LEGAL ISSUES PERTAINING TO RETRACTORS

Malpractice Suits Against Therapists Brought by Their Former Patients

Adapted from December 1997 and June 1999 FMSF Newsletters and Lipton, A. (1999). Recovered Memory in the Courts, in Sheila Taub (Ed.), Recovered Memories Of Child Sexual Abuse: Psychological, Social, And Legal Perspectives On A Contemporary Mental Health Controversy, (1999). Courtesy of Charles C. Thomas, Publisher, Ltd., Springfield, Illinois.

The FMS Foundation has collected information on malpractice lawsuits filed by former patients who claim that suggestive techniques used by their mental health care providers led to the development of false memories. Court records and filings the FMSF has collected from these cases show that serious, long-lasting injury resulted from improper therapy that led patients to believe, erroneously, in a horrifying personal history of sexual abuse. The complaints in these cases detail a potent combination of therapist suggestion, exposure to "survivor" books and films, use of questionable techniques such as hypnosis and guided imagery, isolation from family and friends, and a heavy reliance on medications, all of which may work together to increase the risk of suggestibility an already vulnerable patient.

The cases seem to fall into a relatively uniform pattern of events. Typically, the individual seeks help for a condition such as depression, an eating disorder, or difficulty in a relationship. Often the individual has no memory of any sexual abuse in her past, although in some cases she has a memory of isolated abusive incidents. The therapist may voice suspicions that the individual's symptoms suggest a history of child sexual abuse. Through the use of symptom "checklists," non-pathological aspects of a normal personality may become distorted and be seen as symptoms of something deeper. The therapist may tell the patient that her symptoms are too severe to be attributed only to the patient’s current life difficulties, and that the patient should explore her past. After being led to imagine horrifying acts of rape and incest, the patient, not unexpectedly, is overcome by feelings of revulsion and degradation. Many patients are encouraged to view these feelings as a response to real memories of actual events ---not just imaginings. Any doubts the patient may voice are often treated as an indication that the patient is "in denial" and is not yet ready to accept the images as truth or is still under the control of the alleged abuser.

If, in addition, the therapy includes sessions of hypnosis and hypnosis-like procedures, both of which are known to increase a person's susceptibility to suggestion, the stage is set for the development of false memories. Professional organizations have warned that hypnosis and related techniques may lead to increased suggestibility and confabulation, memory hardening, source amnesia, and a loss of critical judgment. It has long been understood that these techniques do not enhance the accuracy of recall; instead they may render a person overconfident of the "memories" retrieved, whether or not they are accurate.

Many court records describe, in addition to the use of hypnosis, the administration of high levels of antidepressants and other drugs to the patient. Most patients were encouraged to cut off contact with family members. Some were hospitalized for long periods in units for patients with dissociative disorders. Some were instructed to "detach" from all contacts outside the therapy group. The techniques cited in many complaints are quite similar to the practices described in a 1998 U.S. Grand Jury Indictment as those commonly associated with mind control and brainwashing. (see UNITED STATES V. PETERSON ET AL., 1998 )

Despite the fact that obtaining informed consent has long been an accepted part of proper care, nearly every complaint charges the defendant therapist with failing to inform the patient that the techniques used are capable of generating false memories or that the diagnosis of MPD (DID) is controversial. The patient therefore lacks information necessary to give an informed consent to the treatment or to consider an alternative form of therapy.

As in most malpractice cases, the complaint usually states that the defendant therapist failed to meet the appropriate standard of care. The specific allegation may be that the therapist failed to treat the patient's presenting problem, failed to accurately diagnose or develop and document an appropriate treatment plan, and/or failed to correct the treatment program despite clear evidence of the patient's deteriorating clinical status.

From 1993 through the late 1990’s, the number of lawsuits based on a malpractice claim in which patients alleged that therapists negligently implanted or encouraged the development of false memories of childhood abuse grew steadily. As of October 1998, the FMSF Legal Survey contained information on 158 malpractice suits brought by former patients. The overwhelming majority of these malpractice lawsuits were resolved by being settled out of court, many on the eve of a scheduled trial. A number of cases settled during trial after the plaintiff presented her case. The settlements and awards in these cases have been for staggering amounts. One case ended when a $10.6 million settlement was finalized on the very day trial was scheduled to begin. Most agreements stipulated that the amount of the settlement must be kept confidential, but a partial list of recent cases for which the amount was published is given below.

