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Monday, November 23, 2020

Can you sue a psychiatrist for malpractice?

A divided Eleventh Circuit declared invalid a Florida municipal ordinance prohibiting conversion therapy. The court treated the ordinance as content- (indeed, viewpoint-) based and failing strict scrutiny. On one hand, this is not surprising, as the court had previously declared invalid a Florida statute prohibiting pediatricians from asking patients (and parents) whether they kept guns in the home. If anything, that law could have found stronger footing as an incidental regulation of a medical check-up.

The Eleventh Circuit rejected that possibility with the conversion-therapy ban. This is not speech incidental to medical conduct. Rather, "[w]hat the governments call a 'medical procedure' consists—entirely—of words. As the district court itself recognized, plaintiffs’ therapy 'is not just carried out in part through speech: the treatment provided by Drs. Otto and Hamilton is entirely speech.'”

If so, can a therapist be successfully sued for malpractice for the harmful effects of talk therapy (put aside medical issues, such as prescriptions)? Imagine a therapist who bullied and shouted at her patients, worsening their emotional and mental problems. If the "treatment" is entirely speech, then a malpractice claim would impose liability for speech. The majority insists the decision does not go so far and "does not stand in the way of '[l]ongstanding torts for professional malpractice' or other state-law penalties for bad acts that produce actual harm." The court distinguished this broad prophylactic rule prohibiting speech from tort rules imposing accountability for actual harm to children. But I do not understand why that matters for First Amendment purposes--the law would be regulating "entirely speech" in either situation.

Posted by Howard Wasserman on November 23, 2020 at 09:31 AM | Permalink


Informed consent-based liability is also based on “entirely speech” since the factual theory of liability will always concern the advice given by the treating medical professional re: the course of treatment at issue. But no one thinks medical professionals have a First Amendment defense to civil liability for not providing informed consent. I think this falls in the same category. Malpractice-based claims against therapists, as well as potential IIED-based claims against egregiously abusive, harassing therapy, would survive First Amendment defenses but be subject to the standard affirmative defenses applicable to those tort claims. And I don’t think it’s quite right to say that the First Amendment prohibits liability for IIED when the outrageous conduct by the defendant involves speech. That was true in Snyder v Phelps, but only because the speech that was the basis for liability was on a matter of public concern.

Posted by: Enrique Armijo | Nov 24, 2020 10:45:38 PM

The argument goes beyond talk therapy. A doctor who writes a prescription that injures or kills a patient could also defend with the argument that "the treatment provided by [the doctor] is entirely speech.” All the doctor did was write words on a piece of paper.

And of course pretty much all legal malpractice cases involve nothing but speech. Not to mention antitrust, fraud . . .

Posted by: arthur | Nov 23, 2020 2:13:50 PM

Maybe, but I don't see why that would matter. No one is asking the court to eliminate the tort, only to hold that the First Amendment prohibits liability in such a case. IIED has a plethora of applications, some speech and some not--the First Amendment prohibits liability in the former but not the latter.

Posted by: Howard Wasserman | Nov 23, 2020 1:46:58 PM

Perhaps this panel would distinguish between a law that really only regulates speech and a tort that has a plethora of applications, only a handful of which principally bear on speech.

Posted by: Asher Steinberg | Nov 23, 2020 1:44:27 PM

Important issue. When dealing with torts, one should should typically, examine, whether one professional, has deviated from clearly and common established standard (known as such, prescribed as such). Here it is more vague one must admit. The dissenting opinion by the way, has cited researches, suggesting clearly, that such therapy, causes harm. More harm than benefits. I quote (the dissenting):

" The Task Force Report catalogued recent studies reporting that patients who undergo SOCE experience negative consequences including “anger, anxiety, confusion, depression, grief, guilt, hopelessness, deteriorated relationships with family, loss of social support, loss of faith, poor self-image, social isolation, intimacy difficulties, intrusive imagery, suicidal ideation, self-hatred, and sexual dysfunction.” Id. The Task Force Report acknowledged some recent studies contain accounts of positive initial benefits of SOCE, but that “[m]any participants” in these studies “described experiencing first the positive effects and then experiencing or acknowledging the negative effects later.”

So, one must first, distinguish, between children and adult, while going through such therapy. Sometimes, it is not solely speech, but, acts beyond pure speech.


Posted by: El roam | Nov 23, 2020 10:09:15 AM

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