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COURT OF APPEALS DECISION DATED AND RELEASED APRIL 30, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2845-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
DEBRA A. LUDKA,
Plaintiff-Appellant,
v.
JANET O'BRIEN-BRICK,
F/K/A JANET O'BRIEN
and
SACRED HEART HOSPITAL,
Defendants-Respondents,
------------------------------------------------------------------------------------------------------------------------
PATRICK J. BRICK,
Plaintiff-Appellant,
v.
JANET O'BRIEN-BRICK,
F/K/A JANET O'BRIEN
and
SACRED HEART HOSPITAL,
Defendants-Respondents,
WISCONSIN HEATH CARE
LIABILITY INSURANCE
PLAN,
Defendant.
APPEAL from judgments of
the circuit court for Eau Claire County:
GREGORY A. PETERSON, Judge. Reversed
and cause remanded.
Before Cane, P.J., LaRocque
and Myse, JJ.
PER CURIAM. Patrick Brick and Debra Ludka appeal
summary judgments dismissing their negligence claims against their former
therapist, Janet O'Brien-Brick, and her former employer, Sacred Heart Hospital,
and its insurer.[1] The trial court ruled that the statute of
limitations had expired. Because
disputed issues of fact preclude summary judgment, we reverse and remand for further proceedings.
Patrick and Debra, two
former clients, filed separate lawsuits against Janet. Because the suits involved the same
defendant and overlapping facts, the actions were consolidated for trial
purposes. The record before us consists
of affidavits, portions of depositions, medical records and learned treatises
submitted to the court on summary judgment.
From this scanty record, we glean the following.
FACTS
After Patrick's wife died at age forty from
cystic fibrosis in January 1991, he sought grief counseling at The Healing Place,
a free service of Sacred Heart Hospital.
Janet, who has a degree in guidance and counseling from UW-Stout, was
employed by Sacred Heart at The Healing Place from 1989 to August of 1994, and
provided counseling services to Pat.
The last day she counseled Pat at The Healing place was October 23,
1991.
Debra claims she also
received grief counseling services from Janet between March 1990 and November
25, 1991, relative to the recent death of her father and childhood abuse. Her last appointment at The Healing Place
was September 16, 1991. At her
deposition, Debra testified:
"After some time—I'm not sure how long of a time span, but Janet
would call me on the phone, and we would discuss her problems as well as
mine. Counseling then ended up taking
place at her home, and that went on for some time." The time frame of the counseling at Janet's
home is unclear.
Debra met Patrick at The
Healing Place. After Patrick's wife
passed away, he needed someone to help care for his two young sons. Debra was looking for a job, and Janet
arranged for the two to meet. Debra
worked for Patrick from the fall of 1991 until the spring of 1992. Patrick and Debra met during the same time frame
that Debra's telephone calls and home visits with Janet started. Debra would also stay overnight at Janet's
house "quite a few times a week."
Debra testified: "At the
beginning I ended up staying with Janet because she thought it was best, and
then I moved in with all my stuff into Pat's house." After Debra's last appointment at The
Healing Place, Janet referred Debra to Midelfort Clinic.
At his deposition,
Patrick testified that within days of his final visit to The Healing Place,
Janet came to his house, saying that she was looking for Debra. He testified that he was really surprised by
this contact from Janet. Shortly
thereafter, he, Janet and Debra went to a movie together. He testified that Janet became interested in
him romantically, and that prior to Thanksgiving, she asked him to go for a
walk with her, and halfway down the road she stopped him and kissed him.
After Thanksgiving,
Janet moved into his home. Debra was
living at his home at that time also, helping with the care of his sons. Shortly before Christmas, Janet told Debra that
she and Patrick planned to marry. In
May 1992, Janet and Patrick were married.
Debra
testified that before Thanksgiving, she told Janet that she was attracted to
Patrick. Janet and Debra would argue,
and Janet frequently told Debra she deserved the abuse she received as a child
and would bring up her past. There is
no allegation that these arguments were within the hearing of others. However, Debra testified that Janet violated
her trust and caused her emotional harm, exacerbating the problems she already
had. The last of these arguments was in
the spring of 1992, about the time Debra moved out of Patrick's house.
Patrick testified that
after his last appointment at The Healing Place, Janet referred him to eight or
nine different mental health professionals.
She diagnosed him as passive aggressive, an alcoholic, a dry drunk, and
"when that one didn't pan out ... I don't remember what the next ones
were." Patrick testified that
Janet's diagnosis of him being an adult child of an alcoholic led to his
ten-day inpatient hospitalization at an alcoholic treatment center. Janet's diagnosis of post-traumatic stress
and possible manic-depression led to a seven-day hospitalization on the
psychiatric floor of Sacred Heart Hospital in November or December of
1993. He asked one therapist he was
seeing why he was placed in their program.
