Defense Digest

Superior Court Refuses To Expand Psychologist's Duty To Warn

Popular lore holds that men often have trouble committing to a romantic relationship. Recently, however, a divorced man alleged that his ex-wife was the one with the commitment problem, and he sued her psychologist for failing to warn him before and during the marriage that it was doomed to failure.

The Superior Court had no problem rejecting the ex-husband as quickly as his estranged wife apparently did. Swisher v. Pitz, 2005 PA Super. 56.

In his complaint, Clyde Crady Swisher III alleged that his marriage to Marylynee Pitz failed because Ms. Pitz was unable to make and keep a marital commitment. Swisher alleged that before the marriage, Dr. Veletri encouraged Ms. Pitz to continue in the relationship. Swisher alleged further that, after the breakup and divorce, Dr. Veletri continued to counsel and encourage Ms. Pitz to reconcile when she knew that Ms. Pitz was incapable.

Swisher asserted a claim of professional malpractice, alleging that Dr. Veletri should have warned him that Pitz could not sustain a commitment and that, by failing to warn, Dr. Veletri caused the emotional injuries he allegedly suffered when their marriage ended. Swisher contended further that Dr. Veletri's conduct in encouraging Pitz to continue the relationship was "outrageous" and, thus, claimed that Dr. Veletri committed the intentional infliction of severe emotional distress.

The Superior Court refused to expand the duty of mental health professionals to warn third parties about their patients. In an opinion authored by Judge John T. Bender, a Superior Court panel upheld the decision by an Allegheny County judge to dismiss the case on preliminary objections.

Essentially, the court did not find the "danger" that a relationship was likely to crumble, however distressing, to be the type of danger that gives rise to a duty to warn.

Recent Supreme Court precedent constrained the duty of mental health providers to warn third parties about their patients to "extremely limited" circumstances. See Emerich v. Philadelphia Ctr. for Human Dev., 554 Pa. 209, 720 A.2d 1032 (1998). Specifically, under Emerich, "a mental health professional who determines, or under the standards of the mental health profession, should have determined, that his patient presents a serious danger of violence to another, bears a duty to exercise reasonable care to protect by warning the intended victim against such danger." Id.,at 1040 (emphasis added).

Here, Swisher claimed mental injury and hurt from the dissolution of his marriage. However, he never alleged that Pitz at any time threatened violence or bodily harm.

Without much difficulty or extensive analysis, the Superior Court found that these facts "simply do not meet the test enunciated in Emerich." The decision hinged on what the court found as an obvious weakness in the claim: "the threat of serious bodily injury is missing in this case." Thus, regardless of the circumstances, therapists and other mental health professionals owe no duty to warn unless a patient presents a serious threat of bodily injury to a third party.

The claim for the intentional infliction of emotional distress was also dismissed. The plaintiff alleged in particular that Dr. Veletri's conduct was outrageous because she continued to encourage Pitz, in part, to test her own therapy methodologies, thus, using the plaintiff "as an unwitting therapeutic device."

The Superior Court reviewed the status of the tort of intentional infliction of emotional distress in Pennsylvania and, in particular, the type of "outrageous" conduct necessary to such a claim. Based on earlier cases and Section 46 of the Restatement (Second) of Torts, which, although not formally adopted, is used for guidance in Pennsylvania, the court noted that " '[o]utrageous or extreme conduct' has been defined by the appellate courts of this Commonwealth as conduct that is 'so outrageous in character, so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society.' " Swisher, supra, at 5, citing Reeves v. Middletown Athletic Ass'n, 2004 PA Super. 475, 16.

The court agreed with the trial court that Dr. Veletri's actions in allegedly continuing to encourage a doomed marriage did not rise to this level of extreme and outrageous conduct.

The entire complaint was, thus, dismissed for legal insufficiency.

*Michael is an associate in the firm's Harrisburg, PA office. He can be reached at (717) 651-3515 or by email at mpipa@mdwcg.com.