# ALTHAUS BY ALTHAUS v. Cohen > Superior Court of Pennsylvania · April 13, 1998 · 710 A.2d 1147 URL: https://www.frixlaw.com/law-library/cases/9693361 ## Case - **Full name:** Nicole L. ALTHAUS, a Minor by Richard T. ALTHAUS and Cheryl Renee Althaus, Her Parents and Natural Guardians, and Richard T. Althaus and Cheryl Renee Althaus, Appellees, v. Judith A. COHEN, M.D. and University of Pittsburgh Western Psychiatric Institute and Clinic, Appellants; Nicole L. ALTHAUS, a Minor by Richard T. ALTHAUS and Cheryl Renee Althaus, Her Parents and Natural Guardians, and Richard T. Althaus and Cheryl Renee Althaus, Appellants, v. Judith A. COHEN, M.D. and University of Pittsburgh Western Psychiatric Institute and Clinic, Appellees - **Court:** Superior Court of Pennsylvania - **Decided:** April 13, 1998 - **Citations:** 710 A.2d 1147; 1998 Pa. Super. LEXIS 631 - **Precedential status:** Published - **Opinion:** Concurring in part by Tamilia - **Judges:** McEwen, Cavanaugh, Beck, Tamilia, Kelly, Johnson, Hudock, Eakin, Schiller - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9693361 ## How later opinions describe it (automated extraction) - stating that other independent causes of action may be available, such as defamation or intentional infliction of emotional distress, based on actions taken beyond the scope of the medical diagnosis and treatment ## Opinion text TAMILIA, Judge, concurring and dissenting: While I join that portion of the majority Opinion which denies relief to the Althauses in their cross-appeal, I respectfully dissent to the determination Dr. Judith Cohen and the University of Pittsburgh Western Psychiatric Institute and Clinic (WPIC) owed a duty of care to the Althauses. 1 Nicole, a minor at the time of trial, was bom on April 10, 1975 to appellees Richard and Renee Althaus (the Althauses). In 1990, Nicole’s mother was diagnosed with skin and breast cancer, which was treated with surgery and chemotherapy. Shortly thereafter, Nicole’s paternal grandmother was diagnosed with pancreatic cancer, from which she soon died. “In this atmosphere of stress and uncertainty, Nicole’s emotional and psychological well-being began to deteriorate.” (Slip Op., McLean, J., 5/22/96, p. 2.) During this period, Nicole began spending a great deal of time, both in and out of school, with one of her teachers, Priscilla Zappa. In an effort to obtain information and emotional support for Nicole, Mrs. Zappa and Nicole phoned a cancer support hotline and spoke to a woman named Connie Lappa. After talking to Mrs. Lappa several times, Nicole mentioned that her father, Richard Althaus, had subjected her to inappropriate touching. Mrs. Lappa reported this information to Allegheny County’s Children and Youth Services (CYS), as she was required to do by 23 Pa.C.S. § 6311, Persons required to report suspected child abuse. The matter rapidly acquired a momentum all its own. CYS removed Nicole from her parents’ custody and placed her in the care of Mrs. Zappa. Following an evaluation at Children’s Hospital, Nicole was referred to the Child and Adolescent Sex Abuse Clinic of the Western Pennsylvania Psychiatric Institute (WPIC). Nicole also had a physical examination at Children’s [Hospital], during which Dr. Mary Carrasco found no evidence of sexual activity or sexual abuse. However, Dr. Carrasco noted that sexual abuse cannot be ruled out based on a lack of physical evidence. Nicole’s therapist at WPIC was Dr. Judith Cohen, whom she saw at least *1161 once a week. Dr. Cohen performed no independent diagnostic studies on Nicole, instead taking at face value the indicated abuse report filed by CYS. Over time[,] Nicole’s allegations of sexual abuse grew to include her mother and another couple whom the Althauses had never met. The charges themselves became progressively more outlandish, including not only sexual abusef,] but ritualistic torture and the murder of several babies which Nicole claimed to have had via caesarian section. Despite many apparent inconsistencies in Nicole’s stories, her credibility was never challenged by Dr. Cohen. Dr. Cohen also refused input from any other member of the Althaus familyf,] as well as from Dr. Alan Axelson, a child psychiatrist retained by the Althauses to help them elucidate the matter, and from Hilda Sehorr-Ribera, Ph.D., Renee’s cancer support therapist. As a result of Nicole’s allegations!;,] Richard Althaus was arrested three times and Renee [was arrested] twice. Dr. Cohen accompanied Nicole to several criminal hearings and also appeared in Juvenile Court to argue on behalf of Nicole’s continued placement with Mrs. Zappa. When the criminal case against Richard and Renee Althaus came before the Honorable Robert Dauer, the Judge ordered, over Dr. Cohen’s objection, an independent psychiatric examination of Nicole to determine her competence to testify. This examination was performed by Dr. Marshall Schec-ter of the University of Pennsylvania, who concluded that Nicole suffered from a borderline personality disorder, and was unable to distinguish