintiff can collect a large settlement or verdict against a psychotherapist since very few psychotherapists make enough money to pay for a large verdict or settlement. Further, not infrequently, a defendant psychotherapist will go into bankruptcy during the case which creates further complications, although a patient can still recover from the insurance company of a bankrupt defendant.

    C.  The Transference Phenomenon and its Abuse.

         i.  There is some degree of transference in every relationship.

    To one degree or another, every relationship and certainly any psychotherapy relationship involves at least some transference. As previously mentioned, transference is the process by which the patient transfers onto the psychotherapist perceptions and feelings for significant others, usually parents, in the patient’s past. Transference is an unconscious process, i.e., the patient does not realize it is occurring. Significantly, this is true even when psychotherapists or psychoanalysts are being treated by other psychotherapists and psychoanalysts. There are always aspects of the transference that the patient does not understand and the therapist -- through training and experience -- understands very well.

         ii. The power of the transference.

    Transference is an extraordinarily powerful phenomenon. The therapist, essentially, becomes the parent in the unconscious mind of the patient. Further, the aspect of the patient that is transferring feelings or perceptions onto the psychotherapist is a very young, vulnerable aspect of the patient. Frequently, the feelings that are being transferred onto the therapist are long-repressed, unrecognized sexual feelings and/or a childlike need to be held, loved and taken care of.

    Although we as adults have long ago repressed many of these feelings, particularly the sexual ones and it is hard for us to believe that they ever existed, they do in fact remain in a patient’s unconscious ripe for the taking by an exploitive psychotherapist. A psychotherapist who has been trained in the transference phenomenon and understands the transference phenomenon and uses it to encourage the patient to act out on these feelings.

    Because the sexual feelings and the desire to be hugged, held and taken care of are not distinguishable in the child-like unconscious of the patient, for a therapist to encourage a patient to act on these feelings or for the therapist to step out of his or her role as a professional and engage in any type of touching with the patient (other than a handshake or a non-sexual hug at the end of a session), is considered to be professional incest.

    Experts in this field often consider the injury and damages that flow from professional incest to be worse than a situation in which a parent has sex with a child because the patient is already “injured” and is actually coming to the therapist for help, paying for help and, instead, is being exploited by somebody who has been trained to know better than to abuse the transference phenomenon.

         iii.     The importance of the extent of the transference in a therapist abuse case.

    One of the battlegrounds in a case involving therapist abuse will frequently be a disagreement over the intensity of the transference between the therapist and the patient.

    The therapist will defend the action by claiming that there was no or very little transference, while the patient will attempt to establish that there was a deep, intense transferential relationship. Experts who testify on behalf of plaintiffs in therapist abuse cases will generally hold the belief that an intense transference occurs in virtually every psychotherapy and the experts who testify on behalf of the defendants will generally hold the belief that transference only occurs to any significant degree in old-fashioned psychoanalysis.

              a.  The deeper the transference, the better the plaintiff’s case.

    Whether or not there is transference and the extent of the transference is really not a legal issue in a case -- the legal issues focus on the defendant’s conduct and not the patient’s state of mind; however, there are several reasons why a plaintiff’s case will improve if the plaintiff can establish that there was an intensive transference before or at the time of defendant’s exploitive behavior.

    The existence of intensive transference will, to some extent, help plaintiff’s case on at least the following issues:

                   1.  Jurors angry at a defendant will usually award large verdicts.

    The deeper the transference, the more despicable it is for a therapist to take advantage of the patient. Thus, proving the existence of a deep transference helps establish the heinousness of defendant’s misconduct -- the more intense the transference, the more likely a jury will become angry at the defendant and award a large verdict.

                   2.  Deeper transference negates the idea that the sexual relationship was between two equals.

    The more intense the transference, the less likely a jury will be able to find that the patient was complacent in the sexual relationship that developed.

                   3.  Deeper transference belies a defendant’s claim that the sexual relationship was consensual.

    An intensive transference will make it easier for jurors to understand why the patient could not consent to the sexual relationship. Even though under California law, consent is not a defense for a therapist in a therapy negligence claim, it can technically be a defense in a battery or sexual battery claim.

    Further, in a case in which the jurors do not believe there was a significant transference, they may find ways to “blame the victim” and hold the plaintiff responsible or equally responsible for the sexual relationship. This is one of the reasons why it is so critical that both plaintiff’s attorney and experts understand transference - - so that they can overcome the defense argument of “consensuality” by establishing the fact that defendant was in a nearly parental role with the plaintiff.

                   4.  

Deeper transference will help jurors understand how defendant’s misconduct “caused” a significant permanent injury.

    The existence of an intensive transference will help plaintiff prevail on the all-important “causation” issue in a therapist abuse case. In a therapist abuse case, it is not enough for a plaintiff to prove that the defendant committed wrongful acts. The plaintiff has to prove that the wrongful acts “caused” his or her damages.

    Causation will be found if the defendant’s misconduct was “a substantial factor” in causing plaintiff’s damages. In therapist abuse cases, by definition, the plaintiff had pre-existing psychological problems (or else they wouldn’t have been in treatment). The defense tries to point to distressing factors in the plaintiff’s past and current life as the “cause” of the injury as opposed to the defendant’s misconduct.

    The existence of a deep intensive transference allows the plaintiff’s expert to testify to the way in which the transference leaves a patient extraordinarily vulnerable and in a regressed, child-like state. It then becomes easy for the jury to understand how someone who has a sexual relationship with a person in a child-like state has exploited them and caused them severe injury. Thus, the “mechanism” of an injury will be clear to jurors.

