{ "id": 209983, "name": "JOHN DOE, Appellee, v. BOBBIE McKAY, Ph.D., et al., Appellants", "name_abbreviation": "Doe v. McKay", "decision_date": "1998-10-05", "docket_number": "No. 83094", "first_page": "272", "last_page": "290", "citations": [ { "type": "official", "cite": "183 Ill. 2d 272" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "136 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3255179 ], "year": 1990, "pin_cites": [ { "page": "140-41" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/136/0132-01" ] }, { "cite": "56 Ill. 2d 372", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5403562 ], "year": 1974, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0372-01" ] }, { "cite": "144 Ill. 2d 535", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592608 ], "year": 1991, "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0535-01" ] }, { "cite": "169 Ill. 2d 110", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909171 ], "year": 1995, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0110-01" ] }, { "cite": "98 Ill. 2d 158", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121711 ], "year": 1983, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0158-01" ] }, { "cite": "138 Ill. 2d 369", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576205 ], "year": 1990, "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0369-01" ] }, { "cite": "286 Ill. App. 3d 1020", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544508 ], "weight": 2, "pin_cites": [ { "page": "1026-27" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/1020-01" ] }, { "cite": "146 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597145 ], "year": 1991, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0001-01" ] }, { "cite": "179 Ill. 2d 338", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801348 ], "year": 1997, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0338-01" ] }, { "cite": "846 F. Supp. 654", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1200541 ], "year": 1994, "pin_cites": [ { "page": "660-61" } ], "opinion_index": 0, "case_paths": [ "/f-supp/846/0654-01" ] }, { "cite": "786 F. Supp. 1340", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5713289 ], "year": 1992, "pin_cites": [ { "page": "1364-65" } ], "opinion_index": 0, "case_paths": [ "/f-supp/786/1340-01" ] }, { "cite": "128 Ill. App. 3d 859", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3524504 ], "year": 1984, "pin_cites": [ { "parenthetical": "allowing divorced father to bring action alleging former spouse and psychiatrist conspired to brainwash son in effort to destroy father's relationship with child" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0859-01" ] }, { "cite": "144 Ill. App. 3d 192", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3500594 ], "year": 1986, "pin_cites": [ { "parenthetical": "denying parent's cause of action for loss of society resulting from acts intended to induce child to leave parental home" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0192-01" ] }, { "cite": "660 F. Supp. 679", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4018945 ], "year": 1987, "pin_cites": [ { "parenthetical": "allowing widowed father to bring action against in-laws for attempting to have child placed for adoption without father's knowledge or consent" } ], "opinion_index": 0, "case_paths": [ "/f-supp/660/0679-01" ] }, { "cite": "124 Ill. 2d 61", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217642 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "69" }, { "page": "70" }, { "page": "70-71" }, { "page": "72-73" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0061-01" ] }, { "cite": "518 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1729911 ], "weight": 6, "year": 1996, "pin_cites": [ { "page": "10" }, { "page": "345" }, { "page": "1928" }, { "page": "11" }, { "page": "345-46" }, { "page": "1929" } ], "opinion_index": 0, "case_paths": [ "/us/518/0001-01" ] }, { "cite": "907 F. Supp. 1183", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7833251 ], "year": 1995, "pin_cites": [ { "page": "1189" } ], "opinion_index": 0, "case_paths": [ "/f-supp/907/1183-01" ] }, { "cite": "137 Ill. 2d 332", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251633 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "340-42" }, { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0332-01" ] }, { "cite": "67 Ill. 2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5813471 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "357" }, { "page": "367-68", "parenthetical": "Dooley, J, concurring" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0348-01" ] }, { "cite": "179 Ill. App. 3d 863", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2609259 ], "year": 1989, "pin_cites": [ { "page": "874-75", "parenthetical": "Reinhard, J., specially concurring" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/179/0863-01" ] }, { "cite": "92 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3096980 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-2d/92/0013-01" ] }, { "cite": "131 