Flanders v. Cooper
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1998 ME 28
Docket:	Cum-97-96
Argued:	October 7, 1997
Decided: 	February 11, 1998

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

THOMAS FLANDERS

v.

PETER COOPER
and
GREATER BRUNSWICK PHYSICAL THERAPY

LIPEZ, J.

	[¶1]  Thomas Flanders appeals from the judgment entered in the
Superior Court (Cumberland County, Mills, J.) dismissing his medical
malpractice notice of claim pursuant to M.R. Civ. P. 12(b)(6).  Flanders
contends that the court erred in its determination that his notice of claim
failed to state a claim upon which relief can be granted.  We disagree and
affirm the judgment.

I.

	[¶2]  Flanders's daughter sought treatment from Greater Brunswick
Physical Therapy for temporomandibular joint syndrome.  Peter Cooper, a
licensed physical therapist,{1} treated her for eighteen months.  Flanders's
notice of claim alleges that during the course of this treatment, Cooper
practiced beyond the authorized scope of his physical therapy license,
employed "bizarre and inappropriate" treatment modalities, and implanted
in the mind of Flanders's daughter false memories of sexual abuse
perpetrated by Flanders.  His notice of claim further alleges that Greater
Brunswick Physical Therapy failed to supervise Cooper adequately.
	[¶3]  We treat a notice of claim challenged by a motion to dismiss
pursuant to M.R. Civ. P. 12(b)(6) as a complaint.  Choroszy v. Tso, 647 A.2d
803, 805 n.1 (Me. 1994).  As we stated in Shaw v. Southern Aroostook
Community School District:

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal
sufficiency of the complaint and, on such a challenge, the
material allegations of the complaint must be taken as admitted. 
In reviewing the trial court's dismissal of an action, we examine
the complaint in the light most favorable to the plaintiff to
determine whether it sets forth elements of a cause of action or
alleges facts that would entitle the plaintiff to relief pursuant to
some legal theory.

683 A.2d 502, 503 (Me. 1996) (quotations and citations omitted).  To
determine if the facts alleged in Flanders's notice of claim entitle him to
relief, we must resolve an issue of first impression in Maine:  whether a
health care professional whose negligent treatment of a patient induced
false memories of sexual abuse by a third party owed a duty of care to that
injured third party.  We decline to impose such a duty.{2}

II.

	[¶4]  "Fundamentally, whether one party owes a duty of care to
another is a question of law."  Trusiani v. Cumberland and York Distrib., Inc.,
538 A.2d 258, 261 (Me. 1988).  This question "necessarily involves
considerations beyond the factual determination that a particular injury was
a foreseeable consequence of some particular conduct . . . [and] is in turn
dependent on recognizing and weighing relevant policy implications." 
Cameron v. Pepin, 610 A.2d 279, 282 (Me. 1992).  We have repeatedly
recognized that "'[i]n the decision of whether or not there is a duty, many
factors interplay:  the hand of history, our ideals of morals and justice, the
convenience of administration of the rule, and our social ideas as to where
the loss should fall.'"  Trusiani, 538 A.2d at 261 (quoting Prosser, Palsgraf
Revisited, 52 Mich.L.Rev. 1, 15 (1953)).
	[¶5]  Flanders argues that our decision in Joy v. Eastern Maine Medical
Center, 529 A.2d 1364 (Me. 1987), "establishes beyond any question that
the law in Maine is that caregivers owe a duty of reasonable care to third
persons who may foreseeably be injured by the caregiver's negligence." 
Flanders states the holding of Joy far too broadly.  The plaintiff in Joy was a
motorcyclist injured in a collision with a vehicle driven by a patient whose
treatment for an eye abrasion from an emergency room physician included
an eye patch.  Id. at 1364-65.  Joy asserted that the physician's failure to
warn the patient that he should not drive while wearing the eye patch
constituted negligence that was actionable by Joy.  Id. at 1365.  We vacated
the Superior Court's summary judgment for the physician and the hospital,
holding that "when a doctor knows, or reasonably should know that his
patient's ability to drive has been affected, he has a duty to the driving public
as well as to the patient to warn his patient of that fact."  Id. at 1366.
	[¶6]  Although the warning discussed in Joy was important to the
safety of the patient, and hence could be viewed as a warning required by his
treatment, there was no allegation in Joy that the treatment for the eye
abrasion was negligent.  The warning about the risks of driving dealt only
with the aftermath of the treatment.  Thus, the recognition of the
physician's duty to the driving public to warn the patient of the risks of
driving did not implicate the treatment decisions of the physician.
	[¶7]  Flanders also relies upon Tarasoff v. Regents of the University of
California, 551 P.2d 334 (Cal. 1976), for the proposition that a therapist has
"a duty to avoid injuring a third party through the effects of his therapy." 
That statement is a misreading of the Tarasoff decision.  The patient in
Tarasoff informed his therapist that he intended to kill an unnamed young
woman, readily identifiable as the potential victim.  Id. at 341.  Two months
later the patient killed her.  Id. at 339.  The Tarasoff court held that the
therapist's failure to warn the victim of the danger posed by the patient
could support the negligence claim of the victim's parents against the
therapist.{3}  Id. at 342.  There was no allegation in Tarasoff that the therapist
negligently treated the patient.  The danger posed by the patient to the
victim was not an effect of the patient's therapy.  The duty to warn
recognized in Tarasoff did not implicate medical judgments that the
therapist must make during the course of treatment about the appropriate
care of the patient.{4}
	[¶8]  Unlike the duty to warn recognized in Joy and in Tarasoff, the
duty that Flanders advocates is a duty of medical treatment that goes to the
core of the relationship between a patient and a health care professional.  A
health care professional who suspected that a patient had been the victim of
sexual abuse and who wanted to explore that possibility in treatment would
have to consider the potential exposure to legal action by a third party who
committed the abuse.  "The focus of the concern of medical care
practitioners should be upon the patient and any diversion of attention or
resources to accommodate the sensitivities of others is bound to detract
from that devoted to patients."  Maloney v. Conroy, 545 A.2d 1059, 1064
(Conn. 1988).  Although procedurally we must accept the allegation in this
case that negligent treatment by a health care professional resulted in the
implantation of false memories of sexual abuse, we must assess the impact of
the duty urged by Flanders on the willingness of the competent professional
to pursue proper treatment in the care of patients.  Our recognition of the
duty Flanders advocates might restrict the treatment choices of health care
professionals, and hence it would intrude directly on the professional-
patient relationship.  We are not prepared to sanction such an intrusion.

