Therapist Not Negligent For Failing to Treat Patient for Child Porn Viewing

A therapist has no duty to protect his patient from prosecution arising from the illegal possession of child pornography, the Connecticut Supreme Court ruled.


Licensed clinical social worker David Van Handel treated Lee Greenwald from the age of 7 until the age of 17.

Greenwald claimed that Van Handel dismissed or ignored him when he admitted to viewing child pornography on the Internet, so he continued to do so.

In 2010, two years after Greenwald had stopped meeting with Van Handel, a task force with the Connecticut State Police raided Van Handel's home and seized his computers and hard drives.

Anticipating an arrest for possession of child pornography, Greenwald sued his former therapist for negligence.

The complaint alleged that if Van Handel had addressed Greenwald's child-porn habit during therapy, Greenwald would not have been arrested and exposed to the possibility of prison time, humiliation and economic repercussions.

A judge struck the action, however, after agreeing with Van Handel that Greenwald should not recover damages for his own criminal actions.

Greenwald then pleaded guilty to promoting a minor in an obscene performance. He was sentenced to a suspended term of five years in prison, along with 20 years of probation, and is listed as a sex offender.

He also appealed the dismissal of his complaint to the Connecticut Supreme Court, citing the 1997 case Edwards v. Tardif, which held that a physician may be liable for the foreseeable suicide of a patient, proximately caused by physician negligence.

In affirming dismissal Tuesday, the five justices on the high court said "it would violate public policy to impose a duty on the defendant to protect the plaintiff from the injuries arising from the legal consequences of his admitted illegal conduct."

"In reaching this conclusion, we underscore that we do not hold that the defendant did not have a duty to exercise reasonable care in his treatment of the plaintiff," Justice Andrew McDonald wrote for the court. "Indeed, if the plaintiff sustained injuries independent of the legal consequences of his criminal acts as a result of the defendant's negligent treatment of his underlying mental condition, the wrongful conduct rule would have no application."

 And yet Greenwald never asserted such an independent basis for recovery, according to the ruling.

"The plaintiff has admitted to conduct that constitutes a serious felony, and such conduct has a direct causal connection to his alleged injuries," McDonald wrote. "Accordingly, there is no question that he would be barred from recovering under this rule, despite whatever reasonable limits might be imposed on its application."

Van Handel did not have a duty to protect Greenwald from the consequences of Greenwald's own actions, the court found.

"Under the theory of recovery advanced by the plaintiff, the more serious the criminal conduct, and the more severe the attendant punishment, the greater his recovery would be. It is self-evident why this would contravene public policy," McDonald wrote.

The particulars of Greenwald's therapy also failed to sway the court.

Although the plaintiff emphasizes the fact that he was a minor at the time that he was under the defendant's professional care, he overlooks the significance of his allegation that he already had engaged in the illegal conduct prior to disclosing it to the defendant," McDonald wrote. "Accordingly, the defendant did not coerce or otherwise induce the plaintiff to engage in the illegal conduct."

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