Ill. 2d 509", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5570378 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-2d/131/0509-01" ] }, { "cite": "117 Ill. 2d 507", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545405 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "529-32" }, { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/117/0507-01" ] }, { "cite": "36 Ill. 2d 516", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5377051 ], "year": 1967, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0516-01" ] }, { "cite": "32 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2840924 ], "year": 1965, "opinion_index": 1, "case_paths": [ "/ill-2d/32/0465-01" ] }, { "cite": "156 Ill. 2d 76", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777563 ], "year": 1993, "opinion_index": 1, "case_paths": [ "/ill-2d/156/0076-01" ] }, { "cite": "225 Ill. App. 3d 509", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5246079 ], "year": 1992, "pin_cites": [ { "page": "513" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/225/0509-01" ] }, { "cite": "137 Ill. 2d 332", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251633 ], "year": 1990, "pin_cites": [ { "page": "342" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/137/0332-01" ] } ], "analysis": { "cardinality": 1302, "char_count": 33362, "ocr_confidence": 0.753, "pagerank": { "raw": 3.2035386837449527e-07, "percentile": 0.8660238492668878 }, "sha256": "a6f498a7f12e34e39eb8afba9cad73cd81d57c5ddf2d2908a1d9799f1431de55", "simhash": "1:5eb8f74a309d41d2", "word_count": 5337 }, "last_updated": "2023-07-14T17:04:52.407821+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN DOE, Appellee, v. BOBBIE McKAY, Ph.D., et al., Appellants." ], "opinions": [ { "text": "JUSTICE MILLER\ndelivered the opinion of the court:\nThe pseudonymous plaintiff, John Doe, brought the present action in the circuit court of Du Page County seeking damages relating to the psychological treatment rendered to his daughter by the defendants, Bobbie McKay, Ph.D., and McKay\u2019s employer, the professional corporation of Bobbie McKay, Ph.D., Ltd. Following a hearing, the trial judge granted the defendants\u2019 motions to dismiss various counts of the plaintiffs amended complaint for failure to state a cause of action. The plaintiff appealed the circuit court\u2019s dismissal of counts that sought recovery on theories of negligence and intentional interference with a family relationship. The appellate court reversed the dismissal of those counts, concluding that they stated causes of action. We allowed the defendants\u2019 petition for leave to appeal (166 Ill. 2d R. 315(a)), and we now reverse the judgment of the appellate court and affirm the judgment of the circuit court.\nThe circuit court dismissed the challenged portions of the amended complaint under section 2 \u2014 615 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 615 (West 1994)) for failure to state a cause of action. Our review of that ruling is de novo (Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997)), and it requires us to assume the truth of all well-pleaded factual allegations in the plaintiffs amended complaint (People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 11 (1991). According to the allegations in the amended complaint, beginning in 1990 and continuing through October 1995, when the amended complaint was filed, the plaintiffs daughter, Jane Doe, underwent psychological treatment under the care of defendant Bobbie M[cKay, a licensed clinical psychologist. During the course of this treatment, Jane Doe supposedly discovered repressed memories of sexual abuse allegedly committed by the plaintiff. Jane Doe, who was born in 1964, had not been aware of these memories before beginning her treatment with Dr. McKay.\nAccording to the amended complaint, during a counseling session attended by McKay, Jane Doe, and the plaintiff on February 6, 1992, Jane Doe accused the plaintiff of sexually abusing her when she was about 11 years old. Also during this session, McKay suggested to Jane Doe that the plaintiff might harm her further. At that time, McKay told the plaintiff that his daughter\u2019s memories of the alleged abuse had been repressed until they were retrieved during therapy, and that the plaintiff had repressed his own memories of the abuse. McKay recommended that the plaintiff commence treatment with another therapist; McKay spoke with the plaintiff the next day by telephone and recommended that he see Vicki Seglin, another psychologist employed by the McKay practice. The plaintiff saw Seglin individually until October 1992. The plaintiff further alleges that he later learned from his daughter that the February 6, 1992, session was arranged by the therapist to maximize the shock effect of his daughter\u2019s accusation and to force from the plaintiff a confession regarding the alleged abuse. The plaintiff denies that he ever sexually abused his daughter.