October 12, 1998, Monday, FINAL EDITION

Molestation verdict reopens debate on doctor-patient bond

BYLINE: Richard Willing


LENGTH: 867 words

A controversial jury verdict that held a psychiatrist responsible
for the sexual misconduct of his patient has reopened a wrenching
debate among mental health therapists:
Protecting doctor-patient confidentiality vs. preventing harm
to the public.
“Therapists always have to live with that dual responsibility,
and so does the law,” says Phyllis Coleman, a family law specialist
at Nova Southeastern University in Fort Lauderdale, Fla.
“It’s a delicate balance that can be subject to readjustment,”
Coleman says.
The latest adjustment, in the view of some observers, came Saturday.

In Bridgeport, Conn., lawyers for psychiatrist Douglas Ingram
agreed to pay more than $ 1.3 million to the family of a 22-year-old
man who as a boy of 10 had been molested by one of Ingram’s former
Two days earlier, a federal court jury had found Ingram negligent
because he did not breach patient-doctor confidentiality to reveal
that his former patient might be a threat to children.
The former patient, psychiatrist Joseph DeMasi, had undergone
therapy with Ingram in the mid-1980s in order to obtain credentials
as a child therapist.
During his therapy, DeMasi acknowledged fantasizing about sex
with children, Ingram testified at the trial. But DeMasi denied
ever having molested a child or planning to molest one.
In 1987, after therapy with Ingram, DeMasi pleaded guilty to risk
of injury to a minor and served a five-year prison sentence.
He was released in 1992, resentenced for violating probation,
and released again in April.
In most cases, confidential conversations between doctors and
patient are considered “privileged,” meaning the doctor cannot
be compelled to testify about them in legal proceedings.
But since 1976, courts in nearly every state have established
that psychiatrists, who also are medical doctors, have a duty
to protect people who may be threatened by patients, especially
if they can be identified.
Some legal specialists and therapists greeted last week’s ruling
with dismay.
“Any violation of (doctor-patient) privacy is bad, but this one
especially so,” says Maria Lymberis a Santa Monica, Cal., psychiatrist
and professor at UCLA.
“You have more protection in (keeping secret) what video you
rent than in what you say to your therapist coming out in court,”
Lymberis says.
Some worry that the Ingram verdict, while designed to protect
the public, places a difficult burden on the therapist: predicting
when patient’s fantasies are likely to be acted on.
“If patients can’t talk to doctors about their fantasies, it’s
going to destroy treatment,” says Walter Borden, a therapist
in Hartford, Conn.
Ingram himself highlighted the dilemma when he testified during
the trial.
He told jurors he mulled what to do but, after determining that
no child was in immediate danger, decided to try to help his patient.
“I was the only chance he had. I was the only chance society
had. I was the only chance the kids had,” Ingram testified.
Though the Ingram verdict has no force of law beyond Connecticut,
law professor Mark Hall of Wake Forest University in Winston-Salem,
N.C., says it sends a curious and “potentially chilling” message
to all practicing psychiatrists.
“Under the circumstances,” Hall says, “you have to wonder just
what else the jury expected him to do?”
In many state courts and in federal courts, doctor-patient confidentiality
is protected by common law and by statutes granting the doctor
the “privilege” of not having to testify about the professional
relationship in legal proceedings.
Most jurisdictions extend the privilege to other confidential
relationships: lawyer-client, husband-wife, priest-penitent and,
in some cases, accountant-taxpayer.
But the Tarasoff case, a civil suit decided in California in 1976,
began to modify the privilege as it applied to psychiatrists.
In that case, a University of California psychiatrist was found
negligent after the doctor’s patient, a student, killed a girlfriend.
The student had suggested that he wanted to kill the young woman.
The therapist had notified campus police, but had failed to prevent
the killing.
Since 1976, legal scholars say, nearly every state has used case
law or statute to enact some form of the “Tarasoff rule” —
that a doctor’s duty to maintain confidentiality can be outweighed
by dangers posed by the patient.
Additionally, child welfare laws passed in every state since 1974
require psychiatrists to pierce a patient’s confidentiality when
a child is or is about to be abused.
Against that backdrop, some lawyers and practitioners are reluctant
to read too much into the Connecticut verdict.
“Psychiatrists are not now the ‘fantasy police’ — that’s not
what the jury said,” says Harold Schwartz, director of the Institute
for Living psychiatric facility in Hartford, Conn.
“What the jury said was, if you take somebody with pedophilic
interests, who doesn’t believe that there is anything wrong with
pedophilia . . . and he’s training for child and adolescent psychiatry,
you should have concluded he’s a danger.”