fact from fantasy. (Slip Op. at 2-3.) Thereafter, Nicole was found incompetent to testify and the Commonwealth withdrew the criminal charges filed against the Al-thauses. For the first time in fourteen (14) months, the Althauses were permitted to speak to their daughter. Nicole recanted her allegations of sexual abuse and returned home to live with her parents. This medical malpractice action was initiated by Nicole and her parents against appellants, Dr. Cohen and WPIC, on the theory that these mental health professionals negligently misdiagnosed, and then exacerbated, Nicole’s delicate borderline personality disorder. The case was submitted to a jury, which returned separate verdicts in favor of Nicole and her parents. Post-trial motions were filed and denied. Dr. Cohen and WPIC, appellants, do not challenge the jury verdict rendered in favor of Nicole, but rather contend they are not liable to her parents for the harm which flowed from such negligence claiming they owed no duty to the non-patient parents. Appellants also claim they are entitled to a new trial based on the trial court’s refusal to allow the jury to consider whether the Al-thauses, and/or Nicole, were contributorily negligent in this case. It is well settled that in order to establish a prima facie case of medical malpractice, a plaintiff must establish (1) a duty owed by the physician to the patient; (2) a breach of duty from the physician to the patient; (3) that the breach of duty was a proximate cause of or a substantial factor in the harm suffered by the patient; and (4) damages suffered by the patient that were a direct result of that harm. Mitzelfelt v. Kamrin, 526 Pa. 54 , 584 A.2d 888 (1990). As a general rule, however, a physician owes no duty of care to persons outside the physician-patient relationship. Troxel v. A.I. Dupont Institute, 450 Pa.Super. 71 , 675 A.2d 314 (1996). In recent years, however, our courts have carved out a narrow exception to this rule and have found a physician/doctor owes a duty to third persons “where the physician undertakes the treatment of a patient with a communicable or contagious disease.” Id. at 88 , 675 A2d at 322 . See also DiMarco v. Lynch Homes-Chester County, Inc., 525 Pa. 558 , 583 A.2d 422 (1990) (physician found liable to third party for providing incorrect information as to the period in which a person could contract hepatitis-B from patient). The trial court, here, has now attempted to expand this exception to the general rule to instances where a psychiatrist negligently treats a child who has charged her parents with child and sexual abuse and the doctor thereafter is sued by the parents, who were charged criminally. Specifically, the trial *1162 court, relying on DiMarco , found that “a treating psychiatrist has a duty of care toward those whose resultant harm is reasonably foreseeable.” (Slip Op. at 5.) The trial court also relied on Tuman v. Genesis Associates, 894 F.Supp. 183 (E.D.Pa.1995), which found that parents had standing to sue their daughter’s therapist after the daughter, during therapy, made a string of unsubstantiated allegations of ritual abuse. The Turnan court determined the parents had standing to sue because the following four factors were met: 1) The therapist specifically undertook to treat the child for the parents; 2) The parents relied upon the therapist; 3) The therapist was aware of the parents’ reliance; and 4) It was reasonably foreseeable that the parents would be harmed by the therapists’ conduct. (Slip Op. at 6.) Applying these four factors, the trial court determined the forseeability theory in DiMarco applies to the present case. Specifically, the court determined Whereas Mr. and Mrs. Turnan sought therapy on behalf of their adult daughter, Dr. Cohen was retained as Nicole’s therapist by the Juvenile Court and Children and Youth Services acting in loco parentis. Mr. and Mrs. Althaus were effectively barred by the pendency of the Juvenile Court proceedings from choosing their own doctor for Nicole. It is also worthwhile to note that preserving family unity wherever possible is a stated goal of proceedings involving dependent children under the Juvenile Act, 42 Pa.C.S.A. § 6310 et seq., and to this extent Mr. and Mrs. Althaus as well as Nicole were foreseeable beneficiaries of Dr. Cohen’s treatment. (Slip Op. at 6-7.) Finally, the trial court, addressing the “specific undertaking” component of the Turnan test, distinguished this Court’s analysis in Heil v. Brown, 443 Pa.Super. 