Beattie v. McCoy

[Cite as Beattie v. McCoy, 2018-Ohio-2535.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
DOLLY BEATTIE, : APPEAL NOS. C-170197
C-170211
Plaintiff-Appellant/Cross-Apellee, : TRIAL NO. A-1604245
vs. :
O P I N I O N.
TERRANCE MCCOY, :
and :
STATE FARM FIRE & CASUALTY :
COMPANY,
:
Defendants,
:
and
:
OHA INSURANCE SOLUTIONS, INC.,
:
Defendant-Appellee/
Cross-Appellant. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed from are: Affirmed in C-170197; Reversed in C-170211
Date of Judgment Entry on Appeal: June 29, 2018
Bingham Greenebaum Doll LLP, Alex Rodger and Daniel J. Donnellon, for Plaintiff-
Appellant/Cross-Appellee,
Roetzel & Andress, LPA, Laura M. Faust, Chad M. Sizemore and Tyler M. Jolley, for
Defendant-Appellee/Cross-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} In these consolidated appeals, the parties contest whether defendant-
appellee and cross-appellant OHA Insurance Solutions, Inc., (“OHAIS”) must
provide indemnification under a professional-liability insurance policy it issued to
defendant Terrance McCoy, a former medical doctor, for harm that he caused to his
patient, plaintiff-appellant and cross-appellee Dolly Beattie, during McCoy and
Beattie’s tumultuous one-year sexual relationship.
{¶2} In the appeal numbered C-170197, Beattie challenges the trial court’s
entry resolving the parties’ cross-motions for summary judgment in favor of OHAIS
on her claim that under the terms of its professional-liability policy OHAIS had a
duty to indemnify because McCoy had harmed Beattie “while performing [a]
professional service.” And in the appeal numbered C-170211, OHAIS has brought a
cross-appeal challenging the trial court’s denial of its motion to strike the affidavit of
Beattie’s expert witness.
{¶3} Because the trial court erred in denying OHAIS’s motion to strike the
challenged affidavit, we reverse its judgment in OHAIS’s cross-appeal. Because we
find no error in the trial court’s entry granting summary judgment for OHAIS on the
insurance-coverage issue, we affirm the trial court’s judgment challenged in Beattie’s
appeal.
SEXUAL CONDUCT BY McCOY
{¶4} McCoy is a self-described “sex addict” who nonetheless practiced
internal medicine from 1993 until October 2012. In 2003, the State Medical Board of
Ohio suspended McCoy’s license for six month because he had had an affair with a
patient.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} McCoy had been Beattie’s internist since 1996. He treated her for a
variety of medical ailments. In October 2010, she informed McCoy that she was
suffering from depression and asked him for help. McCoy referred Beattie to Dr.
Janet Stedman, a clinical therapist, for treatment of depression and anxiety.
Beattie’s first appointment with Dr. Stedman was on October 21, 2010.
{¶6} On September 8, 2011, Beattie visited McCoy complaining of pain in
her hands, and body aches and swelling. McCoy examined Beattie’s back and
shoulders. Beattie claims that McCoy then began to rub her shoulders and placed his
hands on her breasts, rubbed his groin against her, and exposed himself. Beattie did
not stop McCoy’s advances and the two kissed.
{¶7} After this encounter the two began a tumultuous sexual relationship.
Though both were married, they met for sex weekly. McCoy visited Beattie’s house
when her husband was out of town. Beattie rented motel rooms to have sex with
McCoy. They had sex in McCoy’s office after hours and on weekends. They
exchanged lewd messages, photographs, and video files.
{¶8} During the year-long affair, Beattie and McCoy often fought. Beattie
threatened to report McCoy’s behavior to the state medical board and to McCoy’s
wife. But she continued her illicit relationship with him. McCoy stated that he had
begun the affair to satisfy his sexual addiction, but remained in the affair because he
feared being discovered.
{¶9} Eventually Beattie filed a complaint with the state medical board. But
McCoy convinced her to withdraw her charges. The state medical board continued
its own independent investigation, and McCoy was forced to surrender his medical
license in 2012 with no opportunity for reinstatement. Beattie ultimately informed
McCoy’s wife and his employer about their affair.
