Jodi Williams, V. Shawn Gillies

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JODI WILLIAMS,
No. 82398-1-I
Appellant,
DIVISION ONE
v.
PUBLISHED OPINION
SHAWN GILLIES,
Respondent.
COBURN, J. — The trial court dismissed Jodi Williams’ professional
negligence and malpractice claims against her former therapist, Shawn Gillies,
because the claims were outside the statute of limitations. Williams presented
evidence that Gillies violated the standard of care by engaging in a sexual
relationship with her. Because the alleged negligent act occurred within the
limitation period, we reverse and remand.
BACKGROUND
In 2012, Jodi Williams began receiving counseling services from Shawn
Gillies, a licensed marriage and family therapist (LMFT). Williams alleges that by
the fall of 2014, Williams and Gillies had become romantically involved and
engaged in sex during therapy sessions. Gillies continued to see Williams as a
client. Both parties agree that the final paid therapy session occurred on
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 82398-1-I/ 2
April 27, 2015. The two paused their physical relationship later that year but
continued to communicate sporadically. Williams alleges that Gillies said they
needed to wait two years before they could openly be a couple. Gillies and
Williams resumed their physical relationship in 2018 but ended it within the year. 1
In July 2020, Williams filed an action against Gillies for professional
negligence and malpractice under chapter 7.70 RCW. She alleged she was
injured from Gillies’ failure to adhere to the standard of care required of LMFTs.
Gillies moved to dismiss under CR 12(c), arguing that Williams’ claims were
barred by the three-year statute of limitations under RCW 4.16.350. The trial
court agreed with Gillies and dismissed Williams’ claims. The court denied
Williams’ motion for reconsideration. Williams appeals.
DISCUSSION
Williams argues that the trial court erred in dismissing her complaint
against Gillies as untimely. We agree.
We review a CR 12(c) motion for judgment on the pleadings as a CR 56
motion for summary judgment if the trial court considers matters outside of the
pleadings. U.S. Mission Corp. v. Kiro TV, Inc., 172 Wn. App. 767, 771, 292 P.3d
137 (2013); CR 12(c). In the instant case, the trial court considered declarations
1 Gillies claims the relationship ended in March of 2018, and Williams
states the relationship ended in July of 2018.
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and exhibits, including materials submitted by Williams’ expert witnesses and
admissions by Gillies. We therefore review the trial court’s order as a motion for
summary judgment. We review summary judgment motions de novo, engaging
in the same inquiry as the trial court. Berger v. Sonneland, 144 Wn.2d 91, 102,
26 P.3d 257 (2001). The court will consider all facts in favor of the nonmoving
party. Messenger v. Whitemarsh, 13 Wn. App. 2d 206, 210, 462 P.3d 861(2020).
The statute of limitations for professional negligence and medical
malpractice claims is three years, or one year after discovery of the negligence,
whichever is later. RCW 4.16.350. The three year limitations period runs from
the date of the act alleged to have caused the injury. Morris v. Swedish Health
Servs., 148 Wn. App. 771, 776, 200 P.3d 261 (2009); RCW 4.16.350(3). In order
to defeat a motion for summary judgment based on the statute of limitations,
malpractice claimants must provide some evidence that the defendant’s
negligent act occurred within the limitations period. Young Soo Kim v. Choong-
Hyun Lee, 174 Wn. App. 319, 325, 300 P.3d 431 (2013). Dismissal of a claim
based on statute of limitations is appropriate where there is no “genuine issue of
material fact as to when the statutory period commenced.” Id. at 323.
Williams alleges that her final romantic encounter with Gillies occurred in
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July 2018 and argues the statutory period began to run at that time. 2 Thus, she
argues she filed her claims well before the expiration period of July 2021. Id.
Gillies admits that he and Williams shared a sexual relationship in 2018.
However, Gillies contends that he was not prohibited from sexual contact with
Williams in 2018 because she was by then a former client and two years had
passed since their last therapy session in 2015. Thus, he argues the statute of
limitations began running from the last alleged sexual encounter the two had
prior to 2018, which would have been September 2015. Gillies argues that
because Williams filed her claims after September 2018, they are barred by the
statute of limitations. Id.
Whether the statute of limitations bars Williams’ claims under these facts
turns on the applicable standard of care. “The standard of care is established by
showing that ‘[t]he health care provider failed to exercise that degree of care,
skill, and learning expected of a reasonably prudent health care provider at that
time in the profession or class to which he belongs, in the state of Washington,
acting in the same or similar circumstances[.]’ ” Seybold v. Neu, 105 Wn. App.