502 , 662 A.2d 669 (1995), from the present case. In Heil , a psychiatric patient, who was discharged from a hospital despite evident signs of psychosis, subsequently suffered a psychotic episode while operating his vehicle, causing him to hit another car. This Court held the hospital owed no duty of care to the victim because he was not readily identifiable as a victim of harm resulting from the negligent treatment of the patient. The trial court here, however, found the Al-thauses, unlike the victim in Heil , clearly were “within the ambit of harm created by Nicole’s negligent treatment.” (Slip Op. at 7.) I would find the trial court erred in its analysis and decision regarding this issue and, therefore, would reverse the court’s determination and correspondingly remand the matter for entry of judgment in favor of the appellants. My review of the relevant case-law cited by the parties, the trial court and the majority leads me to believe that no duty of care existed on behalf of appellants, Dr. Cohen and WPIC, as to the parents. In discussing the general concept of duty, the Pennsylvania Supreme Court has made it clear that whether a particular defendant owes a duty of care to a particular plaintiff is dependent on “many factors”. In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than “the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection” from the harm suffered. Leong v. Takasaki, 55 Haw. 398 , 520 P.2d 758, 764 (1974). To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to the changing times. The late Dean Prosser expressed this view as follows: These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals *1163 and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, ‘always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.’ Gardner by Gardner v. Consolidated Rail Corp., 524 Pa. 445, 454-55 , 573 A.2d 1016, 1020 (1990), quoting Sinn v. Burd, 486 Pa. 146, 164 , 404 A.2d 672, 681 (1979). Initially, unlike the majority, I find the recent decision of the Supreme Court of Texas in Bird v. W.C.W., 868 S.W.2d 767 (Tex.1994), to be persuasive in reaching my decision. In Bird , a young boy indicated that his father, who was divorced from his mother, had sexually assaulted him. The boy’s mother reported the claim to Child Protective Services and a criminal investigation of the father ensued. Criminal charges subsequently were filed, and the boy’s mother sought to terminate the father’s parental rights to the child based on the allegations of sexual abuse. Eventually, the criminal charges against the father were dismissed and he retained custody of the child. The father subsequently filed suit against the child’s psychologist and the clinic employing him, alleging that they were liable to father for medical malpractice because the psychologist had misdiagnosed the boy as having been sexually abused. Summary judgment was granted in favor of the psychologist and the clinic because the trial court found that no professional duty was owed to the father. Affirming, the Texas Supreme Court held that a mental health professional who negligently misdiagnoses a child as having been sexually abused does not owe a duty of care to that child’s parents despite the fact that they may suffer false accusations and adverse legal consequences. Specifically, the Court found that “as a matter of law there is no professional duty running from a psychologist to a third party to not negligently misdiagnose a condition of a patient.” Id. at 768 . The Court then went on to address the foreseeability factor, stating: We acknowledge that the harm to a parent accused of sexual abuse is foreseeable. However, foreseeability alone is not a sufficient basis for creating a new duty. Psychology is an inexact science. There is an inherent risk that someone might be falsely accused of sexually abusing a child; in such cases, injury is almost certain to result. The magnitude of the burden of guarding against the injury is also uncertain. While mental health professionals may be able to conduct tests to determine whether there is indicia of sexual abuse, the quality of information they can acquire is limited. The child is often the main source of the information, and young children can have difficulty communicating abuse of that nature. Thus, while the risk of injury to an accused parent is real, it is only part of the equation. Furthermore, the risk of an erroneous determination of abuse is ameliorated, in part, by the availability of criminal sanctions against a person who knowingly reports false information in a custody proceeding. Id. at 796 (citations omitted). The present case is much like the Bird case and I believe the rationale used to reach its conclusion is equally applicable to the Althauses’ claim. Pennsylvania, like Texas, has expressed its concern and outrage over child sexual abuse through its enactment of the Child Protection Services Law, 23 Pa. C.S. § 6301 et seq. Specifically, the statute reads “[ajbused children are in urgent need of an effective child protective service to prevent them from suffering further injury and impairment.” Id. at § 6302(a). Clearly, any decision by this Court, which would impose a duty of care on a psychiatrist to the parents of a child patient, who alleges abuse by the parents, must consider the painful and troubling reality of child sexual abuse in the United States. Such an imposed duty would have a chilling effect on the treatment of these children, particularly if therapists become reluctant to treat victims of sexual abuse for fear of malpractice claims by the accused. The process which evolved from the first allegation of sexual abuse here took on the attributes of the Salem Witch-hunt and other *1164 hysterical manifestations in medieval Europe which resulted in persons charged being burned at the stake. 