                   5.  The more intense the transference, the more likely a plaintiff will be severely injured by its abuse.

    The existence of a deep significant transference will help a jury understand the extent of damage that is caused by the abuse of the transference. The deep injury and lack of trust that inevitably flows from abuse of an intense transference creates a situation in which the patient sometimes requires long term hospitalization and a life time of intensive therapy. Only the abuse of a deep transference will allow jurors to believe that someone will require hundreds of thousands or millions of dollars of future treatment to heal from the abuse.

         iv. Factors which tend to indicate the existence of a deep transference.

    There are several factors which will tend to indicate the existence of an intensive transference. (Please note that an intensive transference can exist without the presence of any of these factors, and the presence of these factors will not necessarily mean an intense transference will exist.)

              a.  Preexisting condition.

    The more vulnerable the plaintiff, the more likely an intense transference will exist. Generally speaking, vulnerable patients, i.e., patients with a history of severe deprivation, physical, emotional and sexual abuse or abandonment as children will form a quick and intense transference with a psychotherapist.

    Further, people who never felt loved or cared for by a parent or caregiver will form quick and intensive transferences.

    This will also be true for patients who have been abused, mistreated and abandoned as adults. A very vulnerable patient will develop a quick and intensive transference in almost any type of therapy with almost any type of therapist. Thus, if a patient is very vulnerable, one rarely has to look beyond the vulnerability for a reason why a deep transference quickly developed in treatment.

              b.  The type of treatment may determine the extent of the transference.

    It must first be remembered that transference is a subjective (i.e., internal to the patient) not an objective (i.e., the same for everyone) phenomenon. Thus, any “type” of treatment can create an intense transference. However, there are certain treatment modalities that generally speaking can create more or less intensive transferences.

    There is a continuum of treatment modality likely to produce a deep transference with three- or four-time a week for years Freudian analysis being at one end of the continuum, in which there almost has to be an intensive transference, and a psychopharmacologist who sees the patient for 15 minutes four times a year to discuss medicines and focuses only on the patient’s symptoms and not his or her underlying problems at the other end of the continuum.

    In between there are hundreds of different therapy modalities and types of therapy.

    Again, generally speaking, any therapy that focuses on a patient’s childhood issues or attempts to connect current problems to childhood issues is more likely to create an intensive transference. On the other hand, a therapy which focuses on a patient’s current issues, looking for strategies for improvement rather than focusing on the underlying problems of the patient, may be less likely to create an intensive transference. Remember, however, that given the right patient and the right therapist, an intensive transference can quickly develop in any form of therapy.

              c.  The style of the therapist.

    There are two important aspects of the style of the therapist that will influence the development of transference.

    First, some therapists work with the transference as a treatment modality while others, at least when they are sued, claim they do not. One would, at first blush, think that a therapist who works with the transference is more likely to have a patient develop an intense transference during therapy. However, the opposite may be true. A therapist who ignores the transference is leaving the patient’s inevitable transferential feelings towards him or her unanalyzed and uncontained. Thus, the patient may be developing a very deep transference which is being totally neglected and unrecognized by the therapist.

    Secondly, if the therapist’s style consciously or unconsciously reminds the patient of how the patient’s parents related to them as a child, there will likely be either an intense positive or negative transference, or both.

    D.  The Therapeutic Container, Boundaries and the Slippery Slope.

         i.  The “therapeutic container” defined.

    A useful way to conceptualize most therapist malpractice/abuse cases is to begin by understanding the concept of the “therapeutic container.” The “therapeutic container” is a term used to describe how, under normal circumstances, out-patient psychotherapy is supposed to proceed.

    That is, the therapy should take place in the therapist’s office at regularly scheduled visits for a regularly scheduled amount of time with the therapist sitting across from the patient or, in the case of some analysis, the therapist sitting while the patient lies down on a couch. The focus of the therapy should be on issues that the patient brings to the therapy and the patient’s problems. The therapy session should end with the patient walking out of the office with no physical contact with the psychotherapist whatsoever or, at the most, a handshake or in clearly non-sexual situations, a hug. There should be no business, social, work, employment, personal relationships and certainly no romantic relationship between the therapist and the patient.

         ii. The “therapeutic container” maintained.

    Therapy should be “contained” within the “boundaries” described above, and if it is, the therapeutic container is maintained and the therapist will rarely get himself or herself into trouble and the patient will be, to a large extent, protected from any potential abusive behavior of the therapist.

    Of course, therapists can commit malpractice and, under certain circumstances, abuse patients without breaking the therapeutic container, for example by initiating unrecognized psychotherapy techniques such as alien abduction therapy, evil entity releasement therapy or inappropriate hypnotherapy.

    However, the great majority of therapist abuse cases stem from some failure to maintain the therapeutic container and appropriate boundaries.

         iii.     Situations in which breaking the therapeutic container is excusable.

    There are always exceptional circumstances in which the therapeutic container needs to be broken; such as conducting therapy on the telephone if the patient is out of town and there is a therapeutic purpose to the telephone calls; a very rare visit that goes longer than scheduled if the patient is in crisis (although it is usually better to schedule another visit); a hospital visit; a visit to a trauma site to desensitize the patient as part of treatment plan and a number of other examples.

         iv. Steps that should be taken if the therapeutic container has to be breached.

    Before the therapeutic container can be breached, the following should occur:

         ►    Except in emergency situations, such as an imminent suicide or homicide, the potential breach of the therapeutic container should be thoughtfully considered by the therapist.

         ►    It should be part of a treatment plan with the goal to help the patient, and not to convenience the therapist (unless the therapist is out of town).

         ►    The potential breach should be discussed with the patient so that the patient is advised of the potential risks and benefits and the patient understands that this is not a usual therapeutic procedure or intervention.

         ►    The therapist fully considers the potential risks to the patient, such as a situation in which a patient might welcome a home visit if they are too sick to go to therapy; however, afterwards the patient might feel invaded, entitled or misinterpret the visit as erotic.