666, 676–77, 19 P.3d 1068 (2001); RCW 7.70.040(1) “Expert testimony is
necessary to prove whether a particular practice is reasonably prudent under the
2 Williams concedes that Gillies’ negligent acts while she was an active
client fall outside the statute of limitations and are not relevant to this appeal.
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applicable standard of care.” McLaughlin v. Cooke, 112 Wn.2d 829, 836, 774
P.2d 1171 (1989).
Williams provided the trial court with declaration testimony from Dr. Scott
Edwards, an LMFT and member of the American Association for Marriage and
Family Therapists (AAMFT), a professional organization that sets ethical
standards for marriage and family therapists. Edwards’ declaration stated that
“Sexual or romantic contact between an LMFT and a client is an example of a
boundary violation that is also an unambiguous breach of the standard of care. It
is not justified under any circumstances.” He explained that LFMTs have an
ongoing duty to not be sexually intimate with a former client.
This is a bright-line rule in our profession. I am not aware of, nor do
I believe it is possible to find, a single authority in the professional
literature for the proposition that an LMFT is released from the
prohibition against sexual intimacies with a client just because the
formal therapist-client relationship has come to an end. An LMFT
does not abdicate therapeutic responsibility after each therapy
session or after the final therapy session. The primary reason is
because the therapist enjoys an imbalance of power and influence
over his patients. This is, in part, due to the very nature of the
therapist-client relationship. The client is encouraged to put her
trust in the therapist, to be open about her deepest desires and
wishes, and to disclose her fears, failures, and insecurities, as well
as details of her personal history and relationships. These types of
disclosure—which pass entirely in one direction—bestow on the
therapist a tremendous potential power over the client. That
knowledge and power does not abruptly cease after the last
therapy session. It continues and persists, often in perpetuity.
Edwards’ declaration also referred to state regulations prohibiting health
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professionals from sexual contact with current clients (WAC 246-16-100(1)) and
licensed counselors 3 from sexual contact with former clients (WAC 246-809-049).
Gillies, completely ignoring Edwards and the WACs, relies on only one source to
support his argument. He incorrectly states that the code of ethics for LMFTs
according to the AAMFT merely prohibits sexual intimacy for two years following
the termination of therapy. 4 Gillies fails to cite any authority to support that an
ethics code of a voluntary professional organization establishes the standard of
care. Regardless, he mischaracterizes the AAMFT.
Gillies is correct in that until 2015, Section 1.5 of the applicable code of
ethics for the AAMFT expressly addresses prohibited sexual intimacy with former
clients for two years following the termination of therapy. However, that did not
mean that such a relationship could not have caused injury to the former client,
as evident in the following language of the pre-2015 code:
1.5 Sexual Intimacy with Former Clients and Others. Sexual
intimacy with former clients, their spouses or partners, or
individuals who are known to be close relatives, guardians or
significant others of clients is likely to be harmful and is therefore
prohibited for two years following the termination of therapy or last
professional contact. After the two years following the last
professional contact or termination, in an effort to avoid exploiting
the trust and dependency of clients, marriage and family therapists
3“Licensed counselors” includes LMFTs. WAC 246-809-010(4).
4Gillies cites to CP 125 for this assertion. This claim is not found at CP
125, and Gillies never provided a copy of the code to the trial court. Expert
Edwards did attach the 2012 version and the 2015 version of the code with his
declaration.
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should not engage in sexual intimacy with former clients, or their
spouses or partners. If therapists engage in sexual intimacy with
former clients, or their spouses or partners, more than two years
after termination or last professional contact, the burden shifts to
the therapist to demonstrate that there has been no exploitation or
injury to the former client, or their spouse or partner.
(Emphasis added.) In addition, AAMFT revised section 1.5 of the code in 2015
to be a blanket prohibition: “Sexual intimacy with former clients or with known
members of the client’s family system is prohibited.” Gillies provides no
alternative support for his assertion that he did not violate an LMFTs standard of
care by engaging in a sexual relationship with Williams in 2018.
Williams provided evidence to the trial court that the standard of care
required of LMFTs prohibited a sexual relationship with former clients. Williams
alleged, and Gillies conceded, that they had a sexual relationship in 2018.
Williams filed her complaint in 2020, well within the three-year statute of
limitations, which runs from the date of the act alleged to have caused injury. 5
The trial court erred in concluding Williams’ claims were time-barred and granting
5 Williams provided a declaration from a licensed psychologist, who after
evaluating her, concluded that she suffered emotional injuries as a result of her
relationship with Gillies. Gillies does not dispute Williams’ injuries for the
purposes of this appeal.
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Gillies’ motion to dismiss. We reverse and remand back to the trial court for
further proceedings.
WE CONCUR:
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