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OHIO FIRST DISTRICT COURT OF APPEALS
THE DISPUTE OVER INSURANCE COVERAGE
{¶10} During the time of the affair, OHAIS had issued to its insured, McCoy,
a “Professional Liability Insurance Policy for Healthcare Professionals.” The policy
provided, in pertinent part, that:
We will pay claims which the insured becomes legally obligated
to pay because of professional services provided or which should have
been provided. We will pay only if:
The claim involves an allegation of injury * * * because of
professional services provided or which should have been provided or
that result from an incident which causes bodily injury * * *.
{¶11} The policy defined “professional services” as “medical, surgical, dental,
imaging, mental or other health care professional service or treatments * * *; [and
the] provision of drugs, health care supplies or appliances.”
{¶12} Beattie commenced this action in 2016, alleging, inter alia, that
McCoy’s sexual behavior constituted medical malpractice which had caused her great
harm. In the eighth count of her complaint, Beattie also sought a declaration that
under the terms of its professional-liability policy OHAIS had a duty to indemnify
McCoy because he had damaged Beattie “while performing [a] professional service.”
OHAIS answered the complaint, and raised its counterclaim against Beattie seeking a
declaration that it was not obligated to indemnify McCoy against the claims asserted
by Beattie. McCoy requested that OHAIS defend and indemnify him. OHAIS
defended McCoy under a strict reservation of rights, but declined any duty to
indemnify him.
{¶13} During discovery, Beattie identified Stuart Bassman, Ed.D., a clinical
psychologist, as her expert witness. Before Dr. Bassman’s deposition, he produced
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OHIO FIRST DISTRICT COURT OF APPEALS
reports in which he opined that Beattie had sustained aggravation of her post-
traumatic stress disorder (“PTSD”), because of the affair with McCoy. Beattie
already suffered from PTSD and other issues, including depression and anxiety,
because of prior sexual violence inflicted on her in her youth. In Dr. Bassman’s
opinion, McCoy should have known that Beattie was vulnerable because of her
history, and with that knowledge, he exploited and “revictimized” Beattie by having a
sexual relationship with her.
{¶14} Based upon the opinions offered in Dr. Bassman’s deposition
testimony and the report made an exhibit to his testimony, OHAIS moved for
summary judgment on its insurance-coverage counterclaim. Beattie also filed a
summary-judgment motion on her insurance-coverage claim and opposed OHAIS’s
motion. Attached to Beattie’s motion was an affidavit from Dr. Bassman in which he
extensively discussed “transference phenomenon” and his opinion that McCoy failed
to manage Beattie’s transference properly.
{¶15} OHAIS moved to strike Dr. Bassman’s affidavit claiming that the
affidavit contained opinions that had not been previously disclosed and were
inadmissible under Civ.R. 56 and Evid.R. 702 and 705. The trial court held a lengthy
hearing on the matter, and on April 10, 2017, denied the motion. The trial court also
journalized an entry granting OHAIS’s motion for summary judgment on its
insurance-coverage counterclaim, and denying Beattie’s summary-judgment motion
on her declaratory-judgment claim.
{¶16} In mid-April, the trial court ruled in favor of Beattie on her medical
malpractice claims against McCoy and entered judgment in Beattie’s favor in the
amount of $867,500.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Beattie and OHAIS filed timely notices of appeal or cross-appeal from
those entries. In the appeal numbered C-170197, Beattie challenges the trial court’s
entry of summary judgment in favor of OHAIS on insurance coverage. And in the
appeal numbered C-170211, OHAIS has brought a cross-appeal challenging the denial
of its motion to strike Dr. Bassman’s affidavit.