         ►    The therapist must recognize that this breach will almost inevitably make the patient feel “special” which is almost never a good thing in treatment. This is why it should so rarely be done and if it is going to be done, the therapist should take whatever steps possible to minimize the trauma to the therapy which will be created if a patient feels special and entitled.

         ►    The therapist should carefully consider what effect such a breach will have on increasing a patient’s dependency needs.

         ►    The therapist should carefully consider the effect the breach will have on the ultimate goal of most therapies which is to help the patient integrate into his or her real life and not over-focus on therapy and the relationship with their therapist.

         ►    It will generally be wise for a therapist to obtain a consultation before breaching the therapeutic container.

         v.  Boundaries versus the therapeutic container.

    The concept of the therapeutic container is closely related to the therapeutic concept of “boundaries.” However, it is a little different in that the therapeutic container conceptualizes the therapy itself while the concept of boundaries refers to the therapist’s and the patient’s relationship to each other and the outside world. Both the therapist and the patient have their set of boundaries that must be understood and respected.

         vi. Poor boundaries and poor impulse control of the therapist lead to trouble.

    Trouble usually begins in therapy when the therapist has poor boundary or poor impulse control.

         vii.     Boundaries and counter-transference.

    Just as therapists are trained in the transference phenomenon, they are also trained in the phenomenon of counter-transference. Counter-transference occurs when a therapist transfers perceptions and feelings for his or her own parents or significant others in the therapist’s past onto the patient.

    Just like transference, it is an unconscious process. Thus the therapist will have difficulty recognizing it when it occurs. However, all properly trained psychotherapists spend a great deal of their academic and clinical training, learning how to watch out for counter-transference issues and deal with them appropriately when they arise.

    Psychotherapists are trained to watch out for the warning signs of counter-transference the most significant of which are an over-positive or over-negative view to the patient. When they feel they are at risk, therapists are taught to seek immediate consultation and sometimes therapy of their own. If they cannot resolve the counter-transference issue within themselves, they should conduct an appropriate termination and referral.

    The therapist’s counter-transference issues should not be a subject of therapy between the therapist and the patient -- the patient is there to deal with his or her own issues, not the therapist’s.

    Under no circumstances should a therapist act out, verbally, physically or sexually, on his or her own counter-transference issues. A therapist who cannot control his or her impulses within a therapy setting is impaired and should not be practicing.

         viii.    When a patient has poor impulse control, they need help, not a therapist with poor boundaries.

    Unfortunately many people who grew up under disturbed circumstances, either because they were abused, neglected or abandoned, end up growing up with poor impulse control and poor boundaries. A person whose needs were not gratified as a child may have a great deal of difficulty as an adult resisting the impulse to have quick self-destruction, and sometimes inappropriate, gratification of those needs. This is frequently the central reason why patients seek treatment in the first place.

         ix. Patients with poor boundaries are vulnerable to their therapist’s abuse.

    A somewhat similar phenomenon occurs in the realm of boundaries. A child who has a poor attachment to his or her parents may develop an unhealthy need to seek quick, intense and frequently unhealthy attachments as an adult. This creates a situation in which the person will sometimes have poor boundaries because the need for attachment will overwhelm intellectual better judgment.

    Under the wrong set of circumstances, the patient will lose his or her own sense of self or not appreciate another person’s, and will sometimes futilely seek and obtain self-destructive attachments. The neediness will create a situation where the patient has poor boundaries and will not recognize and be able to respect the boundaries of others either. This will leave the patient vulnerable to the exploitation of a therapist.

         x.  Victims of therapist abuse were frequently sexually abused as children.

    Additional problems results when children are abused, particularly sexually abused, by authority figures such as their parents. In order to survive this type of abuse, the child must to some extent attempt to normalize behavior which he or she at some level knows is abnormal. After a period of time, this rationalization and normalization of the sexually inappropriate relationship becomes the child’s understanding of reality.

    When the child grows up and learns that the behavior of the authority figure was indeed abnormal or wrong, there is still a deep seated, childlike part of the adult who still needs to believe that inappropriate sexual behavior is “normal.”

    Further, the adult victim of childhood sex abuse is likely to have blamed himself or herself for the abuse and may have grown up feeling that they “deserve” to be re-abused as adults.

    Unfortunately, many of these children, if untreated, will grow up with the self-destructive, unconscious need to “reenact” their childhood abuse with adults (and sometimes, God forbid, with children). These patients may also develop serious boundary problems because they will have grown up without developing an adequate internal appreciation of what is or is not appropriate behavior, particularly appropriate sexual behavior. Thus, they will not be able to appropriately assert their own boundaries or recognize the boundaries of others in a health manner. Again, this will leave them vulnerable to abuse by a therapist.

         xi. Growing up in a “crazy” environment distorts a person’s sense of reality.

    This same phenomenon also occurs when children grow up with “crazy” parents. A child who grows up in a household where crazy, illogical and inconsistent behavior is the norm will have trouble as an adult establishing and recognizing appropriate boundaries since most boundaries are based on societal norms of what is or is not appropriate behavior and the child will have an unconscious need to either reenact the crazy behavior of his or her parents or not be able to recognize inappropriate, crazy behavior in other people.

    A plaintiff in a therapist abuse case during a deposition, when being challenged by the defense attorney on the issue of why she did not recognize that the therapist’s sexual relationship with her was inappropriate, replied “Why would you expect me to think that having a sexual relationship with my therapist was any more or less normal than the sexual relationship that I had with my father?”

         xii.     When a patient with poor impulse control treats with a therapist with the same problems, trouble can result.

    The enormous problems in psychotherapy that stem from both therapists and patients growing up with poor impulse control and poor boundaries cannot be overstated. For most people, the only way that they will ever learn to control their impulses and maintain their boundaries is to enter therapy, usually long term therapy, with a competent psychotherapist with little or no impulse or boundary problems of his or her own.

    Tragically, boundary and impulse control issues are not only the problem of many patients, but also a problem for many therapists who may be as likely as a patient to have grown up in a disturbed environment.