III.

	[¶9]  We are also concerned that recognition of the duty urged by
Flanders would undermine laws enacted by the Legislature to enhance
efforts to uncover and to investigate possible instances of child abuse.  For
example, section 4011(1) of Title 22 states:

When, while acting in a professional capacity, an adult who is a
medical or osteopathic physician, resident, intern, emergency
medical services person, medical examiner, physician's
assistant, dentist, dental hygienist, dental assistant,
chiropractor, podiatrist, registered or licensed practical
nurse, . . . home health aide, medical or social service worker,
psychologist, child care personnel, mental health
professional, . . . knows or has reasonable cause to suspect that a
child has been or is likely to be abused or neglected, that person
shall immediately report or cause a report to be made to the
department.

22 M.R.S.A. § 4011(1) (1992 & Supp. 1997).  Anyone making a report in
good faith pursuant to § 4011(1) "is immune from any criminal or civil
liability for the act of reporting . . . ."  22 M.R.S.A. § 4014(1) (1992). 
Negligent reporting is not actionable.
	[¶10]  Although the negligent reporting of sexual abuse is not at issue
in this case,{5} there is an inescapable link between the duty to a third party
urged by Flanders and the willingness of a health care professional to pursue
a course of treatment that would cause a child to recognize that sexual abuse
has occurred.  Such recognition might prompt the child to report the abuse
to other adults or to law enforcement authorities.  That report of sexual
abuse could expose the health care professional to retaliatory lawsuits by the
alleged abuser if we held that the health care professional owed a duty of
care to that party.  Such exposure to a negligence action would be a powerful
disincentive to the detection and treatment of sexual abuse.
	[¶11]  In Bird v. W.C.W., 868 S.W.2d 767, 768 (Tex. 1994), the Texas
Supreme Court refused to permit a father to sue a psychologist for the
negligent misdiagnosis of sexual abuse in the treatment of his child. 
Although the court acknowledged "that the harm to a parent accused of
sexual abuse is foreseeable," it concluded that foreseeability alone did not
provide a basis for imposing a duty:

A claimant's right to sue a mental health professional must be
considered in light of countervailing concerns, including the
social utility of eradicating sexual abuse.  Evaluating children to
determine whether sexual abuse has occurred is essential to that
goal.  Young children's difficulty in communicating sexual abuse
heightens the need for experienced mental health professionals
to evaluate the child.  Because they are dealing with such a
sensitive situation, mental health professionals should be allowed
to exercise their professional judgment in diagnosing sexual
abuse of a child without the judicial imposition of a
countervailing duty to third parties.