OHAIS’s CROSS-APPEAL CHALLENGING DR. BASSMAN’S AFFIDAVIT
{¶18} Because Civ.R. 56(C) sets forth an exclusive list of evidentiary
materials that a trial court may consider when ruling upon a summary-judgment
motion, and because Civ.R. 56(E) confines a court to consider only evidence that
would be admissible at trial, we first resolve OHAIS’s cross-appeal challenging the
admission of Dr. Bassman’s affidavit under Civ.R. 56. In the sole assignment of
error, in its cross-appeal numbered C-170211, OHAIS argues that the trial court erred
when it denied its motion to strike Dr. Bassman’s affidavit attached to and offered in
support of Beattie’s motion for summary judgment on her insurance-coverage claim
against OHAIS.1
{¶19} OHAIS argues that Dr. Bassman identified in his affidavit, for the first
time, that Beattie exhibited “transference phenomenon” to support Beattie’s
contention, in her motion, that McCoy had failed to recognize her positive
transference and thus had failed to provide a professional service for that mental
condition that included refraining from sex. These failures, Dr. Bassman stated,
caused Beattie serious harm and any physician would have taken steps to avoid that
harm. OHAIS contends that since Dr. Bassman was not qualified to render these
1 While OHAIS also claimed to appeal from the trial court’s entry denying its motion to compel
discovery, OHAIS has not argued that matter in its appellate brief. Matters not argued and
supported by legal authority and citation to the record are abandoned. See App.R. 12(A)(1)(b)
and 16(A).
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OHIO FIRST DISTRICT COURT OF APPEALS
opinions and that he had not demonstrated the reliability of transference
phenomenon as applied here, the trial court should have granted its motion to strike
the affidavit. We agree.
{¶20} Dr. Bassman was deposed extensively in February and early March
2107. His deposition testimony was memorialized in over 250 pages of transcript. A
nine-page written report of Dr. Bassman’s evaluation of Beattie was attached as an
exhibit to his deposition testimony. In his deposition and report, Dr. Bassman did
not mention transference phenomenon. Rather he concluded that Beattie suffered
from post-traumatic stress disorder. And he opined that Beattie may have engaged
in a sexual relationship with McCoy, against her better interests, because of
“revictimization.” Dr. Bassman related that revicitimization “refers to the fact that *
* * women who were physically or sexually abused as children are more likely to be
abused as adults.”
{¶21} Five days after the completion of Dr. Bassman’s deposition, Beattie
moved for summary judgment on her declaratory-judgment claim, and opposed
OHAIS’s summary-judgment motion, in part, on the basis of the expert opinions
contained in Dr. Bassman’s attached affidavit.
{¶22} In the affidavit, Dr. Bassman maintained that Beattie exhibited
transference phenomenon: when a patient unconsciously projects on an authority
figure, like a treating psychologist in a psychotherapeutic relationship, feelings and
behaviors associated with significant persons in the patient’s life. While OHAIS’s
own corporate representative had answered a number of questions regarding the
transference phenomenon in her deposition conducted the day before Dr. Bassman’s
second and final deposition, Dr. Bassman had not referred to transference in his
deposition or his report.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} In his affidavit, Dr. Bassman noted that Beattie had reported that she
had suffered extensive early-life traumas and parental abuse. Dr. Bassman found
that Beattie adored McCoy as a devoted and compassionate authority figure who
would not exploit her. Thus Beattie “submitted to the authority of her trusted
physician,” and entered in to a sexual relationship with McCoy as a result of the
transference phenomenon.
{¶24} Dr. Bassman further opined that “physicians should know about
transference as part of their education and training.” Finally, Dr. Bassman
concluded “it appears that” McCoy, as her treating physician, should have been
aware of Beattie’s “predisposition toward positive transference” and his failure to
refrain from sexual contact with Beattie and his failure to help her recognize the
transference phenomenon caused Beattie serious harm, and any physician would
have taken steps to avoid that harm.
{¶25} Under Civ.R. 56(E), an affidavit must be made on personal knowledge
and must “set forth such facts as would be admissible in evidence.” Further, the
affidavit must “show affirmatively that the affiant is competent to testify to the
matters stated in the affidavit.” Thus the party offering a witness as an expert has
the burden of establishing that the witness is qualified to competently give such
testimony. See Tully v. Mahoning Exp. Co., 161 Ohio St. 457, 119 N.E.2d 831 (1954),
paragraph two of the syllabus; see also Wright v. Hamilton, 141 Ohio App. 3d 296,
750 N.E.2d 1190 (12th Dist.2001). Here, Dr. Bassman’s affidavit containing expert
opinion must meet the rules governing the admissibility of those opinions contained
in Evid.R. 702, 703, and 705. See Douglass v. Salem Community Hosp., 153 Ohio
App.3d 350, 2003-Ohio-4006, 794 N.E.2d 107, ¶ 21 (7th Dist.); see also Smith v.
