In an unusual and highly controversial lawsuit by Charles and Karen Johnson against the therapists who treated their adult daughter, a jury in Wisconsin recently awarded the parents $1 million. Their daughter Charlotte was not party to the suit, and her lawyer successfully moved to quash a subpoena that would have forced her to testify at trial. Three therapists were named in the suit; the jury found one non-negligent, and they apportioned liability between the other two on a 70-30 percent basis. The False Memory Syndrome Foundation has cast the case as a victory against therapists who, according to Executive Director Pamela Freyd, “use a variety of dubious techniques, including hypnosis, to try to excavate supposedly repressed memories.”
But that is an incredible distortion of the case. The case did not involve hypnosis—even though the parents used the spectre of hypnosis as an argument to obtain access to their daughter’s confidential medical records. Indeed, the case did not involve any of the other “techniques” mentioned by Pamela Freyd. Hollida Wakefield, the primary expert for the Johnsons, admitted that the therapists “didn’t actively try to get her to recover memories,” that they did not use hypnosis, that there was no “digging for memories,” and that there was no evidence that the therapists planted any memories of abuse. In short, there was no evidence that the memories in this case were caused or created by therapy.
Wakefield also blamed the book The Courage to Heal, listing it first on her list of “Sources of Suggestion that came into play with Charlotte.” But, as Wakefield admitted under oath, there was no evidence that The Courage to Heal was actually part of Charlotte’s therapy or that anyone at Rogers Memorial ever suggested that she read it. How did the book “come into play”? Charlotte owned it and recommended it, on her own, to her mother.
So, what was this case actually about? The plaintiffs claimed that the therapists should have “disabused” Charlotte of her of memories, even her most plausible memories of abuse. The plaintiffs also claimed that the therapists should have investigated Charlotte’s claims, even though she explicitly prohibited them from talking to her parents. That is leaving aside the fact that therapists cannot possibly be private investigators.
If this verdict stands, it is unclear how therapists can provide treatment to someone with memories of childhood sexual abuse without fear of an intrusive and inappropriate third-party lawsuit. That is why Mertz and Bowman argued, in an important 1996 Harvard Law Review article, that such lawsuits should not be allowed. It is also why Justice Ann Walsh Bradely, in a dissenting opinion at the Wisconsin Supreme Court, concluded that the Johnson case represents an unwarranted expansion to modalities of therapeutic treatment far beyond issues of recovered-memory therapy, and that it “undermines the confidentiality that is essential to the patient-therapist relationship.” The jury verdict in this case bears out those concerns in full.
The question that remains is, why is the False Memory Syndrome Foundation misrepresenting this case as being about “recovered-memory therapy,” when the facts of the case clearly demonstrate that it was not?
Footnotes . The Johnsons have tried to portray this lawsuit as an effort to, as their lawyer said in this article, let their daughter know that they love her and “want her to come home.” That explanation is inconsistent with their dogged effort to force her to testify against her will. Faced with medical assessments that forcing her to tesify at trial could cause their daughter to become suicidal, the Johnsons continued to press the issue. It took an order from the trial judge, who agreed that Charlotte’s health was at risk, to quash their subpoena. The jury was not informed of these facts.
. Wakefield deposition (January 20-21, 2010), pp. 172-174, 217, and 233.
. Exhibit 6, Wakefield deposition (January 20, 2010).
. Asked what proof she had that The Courage to Heal was part of the therapy at Rogers Hospital, Wakefield testified: “I don’t know whether it was discussed or not.” In other words, even though she reviewed all of the therapy records, she had no actual evidence for this claim. (Wakefield deposition, p. 239.)
. Johnson v. Rogers Memorial Hospital, 283 Wis. 2d 384 (2005) at 448.