Legal Issues Pertaining to Retractors

This is the fifth of five collections of retractor-related material. The titles include The Therapy, Reconciliation, Research about Retractors, Articles about Retractors and Legal Issues Pertaining to Retractors (this section).

Outcomes of Recent Malpractice Suits against Therapists Brought by Former Patients Claiming Negligent Encouragement or Implantation of False Memories

(The following text has been adapted from December 1997 and June 1999 FMSF Newsletters. 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.)

As part of our Legal Survey, the FMSF has collected information on 158 malpractice suits [1] filed by former patients against their mental health providers which claim that the use of suggestive therapeutic techniques led to the development of false memories. Seventy-six of these cases were settled out of court. Twelve went to trial with 9 ending in a verdict in favor of the plaintiff and 3 ending in defense verdicts. Two were dropped by the plaintiff and three were dismissed by the trial court. Sixty-five suits are still open and pending. (An additional 72 individuals have informed the FMSF that they were consulting attorneys about a possible cause of action against their former therapists for improperly using suggestive techniques leading to the implantation of false memories.)

The filings FMSF has collected from these cases show serious, long-lasting injury from improper therapy -- especially where patients are led to believe falsely that they had a horrendous history of sexual abuse at the hands of their family.

The FMSF Brief Bank contains copies of Complaints and other filings from many malpractice lawsuits. [2] Even a cursory reading of the Complaints shows that certain actionable wrongs are all too common in Recovered Memory Therapy. Most Complaints state that the defendant therapist failed to treat the presenting problem, failed to accurately diagnose or develop and document an appropriate treatment plan, and failed to correct the treatment program despite clear evidence of the deteriorating clinical status of the patient. Nearly every complainant was diagnosed with multiple personality disorder (MPD), supposedly the result of a previously unknown abuse history. The Complaints detail techniques, such as hypnosis, guided imagery and a heavy reliance on medications which may increase the risk of suggestibility.

Despite the seriousness of the supposed past abuse, many Complainants charge that the defendant therapist failed to consider the need for corroboration and discouraged the patient from seeking it, even when disconfirming information could have been found. Most complainants were encouraged to cut off contact with family members. Some were hospitalized in dissociative units for long periods. Some were instructed to "detach" from all contacts outside the therapy group. The techniques found in many Complaints are quite similar to the practices described in a recent U.S. Grand Jury Indictment as those "commonly associated with mind control and 'brainwashing.'"

Despite the fact that obtaining informed consent has long been an accepted part of proper care, nearly every Complaint charges the defendant therapist with failure to inform the patient that the techniques used were unsupported by any reliable scientific evidence or that the diagnoses were controversial. The patient, therefore, lacked information necessary to make reasoned and informed consent to the treatment or to consider an alternative form of therapy.

In each of these malpractice suits, the negligence cause of action includes the implantation or encouragement of false memories of childhood abuse through the use of suggestive techniques. A number of those suits received a great deal of press attention. (See "Trial Outcomes")

The overwhelming majority of these suits were resolved when they were settled out of court, many on the eve of a scheduled trial. A few settled during trial after the plaintiff presented her case. A recent case ended when a $10.6 million settlement was finalized on the day trial was scheduled to begin. Most agreements stipulated that the amount of the settlement be kept confidential, but a partial list of recent cases for which the amount is published appears below.

As far as we know, no malpractice case has been dismissed in its entirety as time-barred. Defendants often argue that if their patient's condition deteriorated as the therapy progressed, the patient should have been on notice at that time. To date, as far as we are aware, no court has accepted this argument. (One might ask, if the patient's condition deteriorated during therapy, shouldn't a prudent therapist meeting a minimal standard of care take that as a sign that the treatment plan needed reconsideration and revision?) Few published opinions on this question exist. However, the U.S. District Court [3] has twice rejected defense motions to dismiss a malpractice claim as time-barred. That court concluded that the nature of the injury could render the patient unable to distinguish between true and false memories and that the patient "quite typically may have assumed her psychiatrist was providing proper treatment and may not have become suspicious" until sometime after the treatment ended.

While juries in some states have considered the question of comparative negligence which may be attributed to the patients themselves, other courts have rejected that notion. For example, a Pennsylvania trial court judge in a detailed post-trial ruling [4] affirmed a jury verdict and specifically rejected defense claims of contributory negligence by the patient or her parents. The judge concluded that it is precisely because of the patient's presenting psychological problems that her representations to her treating therapist cannot be seen as contributory negligence. Texas malpractice attorney Skip Simpson pointed out that it must be expected that a mental health patient enters therapy for a reason, whether it is depression, marital problems or something else. Because individuals enter therapy in a vulnerable state, ready to rely on the advice and treatment given by their therapists, those therapists must be held to a high standard of care.