\nThe amended complaint also alleges that at a counseling session on September 9, 1992, attended by McKay, Jane Doe, and the plaintiff, McKay told the plaintiff of the specific act of abuse he allegedly committed against his daughter. At that time, McKay again asserted that the plaintiff and his daughter had repressed their memories of the abuse. Later, at a session held on October 27, 1992, which was attended by McKay, Seglin, Jane Doe, and the plaintiff, McKay stated again that Jane Doe and the plaintiff had repressed their memories of the plaintiffs alleged sexual abuse. On this occasion, McKay said that the only explanation for Jane Doe\u2019s psychological condition was that she had been abused by the plaintiff.\nRegarding the method of treatment employed in Jane Doe\u2019s case, the plaintiff alleges that McKay believes that mental or emotional problems in adults are often the result of childhood sexual abuse, the memory of which has been repressed. The plaintiff further asserts that McKay believes that previously repressed memories of abuse can be recalled with the techniques she uses, and that \u201chealing\u201d can occur when a patient recovers those memories and resolves the ensuing emotional turmoil. The plaintiff asserts that McKay\u2019s views regarding repression and the recovery of repressed memory are not supported by scientific evidence and are not generally accepted by the psychological community. The plaintiff further alleges that he paid a total of $3,208 for services rendered by McKay to his daughter from January through August 1992, and that he paid a total of $4,435 for services rendered to him by Vicki Seglin from February through October 1992. Jane Doe is not a party to this action, and she has not alleged any malpractice by the defendants.\nThe plaintiff commenced the present action on September 9, 1994. The plaintiff sought recovery from McKay and Seglin individually and, under a theory of respondeat superior, from the professional corporation with which they were associated, Bobbie McKay, Ph.D., Ltd. The circuit court granted the plaintiffs request to permit him to use the pseudonym \u201cJohn Doe\u201d in these proceedings; his daughter, the subject of the challenged treatment, is identified similarly as \u201cJane Doe.\u201d The plaintiffs amended complaint comprised 17 counts, and it sought recovery on theories of negligence \u2014 toward both the plaintiff and his daughter \u2014 intentional interference with a parent-child relationship, intentional infliction of emotional distress, defamation, and misrepresentation.\nAt issue in this appeal are counts alleging the negligent treatment of Jane Doe by McKay, which allegedly deprived the plaintiff of his daughter\u2019s society and companionship (counts I and XI), as well as counts alleging intentional interference by McKay with the parent-child relationship (counts IV and XIV), and loss of his daughter\u2019s society and companionship (counts V and XV). The defendants moved to dismiss those counts on the ground that Illinois does not recognize those theories of liability in the circumstances alleged here. The trial judge granted the motions to dismiss and made the requisite finding under Supreme Court Rule 304(a) to permit an immediate appeal from that ruling. The plaintiff did not appeal the dismissal of a number of other counts, and the trial judge denied the defendants\u2019 motions to dismiss other parts of the amended complaint.\nThe appellate court reversed and remanded. 286 Ill. App. 3d 1020. The appellate court concluded that the plaintiff stated causes of action against McKay and her practice under the theories asserted in the counts chailonged here, and the appellate court therefore remanded the cause to the circuit court for further proceedings. We allowed the defendants\u2019 petition for leave to appeal (166 Ill. 2d R. 315(a)), and we now reverse the judgment of the appellate court and affirm the judgment of the circuit court. We granted leave to the False Memory Syndrome Foundation to submit a brief as amicus curiae in support of the plaintiff. 155 Ill. 2d R. 345. Also, we allowed the following organizations to file a joint brief as amici curiae in support of the defendants: the Alliance for the Rights of Children; the American Counseling Association; the American Professional Society on the Abuse of Children; the Illinois Coalition Against Sexual Assault; Justice for Children; The Linkup; the Marilyn Van Derbur Institute, Inc.; Mothers Against Sexual Abuse; the National Alliance of Sexual Assault Coalitions; the National Coalition Against Sexual Assault; One Voice, the National Alliance for Abuse Awareness and the American Coalition for Abuse Awareness; Survivor Connections, Inc.; Survivors and Victims Empowered; Voices in Action, Inc.; and the Women\u2019s Law Project.\nI\nWe consider first counts I and XI of the amended complaint. Count I alleges negligence against Dr. McKay individually; count XI is based on the same allegations, but is directed against her practice, Bobbie McKay, Ph.D., Ltd., under an agency theory. Both counts allege that McKay committed negligence toward Jane Doe. Separate counts alleging negligence by McKay toward the plaintiff himself were not dismissed by the trial judge, and they remain pending in the circuit court of Du Page County. The defendants argue that the negligence counts at issue here did not allege a legally recognized duty toward the plaintiff.