    In most training programs, therapists have to receive treatment and/or analysis of their own. However, the therapy in such programs is sometimes not enough because, one, the therapist’s problems run so deeply; two, the therapist received inadequate or inappropriate therapy during training; or, three, the therapist was only willing to enter into therapy as part of a training program and had no desire to change.

         xiii.    The slippery slope.

    There is no specific pattern as to how boundaries break down in a particular therapy situation; however, the process usually follows what is known as “the slippery slope” where the therapist slowly lets down his or her boundaries and moves further and further outside the therapeutic container while the patient becomes more and more enraptured, confused or dependent as the patient has his or her “transference fantasy” fulfilled.

         xiv.     Once a therapist begins the slide down the slippery slope, it is difficult to climb out.

    Frequently, the therapist will remain in the unhealthy, boundary-violated relationship for a long period of time, because of fear of hurting the patient or himself or just not being able to navigate any way out.

    Other times, the therapist will try to terminate the doomed relationship only to have the patient, who now feels dependent and abused, become rageful, threatening or suicidal. Still, other times the therapist will not terminate the relationship, for fear of what will happen to the therapist in a lawsuit, licensing board or criminal action.

    In all these circumstances, the therapist slides further down the slippery slope as the dysfunctional, harmful, destructive relationship continues.

         xv. Hundreds of variations of the slippery slope.

    There are hundreds of variations of how the therapist goes from conducting a standard of care practice to entering into an inappropriate relationship with a patient and there are many points along the slippery slope that either the therapist or the patient may terminate the relationship or stop the misconduct.

         xvi.     Typically the therapist develops a misplaced attraction to a patient.

    Typically, the therapist develops an attraction for the patient, either out of counter-transference or conscious attraction and holds the attraction inside for a period of time. Sometimes the therapist might even receive consultation.

         xvii.    Self-revelations begin.

    However, eventually the therapist begins to over-personalize the therapy relationship, frequently inappropriately revealing intimate details about himself or herself.

         xviii.   Patients pick up on the conscious or unconscious cues of the therapist.

    The patient, with or without these self-revelations, will usually, at least on some unconscious level, pick up on the cue that the therapist is attracted to the patient and, depending on the patient’s own boundaries, will either engage in a flirtatious relationship or attempt to hold his or her own boundaries for a period of time.

         xix.     Therapy turns to talk of sexual fantasies and acting out on these fantasies.

    Next, there is usually either some variation of the expression of sexual fantasies and feelings of the patient to the therapist, the therapist to the patient, or both or the beginning of physical contact which can include: the therapist sitting next to the patient or vice versa; the patient laying down with his or her head in the therapist’s lap; long passionate hugs at the end of therapy; the patient sitting in the therapist’s lap; or in the more “heated” situations, oral, manual or genital intercourse soon after the touching begins.

         xx. Foreplay may be slow or fast.

    Many times there is a quick escalation of the physical and sexual touching climaxing in intercourse while other times, the erotic talk or the petting and kissing goes on for a long period of time without any actual intercourse.

         xxi.     Frequency of sexualized therapy and touching can vary.

    Sometimes it occurs every session, sometimes every other session or even less frequently.

         xxii.    Sometimes the therapist and sometimes the patient begins the sexual contact.

    At times the therapist initiates the physical/sexual contact, at other times the patient. In either situation, it is the therapist’s responsibility to hold the boundaries and not allow the sexual touching to occur.

         xxiii.   The slippery slope leads to multiple violations of the therapeutic container.

    As the therapist travels down the slippery slope, the therapeutic container is frequently violated in additional ways. For instance, sessions will go longer and the patient will just “drop in” for sessions. A part of the relationship or the entire relationship may move outside of the therapy office into discrete meetings in private or public places, meetings in the home of the patient or therapist, or both, or motels or hotels.

         xxiv.    Therapy sessions become polluted.

    The therapy sessions themselves will contain relatively little truly therapeutic content, although on many occasions there is at least an attempt to continue real therapy. Generally if therapy sessions continue, the focus will be on, at first, usually positive, and eventually, negative aspects of the inappropriate sexual relationship.

         xxv.     Telephone contact sometimes picks up.

    Telephone calls become more frequent, last longer and are generally untherapeutic as the patient’s dependency on the therapist increases and the patient’s ability to “live without” the therapy increases.

         xxvi.    Ending of formal treatment is illusory.

    Sometimes the therapy is stopped just before or after the physical relationship begins; however, only very rarely is the therapy stopped before the therapist begins the slide down the slippery slope and commits boundary violations.

         xxvii.   

Multiple dual relationships follow.

    Not only will there be the dual relationship of therapist/patient and friend/lover but frequently a business relationship will begin and either the therapist or patient will begin to help the other with their business expertise.

    For instance, a patient who owns an art gallery may help the therapist sell his or her paintings. A therapist who is good at investment will start investing money for the patient.

         xxviii.  Informal treatment replaces formal treatment.

    Even if formal therapy has ended, an informal form of therapy will continue because the therapist and patient never really extinguish their roles and after the patient’s transference fantasy crashes, and it almost always crashes, the patient becomes in acute need of help, i.e., therapy, and the abusing therapist is at first there to provide advice, sometimes medication, sometimes suicide intervention and he or she will use therapeutic techniques to attempt to lessen the patient’s rage and anger.

    Despite the fact that the therapist has lost all objectivity, rarely will the therapist attempt to refer the patient to another objective therapist for risk of getting caught. If a referral to a truly neutral therapist is made, the patient will be sworn to secrecy about the relationship with the therapist which, of course, will be the main subject on the patient’s mind and the main reason the patient needs therapy so therapy will be fruitless.