The remaining cases ended in defense verdicts, were dropped by the plaintiff or dismissed by the trial court. To the best of our knowledge, the numbers of malpractice cases brought against therapists decreased significantly after 2000.

The following are some examples of malpractice cases brought against therapists for suggestive therapy:

TRIAL OUTCOMES

ALTHAUS v. COHEN, Court of Common Pleas, Allegheny Co., Penn., No. GD92020893.
In 1994, a jury awarded $272,232 to a 17 year old girl and her parents. In December of 1996, a trial judge affirmed the jury decision in strongly worded ruling, noting that as the girl's charges became "progressively more outlandish," the stories were never challenged, in fact, the therapist refused input from parents. "Expert testimony demonstrates overwhelmingly that Cohen deviated from that standard [of care]." The girl entered therapy when her mother became seriously ill. Criminal charges of childhood sexual and ritual abuse against parents were filed, but later dropped.

HAMANNE v. HUMENANSKY, U.S. Dist. Ct., 2nd Dist., Minn., No. C4,94-203.
In 1995, a jury awarded over $2.46 million to a woman after finding that her psychiatrist negligently failed to meet recognized standards and directly caused injury. The woman sought treatment for anxiety after a move, but was diagnosed with MPD, childhood sexual and ritual abuse, despite contrary evaluations and lack of memories of abuse. Treatment included hypnosis, guided imagery, sodium amytal, anti-depressants, and lengthy hospitalizations. There was no informed consent. $200,000 was awarded to her husband for loss of consortium.

HALBROOK v. MOORE, Dist. Ct., Dallas Co., Tex., No. 92-11849.
In 1995, a jury found a therapist guilty of negligence and of actions that were the proximate cause of damage to his former client. Halbrook was awarded $105,000 and 60% negligence was attributed to defendant therapist. She had sought treatment for recurring depression and familial conflicts, but claims therapy caused her to have false memories of childhood sexual and ritual abuse and to be misdiagnosed MPD. The treating hospital settled prior to trial for nearly $50,000.

CARLSON v. HUMENAMKY, Dist. Ct., 2nd Dist., Minn., No. CX-93-7260.
In 1996, a unanimous jury verdict found that the psychiatrist failed to meet recognized medical standards and directly caused injury. Carlson was awarded $2.5 million. She had entered therapy for depression and marital problems, but claimed that therapy caused her to develop false memories of childhood sexual and ritual abuse. Her treatment included sodium amytal, guided imagery, hypnosis.

CARL v. KERAGA, U.S. Federal Ct., Southern Dist, Tex., Case No. H-95-66 1.
In 1997, a jury found remaining defendant 24% liable (individually and through her corporation) for injury to patient. Carl was awarded $5.8 million. Several jurors said they were concerned about failure by the therapist to warn of the risks of treatment. The woman claims she was misdiagnosed MPD and told she had over 500 personalities to cope with childhood abuse, ritual murder, cannibalism and torture. She was instructed to report herself to the police as a child molester, even though she had no memory of ever abusing her own children. Her teenage children were also hypnotized and told they were victims of a cult. All but 2 of other 25 defendants settled out of court prior to trial.

JONES V. LURIE, Houston, TX, Fourteenth Ct Appeals. No 14-98-01097-CV.
In May, 1998, a Houston jury found psychotherapist Dorothy Lurie not responsible for her patient’s mental anguish after she helped the woman recover false memories of murdering babies and cannibalism. The plaintiff, Kristi Jones appealed the decision, but the appeal court affirmed the trial decision.

HESS ET AL. V. JUAN FERNANDEZ, ET AL., Marinette County, WI, 20th Cir Ct, No.95-CV-138.
On Sept. 3, 1999, after a five-week trial, a 15-person jury found psychiatrist Juan Fernandez, III negligent in his treatment of Joan Hess and awarded the family $862,000. Hess had accused Fernandez of implanting false memories of sexual abuse and cult abuse and leading her to believe that she had more than 75 personalities. Hess was joined in the suit by her two children and her former husband, the mayor of the city of Wausau, WI.

