ALTHAUS BY ALTHAUS v. Cohen

SCHILLER, Judge,

dissenting:

Although I can agree with the proposed disposition of the subsidiary issues in this case, as to the principle issue upon which en banc consideration was granted, I am compelled to dissent.

We are asked to decide whether a psychiatrist’s duty of care should be extended beyond the physician-patient relationship to the parents of the child. In my view the answer must be unambiguous: the parents have no independent right to recover damages in a malpractice claim for negligent treatment of the child. Considerations of public policy and sound jurisprudence demand no less.

The battle against the sexual abuse of children is fought on many fronts. Child psychiatrists are often in the vanguard of that fight, and they must be free to treat young patients unencumbered by extraneous fears. Expanding the legal liability of psychiatrists beyond the patient will diffuse their commitment to the child, deter professional candor, and constrain the search for truth. In a field fraught with complexity and scientific uncertainty, the law should be clearly defined to enable psychiatrists to function with confidence and competence. When one among them fails to meet the medical standard of care to his patient, the psychiatrist can be held legally accountable. To expand that duty to any third party will merely invite unnecessary litigation while inhibiting the diagnosis, treatment and, perhaps even the reporting of child sexual abuse. 1

The decision of the majority places the law of Pennsylvania on the proverbial slippery slope, a precipitous one at that. Are parents the only foreseeable victims of medical malpractice by a psychiatrist treating a sexually abused child? Clearly not. The class of potential victims is limited only by the child’s imagination and the professional’s willingness to suspend disbelief. Why would a grandparent’s case be any less compelling than that of Nicole’s parents? See Caryl S. v.

*1169 Child & Adolescent Treatment Services, Inc., 161 Misc.2d 563 , 614 N.Y.S.2d 661 (N.Y.Sup. Ct.1994) (finding therapist owed duty of care to grandmother who was alleged abuser). Or an older brother’s? An aunt, uncle or teacher’s?

This is a path I refuse to take. In my view, the majority decision creates a new duty which will impede appropriate treatment in the very cases of sexual abuse where it is most needed. Such an expansion of privity does not outweigh the harm it will cause.

BECK and EAKIN, JJ., join.

. This is not to say that parents might not have other independent causes of action, such as defamation or intentional infliction of emotional distress, based on action taken beyond the scope of the medical diagnosis and treatment.