    More often, when a referral is made, it is made to a buddy of the defendant therapist whom the defendant therapist hopes will discourage the patient from taking any action against the therapist.

         xxix.    The patient’s dependency becomes too much for the therapist to bear.

    Most frequently, this slide down the slippery slope ends when the therapist can no longer handle the overwhelming dependency that the patient has on the therapist which, of course, was created by the therapist through the numerous boundary violations. This may happen shortly after the inappropriate relationship begins or sometimes many years later after living together and, occasionally, after a marriage and divorce.

    E.  Differences in the Cases Depending upon Whether the Therapist Is a Psychiatrist, Psychologist, Licensed Social Worker, MFT or Unlicensed.

         i.  Cases against licensed clinical psychologists, MFTs and LCSW’s are similar.

    There is almost no difference in a therapist abuse/malpractice case if the therapist is a psychologist, LCSW or MFCC (MFT). All of these specialties aspire to a similar standard of care, with only very slight variations and all have malpractice insurance readily available to them.

         ii. Cases against psychiatrists and psychopharmacologists may be different because there may be medication involved and they have medical training.

    Cases against psychiatrists and psychopharmacologists (psychiatrists who specialize in medication) may be different for the reason that medication may be involved, and they may be held to a higher standard of care to recognize “medical” problems because of their medical training.

              a.  How medication makes a plaintiff’s case different.

    The existence of medication in a case is usually helpful from a plaintiff’s point of view for a number of reasons. First, it increases the power differential between the psychiatrist and the patient. Secondly, the psychiatrist has within his or her power the ability to alter the patient’s symptoms and inhibitions and create a chemical dependency which can have enormous effect on the transference itself and can either add to a further destabilization in a patient, making the patient more vulnerable to a psychiatrist’s boundary violations, or alleviate the patient’s symptomatology, making the patient grateful and dependent and, once again, making them vulnerable to the psychiatrist’s boundary violations.

              b.  Medications rarely stops with the end of formal therapy if a personal relationship develops.

    In cases in which the patient is being medicated and formal therapy ends, rarely will the psychiatrist stop medicating the patient during the personal relationship.

    Under the law, a physician cannot prescribe medications to a non-patient; therefore, in the civil case or licensing board action, the psychiatrist is forced to either admit that the plaintiff remained his or her patient during the time of medication or admit to a violation of the law.

    The existence of the medication and thus a presumption of treatment will frequently extend the statute of limitations and extend the period for potential insurance coverage and covered claims. Further, medication should not be prescribed outside of the context of formal therapy where it can be properly monitored, and should not be prescribed when the therapist has lost his or her objectivity, so the dispensing of medication provides proof of clear acts of negligence.

              c.  Psychiatrist will be held to a higher standard of care in terms of recognizing medical problems.

    The standard of care in terms of therapy and boundary violations is the same for psychiatrists and psychopharmacologists as all other licensed therapists.

    However, psychiatrists, because of their medical training, will be expected to be more aware of medical conditions that can create symptoms which mimic psychological symptoms such as thyroid problems, subtle seizure disorders and other brain disorders.

         iii.     Problems that can arise when a therapist is unlicensed.

    Multiple problems exist in a case in which the therapist is not licensed. This frequently occurs when therapy is performed by clergy members, alcohol and drug rehabilitation counselors, sexologists or many of the other people who bill themselves as “psychotherapists” or “counselors: or “hypnotists.”

    These unlicensed “therapists” rarely have any money to pay a significant settlement or judgment and are rarely insured, at least with a malpractice policy. Thus, the only way to have a potential for recovery of damages when they are guilty of negligence or abuse occurs if they are working for a clinic, hospital or rehabilitation center which is either insured or has significant assets.

    However, to prevail on an abuse case against the employer of an unlicensed therapist, one must prove that the therapist’s conduct was in the course and scope of their duties which can be difficult in a case of sex abuse, that the employer negligently hired, monitored or retained the therapist.

    Another problem with unlicensed therapists is that they will frequently defend the case by stating that there is no “standard of care” applicable to their practices since their practices are unregulated. In these situations, plaintiffs have to establish that even these unlicensed specialists have to follow some basic standards and are responsible for the negligent and intentional injury to their clients or patients.

    F.  The Civil Case, the Licensing Board Action, and the Criminal Case.

         i.  Civil and licensing board actions can be brought in all states; criminal actions may be maintained in some states.

    In every state a victim of therapist abuse/malpractice may bring a civil lawsuit seeking monetary damages against the perpetrator and, in addition, can file a complaint with the state licensing board(as long as the therapist has a license).

    In some states therapist sexual abuse is also considered to be criminal misconduct and a victim may be able to file criminal charges.

         ii. In California, a therapist abuse victim can bring a civil, licensing board and criminal case.

    In California, a therapist abuse/medical malpractice victim can bring a civil case as long as the case is brought within the statute of limitations period (see the Statute of Limitations section below), and also is entitled to initiate a complaint with the medical board if the therapist is a psychiatrist or clinical psychologist, or with the Board of Behavioral Sciences if the therapist is an MFCC, MFT or LCSW.

    Further, if the abuse includes sexual touching during therapy or the therapy is terminated by the therapist for the purpose of engaging in a sexual relationship with the plaintiff, the victim can file a complaint with the local police or district attorney and attempt to have a criminal case initiated against the therapist.

         iii.     Pursuit of a civil, licensing board and criminal case will have different consequences for the defendant though they are interrelated.

    Each type of action -- civil, licensing and criminal -- has a different set of consequences for the defendant, although all three actions can be to some extent interrelated. Further, the rights and potential financial recovery of the victim can be affected either positively or negatively if the victim proceeds in any combination of the three cases or just one.

         iv. The civil case.

    In a civil case, the malpractice/abuse victim is called a “plaintiff” and the plaintiff brings his or her own case seeking money damages against the therapist who becomes the “defendant” in the case.