2 Beginning with a deeply disturbed child, the rescue syndrome came into operation from virtually all parties who came in contact with Nicole in the child protective services, including the district attorney’s office. 3 Unfortunately, instead of dealing with the incredible aspects of the child’s allegations and instead of looking to a fundamental mental disturbance which required evaluation and treatment, the assumption was made that there was an underlying sexual abuse pattern which needed resolution to resolve the delusional behavior. The flaw in the process which permitted a misapplication of treatment is the fear that by treating the victim as a mental problem rather than an abused person, the underlying concern that the victim is being blamed for wrong and becomes twice victimized would be realized. This was frequently the approach in pre-twentieth century treatment of children, which is assiduously avoided in modem times. Also, it is not unlikely that as the support of the victim from all sources becomes solidified, the need to reinforce that support becomes an essential element in the victim’s feeling of self-esteem resulting in her enlargement of alleged abuse and expansion of the numbers of accused persons. 4 It is not inconceivable that actual abuse did occur, which in the process described above was exacerbated into catastrophic proportions. I find little merit in the trial court’s claim the parents were foreseeable victims of Dr. Cohen’s negligent treatment of Nicole and thus she owed a duty of care to them. Parents are invariably effected by traumatic things that happen to their children and thus, in a generic sense, are foreseeable victims. As previously noted, while foreseeability is one factor to consider in determining whether there is a duty, many factors interplay. Clearly, the harm to the parents arose out of the false criminal charges brought by the Commonwealth of Pennsylvania, not the misdiagnosis by Dr. Cohen. It is in this respect that I would find the trial court’s reliance upon Turnan, supra, and DiMarco, supra, misplaced. The fact that Nicole, after independent evaluation by a psychiatrist, was diagnosed as having a borderline personality disorder 5 and was unable to distinguish fact from fantasy, thereby being incompetent to testify, did not eliminate the possibility that she suffered from sexual abuse, albeit not to the aggravated and incredible degree she related. It might be argued that the district attorney’s office, bolstered by the pressure from county and state agencies and the media, acted precipitously in filing charges without requiring a more definitive evaluation of the child’s mental conditions before rather than after prosecution. In Turnan, which I note is not binding on this Court, the Federal District Court granted the mental health counselor’s motion to dismiss, but went on to predict the Pennsylvania Supreme Court would impose a duty of care upon the counselors under the circumstances of the present case. The court, however, limited its Opinion as to duty only to those cases where a counselor is accused of implanting false memories with its patient. See Turnan, supra at 189 n. 11. Here, the parents do not allege Dr. Cohen implanted Nicole with false memories that her parents abused her, and therefore I find Turnan inapplicable. It is of critical significance that the allegations of abuse emanated from the child and not the psychiatrist, and were artie- *1165 ulated before Dr. Cohen entered into the course of treatment. Secondly, DiMarco, supra, a 4-3 decision by our Supreme Court which relied upon the Restatement (Second) of Torts § 324A, Liability to Third Person for Negligent Performance of Undertaking, as the basis for liability, as well as Troxel, supra, which is relied upon by appellees in their supplemental brief, involved issues of communicable diseases. Specifically, the physicians provided erroneous information regarding the transmission of communicable diseases and the patients and third parties justifiably relied on that advice to their detriment. In these cases, “the court recognized a duty owed by the physician based upon the important role of the medical community in preventing the spread of communicable diseases, a duty that extends to all those within the foreseeable orbit of risk of harm.” Troxel, supra at 84 , 675 A.2d at 320 . Clearly, a duty of care exists for a physician treating a patient with a communicable disease, whose health already has been compromised, to prevent the spread of the disease to third parties as a matter of primary importance. In fact, physicians are the first line of defense against the spread of communicable diseases and should recognize the services rendered to the patient are necessary and vital for the protection of third parties. DiMarco, supra at 560-64 , 583 A.2d at 424-25 . More importantly, considering the public policy aspects of communicable disease cases, I note there is little social utility in failing to warn patients about known side-effects of drugs or the dangers of a communicable disease, “but there is great social utility in encouraging mental health professionals to assist in the examination and diagnosis of sexual abuse.” Bird, supra at 770 . In fact, this Court, in Crosby by Crosby v. Sultz, 405 Pa.Super. 