\nTo state a cause of action for negligence, a complaint must allege facts that are sufficient to show the existence of a duty, a breach of the duty, and an injury to the plaintiff proximately caused by the breach. Widlowski v. Durkee Foods, Division of SCM Corp., 138 Ill. 2d 369, 373 (1990); Curtis v. County of Cook, 98 Ill. 2d 158, 162 (1983). Whether a duty exists is a question of law to be determined by the court. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 116 (1995); Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 542 (1991); Cunis v. Brennan, 56 Ill. 2d 372, 374 (1974). In deciding whether a duty exists in a particular case, a court will consider the foreseeability of the plaintiffs injury, the likelihood of the occurrence, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant. Ward v. K mart Corp., 136 Ill. 2d 132, 140-41 (1990); Lance v. Senior, 36 Ill. 2d 516, 518 (1967).\nIn Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507 (1987), this court ruled that a third party injured by a patient could not bring a malpractice action against the patient\u2019s doctors, who allegedly failed to warn the patient that prescription drugs he was taking could impair his abilities. The plaintiff in that case was injured when the car in which he was riding struck a tree; the car was being driven by a recently discharged psychiatric patient who had received psychotropic drugs at a hospital and who had later consumed alcohol. The plaintiff sued the hospital, the manufacturers of the drugs, and t\\yo doctors. This court rejected the plaintiff\u2019s contention that the doctors\u2019 failure to advise the patient of the possible side effects of the drugs gave rise to a duty of care toward nonpatient third-parties such as the plaintiff. Kirk, 117 Ill. 2d at 529-32. The court believed that allowing the action against the doctors to go forward would improperly enlarge their duty of care, for \u201c[s]uch a broad duty extended to the general public would expand the physician\u2019s duty of care to an indeterminate class of potential plaintiffs.\u201d Kirk, 117 Ill. 2d at 532. As this court recognized in Kirk, the duty of due care owed by a health care professional runs only to the patient, and not to third parties. A similar rule applies in other contexts, such as legal malpractice. McLane v. Russell, 131 Ill. 2d 509 (1989); Pelham v. Griesheimer, 92 Ill. 2d 13 (1982).\nThe plaintiff does not allege in counts I and XI, at issue here, that he was a patient of Dr. McKay. Elsewhere in the amended complaint the plaintiff separately alleges that he was a patient of Dr. McKay and seeks recovery on a malpractice theory, but those portions of the amended complaint are not involved in this appeal. Our only concern here is with the allegations in counts I and XI, which do not assert a therapist-patient relationship between Dr. McKay and the plaintiff. For the reasons expressed in Kirk, it would appear that these counts must therefore fail. See Eckhardt v. Kirts, 179 Ill. App. 3d 863, 874-75 (1989) (Reinhard, J., specially concurring) (decision in Kirk precludes recovery in wrongful death action brought against psychiatrist by estate of husband murdered by wife undergoing psychiatric treatment).\nThe appellate court below recognized that, as a general rule, a nonpatient may not bring a malpractice action against a healthcare professional. The court believed, however, that the present case fits within the concept of \u201ctransferred negligence,\u201d as illustrated by this court\u2019s decision in Renslow v. Mennonite Hospital, 67 Ill. 2d 348 (1977). The \u201ctransferred negligence\u201d found in Renslow is a limited exception to the customary rule barring malpractice liability to nonpatient third parties. The appellate court believed that the present case comes within the Renslow exception because of the plaintiffs parent-child relationship with his daughter and because the therapist involved the plaintiff in the treatment here, rendering him a \u201cquasi-patient\u201d of Dr. McKay.\nIn Renslow the plaintiff\u2019s mother had received incompatible blood during a transfusion, which had caused the mother\u2019s blood to become sensitized. The mother did not learn of the problem until a number of years later, when she was pregnant with the plaintiff, and the plaintiff was injured as a result of her mother\u2019s condition. The Renslow court concluded that the defendants owed the plaintiff a duty of due care, even though she had not been conceived at the time of the alleged negligence, and therefore permitted the plaintiff to bring a malpractice action against the defendants \u2014 a hospital and its laboratory director.