Cincinnati Gas & Elec. Co., 75 Ohio App. 3d 567, 600 N.E.2d 325 (1st Dist.1991). An
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OHIO FIRST DISTRICT COURT OF APPEALS
expert’s affidavit that does not meet these requirements is subject to a motion to
strike. See Siegel v. LifeCenter Organ Donor Network, 2011-Ohio-6031, 969 N.E.2d
1271, ¶ 43 (1st Dist.); see also Wesley v. Walraven, 4th Dist. Washington No.
12CA18, 2013-Ohio-473, ¶ 21-24. We review a trial court’s ruling on a motion to
strike for an abuse of discretion. See Siegel at ¶ 43.
{¶26} In order to comply with Civ.R. 56(E) and Evid.R. 702 and 705, an
expert affidavit must set forth the expert’s credentials and the facts supporting the
expert’s opinion which would be admissible into evidence. See Douglass at ¶ 21. An
expert’s affidavit may not set forth conclusory statements without sufficient
supporting facts. See id. at ¶ 28; see also Smith, 75 Ohio App. 3d at 570, 600 N.E.2d
325.
{¶27} Under Evid.R. 702, a witness is qualified to testify as an expert if:
(A) The witness’ testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
(B) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding the
subject matter of the testimony; [and]
(C) The witness’ testimony is based on reliable scientific,
technical, or other specialized information.
{¶28} And Evid.R. 705 requires an expert to disclose the facts or data
underlying his opinion.
{¶29} Here, Dr. Bassman’s affidavit does not meet these requirements. First,
Dr. Bassman has not established that his opinion was based on “reliable scientific,
technical, or other specialized information.” See Evid.R. 702(C). Dr. Bassman did
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OHIO FIRST DISTRICT COURT OF APPEALS
not cite to any medical or psychological authority demonstrating that transference
phenomenon exists as Dr. Bassman described it in paragraph three of the affidavit,
or that Beattie’s submission to McCoy was to a reasonable degree of psychological
certainty a result of McCoy’s “mismanagement” of the transference phenomenon.
Dr. Bassman did not identify the basis, either in his training or his experience, for his
opinion regarding the reliability of transference phenomenon. Dr. Bassman did not
relate his familiarity with transference phenomenon and its reliability in his
deposition or the attached report.
{¶30} Next, Evid.R. 702(B) requires an expert to testify within the area of his
or her expertise. See Metro. Life Ins. Co. v. Tomchik, 134 Ohio App. 3d 765, 777, 732
N.E.2d 430 (7th Dist.1999). Here, Dr. Bassman offered an opinion that a physician,
like McCoy, specializing in internal medicine should have recognized Beattie’s
positive transference.
{¶31} We note that although Dr. Bassman declared that his curriculum vitae
was attached to the affidavit, it was not. Generally a court may strike affidavit
paragraphs that refer to a document which was not properly attached. See
Douglass, 153 Ohio App. 3d 350, 2003-Ohio-4006, 794 N.E.2d 107, at ¶ 22. But Dr.
Bassman’s curriculum vitae was made an exhibit to his deposition testimony. That
document provides that Bassman has a doctorate in Counselor Education, and that
he is an experienced, licensed psychologist with a specialty in sexual-related
psychological treatment. But the affidavit fails to disclose any specialized knowledge,
skill, training, or treating experience regarding transference phenomenon or patients
that suffer from it.