DALY V. MONROE CLINIC, Green County, WI, Cir. Ct. No. 98CV17.
On July 31, 2002 after more than six weeks of trial, a Wisconsin jury of nine women and three men found that Monroe Clinic psychiatrists Wendell Bell and Rachel Long and psychologist Robert C. Beck had not been negligent in their treatment of Marilyn Daly. Daly alleged that several mental health professionals misdiagnosed her as having multiple personality disorder and implanted false memories of physical and sexual abuse through hypnosis, guided imagery and age regression between August 6, 1992 and May 13, 1993 at the Monroe Clinic where the doctors were employed.

GRAY V. POWERS, Lancaster County, PA, Ct. Common Pleas. No. CI-98-08860.
In October, 2006, after a two week trial and one day of deliberations, a Lancaster, Pennsylvania jury in a unanimous decision awarded Rose Gray $330,000. The award is one of the largest in a medical malpractice suit in Lancaster history. In 1988, Rose Gray, a nurse, was diagnosed with major depression at St. Joseph's Hospital in Lancaster, Pennsylvania and referred to Stephen Powers, M.D. According to the complaint, Dr. Powers also diagnosed the plaintiff with major depression. He began treatment that included medications and psychotherapy. During 1989, he expanded her prescriptions to include various anti-psychotic drugs and also began to use hypnosis. Soon Dr. Powers told Gray that she had revealed disturbing memories from childhood and that different personalities had emerged.

SETTLEMENT OUTCOMES

MARK v. ZULLI, et. al., Superior Ct., San Luis Obispo Co., Cal., No. CV075386.
In 1995, a settlement was reached with the primary therapist who treated a woman suffering from unexplained chest pains after witnessing a serious accident The therapist told her the chest pains were body memories of childhood sexual and ritual abuse. The therapy included hypnosis and relied on The Courage to Heal. Eventually the woman was diagnosed with MPD with 400 personalities. The primary therapist had no insurance and settled for $157,000.

FULTZ v. CARR and WALKER, Circuit Ct, Multnomah Co., Oregon, No. 9506-04080.
In 1996, two treating therapists settled out of court, one for $1.57 million, the other for a confidential amount. Fultz had sought help for mild depression and a weight problem; but she claims the therapists misdiagnosed childhood sexual and ritual abuse and MPD. Her preschool children were also treated and persuaded they were abused by a cult. The treating therapist assisted in obtaining a restraining order against Fultz's parents and siblings.

RUTHERFORD v. STRAND, et al., Circuit Ct., Green Co. Missouri, No. 1960C2745.
In 1996, a church in Missouri agreed to pay $1 million to a woman and her family who claimed that under the guidance of a church counselor, she came to believe that her father had raped her, got her pregnant and performed a coat-hanger abortion -- when in fact, she was still a virgin and her father had had a vasectomy.

COOL v. OLSON, Circuit Ct., Outagamie Co., WI. No. 94CV707.
In 1997, after 15 days of courtroom testimony, the defendant agreed to settle for $2.4 million. Testimony described how the psychiatrist induced horrific false memories of childhood sexual and ritual abuse, including demonic possession and misdiagnosed MPD. Therapy techniques included hypnosis, age regression, exorcism and drugs, which caused hallucinations. The patient had originally entered therapy for bulimia and help after a traumatic event had befallen her family.

BURGUS v. BRAUN, RUSH PRESBYTERIAN, Circuit Ct., Cook Co., Ill., No. 9 1 L08493/93L 14050.
In 1997, on the day scheduled for trial, a $10.6 million settlement was finalized. The patient originally sought treatment for post-partum depression but was diagnosed MPD as result of supposed childhood sexual and ritual abuse including cannibalism, torture. She claims psychiatrist utilized suggestive techniques, but failed to obtain informed consent. Her preschool age children were also hospitalized, diagnosed MPD and treated for SRA.

TYO V. ASH, ET AL. AND COLIN ROSS, Dallas Co., TX, District Court, No. DV98-3843.
In 1998, former patient Martha Tyo brought a lawsuit against Colin A. Ross, M.D., and others that concluded in a confidential settlement for an undisclosed amount. It is reported that the terms were "very favorable" to Ms. Tyo. Once the depositions of the treating doctors were taken, it was obvious to their lawyers that no defense existed. It has been subsequently reported that one defendant therapist left the state and another "retired" from practicing psychotherapy. This case provided another example of conducting science-intensive litigation via experienced multidisciplinary teams.