\nIn recognizing the child\u2019s cause of action for malpractice, the Renslow court drew a narrow exception to the general rule of nonliability to third-party nonpatients. Focusing on the close physical relationship between the plaintiff, injured while a fetus, and her mother, the plurality opinion explained:\n\u201cThe cases allowing relief to an infant for injuries incurred in its previable state make it clear that a defendant may be held liable to a person whose existence was not apparent at the time of his act. We therefore find it illogical to bar relief for an act done prior to conception where the defendant would be liable for this same conduct had the child, unbeknownst to him, been conceived prior to his act. We believe that there is a right to be born free from prenatal injuries foreseeably caused by a breach of duty to the child\u2019s mother.\u201d Renslow, 67 Ill. 2d at 357.\nConcurring in the court\u2019s decision, Justice Dooley thought that the harm to the later-conceived plaintiff was foreseeable. Renslow, 67 Ill. 2d at 367-68 (Dooley, J, concurring).\nWe do not believe that similarly compelling circumstances are present in this case, and thus we decline to apply Renslow\u2019s concept of transferred negligence here. The relationship between a mother and a fetus is perhaps singular and unique, and it is demonstrably different from the relationship that exists between a parent and an adult child. Notably, the injury complained of in Renslow was physical, traceable to the negligent treatment of the mother. In the present case, in contrast, the injury is nonphysical and results from decisions made by the daughter. We also note that the interests of the mother and the fetus in Renslow were not adverse to each other, while in the present case the interests of the plaintiff and Jane Doe are different.\nNor is the present appeal like O\u2019Hara v. Holy Cross Hospital, 137 Ill. 2d 332 (1990). In O\u2019Hara the plaintiff accompanied her son to a hospital emergency room for treatment of a facial laceration. The plaintiff injured herself when she fainted during her son\u2019s treatment. The parties disputed whether the plaintiff was merely a bystander during her son\u2019s treatment or whether she was invited to assist in the treatment. This court concluded that the defendants did not have a duty to protect the plaintiff, a nonpatient, from physical injury if she was only a bystander during the treatment. If the plaintiff was invited to participate in her son\u2019s treatment, however, then the court believed that the defendants would owe her a duty to protect her from fainting. O\u2019Hara, 137 Ill. 2d at 340-42.\nThe basis for liability in O\u2019Hara was not the transfer of negligence from the 11-year-old patient to the parent or the existence of a special relationship between the child and the parent, but the breach of a duty of care owed separately to the plaintiff. O\u2019Hara, 137 Ill. 2d at 339. The negligence counts at issue in this appeal, in contrast, allege malpractice not toward the plaintiff but toward his daughter. The plaintiffs separate counts seeking recovery for negligence committed against him remain pending in the circuit court of Du Page County and are not at issue in this appeal.\nA number of considerations relevant to the duty analysis strongly militate against imposition of a duty here, even when the asserted liability is characterized in terms of transferred negligence or a special relationship. Under the rule expressed in Kirk, the defendant therapist owed a duty of care to her patient only, and not to nonpatient third parties. Approval of the plaintiffs cause of action, however, would mean that therapists generally, as well as other types of counselors, could be subject to suit by any nonpatient third party who is adversely affected by personal decisions perceived to be made by a patient in response to counseling. This result would, we believe, place therapists in a difficult position, requiring them to answer to competing demands and to divide their loyalty between sharply different interests. Concern about how a course of treatment might affect third parties could easily influence the way in which therapists treat their patients. Under a rule imposing a duty of care to third parties, therapists would feel compelled to consider the possible effects of treatment choices on third parties and would have an incentive to compromise their treatment because of the threatened liability. This would be fundamentally inconsistent with the therapist\u2019s obligation to the patient. As one court has noted, \u201c[Djoctors should be free to recommend a course of treatment and act on the patient\u2019s response to the recommendation free from the possibility that someone other than the patient might complain in the future.\u201d Lindgren v. Moore, 907 F. Supp. 1183, 1189 (N.D. Ill. 1995). Hoping to avoid liability to third parties, however, a therapist might instead find it necessary to deviate from the treatment the therapist would normally provide, to the patient\u2019s ultimate detriment. This would exact an intolerably high price from the patient-therapist relationship and would be destructive of that relationship.