    In the broadest sense, there are only three possible results in a civil case: the plaintiff can win the case at trial or at arbitration and be awarded a verdict; the plaintiff can lose the case; or the case can settled for an agreed-upon amount of money. If the case goes to trial or arbitration, the judge, jury or arbitrator’s only power is to award the plaintiff money or not award the plaintiff money. The verdict or award, in and of itself, cannot punish the defendant in any other way.

    However, as part of the settlement of a civil case, the parties (the plaintiff and defendant) can agree to non-monetary terms which can affect the future lives of the plaintiff and the defendant. There are hundreds of non-monetary terms and conditions that can be included in a settlement agreement. Thus, the settlement of a civil case increases the plaintiff’s and defendant’s potential to control both the monetary and non-monetary outcome of the case.

    For instance, in a therapist abuse case, the defendant will normally want to condition the payment of money on some type of confidentiality agreement from the plaintiff. Less common, but in the category of “it doesn’t hurt to ask,” the plaintiff may seek an agreement from the defendant to not practice any more or to not treat women any more (the enforceability of this would be somewhat questionable). Further, settlement agreements can contain “stay away orders,” or agreements that the defendant will obtain therapy.

         v.  

The licensing board action.

              a.  Two ways that a licensing board action can be initiated.

    Licensing board actions can be initiated in two ways. First of all, the victim can file a complaint with the licensing board, hoping this will trigger an investigation and the eventual filing of charges against the therapist by the Attorney General of the State of California.

    Second, any settlement over a certain amount of money must be reported to the licensing board by the therapist’s insurance company or by the therapist. In the case of psychiatrists, any settlement over $30,000 must be reported and in the case of all other licensed therapists, a settlement in excess of $10,000 must be reported.

    Once the settlement is reported, the licensing board will usually conduct an investigation of the underlying case and decide, with the attorney general’s office, whether or not to bring charges against the therapist.

              b.  Report of large settlement is likely to get the licensing board’s attention.

    In most cases, if there is a significant settlement, the report of the settlement is more likely to get the licensing board’s attention than a complaint sent by the therapist abuse victim.

              c.  The licensing board action belongs to the licensing board and not the victim.

    It is essential for a therapist abuse victim to realize that unlike a civil case seeking monetary damages, the licensing board action is not the victim’s case. The licensing board action will be entitled “Medical Board of California vs. Dr. Smith” or “Board of Behavioral Science Examiners vs. Mr. Smith.”

    The case will focus on the licensing board’s effort to protect the people of California by trying to take some kind of action against the therapist’s license because the therapist is a potential danger to other patients.

    The case is not meant to compensate the patient for the patient’s losses (although there may be a small payment of restitution) and it is not meant to “right the wrong” done to the victim (although, to some extent, it might have that effect).

              d.  Like civil cases, most licensing board actions are settled short of hearing.

    Most licensing board actions are settled between the licensing board and the therapist and those that are not go to a hearing. The decision at the hearing can be appealed.

              e.  The power of the licensing board.

    There are many different actions that can be taken by the licensing board against the therapist. These include: a warning, suspension of the therapist’s license for a period of time, conditions put on the therapist’s ability to practice for a period of time or indefinitely (such as no longer being allowed to see patients of a given gender or patients under a certain age or a limitation of seeing patients only in a clinic setting with monitoring) or permanent revocation of the license to practice psychotherapy.

              f.  Possible outcomes of a licensing board action.

    At times a therapist will settle the licensing board action for a lesser license limitation than the therapist fears might be handed down at a hearing. At other times, the matter will go to a hearing and an administrative judge will decide the fate of the therapist’s license. In cases in which the licensing board is seeking a permanent revocation of a license, the therapist has little incentive to settle. These are the cases that usually go to a hearing.

    The licensing restriction that the licensing board will settle for under a given set of facts changes from time to time. In recent years, the boards have been fairly aggressive in pursuing and insisting on severe license restrictions and sometimes revocation in cases of sexual abuse of patients. If there is more than one known victim and/or the therapist has already been sanctioned by the licensing board in the past, the board will take much harsher action.

              g.  Limitations on discovery in licensing board actions.

    Unlike a civil case in which both sides are allowed to conduct an almost unlimited amount of discovery about the other side’s case, licensing board actions involve almost no discovery beyond the allegations of the patient.

              h.  The patient plays little role in the licensing board case.

    The patient, who is not represented by the licensing board, can choose to hire an attorney to help monitor the proceedings; however, after an initial interview and statement taken by a licensing board investigator, the patient plays very little role in the case unless and until there is a hearing, in which case the patient will testify.

    Victims who pursue licensing board actions are sometimes frustrated not only by their belief that the therapist “got off easy” but more frequently by the loss of control that they feel since they are not normally represented in the proceeding and have little say as to what will occur in the case, particularly a settlement.

         vi. The criminal case. 

    As mentioned previously, a criminal case can also be initiated against the therapist in some circumstances. A criminal case can only be brought if there was sexual touching that occurred during the therapy or the treatment was terminated by the therapist to initiate the sexual relationship with the patient.

    Criminal prosecution of therapists for sexually abusing patients has been rare in California. Police departments and district attorneys offices seem to have a hesitancy in trying to prosecute cases which may look “consensual” to an unsophisticated observer. They are more likely to act when physical force is involved.

    Further, the standard of proof in a criminal case is “beyond a reasonable doubt” as opposed to “clear and convincing evidence” in a licensing board action and a mere “preponderance of the evidence” in a civil case. If the therapist denies the sexual misconduct or invokes his right not to testify under the Fifth Amendment, a district attorney may feel that the victim’s testimony alone without some physical proof or eyewitnesses to the sexual abuse, may not carry the prosecutor’s burden of proving the misconduct beyond a reasonable doubt.