He claims the therapist said:
"I don't know, 'cause Janet told me to." Patrick testified that his appropriate
diagnosis would be "[p]osttraumatic stress due to bad counseling with
Janet O'Brien." The record
suggests that at least one of the hospitalizations resulting from Janet's
diagnoses took place in December 1993.
When asked: "Did
you think that was bizarre that she would have all these different things for
you?" Patrick answered, "Now I do" but at the time, "No,
because I trusted Janet. Janet, you
know kinda brought me out of hell, I thought, and she told me—I mean, she was
my therapist. She knew better. She knew.
I mean, who else could I—I mean, I trusted this woman." He also testified, "Janet ... had me
wrapped around her finger. She was my
therapist. She could do whatever she
wanted."[2]
Debra filed her
complaint against Janet on October 12, 1994, alleging that Janet caused
her injuries due to negligent counseling between October 22, 1990, and
November 25, 1991. On February 13,
1995, Patrick filed his complaint, alleging that between July 25, 1991, and May
31, 1994, Janet caused him injuries as a result of her negligent counseling.
The defendants moved for
summary judgment, claiming that calculated from the dates of their last
appointments at The Healing Place, the three-year statute of limitation,
§ 893.55, Stats., barred
Debra's and Patrick's claims. The trial
court agreed and entered a summary judgment dismissing the complaints. Debra and Patrick appeal the judgments of
dismissal.
Our review of summary
judgment is de novo. Grosskopf
Oil, Inc. v. Winter, 156 Wis.2d 575, 581, 457 N.W.2d 514, 517 (Ct. App.
1990). Under § 802.08(2), Stats., summary judgment may be entered
if the pleadings, depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a
matter of law.
To make a prima facie
case for summary judgment, a moving defendant must demonstrate a defense that
would defeat the plaintiff. Clark
v. Erdmann, 161 Wis.2d 428, 441, 468 N.W.2d 18, 23 (1991). If the moving party has made a prima facie
case for summary judgment, the court must examine the opposing party's
affidavits and other proofs to determine whether there exist disputed issues of
material facts, or undisputed facts from which reasonable alternative
inferences may be drawn, sufficient to entitle the opposing party to
trial. Id. at 441-42, 468
N.W.2d at 23.
ISSUE
The only issue presented
is whether, on the record before us, § 893.55(1), Stats., bars the claims as a matter of law. We conclude that the defendants failed to
demonstrate a prima facie defense that § 893.55(1) bars the claims. Section 893.55(1) provides:
(1) Except as provided by subs. (2) and (3), an action to recover
damages for injury arising from any treatment or operation performed by, or
from any omission by, a person who is a health care provider, regardless of the
theory on which the action is based, shall be commenced within the later of:
(a) Three years from the date of the injury, or
(b) One year from the date the injury was
discovered or, in the exercise of reasonable diligence should have been
discovered, except that an action may not be commenced under this paragraph
more than 5 years from the date of the act or omission.
Both Debra and Patrick
contend that a question of fact is presented whether their actions fall within
three years from the date of injury.[3]
The
defendants argue that subsequent to the last appointment at The Healing Place,
Janet's relationship with Patrick and Debra was purely social or marital. They contend that the complaint had to be
filed within three years from the last appointment, and, because it was not,
§ 893.55(1) barred the claims. We are
unpersuaded. The defendants' argument
does not focus on the dispositive issue presented by § 893.55(1), namely, the
"date of the injury." Id. We conclude that Patrick's and Debra's
testimony gives rise to an inference that their injuries due to negligent
treatment did not occur until after the last appointment. Also, the record discloses disputed material
facts with respect to (1) what injuries Patrick and Debra suffered; (2) what
constitutes treatment; and (3) on what dates the alleged injuries
occurred.
PATRICK'S CLAIM
Patrick essentially
alleges that Janet exploited a trusting relationship developed through
counseling in order to satisfy her own needs.
It is well accepted that to benefit from therapy, a patient must develop
a trusting relationship with the therapist.
L.L. v. Medical Protective Co., 122 Wis.2d 455, 461, 362 N.W.2d
174, 177 (Ct. App. 1984). In L.L.,
a medical malpractice action against a psychiatrist, we observed that the
patient develops extreme emotional dependence on the therapist. Id. We noted that if the doctor fails in being trustworthy, "the
entire course of treatment may be ruined." Id. at 462, 362 N.W.2d at 178 (quoting D. Dawidoff, The Malpractice of
Psychiatrists 6 (1973)). Although
Janet was practicing grief counseling, not psychiatry, a factual question is
raised whether the same kind of relationship was encouraged.
In addition, Patrick
contends that the date of the termination of therapy is disputed, relying on
learned treatises he offered into evidence.
One treatise asks:
First of all, what actual events must take place between client and
therapist to make for a termination of the relationship?
....