\nMoreover, recognition of the plaintiffs action could also be inconsistent with the duty of confidentiality that every therapist owes to his or her patients. The defendants point out that the therapist cannot properly defend the present action without revealing confidences revealed to her by Jane Doe. These communications are privileged and are subject to disclosure only in a limited range of circumstances, as in cases in which the patient has sued the therapist. 735 ILCS 5/8 \u2014 802 (West 1994) (privileged communications involving patients and healthcare practitioners, including psychologists); 740 ILCS 110/3(a) (West 1994) (under Mental Health and Developmental Disabilities Confidentiality Act, \u201c[a]ll records and communications shall be confidential and shall not be disclosed except as provided in this Act\u201d).\nThe Supreme Court recently underscored the importance of the psychotherapist privilege in a case that extended the privilege to social workers:\n\u201cEffective psychotherapy *** depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.\u201d Jaffee v. Redmond, 518 U.S. 1, 10, 135 L. Ed. 2d 337, 345, 116 S. Ct. 1923, 1928 (1996).\nThe Jaffee Court concluded, \u201cThe psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.\u201d Jaffee, 518 U.S. at 11, 135 L. Ed. 2d at 345-46, 116 S. Ct. at 1929.\nAllowing a nonpatient\u2019s action against another person\u2019s therapist to go forward would seriously intrude on the relationship between therapist and patient, jeopardizing the confidentiality necessary for the relationship to flourish. As this case illustrates, the patient would be faced with a difficult choice between preserving the confidentiality of patient-therapist communications and assisting the therapist in responding to what must, to the patient\u2019s eyes, be a meritless action. The patient could either waive the privilege and permit the therapist to defend the action, while suffering the public disclosure of communications originally intended to remain private, or assert the privilege and maintain the confidentiality of the therapy, but at the price of denying the therapist, presumably a valued friend, the use of potentially helpful evidence.\nThus, unless waived by the patient, the therapist\u2019s duty of confidentiality would restrict the therapist in the way in which she could respond here to the plaintiffs allegations. For example, the therapist could neither confirm nor deny that the patient told her certain things during the course of the patient\u2019s treatment. We note that the record in the present case contains an affidavit from defendant Bobbie McKay, in which she states that Jane Doe has declined to waive the statutory privilege. Thus, Dr. McKay could not easily answer the present action, for her patient has effectively forbidden her to respond to some of the central allegations of the plaintiffs complaint.\nThe considerations we have just discussed \u2014 the problem of divided loyalties, and the strong public interest in maintaining the confidentiality of therapist-patient communications \u2014 argue strongly against imposing on therapists a duty of care toward nonpatients. Accordingly, we believe that the rule in Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507 (1987), barring malpractice actions by third parties must be applicable here and requires that no duty be extended to the plaintiff for psychic injuries allegedly arising from the therapist\u2019s treatment of Jane Doe. To be sure, the plaintiff may allege that he himself was a patient of Dr. McKay, and counts to that effect remain pending in the circuit court of Du Page County. They are not at issue in the present appeal, however.\nII\nWe next consider whether the plaintiff may recover damages for lost society and companionship under theories of intentional interference with a family relationship, as alleged in counts IV V XIV and XV of the amended complaint. The defendants argue that this court\u2019s decision in Dralle v. Ruder, 124 Ill. 2d 61 (1988), should be construed as barring recovery for lost society and companionship of a nonfatally injured child. The plaintiff contends that Dralle does not bar recovery of these damages. Although we have considered the negligence counts separately, we note that the same defects discussed below would affect the negligence counts as well, for those counts also seek damages for lost society and companionship.