{¶32} Most importantly, neither his affidavit nor his curriculum vitae
disclose whether Dr. Bassman had any experience with regard to what training
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OHIO FIRST DISTRICT COURT OF APPEALS
physicians receive in the diagnosis and treatment of psychological conditions in
general, or specifically of transference phenomenon. Thus, Dr. Bassman was not
qualified to opine, as he did in paragraph four of the affidavit, that “[p]hysicians
should know about transference as part of their training and education.” See
Schechter v. Ohio State Med. Bd., 10th Dist. Franklin No. 04AP-1115, 2005-Ohio-
4062 (affirming the permanent revocation of a psychiatrist’s license to practice
medicine and noting expert testimony declaring that it can be very difficult to deal
appropriately with eroticized transference, and that most psychiatrists never
experience eroticized transference in the course of their practice).
{¶33} The impact of Dr. Bassman’s lack of demonstrated expertise regarding
a physician’s understanding of transference phenomenon is compounded by the
limited information upon which he actually relied in reaching his opinions. While
Dr. Bassman acknowledged that “the available information that I have is based upon
[Beattie’s] self report,” he nonetheless concluded that “it appears that as her
‘treating physician’ [McCoy] was well aware of the patient’s vulnerable emotional
state * * *.” (Emphasis added.) Yet Dr. Bassman admitted in the affidavit that he had
not “evaluated” McCoy. Nowhere in his affidavit does Dr. Bassman affirmatively
disclose the facts he relied upon in concluding that McCoy was “well aware” of
Beattie’s condition as required by Evid.R. 705. See Smith, 75 Ohio App. 3d at 570,
600 N.E.2d 325. Similarly, in paragraph six of the affidavit, Dr. Bassman concluded
that “based upon the available information that I have, Dolly Beattie approached Dr.
McCoy with a positive transference.” Yet he did not disclose what that available
information was as required by Evid.R. 705.
{¶34} Applying the requirements of Civ.R. 56(E) and Evid.R. 702 and 705 to
Dr. Bassman’s affidavit, we find the opinions contained in the affidavit were
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OHIO FIRST DISTRICT COURT OF APPEALS
inadmissible. Dr. Bassman’s affidavit failed to establish that transference
phenomenon was scientifically or psychologically reliable, or that he was qualified to
render an opinion on whether McCoy should have recognized Beattie’s transference
and thus failed to provide a professional service that a competent physician should
have provided. Thus we hold that the denial of the motion was an abuse of
discretion. See AAAA Ents., Inc. v. River Place Community Urban Redev. Corp., 50
Ohio St. 3d 157, 161, 553 N.E.2d 597 (1990).
{¶35} OHAIS’s assignment of error is sustained.
BEATTIE’S APPEAL CHALLENGING THE DENIAL OF INSURANCE COVERAGE
{¶36} In her single assignment of error, in the appeal numbered C-170197,
Beattie argues that the trial court erred in granting summary judgment in favor of
OHAIS on its counterclaim seeking a declaration that it has no obligation to
indemnify McCoy under the professional-liability insurance policy against claims
raised by Beattie, and in denying Beattie’s own summary-judgment motion on
insurance coverage.
{¶37} The gravamen of Beattie’s argument is that failing to refrain from sex
or failing to rebuke Beattie’s sexual advances was a part of the professional services
that McCoy should have rendered. Thus under the policy’s terms, OHAIS was
required to indemnify McCoy for his failure to provide those professional services.
{¶38} A court is not precluded from granting summary judgment merely
because of the complexity or the volume of the factual record. See Gross v. Western-
Southern Life Ins. Co., 85 Ohio App. 3d 662, 666-667, 621 N.E.2d 412 (1st Dist.1993);
see also Southside River-Rail Terminal v. Crum & Forster Underwriters of Ohio,
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OHIO FIRST DISTRICT COURT OF APPEALS
157 Ohio App. 3d 325, 2004-Ohio-2723, 811 N.E.2d 150, ¶ 8 (1st Dist.). That is
particularly so where, as here, the parties have each moved for summary judgment.
