Old duties and new: recovered memories and the question of third-party liability

This article addresses how courts have analyzed the question of third-party liability in a class of cases that has recently challenged settled law. In these cases a patient recovers apparent memories of sexual abuse during the course of a therapy. Based on these memories and perhaps with the therapist's aid and encouragement, the patient identifies a family member as the perpetrator, often in a legal or other public forum. The accused family member then brings a lawsuit against the therapist for negligent treatment of the patient. The legal question to be determined is whether the therapist owes a duty of care to the third-party family member. The article first examines the concept of duty from a historical perspective. The article next looks at the method of analysis courts have used to approach the question of third-party liability in recovered memory cases. The article's third section examines how several state courts have applied this analysis to actual cases. Finally, the article evaluates the most compelling arguments on both sides of the issue and raises additional arguments suggested by the state court analyses.