By Alex Stein
A clinical social worker hears from his patient about the patient’s interest in child pornography, but does nothing to solve the problem. Later on, the police raids the patient’s house to find evidence that he illegally downloaded, viewed and possessed child pornography. The patient now faces criminal charges.
Can he sue the social worker for malpractice? Would a similar suit be available against a psychiatrist?
This issue came up before the Connecticut Supreme Court in Greenwald v. Van Handel, — A.3d —-, 2014 WL 1388181 (Conn. 2014). The Court decided that harms originating from the patient’s criminal investigation, trial, conviction, and punishment are not actionable. Holding mental therapists accountable for those harms—it explained—would violate public policy.
The Court backed this decision by three precedents from other jurisdictions: Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., 621 So.2d 953, 954–55 (Ala.1993) (precluding father’s tort action against soft drink company when son was killed tilting vending machine while attempting to steal drinks); Orzel v. Scott Drug Co., 537 N.W.2d 208 (Mich. 1995) (denying compensation to plaintiff who fraudulently obtained drugs from negligent pharmacy, owned by defendant, and developed addiction); Barker v. Kallash, 468 N.E.2d 39 (N.Y. 1984) (precluding action against gunpowder supplier for blast injuries that plaintiff sustained while constructing illegal pipe bomb). Based on these precedents, the Court held that the social worker owed no duty to the patient.
This decision strikes me as wrong. In each of the precedents cited by the Court, the plaintiff claimed to be entitled to precautions that could have made it safer for him to carry out his criminal activity. This claim obviously runs against public policy. In the case at bar, however, the plaintiff made no such claim. Instead, he argued that the defendant could prevent him from committing the crime by doing what he was professionally obligated to do as a clinical social worker. For that reason, the court’s resort to the principle “one’s criminal conduct cannot give him a cause of action” (ex dolo malo nor oritur actio) was misguided.
As suggested by Justice Eveleigh in his dissenting opinion, the plaintiff’s suit ought to have failed or partially succeeded on causation grounds. The law-enforcement actions he was subjected to responded to his criminal activities. Hence, if the plaintiff acted voluntarily, he may have been contributorily negligent (or 100% comparatively negligent). Alternatively, the plaintiff’s mental condition may have weakened his ability to curb his perverse desire for child pornography, in which case his comparative negligence would be less than 100%. The plaintiff therefore deserved a trial after showing that the defendant was professionally obligated to guard against his engagement in child pornography.