527 , 592 A.2d 1337 (1991), refused to apply the rationale in DiMarco where a third party injured in an automobile accident involving a diabetic patient sued the patient’s doctor for failing to report the patient’s condition to the Department of Transportation. Finding no duty of care existed, this Court stated, “we can find no logical connection” between the obligation to disclose the patient’s condition and the third party’s injuries. Id. at 543, 592 A.2d at 1345 . The Court then added, “[w]e note here that diabetes is not a communicable disease such as hepatitis.” Id. at 544 , 592 A.2d at 1346 . Clearly, the alleged obligation in Crosby is more akin to the present case than the duty of care imposed in DiMarco . The treatment of child abuse and sexual abuse in our society is fragmented, surrounded by confidentiality, anonymity and circumscribed by the rules, regulations and ethical mandates imposed on all participants in the process and involving all segments of the child service delivery system. See The Child Protective Services Law, 23 Pa.C.S. § 6301 et seq. This undertaking, which also implicates psychiatric and other forms of counseling within its parameters, is so much more complex than dealing with the effects of a communicable disease or failing to hold and/or treat a dangerous psychiatric patient who has identified targets for his violence, that liability cannot be asserted in the fashion under review here. As the majority clearly delineated in its statement of the facts as elicited from Dr. Cohen, hers was not a forensic role leading to a determination as to whether sexual abuse had or had not occurred but, rather, she relied upon the findings of others as to the occurrence of abuse and proceeded to treat the resulting conditions of mental disorders which presented themselves to her as the treatment person. The majority then assesses liability upon Dr. Cohen for the actions of the justice system in prosecuting Nicole’s parents because she failed in some manner to prevent their prosecution for matters and allegations which she, as well as others involved, knew to be untrue. Finally, the majority holds Dr. Cohen hable of negligent treatment for the increasingly bizarre allegations made by Nicole which resulted in their prosecution. The majority proceeds on two theories of liability. First, that Dr. Cohen failed to properly diagnose and treat Nicole’s condition, and second, that her negligent treatment produced the conditions resulting in the prosecution of the parents. Under the first theory, I believe the negligent diagnosis and/or treatment cannot be *1166 the basis for liability of Dr. Cohen as to the parents for reasons discussed below which relate to a proper nexus. As to the second theory, the prosecution of the parents was a legal process independent of the diagnosis and treatment by Dr. Cohen, and is more related to the actions of CYS and District Attorney’s Office than Dr. Cohen. The majority does concede that the treating psychiatrist does not owe an absolute duty of care to the parents of a child for negligent psychiatric treatment of that child. (Op., at p. 1151.) Where the majority assesses liability to Dr. Cohen is in attending and “actively participat[ing] in the criminal proceedings against the Althauses.” Id. According to the majority, the active participation consisted of “attend[ing] several preliminary hearings at Nicole’s request and remaining] passive as Nicole made outlandish allegations against her parents ... nonetheless allow[ing] Nicole to testify to these allegations and, in doing so, essentially vali-dat[ing] Nicole’s unwittingly false testimony.” Id. Accordingly, the majority finds Dr. Cohen’s actions extended well beyond the psychiatric treatment of Nicole and concludes Dr. Cohen owed a duty of care to the Althauses and that the lack of a psychiatric-patient relationship did not provide blanket immunity to Dr. Cohen. Id. The rationale of the majority is illogical and unsupportable. At the outset, the behavior of Dr. Cohen, in attending the hearing at Nicole’s request, may not be construed in any fashion to be a breach of any duty owed to the parents. She was Nicole’s doctor and was required to do anything within reason to support her patient and to make her ordeal in participating in legal proceedings less traumatic. It is common practice for treating persons to accompany their patients or clients to such hearings for emotional support, which is within the ambit of the therapeutic relationship. The majority then takes another huge