Regardless of what happens in that last session with the client, what
happens if the therapist stresses that the client can re-contact him or her for
more therapy at a later date? ....
What about follow-up contacts? If any are pre-arranged, whether for a
visit, phone call, or mail, it can be argued that the therapy has not
terminated. Even if they are not
pre-arranged, any follow-up, whether part of the therapist's routine, related
to a crisis the client is experiencing, or a chance meeting, may well revive
the relationship.[4]
The defendants argue
that because Janet has a degree in guidance and counseling, she is not a
psychotherapist, and therefore the treatises do not apply. The defendants, however, offer no legal
authority nor evidentiary facts to support the contention that the
considerations guiding a psychotherapist's relationship with her clients do not
apply to a counselor's relationship with clients. In any event, Patrick's deposition testimony raises the question
whether Janet led her clients to believe she was practicing a form of
therapy.
The defendants also
contend that the learned treatises do no more than point out that there are
conflicting views as to when therapy ends.
However, to defeat a summary judgment motion, a party needs to do no
more than raise conflicting issues of material fact. The trial court is to determine whether a factual dispute exists,
not resolve factual disputes on summary judgment. State Bank of La Crosse v. Elsen, 128 Wis.2d 508,
511-12, 383 N.W.2d 916, 917-18 (Ct. App. 1986). Although the date of the termination of the client-therapist
relationship is not conclusive as to the date of injury, it is relevant.
Patrick's affidavit and
deposition testimony permit a number of inferences: (1) Janet continued in
her role as therapist after his last meeting with her at The Healing Place; (2)
due to their therapist-client relationship, he was very vulnerable to her
suggestions; (3) as a result of her professional diagnoses, he was admitted in
November or December 1993 to inpatient facilities and was subjected to
inappropriate medical treatments; and (4) between the date of his last
appointment at The Healing Place and May of 1994, he suffered post-traumatic
stress disorder as a result of her negligent counseling.
We conclude that
Patrick's deposition testimony raises a number of factual disputes as to what
injuries Patrick suffered; when his injuries occurred and what constitutes
treatment. Because Patrick filed his
complaint on February 13, 1995, and demonstrates factual disputes whether, within
three years of that date he received treatment and suffered injuries resulting
from Janet's negligent professional services, we reverse the summary judgment
of dismissal.[5]
The defendants also argue
that Patrick did not plead an independent claim against Sacred Heart, but only
claimed vicarious liability on a theory of respondeat superior. They contend therefore that due to the
expiration of the statute of limitations, the trial court correctly dismissed
Patrick's claim against Sacred Heart.
Because the date of injury resulting from Janet's allegedly negligent
treatment while employed at Sacred Heart is disputed, summary judgment against
Sacred Heart and its insurer must be reversed.
Also, whether at the time of her negligent treatment Janet was acting
within the scope of her employment as a therapist raises factual issues not
appropriate for summary judgment resolution.
DEBRA'S CLAIM
Debra claims that she
suffered emotional harm due to Janet's negligent treatment after her last visit
to The Healing Place. She testified at
deposition that Janet continued to counsel her at Janet's home and on the
telephone and, in November 1991 and the spring of 1992, used confidences
derived from the therapeutic relationship in a harmful way. We conclude that these assertions raise
factual questions whether Janet's professional negligence while employed at
Sacred Heart caused Debra injuries in November 1991 and spring of 1992, within
three years of Debra's October 12, 1994, complaint. We reverse the summary judgment dismissing Debra's claims against
Janet, Sacred Heart and its insurer.
By the Court.—Judgments
reversed and cause remanded.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[3]
The parties do not address whether the statute of limitations should be
calculated under the three- or potentially 15-year statutes of limitation
provided in § 893.585, Stats.,
1991-92, for actions arising out of § 895.70(1)(e) and (2)(a), Stats., 1991-92, setting out a civil
cause of action for injuries resulting from or arising out of sexual contact
with a therapist "who is rendering or has rendered to that
person ... counseling" for all damages resulting from, arising out of or
caused by that sexual contact. (Emphasis added). "Consent is not an issue in an action under this section,
unless the sexual contact that is the subject of the action occurred more than
6 months after the psychotherapy, counseling, assessment or treatment
ended." Id.
[4] The quoted excerpts are from Gary Richard Schoener, et al., Psychotherapists' Sexual Involvement with Clients: Intervention and Prevention, Walk-In Counseling Center, Minneapolis, Minnesota, 1989; ch. 24, Sexual Involvement of Therapists With Clients After Therapy Ends: Some Observations, at 265-301.
[5] We observe that the trial court rejected the defendants' affirmative defense that Patrick and Janet's dispute should be relegated to their divorce proceeding based upon Stuart v. Stuart, 143 Wis.2d 347, 421 N.W.2d 505 (1988), and that the defendants specifically do not challenge that ruling on appeal.