Transference phenomena is a common phenomenon that occurs between patients and doctors. It is particularly prone to occur in cases involving patients and therapists. The laws are very clear that in cases involving transference phenomena that jeopardizes the well-being of the patient, the patient should be referred immediately to another provider. This is absolutely critical when the transference phenomena is leading the patient toward sexual feelings, emotions and urges toward the therapist.
Transference is Relatively Common in Therapy
Transference phenomena is not uncommon in mental health treatment whether in-patient or out-patient. This should not be surprising given the vulnerability of those going through a mental health crisis. It might be expected that a patient in these settings would develop affection for a therapist particularly given the fact that many suffering mental health issues cannot talk to anybody other than the therapist about the pain, anguish, helplessness, hopelessness and other feelings of despair related to a mental health crisis.
Patients Must be Protected Against Inappropriate Transference
In fact, transference phenomena is common enough that mental health practitioners must carefully and diligently protect the patient from unhealthy expressions of affection. This obviously would include sexual feelings toward the therapist. Sexual feelings alone can be harmful to the patient therapist relationship. Sexual relations can be catastrophic to the health of the patient.
Fortunately, sexual relations with a patient are rare and extreme. However, there are some therapists that engage and even encourage sexual relations with his or her patients. Some might even see it opportunistically as an occupational perk. Still other might stumble into sexual with the best intentions such as affection for the patient. However these sexual relations ensue, they are extremely damaging to the patient. This is why such relations are strictly prohibited by criminal laws, regulatory bodies and medical malpractice laws.
Sexual Relations with a Patient is Covered by Medical Malpractice Insurance
The failure to take necessary precautionary measures to protect the patient from transference phenomena is medical negligence. In those cases where the relationship results in sexual relations, the courts view the behavior of therapists as medical malpractice per se due to the violation of the criminal statutes.
Although it is a crime in most every state for a therapist to have sex with a patient, it is not treated as assault and battery in the medical malpractice arena. This is important to note given the fact that the insurance company will attempt to frame it as a deliberate criminal act thereby forfeiting insurance coverage. This position by insurance companies has been rejected by most of the courts that have addressed the matter.
Sex with a Patient is Per Se Medical Malpractice
In fact, many of the courts that have addressed these situations have taken the medical malpractice as a given. To put it another way, the fact that it happened at all is sufficient for a finding of medical malpractice. The issue is not whether medical malpractice exists but often the issue is whether the lawsuit is filed within the statute of limitations.
Statute of Limitations and Discovery Rule
The cases often rest upon the discovery of transference phenomena by the patient in relationship to the statute of limitations. The majority of the courts have taken the position that the statute of limitations is tolled until such time that the occurrence of the transference phenomena and its consequent harms are known, or should have been known, by the patient.
In these types of cases, the transference phenomena is often learned by the patient years later. Many times, the patient has gone through emotional and psychological hell before they learn of the root causes of the harm that follows sexual relations with a doctor or therapist. The New Mexico “Discovery Rule” protects the patient in these cases by tolling the statute of limitations until such time the patient knew or should have known of the injuries suffered and the cause of those injuries.