Posttermination Boundary Issues

To the Editor: The excellent article by Drs. Malmquist and Notman provided a needed critical examination of the legal system’s use and misuse of the clinical concept of transference. As an expert witness in more than 250 cases of boundary violations/sexual misconduct, I have also been impressed with the curious tendency of both courts and boards of registration to treat transference as tantamount to a finding of incompetence, although I profess that an undue-influence model is plausible and often accurate (1). The latter model is at least more respectful of patient autonomy.

The article seemed to omit a central issue, however—economics. To have sex with a past or present patient is an intentional act, hence, an intentional tort, which precludes coverage by malpractice insurance. Plaintiffs’ attorneys have had two choices in making such cases triable: 1) stressing the other negligences commonly found in such cases (2) or 2) “creating” a negligent (insurable) tort by claiming mismanagement of the transference, a form of (insurable) negligence. Legal precedent has then enshrined the centrality of a transference analysis, even when it does not fit, as Drs. Malmquist and Notman so effectively pointed out.