\nIn Dralle this court declined to recognize a cause of action by parents to recover for loss of society and companionship in a products liability action against the manufacturer of a drug that allegedly caused nonfatal birth defects in the plaintiffs\u2019 child. The court mentioned \u201cthe appropriate scope of tort liability\u201d (Dralle, 124 Ill. 2d at 69) and the interests that other relatives besides parents could assert in bringing similar claims to recover for lost society caused by nonfatal injuries to a relative. The court also cited the availability of the injured child\u2019s own cause of action, which could be duplicated by the parents\u2019 own claim. Dralle, 124 Ill. 2d at 70. Finally, the court referred to the problems that inevitably arise in determining damages for lost society and companionship resulting from nonfatal injuries. Dralle, 124 Ill. 2d at 70-71. Although Dralle rejected the parents\u2019 claim, the court did not address recovery in actions based on what has been characterized as a \u201cdirect\u201d interference with family relationships, as opposed to the \u201cindirect\u201d interference alleged in Dralle. Dralle, 124 Ill. 2d at 72-73, citing Kunz v. Deitch, 660 F. Supp. 679 (N.D. Ill. 1987) (allowing widowed father to bring action against in-laws for attempting to have child placed for adoption without father\u2019s knowledge or consent); Whitehorse v. Critchfield, 144 Ill. App. 3d 192 (1986) (denying parent\u2019s cause of action for loss of society resulting from acts intended to induce child to leave parental home); Dymek v. Nyquist, 128 Ill. App. 3d 859 (1984) (allowing divorced father to bring action alleging former spouse and psychiatrist conspired to brainwash son in effort to destroy father\u2019s relationship with child).\nThe plaintiff maintains that he is alleging an action for direct interference, and it was on that ground that the appellate court below permitted the plaintiff to proceed on these portions of the amended complaint. 286 Ill. App. 3d at 1026-27. We do not agree that the asserted distinction between \u201cdirect\u201d and \u201cindirect\u201d forms of interference support a different result in this case, for we believe that the same considerations that led the court to deny recovery in Dralle must also preclude recovery for lost society and companionship here. In our view, the considerations cited in Dralle as grounds for barring recovery of psychic damages are applicable whether the interference with the relationship is characterized as direct or indirect. See Alber v. Illinois Department of Mental Health & Developmental Disabilities, 786 F. Supp. 1340, 1364-65 (N.D. Ill. 1992); but see Sullivan v. Cheshier, 846 F. Supp. 654, 660-61 (N.D. Ill. 1994). Accordingly, we conclude that the concerns raised in Dralle must also preclude recovery here.\nFirst, allowing recovery by the plaintiff would greatly expand the potential liability of therapists and other counselors. As we noted above, in declining to extend the therapist\u2019s duty of care to nonpatients, permitting the plaintiff\u2019s action here would considerably enlarge therapists\u2019 potential liability to persons affected by the decisions made by patients in response to psychological counseling. Ultimately, any person who advises another could be subject to liability for actions taken on that advice. Again, this result would impose conflicting demands on therapists, who would then have both a duty to serve the needs of their patients and a duty to avoid harming the interests of unknown third parties. Also, defending actions against nonpatients would, as we have discussed, undermine the vital precept of confidentiality on which the therapist-patient relationship depends.\nMoreover, we note that a tort remedy is available to a patient who believes that he or she has been the victim of professional malpractice. Although the plaintiff\u2019s daughter is not a party to the present action, she may, if she chooses, bring her own suit for malpractice. In that event, she would be placing her own treatment at issue, waiving the statutory privileges protecting patient-therapist communications, and the confidentiality concerns mentioned earlier would no longer restrict the therapist in defending the action. 735 ILCS 5/8 \u2014 802(2) (West 1996) (privilege waived \u201cin actions, civil or criminal, against the healthcare practitioner for malpractice (in which instance the patient shall be deemed to have waived all privileges relating to physical or mental condition)\u201d); 740 ILCS 110/10(a)(3) (West 1994) (\u201cIn the event of a claim made or an action filed by a recipient, or, following the recipient\u2019s death, by any party claiming as a beneficiary of the recipient for injury caused in the course of providing services to that recipient, the therapist may testify as to pertinent records or communications in any administrative, judicial or discovery proceeding for the purpose of preparing and presenting a defense against the claim or action\u201d).\nWe also recognize the difficulty in determining an appropriate recovery in cases like this. A trier of fact considering damages for lost society and companionship in these circumstances would in essence be asked to consider the degree and duration of the estrangement between the plaintiff and his adult daughter. Assigning a value to the impaired relationship would be a difficult task, of course, and it is one that would be made even more complex by the possibility that the estrangement could end at any time in reconciliation.\n* * *\nIn sum, we do not believe that the plaintiff has succeeded in stating a cause of action under the theories at issue in this appeal. Accordingly, the judgment of the appellate court is reversed, and the judgment of the circuit court of Du Page County is affirmed.