Mower v. Baird

422 P.3d 837 (2018)

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Nature of the Case

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Facts

In March 2011, P's now ex-wife, Lidia, began taking their four-year-old daughter, T.M., to The Children's Center for therapy. The Children's Center provided services to T.M. through D. By the end of T.M.'s initial intake assessment, D assumed, based on information provided by Lidia and D's observation of T.M., that T.M. had been sexually abused by P. D called the Division of Child and Family Services (DCFS) to make a report. DCFS told D that the information didn't presently warrant a report but asked her to continue to gather information. At that point, D should have ended all therapy and allowed a forensic interviewer (a role for which D wasn't trained) to take over to determine if sexual abuse had occurred. D decided to act in the capacity of a combined therapist and investigator and continued with her therapy/interview sessions until October 2012. D allegedly engaged in practices that were both contrary to commonly accepted treatment protocol and expressly rejected by the profession. D conducted these sessions with methods that were tainted by confirmatory bias, diagnostic suspicion bias, and socially desired responses, and were therefore unreliable. She repeatedly asked T.M. questions 'designed to corroborate claims of sexual abuse' and 'that further reinforced the tainting of TM's memory.' This type of questioning creates a high risk that a child will 'confuse what she has heard through repeated questioning as something she actually experienced.' D failed to electronically record the initial sessions or take adequate notes of the questions and answers given, which might have made it possible to later determine the accuracy of T.M.'s statements. D had 'no knowledge of or training in false memory, confirmatory bias, diagnostic suspicion bias, or social desirability responses.' D disregarded standardized test results when diagnosing T.M., kept insufficient records of the sessions, repeatedly questioned T.M. about the same events, and served an inappropriate dual role: therapist for T.M. and investigator for DCFS. As a result, false allegations of sexual abuse were levied against P. DCFS made a 'supported' finding of sexual abuse against P. P challenged that finding in juvenile court, resulting in DCFS changing the finding from 'supported' to 'unsupported.' The juvenile court then found the allegations 'unsubstantiated.' This event damaged a healthy parent-child relationship, harmed and stigmatized P's reputation, and caused significant emotional turmoil and pain to P. P sued Ds for the harm he suffered as a result of T.M.'s treatment on allegations of (1) medical malpractice/negligence against The Children's Center, (2) medical malpractice/negligence against D, and (3) respondeat superior against The Children's Center. Ds moved to dismiss these claims under rule 12(b)(6) of the Utah Rules of Civil Procedure. The district court granted the Ds' motion on the grounds that therapists don't have 'a duty of care to potential sexual abusers when treating the alleged victim.' P appealed.