Id. at 769 (citations omitted).  We agree with this analysis.  The recognition
of the duty urged by Flanders would be contrary to the legislative concern
for the detection and reporting of sexual abuse reflected in Maine's
mandated reporter statute.

IV.

	[¶12]  The Legislature has also demonstrated a concern for the effect
of malpractice liability on health care professionals and has acted to limit
that liability.  Pursuant to the Maine Health Security Act, 24 M.R.S.A.
§§ 2501-2961 (1990 & Supp. 1997), a party cannot pursue an action for
professional negligence in court unless the party has first presented the
claim to a prelitigation screening panel.  24 M.R.S.A. § 2903 (1990 & Supp.
1997).  The purpose of this requirement is both "[t]o identify claims of
professional negligence which merit compensation . . . and . . . to encourage
early withdrawal or dismissal of nonmeritorious claims."  24 M.R.S.A.
§ 2851(1) (1990).{6}
	[¶13]  The Legislature's decision to circumscribe the malpractice
liability of health care professionals underscores the appropriateness of
reserving for legislative consideration the expansion of their malpractice
liability to third parties sought by Flanders.  Although we have the power as a
common law court to recognize the duty urged by Flanders, there are times
when "judicial decree is no substitute for the exhaustive gathering of socio-
economic facts and the public debate upon the import of those facts that
would occur before the Maine Legislature enacted so sweeping an
embellishment on the existing tort law of this state."  Durepo v. Fishman,
533 A.2d 264, 265 (Me. 1987).  That caution is particularly appropriate
when the Legislature has already enacted measures which are inconsistent
with the expansion of tort liability sought by an injured party.  In our view,
the Legislature is the more appropriate forum for gathering and considering
the factual material needed to fashion a policy that might balance the needs
of victims of sexual abuse and the needs of those individuals who claim they
were wrongly accused of sexual abuse because of the negligence of a health
care professional.
	[¶14]  We conclude, therefore, that Cooper and Greater Brunswick
Physical Therapy did not owe Flanders a duty of care.  His negligence claim
against them is not actionable.
	The entry is:
					Judgment affirmed.
                                                                          
Attorneys for plaintiff:

Paul F. Macri, Esq., (orally)
Tyler N. Kolle, Esq.
Berman & Simmons, P.A.
P O Box 961
Lewiston, ME 04243-0961

Attorneys for defendants:

James E. Fortin, Esq., (orally)
Martica S. Douglas, Esq.
P O Box 7108
Portland, ME 04112-7108

Attorney for amicus curiae Erin Miller:

William C. Nugent, Esq.
P O Box 4811
Portland, ME 04112

FOOTNOTES******************************** {1} Pursuant to 32 M.R.S.A. § 3113-A (Supp. 1997), no person may practice physical therapy unless licensed in accordance with Maine's Physical Therapy Practice Act. {2} Flanders would phrase the issue more narrowly: whether a physical therapist improperly practicing as a psychotherapist, and thereby inducing false memories of sexual abuse, owed a duty of care to an injured third party. Flanders argues that the resolution of the duty issue, thus narrowed, would have no implications for the relationship between patients and health care professionals who practice within the scope of their licenses. This reasoning is unpersuasive. It would be bizarre to hold that health care professionals practicing outside the scope of their licenses have a duty of care to third parties that health care professionals practicing within the scope of their licenses do not have. If we were to impose such a duty, the duty of the health care professional to third parties would be to refrain from negligent treatment, whether the specific practices at issue were within or without the scope of the professional license. {3} As the Tarasoff court noted, the California legislature had already balanced the privacy rights of the patient against the public interest in safety from violent assault by creating a limited exception to the psychotherapist-patient privilege "if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threat of danger." Id. at 347 (quoting Cal. Evid. Code § 1024 (West 1997)). {4} We recognize that a therapist's disclosure of the danger posed by a patient would disrupt the patient's relationship with the therapist, thereby impairing the therapist's ability to continue treating the patient. This disruption, however, is an incidental effect of a course of action taken by the therapist extraneous to the treatment of the patient. {5} Cooper did not report the alleged sexual abuse to the police. Flanders's daughter made the report. Flanders was subsequently arrested and charged with gross sexual misconduct. A jury acquitted him, and he then initiated this action. {6} If the prelitigation screening panel unanimously finds either that the practitioner did not deviate from the applicable standard of care or that the practitioner's deviation did not proximately cause the injury, but the claimant nevertheless chooses to proceed in court, the panel's unanimous findin