Some defendants have claimed that their treatment met the current standard of care or, at least, met the standard of care at the time the treatment was given. As psychologist and attorney R. Christopher Barden points out, it has been long known that hypnosis is not a reliable means of retrieving accurate memories. Professional organizations have recognized the unreliability of "repressed memories," especially when "recovered" with suggestive techniques. Even lay juries quickly conclude that memory recovery techniques do not meet a standard of care and are the direct cause of a patient's injury.


1 This number represents only those lawsuits of which we have been informed and clearly underestimates the total number of filings.

2 For an index of the FMSF Brief Bank of malpractice suits, see FMSF Publication # 830.

3 Lujan v. Mansmann, et al, 956 F. Supp. 1218 (E.D. Pa, 1997); Lujan v. Mansmann, Neuhausel and Genesis Associates, 1997 U.S.Dist. LEXIS 14987.

4 Althaus v. Cohen, Ct. of Common Pleas, Allegheny Co., PA, No. GD92020893. See FMSF Brief Bank #2.


Althaus v. Cohen, Court of Common Pleas, Allegheny Co., PA, No. GD92020893. In 1994, jury awarded $272,232 to 17-yr-old girl and her parents. In 12/96 trial judge affirmed jury decision in strongly worded ruling, noting that as 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., MN, No. C4-94-203. In 1995, jury awarded over $2.46 million to woman after finding psychiatrist negligently failed to meet recognized standards and directly caused injury. Woman sought treatment for anxiety after a move, but was diagnosed MPD, and told she experienced childhood sexual and ritual abuse despite contrary evaluations and lack of memories of abuse. Treatment included hypnosis, guided imagery, sodium amytal, anti-depressants, lengthy hospitalizations. No informed consent. Also awarded $200,000 to husband for loss of consortium.

Halbrooks v. Moore, Dist. Ct., Dallas Co., TX No. 92-11849. In 1995, jury found therapist guilty of negligence and that his actions were proximate cause of damage to his former client. Awarded $105,000 and attributed 60% negligence to defendant therapist. Woman 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 mis-diagnosed MPD. The treating hospital settled prior to trial for nearly $50,000.

Carlson v. Humenansky, Dist. Ct., 2nd Dist., MN, No. CX-93-7260. In 1996, unanimous jury verdict found that psychiatrist failed to meet recognized medical standards and directly caused injury. Awarded $2.5 million. Woman had entered therapy for depression and marital problems, but claims therapy caused her to develop false memories of childhood sexual and ritual abuse. Treatment included sodium amytal, guided imagery, hypnosis.

Carl v. Keraga, U.S. Federal Ct., Southern Dist., Tex., Case No. H-95-661. In 1997, jury found defendant 24% liable (individually and through her corporation) for injury to patient. Awarded $5.8 million. Several jurors said they were concerned about failure to warn of the risks of treatment. 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.


Mark v. Zulli, et. al., Superior Ct., San Luis Obispo Co., CA, No. CV075386. In 1995, a settlement was reached with the primary therapist who treated a woman for 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 MPD with 400 personalities. The primary therapist had no insurance and settled for $157,000.

Fultz v. Carr and Walker, Circuit Ct., Multnomah Co., OR, No. 9506-04080. In 1996, two treating therapists settled out of court, one for $1.57 million, the other for a confidential amount. Patient had sought help for mild depression and weight problems, 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 restraining order against patient's parents and siblings.

Rutherford v. Strand, et al, Circuit Ct., Green Co. MO, No. 1960C2745. In 1996, a church in Missouri agreed to pay $1 million to a woman and her family who said that under the guidance of a church counselor, the woman 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., Wisc. No. 94CV707. In 1997, after 15 days of courtroom testimony, defendant agreed to settle for $2.4 million. Testimony described how 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 family.

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

See Archives of FMSF Newsletters, Legal Corner, for more extensive descriptions of the outcomes of many retractor lawsuits.

Malpractice Suits Claiming Injury Due to Misdiagnosis of MPD

From the April/May 1999 FMSF Newsletter

Insight into the link between certain therapy practices and the development of MPD symptoms comes from malpractice suits and state licensure actions against therapists who specialize in the identification and treatment of patients for MPD. These cases demonstrate the ease with which an individual can be led to exhibit MPD-like 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 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]

Over eighty-four 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 the MPD cases in this survey 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. Nearly half (36/84) 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. 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.

For more information:
False Memory Syndrome Foundation
1955 Locust Street, Philadelphia, PA 19103-5766
Telephone: 215-940-1040, Fax: 215-940-1042.
APA's "Questions and Answers about Memories of Childhood Abuse"