\nAppellate court judgment reversed;\ncircuit court judgment affirmed.", "type": "majority", "author": "JUSTICE MILLER" }, { "text": "JUSTICE HARRISON,\ndissenting:\nMy colleagues expound at length about the need to protect medical providers from liability to some indeterminate class of nonpatient third parties. They fail to see that that is not what this case is about at all. Plaintiff here was not a chance bystander or random member of the general public. He was a relative of the therapist\u2019s patient, he was the alleged cause of the patient\u2019s psychological difficulties, and, according to the complaint, the therapist specifically arranged to have him participate in the patient\u2019s therapy sessions as part of the patient\u2019s treatment program.\nWhere a third party has the kind of relationship with the patient that John Doe had here and the therapist chooses to make that third party an integral part of a patient\u2019s treatment, as the therapist in this case did, the majority\u2019s concerns about compromising patient confidentiality and divided loyalty make no sense. It was the therapist who orchestrated what happened here, she did so with the patient\u2019s consent, and once John Doe began participating in the sessions at the therapist\u2019s behest, protecting the patient\u2019s condition against disclosure to third parties ceased to be a consideration. Divulging the patient\u2019s complaints to John Doe was, in fact, the very foundation of the therapist\u2019s treatment plan. As the majority notes, the therapist hoped that the shock effect of the patient\u2019s disclosures would force Doe to confess.\nAs it turned out, no confession was forthcoming. The plan failed. The damage that John Doe allegedly sustained as a result was foreseeable by any meaningful standard. The likelihood of injury was great, the burden of guarding against that injury was slight, and there would be no significant adverse consequences from placing that burden on the therapist.\nThe majority claims that approving plaintiff\u2019s cause of action\n\u201cwould mean that therapists generally, as well as other types of counselors, could be subject to suit by any non-patient third party who is adversely affected by personal decisions perceived to be made by a patient in response to counseling.\u201d 183 Ill. 2d at 282.\nThis is patently untrue. A cardinal principle of our common law system is that a holding can have no broader application than the facts of the case that gave rise to it. Cates v. Cates, 225 Ill. App. 3d 509, 513 (1992), aff\u2019d, 156 Ill. 2d 76 (1993), citing Nix v. Smith, 32 Ill. 2d 465 (1965). The case before us today does not involve \u201ctherapists generally,\u201d but a licensed clinical psychologist. As previously indicated, plaintiff was not simply \u201cany third party,\u201d but a family member who was used as a tool in plaintiff\u2019s treatment program. Moreover, the harm alleged here did not result from \u201cpersonal decisions perceived to be made by a patient,\u201d whatever that means. It was the product of a failed course of treatment formulated by a mental health professional.\nIn O'Hara v. Holy Cross Hospital, 137 Ill. 2d 332, 342 (1990), this court held that a hospital has a duty to protect a parent from harm where the parent is invited to participate in her child\u2019s care and treatment. I see no reason why we should not recognize a similar duty on the part of the psychologist who has been sued in this case. I would further hold that the plaintiff should be allowed to seek damages from that psychologist for lost society and companionship based on intentional and direct interference with a family relationship. The judgment of the appellate court should therefore be affirmed.", "type": "dissent", "author": "JUSTICE HARRISON," } ], "attorneys": [ "Robert Marc Chemers, Stephen C. Veltman and Scott L. Howie, of Pretzel & Stouffer, Chrtd., of Chicago, for appellants.", "James H. Knippen, of Walsh, Knippen, Knight & Diamond, Chrtd., and Zachary M. Bravos, all of Wheaton, for appellee.", "Cynthia Grant Bowman, of Chicago, for amici curiae Alliance for the Rights of Children et al.", "Thomas A. Pavlinic, of Annapolis, Maryland, for amicus curiae False Memory Syndrome Foundation." ], "corrections": "", "head_matter": "(No. 83094.\nJOHN DOE, Appellee, v. BOBBIE McKAY, Ph.D., et al., Appellants.\nOpinion filed June 18, 1998.\nRehearing denied October 5, 1998.\nHARRISON, J., dissenting.\nRobert Marc Chemers, Stephen C. Veltman and Scott L. Howie, of Pretzel & Stouffer, Chrtd., of Chicago, for appellants.\nJames H. Knippen, of Walsh, Knippen, Knight & Diamond, Chrtd., and Zachary M. Bravos, all of Wheaton, for appellee.\nCynthia Grant Bowman, of Chicago, for amici curiae Alliance for the Rights of Children et al.\nThomas A. Pavlinic, of Annapolis, Maryland, for amicus curiae False Memory Syndrome Foundation." }, "file_name": "0272-01", "first_page_order": 288, "last_page_order": 306 }