{¶39} We have in the past questioned the wisdom of resolving matters
seeking declaratory judgment by summary judgment. E.g., Cincinnati v. Ohio
Council 8, Am. Fedn. of State, Cty. & Mun. Emps., AFL–CIO, 93 Ohio App. 3d 162,
164, 638 N.E.2d 94 (1st Dist.1994). Nonetheless, the parties’ election to address the
issues by cross-motions for summary judgment demonstrates that both sides
believed that there was no genuine issue of material fact in dispute and that the court
was free to render a decision on insurance coverage as a matter of law. See Costanzo
v. Nationwide Mut. Ins. Co., 161 Ohio App. 3d 759, 2005-Ohio-3170, 832 N.E.2d 71, ¶
10 (1st Dist.); see also State ex rel. Scripps Media v. Hunter, 1st Dist. Hamilton No.
C-130241, 2013-Ohio-5895, ¶ 31.
{¶40} A motion for summary judgment shall be granted if the court, upon
viewing the inferences to be drawn from the underlying facts set forth in the
pleadings, depositions, answers to interrogatories, written admissions, and affidavits
in a light most favorable to the party opposing the motion, determines (1) that no
genuine issue of material fact remains to be litigated, (2) that the moving party is
entitled to judgment as a matter of law, and (3) that the evidence demonstrates that
reasonable minds can come to but one conclusion and that conclusion is adverse to
the party opposing the motion. See Civ.R. 56(C); see also Dresher v. Burt, 75 Ohio
St.3d 280, 293, 662 N.E.2d 264 (1996).
{¶41} The interpretation of clear, unambiguous contract terms is a question
of law particularly appropriate for resolution by summary judgment. See Costanzo
at ¶ 19. These issues raise only questions of law that we review de novo. See State
Farm Fire & Cas. Co. v. Condon, 163 Ohio App. 3d 584, 2005-Ohio-5208, 839
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OHIO FIRST DISTRICT COURT OF APPEALS
N.E.2d 464, ¶ 18 (1st Dist.); see also Comer v. Risko, 106 Ohio St. 3d 185, 2005-Ohio-
4559, 833 N.E.2d 712, ¶ 8.
{¶42} When determining coverage, a court examines “the insurance contract
as a whole and presume[s] that the intent of the parties is reflected in the language
used in the policy.” Safeco Ins. Co. v. Fed. Ins. Co., 1st Dist. Hamilton No. C-070074,
2007-Ohio-7068, ¶ 26, citing Westfield v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-
5849, 797 N.E.2d 1256, ¶ 11. When the intent of the parties is evident from the clear
and unambiguous language of the policy, a court must enforce the contract as
written. See Southside River-Rail Terminal, 157 Ohio App. 3d 325, 2004-Ohio-2723,
811 N.E.2d 150, at ¶ 11.
{¶43} The resolution of this matter does not rest on a determination of
whether McCoy’s abhorrent conduct violated the ethical norms of the medical
profession or breached a physician’s standard of care due to his patient. Sexual
conduct with a patient may be a grave breach of both of those obligations. See, e.g.,
Bunce v. Parkside Lodge of Columbus, 73 Ohio App. 3d 253, 254, 596 N.E.2d 1106
(10th Dist.1991). Here, the sole issue for our resolution is whether under the terms
of OHAIS’s professional-liability insurance policy, McCoy’s conduct in failing to
refrain from sex or failing to rebuke Beattie’s sexual advances was a part of the
professional services that McCoy should have rendered.
{¶44} Under the natural and commonly accepted meaning of the policy
terms, a physician, like McCoy, does not provide a “professional service” by engaging
in sexual conduct with a patient. Sexual conduct is not specifically identified as a
professional service in the policy. It is so dissimilar from the professional services
enumerated in the policy, that no construction of the policy language would support
coverage for sexual conduct as a “professional service.” McCoy stated that he did not
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OHIO FIRST DISTRICT COURT OF APPEALS
have sex with Beattie to treat any medical or mental condition, rather he did so
because of his own personal sex addiction.
{¶45} But the express policy language also provides coverage when an
“insured becomes legally obligated to pay because of professional services * * * which
should have been provided.” Beattie maintains that refraining from sexual conduct
with Beattie or rebuking her sexual advances was a part of the professional services
that McCoy should have rendered. Beattie offered Dr. Bassman’s transference
opinion to establish that McCoy, as a treating physician, was required as part of his
professional services to avoid sexual misconduct with a patient exhibiting positive
transference.