step into causation by attributing liability for harm to the parents by remaining “passive” and “allowing” Nicole to testify and thereby “validating” Nicole’s “unwilling false” statements. I believe this assessment of liability far exceeds any legal basis established in our law and places in jeopardy any treatment person who attends a probable cause hearing with their patient. Either they must remain silent and suffer the possibility of later negligence as to the party charged, should the charges prove to be false, or breach their duty to their patient and “volunteer” their opinion of the irrationality or falsity of the charges, subjecting themselves to malpractice or other charges. Any immunities they have heretofore been granted by the law as privilege will be stripped away. § 5944. Confidential communications to psychiatrists or licensed psychologists No psychiatrist or person who has been licensed under the act of March 28, 1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client. 42 Pa.C.S. § 5944. A psychiatric patient’s right to privacy prohibits subpoena of records or testimony of a psychiatrist regarding treatment of his patient without the written consent of the patient. In re B., 482 Pa. 471 , 394 A.2d 419 (1978). Dr. Cohen’s presence at the hearings was supportive of Nicole and not in the role of a forensic expert for or against the parents. If this is so, the majority’s attempt to delineate an exception to the rule that the child’s psychiatrist owes no duty to the parent has not been established. What is more to the point, the majority acknowledges the allegations of Nicole are bizarre, patently untrue and “unwittingly” made by her. Under these circumstances, then, it did not require Dr. Cohen to express any view as to Nicole’s credibility or lack of it when the charges were presented, and those in charge of the conduct of the legal proceedings should have taken steps to withhold prosecution for lack of a prima facie case. The credibility determinations must be made by the fact-finder who may not substitute the *1167 opinion of the therapist for that determination. To focus all of the responsibility on Dr. Cohen for her passivity and silence, in the face of absolute irrationality of Nicole’s allegation, is incongruous. The majority goes to great length to establish that a treatment person can be responsible for harm to third parties as a result of misdiagnosis of sexual abuse in the absence of physical evidence or from statements of the child. Caryl S. v. Child & Adolescent Treatment Services, Inc., 161 Misc.2d 563 , 614 N.Y.S.2d 661 (N.Y.Sup.Ct.1994) (therapist recommended visitation with grandmother be curtailed until she acknowledge responsibility for her actions in abusing the grandchild, in the absence of abuse); James W. v. Superior Court, 17 Cal.App.4th 246 , 21 Cal.Rptr.2d 169 (1993) (hospital staff member accused father of rape although child reported rape and sodomy caused by a stranger who came through her bedroom window; subsequent forensic evidence proved father not guilty); and Montoya v. Bebensee, 761 P.2d 285 (Colo.Ct.App.1988) (therapist concluded child was sexually abused by her father contrary to physical evidence and in conflict with social worker’s report of the events related by the child and psychologist’s determination). These cases are not on point because in each of them the therapist took affirmative and convincing action to assess the parent or grandparent involvement and to produce the resulting harm of which was complained. Here, Dr. Cohen remained in the treatment role, did not precipitate or induce the action against the parents and did not cross the line into the accusatory or prosecutorial role. At best, she did not share her views with the parents and did not intervene in the prosecu-tonal process when Nicole was called to testify. This case is clearly distinguishable from those cited by the majority. In that I do not believe appellants owed a duty of care to the Althauses, I find no need to address their claim the parents were con-tributorily negligent. Appellants, however, also allege the trial court erred in not instructing the jury that they could consider the contributory negligence of Nicole. “[IJf there is some evidence of contributory negligence, the issue should be submitted to the jury.” Pascal v. Carter, 436 Pa.Super. 40 , 647 A.2d 231 (1994). Here, however, the trial court determined Nicole did not act intentionally, there was no evidence to support such a claim and she was unaware of the true nature of her actions. The trial court held, as a matter of law, Nicole could not have been contributorily negligent in failing to do what she was incapable of doing. It is clear that at the time of these events Nicole Althaus was a seriously disturbed young woman who actively misrepresented the facts to Dr. Cohen among many others, who avoided all contact with her parents and who desired to remain with the Zappa family. It is precisely because Nicole was psychologically unstable that her representations to her treating therapist cannot be seen as contributory negligence. The very nature of the relationship belies Defendants’ implication that they were entitled to take Nicole’s statements at face value. (Slip Op. at 10.) I am not prepared to support that finding of the trial judge as it sweeps too broadly and establishes a principle of law not established by Pennsylvania appellate courts. 