ELIZABETH GOODMAN V PATRICIA CORKE, M.D. ET AL. Harris County, TX, Dist Ct., Cause No 97-07986.
Plaintiff sued for negligent psychotherapy claiming defendants had failed to assess and treat her properly. She alleged that the defendants implanted false memories of childhood abuse using hypnosis and other means and that they provided her with false information regarding "repressed and recovered memories." A confidential settlement was reached in 1999.

CARLSON ET AL. V. ZIRKEL ET AL., La Crosse County, WI Circuit Court. No. 96-CV-321.
In April, 2000, plaintiff Steven D. Carlson reached a confidential settlement in a lawsuit he had brought against Family & Children’s Center, Inc., the Human Development Associates, and several therapists there. Carlson had received psychological care at the centers from December 5, 1984 to May 31, 1994. According to the complaint, the herapists failed to obtain Carlson’s informed consent to the course treatment they proposed to provide; failed to provide appropriate care and instead provided care that was "inappropriate, experimental, drastic and harmful." The Wisconsin Mental Health Act (Bill of Rights) provides that a patient has a right to prompt and adequate treatment." (The courts have defined ‘adequate’ to mean ‘non-negligent’ treatment.) The Act also provides that "a patient has a right not to be subjected to...drastic treatment procedures without the express and informed consent of the patient..."

GALE V. RUSH-PRESBYTERIAN-ST. LUKE’S MEDICAL CENTER ET AL., Cook County, IL. Circuit Court. No. 03 L 12779.
In February 2004, Elizabeth Gale received a record settlement of $7.5 million in a psychiatric repressed-memory malpractice case. Ms. Gale entered therapy in 1986 for mild depression and came to believe that she had Multiple Personality Disorder and was a part of an intergenerational satanic cult that abused children. She was treated by Bennett Braun, M.D., Roberta Sachs, M.D., and Corydon Hammond, Ph.D., who hospitalized her for five and a half years between 1988 and 1994 at Rush-Presbyterian-St. Luke’s Medical Center and Rush North Shore Medical Center. Ms. Gale came to believe that she had bred children for "the cult" who were then sacrificed and even cannibalized. So fearful did she become that she went through a tubal ligation (approved by Bennett Braun) so that she would no longer harm children.

The Subset of Malpractice Suits Claiming Injury Due to Misdiagnosis of
MULTIPLE PERSONALITY DISORDER/DISSOCIATIVE IDENTITY DISORDER (MPD/DID)

From the April/May 1999 FMSF Newsletter

Insight into the link between certain therapy practices and the development of MPD/DID symptoms comes from malpractice suits and state licensure actions against therapists who specialize in the identification and treatment of patients for MPD/DID. These cases demonstrate the ease with which an individual can be led to exhibit dissociative symptoms---especially when hypnosis, sodium amytal, strong medications, or readings involving traumatic imagery magnify the effect of therapist suggestions or expectations. These cases also show that once the symptoms associated with MPD become established, the standard treatment modality often leads to a deterioration of the mental and emotional well being of the patient.

Classic MPD therapy, described by Dr. Frank Putnam, requires two to three extended (hour and a half) sessions per week for one to five years. Few studies, however, examining the effectiveness of MPD treatments have appeared in peer-reviewed journals. Those that have been published indicate that, despite years of therapy, only approximately one-fourth of patients eventually reintegrated all their personalities and got on with their lives. At least one group of psychiatrists successfully treated MPD patients by isolating them from their former therapists, refusing to deal with "alters," but paying careful attention to underlying character pathology and urging the patients to address their present difficulties.[1]

Many individuals treated for MPD as a result of supposed sexual or ritual abuse have sued their therapists for malpractice-and in many cases-for fraud.[2] Many of these same therapists were subsequently subject to state sanctions including the loss of license to practice or fines. A review of MPD cases shows that most plaintiffs had no psychiatric history prior to their diagnosis as having MPD. Most had entered therapy for help with postpartum depression, marital problems or other issues but were told that their reaction to these difficulties indicated a deeper, more serious problem. Eventually they were told that MPD is almost always associated with childhood sexual abuse and that repression of memories of childhood trauma is a sign of MPD. Although some MPD proponents, including Dr. Richard Kluft, have described MPD as "primarily a disorder of sexually abused women," this has never been reliably demonstrated.[3]

Hypnosis and hypnosis-like techniques were used in at least two-thirds of these cases. The MPD patients were often given strong medications, particularly benzodiazepines, such as Valium, Halcion, and Xanax. Most stated they were told to read highly disturbing books including "Sybil" and "The Courage to Heal."