    Just as in a licensing board case, the criminal case does not belong to the victim, it belongs to the People of California. Even more than in licensing board actions, victims frequently feel frustrated attempting to pursue criminal charges since they are so infrequently filed and police officers and district attorneys (as opposed to the licensing board investigators) are unsophisticated and usually untrained in the dynamics of therapist sexual abuse.

         vii.     A patient should seek the advice of an attorney before initiating any action against the therapist.

    Before deciding how to proceed in any or all of the potential actions, the patient should seek the advice of an attorney who specializes in therapist abuse cases. Although the cases are separate, each case will impact significantly on the other cases.

         viii.    How the different case have an impact on each other.

              a.  Presence of a criminal case reduces the likelihood that a therapist will admit to sexual abuse.

    First of all, the presence or threat of criminal case will make it far less likely that a therapist will admit to the sexual misconduct or at least admit that the misconduct occurred during therapy.

    This could put a tremendous burden on the plaintiff’s civil case if there are no eyewitnesses or evidence that the sexual misconduct and other claimed acts of negligence and abuse occurred.

              b.  Threat of a criminal case increases the likelihood that the defendant will take the Fifth.

    Secondly, because of the threat or existence of a criminal prosecution, the therapist is allowed to assert Fifth Amendment rights and not testify at all in a civil case until there is no longer any possibility of criminal prosecution.

    This can either cause a delay in the civil case and the existence of one-sided discovery, where the defendant is able to discover everything about the plaintiff’s case while the defendant does not have to reveal any information about his or her case.

              c.  

Presence of a criminal case reduces the chances of insurance coverage.

    Further, the existence of criminal charges increases the risk that a plaintiff will not be able to have their verdict or settlement paid by the therapist’s insurance company.

    Although a sophisticated attorney will plead causes of action for non-sexual negligence in a therapist abuse case, in California, it is illegal to provide insurance to a therapist, or actually anyone, for criminal misconduct.

    In all therapist abuse cases, the therapist’s insurance company will seek to avoid paying any verdict or settlement based on the therapist’s intentional and sexual misconduct. The chances of the insurance company prevailing are increased if it can establish that all, or the great majority, of plaintiff’s damages flow from criminal, non-insurable misconduct.

    Further, as will be discussed below in section ix, c, if the therapist has a “claims made” insurance policy, it is essential that a damage claim is made before defendant drops coverage. Therapists who believe they may lose their license may not be willing to renew their insurance.

              d.  Effect of the pressure of an ongoing license board action on a plaintiff’s civil case, generally.

    If a victim brings a licensing board action before or at the same time he or she brings a civil case, the existence of the licensing board action will effect a therapist’s willingness to settle and the intensity of the attack on the patient in a civil case.

              e.  Existence of licensing board action usually has a negative effect on therapist’s willingness to settle a civil case.

    In most therapist abuse cases, the therapist is far more concerned with protecting his or her license and ability to make money in the future than with how much money an insurance company pays the plaintiff and even how much money the therapist has to pay the plaintiff out of pocket in a civil case.

    If the patient has put the therapist at risk by putting his or her license at risk, the therapist might feel that it is not worth settling with the patient because the therapist might have a better chance of prevailing at a jury trial than they will at a licensing board hearing (although a therapist’s victory in a civil case does not preclude the licensing board from taking action, it may discourage the licensing board from taking action).

              f.  Pressure of a licensing board action will increase the attack on the plaintiff in the civil case.

    Further, as mentioned earlier, a therapist in a licensing board action is only able to conduct a very limited amount of discovery of the plaintiff’s case to defend himself or herself. On the other hand, in a civil case, the defendant has a wide latitude in the amount of discovery that can be conducted in terms of very long depositions and requests for production of documents and other discovery techniques aimed at calling the plaintiff’s credibility into question. The therapist can use all of the evidence in the civil case for his or her defense in the licensing board action. Plus, all of this will be funded by the therapist’s insurance company, while most insurance policies do not provide defense costs, or only limited defense costs in a licensing board action.

              g.  Effect of a licensing board or criminal action on the statute of limitations in a civil case.

    Another reason not to pursue a licensing board or criminal action before a civil case is that the statute of limitations, i.e., the period in which a civil case must be filed, continues to run while a licensing board or criminal action is being pursued.

    In other words, the filing of a criminal or licensing board complaint does not “toll” the statute of limitations,, i.e., or stop it from running in a civil case.

    Licensing board actions almost always take a long time to conclude. The licensing boards and the attorney general’s offices are always understaffed and overworked. Thus, if a victim waits for the licensing board case to conclude, or even for the board or the district attorney to decide whether to pursue a licensing or criminal case, the victim may, and usually will, run out of time to bring the civil case. (See section M below.)

    The single most damaging piece of evidence on the issue of the statute of limitations in a civil case is a licensing board complaint that is filed more than a year before the civil complaint is filed. It is close to impossible for a victim to claim a lack of knowledge sufficient to stop the statute of limitations from running in a civil case once the plaintiff has filed a licensing board complaint.

    Licensing board complaints invariably indicate an acute awareness of the misconduct of the defendant and almost without exception indicate an awareness of the injury caused by that misconduct.

    An unfortunate number of victims do not consult a civil attorney until after they have filed a licensing board complaint or even worse, until after the licensing board has completed its case. This can doom the plaintiff’s civil case to failure on the statute of limitations.

              h.  Benefits versus risks of waiting to bring a licensing board action or criminal complaint before a civil case.

    The benefits of bringing a licensing board or criminal complaint before a civil lawsuit all deal with the issue of proof.

                   1.  Licensing board can obtain records of other patients.

    The licensing board, in particular, may be able to access information involving other patients and past complaints that a plaintiff may not be able to obtain in a civil case. This information could obviously be helpful in pursuing the case.

                   2.  Licensing board and police can tape record conversations.

    Further, and more significantly, in the right situation the licensing boards and police are entitled to obtain a warrant to conduct legal secret recordings between the patient and the therapist.