6 If the ruling of the majori *1168 ty is the law of Pennsylvania, then I believe there is room to admit a contributory negligence defense. However, in light of appellants’ withdrawal of their challenge to a finding of malpractice as to Nicole, I see no need to reach that issue. Accordingly, I believe the trial court erred by imposing a duty of care upon Dr. Cohen and WPIC as to Nicole’s parents. Considering the various public policy limitations and the fact the parents’ alleged harm ultimately resulted from the criminal charges, propounded by other persons and agencies rather than appellants’ diagnosis, and not primarily a result of Dr. Cohen’s misdiagnosis, I would refuse to extend the duty of care in a physician/non-patient relationship to the parents of a child who was incorrectly diagnosed as being a victim of sexual abuse. In all other respects, I would affirm the decision of the trial court. EAKIN, J., joins. . For purposes of clarity, Dr. Cohen and WPIC will be referred to as appellants and the Althaus-es, parents and child, referred to as appellees throughout this Opinion. . See The Emotionally Disturbed Child—Then and Now, J. Louise Despert, M.D. (1965), pp. 67, 82. . Despite Nicole’s impossible allegations of multiple pregnancies, caesarian deliveries and murdered embryos, she was found sufficiently credible as to the underlying sexual abuse charges, independent of any diagnosis of Dr. Cohen, for CYS, Children’s Hospital and Juvenile Court to sustain the finding of abuse and removal of Nicole from her home and placement in foster care. The Juvenile Court, in particular, could have ended the matter in several ways, but chose to proceed with the treatment offered by appellants. . See American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Washington, DC, American Psychiatric Association, 1994. "Borderline Personality Disorder is a pattern of instability in interpersonal relationships, self-image, and affects, and marked impulsivity.” Id. at 629. . Id. . The representations by Nicole of abuse reached many persons, including her treating therapist, which could bear on whether she was contributorily negligent in leading to a misdiagnosis. The therapist was asked to treat sexual abuse and, at least initially, that charge had to be considered at face value considering the surrounding circumstances. While the trial court found Nicole mentally incompetent and not responsible for her actions, in many ways those actions appeared to be rational and her behavior as a student and foster child were well within reasonable, if not normal, limits. Mental illness or disturbance in and of itself does not disqualify a person as a witness or defendant. The appellants in their brief cite several cases on reargument from other jurisdictions (none in Pennsylvania) that support their theory that a contributory negligence claim should have been allowed. See Rogers v. Baptist General Convention, 651 P.2d 672 (Okla.1982); DeMartini v. Alexander Sanitarium, Inc., 192 Cal.App.2d 442 , 13 Cal.Rptr. 564 , 91 ALR2d 383 (1961); Macon-Bibb County Hospital Authority v. Appleton, 123 Ga.App. 445 , 181 S.E.2d 522 (1971). *1168 As to her competence in this regard, Strong, John William, McCormick on Evidence (4th ed.1992), provides guidance as follows: Chapter 7. The Competency of Witnesses § 62. Mental Incapacity and Immaturity: Oath or Affirmation There is no rule which excludes an insane person as such, or a child of any specified age, from testifying, but in each case the traditional test is whether the witness has intelligence enough to make it worthwhile to hear him at all and whether he feels a duty to tell the truth. Is his capacity to perceive, record, recollect, and narrate, such that he can probably bring added knowledge of the facts? The major reason for disqualification of the persons mentioned in this section to take the stand is the judges’ distrust of a juiy’s ability to assay the words of a small child or of a deranged person. Conceding the jury's deficiencies, the remedy of excluding such a witness, who may be the only person available who knows the facts, seems inept and primitive. Though the tribunal is unskilled, and the testimony difficult to weigh, it is still better to let the evidence come in for what it is worth, with cautionary instructions. Revised Uniform Rule of Evidence 601 and the first sentence of Federal Rule of Evidence 601 reflect the above and additional reasoning by providing every person is competent to be a witness unless "otherwise provided” in the rules. Id., (footnotes omitted). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9693361. Public record. Not legal advice.