Despite long years in treatment (often lasting 3 to 7 years), records show that the patients’ condition continued to deteriorate. Some former patients indicated that they had either attempted suicide or had cut or mutilated their bodies because of their horror at the emerging images of abuse. Many were hospitalized in psychiatric wards, some for as long as two years at a time and some were even encouraged to hospitalize their young children. They were made to fear that their children were at risk from a ritualistic cult or that the youngsters might show signs of developing MPD.

Court documents from many of these cases are available in the FMSF Brief Bank and summaries of malpractice suits have appeared elsewhere (See FMSF Publication #833).

The following is a partial listing of malpractice cases from which this report was taken:

Abney v. Spring Shadows Glen, et al, District Court, Harris Co., 11th Jud Dist., Texas, No. 93-054106.

Avis v. Laughlin, et al, Superior Court, King Co., Washington, No. 9509-02260.

Bartha v. Hicks, et al, Ct of Common Pleas, Philadelphia, Pennsylvania, No. 1179.

Bean v. Peterson, Superior Ct., Cheshire Co. New Hampshire, No. 95-E-0038.

Burgus v. Braun, Rush Presbyterian, et al, Circuit Ct., Cook Co., Ill., No. 91L08493/93L14050.

Burnside v. Ault et al, Ontario Ct. (General Division) Canada, No. C10,046/93.

Carl v. Keraga, Spring Shadows Glen Hospital, U.S. Federal Ct., Southern Dist., Tex., Case No. H-95-661.

Carlson v. Humenansky, Dist. Ct., 2nd Jud. Dist., Ramsey Co., Minnesota, No. CX-93-7260.

Cool v. Olson, Circuit Ct., Outagamie Co., Wisc. No. 94CV707.

Fultz v. Carr and Walker, Circuit Ct., Multnomah Co., Oregon, No. 9506-04080.

Halbrooks v. Moore, Dist. Ct., Dallas Co., Tex., No. 92-11849.

Hamanne v. Humenansky, U.S. Dist. Ct., 2nd Dist., Minn., No. C4-94-203.

Lebreton, et al v. Ault et al, Ontario Ct of Justice (General Div.) Canada, No. 93-CQ-40015.

Mark v. Zulli, et. al., Superior Ct., San Luis Obispo Co., Cal., No. CV075386.

Marietti v. Kluft, et al, Ct of Common Pleas, Philadelphia, Pennsylvania, No. 2260.

Shanley v. Braun, 1997 U.S. Dist. LEXIS 20024.

Shanley v. Peterson, et al, U.S. Dist. Ct., Southern Dist. of Texas, No. H94-4162.

S. v. House of Hope, Inc., et al, Superior Ct., Maricopa Co., Arizona, No. CV-94-17678.

Tyo v. Ross, et al, Dist. Ct., Dallas Co., Texas, No. DV98-3843.

Wallace v. Agape Youth and Family Ministries, Inc. et al, Circuit Ct., Multnomah Co., Oregon, No. 9703-02470.

[1] Ganaway;G.K (1989) "Historical versus narrative truth: Clarifying the role of exogenous trauma in the etiology of MPD and its variants," Dissociation, II:4:205-220, and subsequent responses; McHugh, P.R. (1995) "Insights: Multiple Personality Disorder," The Harvard Mental Health Letter, 10:3.

[2] The FMSF Legal Survey contains reports from 112 individuals claiming they were injured after they were treated for a misdiagnosed MPD.

[3] See e.g., Spanos, N. (1996) notes that "Child sexual abuse was not a prominent feature of MPD cases reported before 1970. However cases reported after 1975 have almost always involved descriptions of childhood sexual abuse, and the kinds of abuse purportedly experienced by these patients have grown progressively more lurid and more extensive." See also, Beitchman, J.H. et al, (1992) "A review of the long-term effects of child sexual abuse," Child Abuse and Neglect, 16:101-118; Ganaway, G.K. (1995) "Theories of Dissociative Identity Disorder: Toward an integrative theory," International Journal of Clinical and Experimental Hypnosis, XLIII:2:127-144.

Readers may also be interested in an article available on the website of

Elizabeth Loftus: The Price of Bad Memories, Elizabeth F. Loftus, Skeptical Inquirer (1998) 22 pp. 23-24.)

Last Updated: February 5, 2014