{¶46} Even without resort to Dr. Bassman’s inadmissible opinion, Beattie
maintains, as she did at oral argument, that any physician, aware of his patient’s
transference or not, who fails to refrain from sex or fails to rebuke the sexual
advances of a patient that he is treating for a mental condition has failed to provide a
professional service that he should have rendered.
{¶47} In support of this argument, Beattie urges us to adopt the reasoning of
St. Paul Fire & Marine Ins. Co. v. Love, 459 N.W.2d 698, 701-702 (Minn.1990), a
transference case, in which the Minnesota Supreme Court held that sexual
misconduct that is inextricably related to a therapeutic relationship between a
psychologist and his patient, being treated for marital problems and childhood
sexual abuse, could fall within the coverage of a therapist’s professional-liability
insurance policy. The sexual conduct in Love, while “aberrant and unacceptable,”
was “so related to the treatment contemplated” that it came within the scope of the
insurance coverage for professional services provided or withheld.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶48} We note that no Ohio court has adopted the rationale of Love. And we
need not do so today. Even under Love, Beattie cannot demonstrate as a matter of
law that McCoy’s sexual conduct was inextricably related to the professional services
that he provided or withheld. Unlike the licensed therapist in Love, or the
psychiatrist in Schechter v. Ohio State Med. Bd., 10th Dist. Franklin No. 04AP-1115,
2005-Ohio-4062, the psychiatric social worker in Chaney v. Dept. of Mental Health,
12th Dist. Clermont No. CA83-08-072, 1984 WL 4364, *2 (Mar. 29, 1984), or the
alcoholism-and-drug-abuse counselor in Perkins v. Schneider, 128 Ohio App. 3d 121,
122, 713 N.E.2d 1132 (9th Dist.1998), McCoy’s therapeutic relationship with Beattie
was a limited one.
{¶49} Since 1996, McCoy had been treating Beattie for a variety of minor
medical ailments. When, in October 2010, Beattie informed McCoy that her
depression was worsening and asked him for help, McCoy did not enter into an
involved “therapeutic alliance” with her. Rather he referred Beattie to Dr. Janet
Stedman, a clinical therapist, for treatment of depression and anxiety. Her first
appointment with Dr. Stedman was on October 21, 2010, almost exactly one year
before McCoy’s sexual conduct began. While McCoy continued to prescribe medicine
for these conditions, there is nothing in the record to indicate that McCoy engaged in
the type of intimate psychological therapy contemplated in Love or in the Ohio cases
cited above. McCoy’s deposition testimony revealed that he was not aware of
traumas in Beattie’s childhood or young adult life. And Beattie, rather than being in
thrall “to the authority of her trusted physician,” threatened throughout the
turbulent affair to report McCoy to the state medical board and to reveal their sexual
relationship to his wife, and ultimately did so. Thus McCoy’s sexual conduct was not
inextricably related to the medical or mental professional treatment that Beattie
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OHIO FIRST DISTRICT COURT OF APPEALS
received. Beattie has not established that McCoy’s sexual conduct was a consequence
of his treatment of her depression and anxiety, and thus his failure to avoid that
conduct was a professional service which he should have provided.
{¶50} Since OHAIS was entitled to judgment as a matter of law on its claim
that it was not obligated to indemnify Beattie for McCoy’s failure to provide a
professional service, the trial court did not err in granting summary judgment
against Beattie. Beattie’s assignment of error is overruled.
CONCLUSION
{¶51} Because the trial court erred in denying OHAIS’s motion to strike Dr.
Bassman’s affidavit, we reverse its judgment on that motion challenged in OHAIS’s
cross-appeal numbered C-170211. In light of our resolution of that matter, and
having conducted a de novo review of the evidentiary materials properly before the
court, we find no error in the trial court’s entry granting summary judgment for
OHAIS on its insurance-coverage counterclaim. Thus we affirm the judgment in
Beattie’s appeal numbered C-170197.
Judgment accordingly.
MOCK, PJ., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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