    The licensing board and the police can be granted the power to wire a patient who could then go into the therapist’s office or home and attempt to induce a confession or record a telephone call between the therapist and the patient with the patient’s permission, again attempting to induce a confession or at least evidence of sexual impropriety.

                   3.  Secret recordings are particularly helpful when a plaintiff lacks credibility.

    The times when this type of intervention are most useful in a plaintiff’s civil case are when the plaintiff, for one reason or another, may lack credibility and the therapist will be highly credible.

    A plaintiff’s credibility problem, more often than not, is no fault of his or her own. Most often in therapist abuse cases, the credibility problem will stem from the plaintiff suffering from a severe personality disorder, psychosis or some other problem that puts their ability to perceive reality into question.

    Also problematic for a plaintiff’s credibility may be a history of multiple claims of sexual abuse as an adult, multiple lawsuits and questionable disability claims and/or a serious drug, alcohol or criminal history.

    In situations in which a plaintiff’s attorney feels that the plaintiff’s credibility may be seriously at risk and there is enough time to pursue a medical board or criminal investigation before a civil case has to be filed, it may be wise for a victim to pursue such an investigation.

                   4.  Secret recordings will only work if the therapist and patient are still talking.

    Obviously, any surreptitious recording will only work if the patient and therapist still have a relationship in which the therapist would not be overly suspicious of a telephone call, home or office visit.

    Thus, the strategy of bring a licensing board or criminal case before a civil case for the purpose of gaining evidence of a taped confession can only be utilized in limited circumstances -- usually when the relationship between the therapist and patient is still “fresh.”

         ix. Generally it makes the most sense to pursue the civil case first.

              a.  There is no statute of limitations in licensing board cases.

    The wisest decision in almost every therapist abuse case is to pursue the civil case first. The criminal case will rarely be successful and the licensing board action can, and in almost every case will be, brought after the civil case is resolved. There is no statute of limitations on licensing board cases and in many ways, the plaintiff in a civil case is helping the licensing board by performing discovery and collecting information that the licensing board would not be entitled to receive in its own case.

    Although there are probably some situations in which a therapist is such an imminent danger to other patients that a licensing board action should be maintained at the same time as the civil case; in a great majority of cases, once a therapist has been sued and endured the emotional and financial stress of a civil case, then he or she will not be a repeat offender.

              b.  Atomic warfare can be avoided by bringing the civil case first.

    The threat of a licensing board action is one of the key pieces of leverage that the plaintiff may have in a civil case against the therapist, although a plaintiff is not allowed to threaten a licensing board or criminal action to gain an advantage in a civil case. A plaintiff, who is at risk in a civil case because, for instance, of statute of limitations, credibility or insurance coverage problems, will need all of the leverage that they can get.

    At times it can be like atomic warfare with the plaintiff holding the bomb of being able to annihilate the therapist’s ability to practice in the future, while the defendant may hold the bomb of being able to have plaintiff’s case dismissed because of a failure to comply with the statute of limitations or to win the case against the plaintiff because of a lack of plaintiff’s credibility and proof problems. Further, defendant can impede plaintiff’s efforts to achieve a settlement or collect a judgment from the defendant’s insurance company.

              c.  Plaintiff can have their cake and eat it too by bringing the civil case first.

    From the plaintiff’s point of view, the beauty of the strategy of not filing a licensing board complaint immediately is that it will help achieve a better and quicker settlement and any significant settlement will be reported to the licensing board anyway. The higher the settlement, the more likely the licensing board will be to conduct a thorough investigation and the more likely the licensing board will be to take action against the therapist’s license since a high settlement number indicates likely misconduct.

              d.  Plaintiff may choose not to pursue the licensing board aggressively after a settlement.

    Further, if the plaintiff believes that the therapist has learned his or her lesson, or at least will not commit sexual misconduct against another patient, the plaintiff retains the choice of whether or not to push the licensing board case aggressively.

              e.  Why the strategy of filing the civil case first usually works.

    If the settlement will be reported and the licensing board can take action with or without the cooperation of the victim, why does waiting to file a licensing board action until after the civil case is concluded give a plaintiff leverage for settlement in the civil case?

                   1.  The therapist’s attorney will try to obtain a confidentiality agreement and limit plaintiff’s ability to cooperate with the licensing board.

    May the defendant demand a confidentiality clause in a settlement agreement? The answer is somewhat complicated; however, it begins with the non-monetary terms that can be included in a settlement agreement. It is the thinking of most attorneys who defend therapists in civil and licensing board cases in California that they can, under the law, before agreeing to pay a sum of money, insist on a plaintiff signing a confidentiality agreement which will prevent the plaintiff from speaking to virtually anyone about the plaintiff’s relationship with the therapist or the subsequent litigation.

    As to the licensing board, the defense attorneys take the position that they can have the plaintiff agree to not report the case to the licensing board and to not cooperate with the licensing board unless ordered to do so by a court, i.e., usually a subpoena.

                   2.  The squeaky wheel gets the grease.

    There is no law in California specifically on this issue and there are many who believe that such an agreement is not enforceable. However, for a therapist already in deep trouble for sexually abusing a patient, this type of agreement is better than nothing since normally there is a “liquidated damage” clause in a settlement agreement by which the plaintiff will have to pay a hefty penalty, sometimes as much as the entire share of the settlement, for a breach of the confidentiality and licensing board provisions of the settlement agreement. Further, the therapist’s attorneys believe that “the squeaky wheel gets the grease” and if they can stop the plaintiff from aggressively pursuing a licensing board action against their client, the busy board will go on to other matters.

                   3.  The non-cooperation strategy is no longer as effective.

    In reality, the “non-cooperation with the licensing board unless court ordered” clause in a settlement agreement is far less effective than it used to be.

    Before a recent change in Calif