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Martino v. Family Service Agency





Appeal from the Circuit Court of Adams County; the Hon. Richard F. Scholz, Jr., Judge, presiding.


On November 18, 1980, plaintiff, Janet Martino, brought suit in the circuit court of Sangamon County against defendants, Family Service Agency of Adams County (Family Service) and Jane Balke. The venue was subsequently transferred to the circuit court of Adams County. On March 8, 1982, upon defendants' motion, that court entered a judgment dismissing, with prejudice, plaintiff's five-count, third amended complaint. Plaintiff appeals.

The principal issue on appeal is whether the various counts of the third amended complaint stated causes of action. Although based on different theories, the various counts had a common theme. They alleged: (1) Family Service offered family and marriage counseling services to the public; (2) on or about October 7, 1979, Family Service contracted with plaintiff to provide counseling service in an effort to improve the marital relationship between plaintiff and her husband; (3) defendant Balke, who was Family Service's chief executive officer, was assigned to counsel with plaintiff and did so between October 1, 1979, and May 1, 1980; and (4) during this period Balke (a) used against plaintiff's interest information obtained by Balke from plaintiff during counseling, (b) revealed those confidences to others, (c) fell in love with plaintiff's spouse, pursued him, and engaged in "intimate relations" with him, and (d) after developing this conflict of interest failed to either inform plaintiff of the conflict or terminate her counseling relationship with plaintiff.

Count I, II and III were directed solely against Family Service and counts IV and V were directed solely against Balke. Count I was based upon the theory that Family Service breached a contract with plaintiff to furnish counseling services to her that would be performed with skill, care and ethics commonly exercised in the counseling profession in Quincy or similar places. Count II alleged that through the masterservant relationship, Family Service was liable for the tort of malpractice of the profession of social work. Count III maintained Family Service, acting through Balke, violated the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1979, ch. 91 1/2, par. 801 et seq.) and the Social Workers Registration Act (Ill. Rev. Stat. 1979, ch. 111, par. 6301 et seq.). Counts IV and V charged Balke as an individual with the tort of social worker malpractice and of violations of the two aforesaid acts.

We consider first counts II and V which purport to sound in the tort of malpractice. Although count II, directed solely against Family Service, alleges it failed to provide a competent counselor and to train and guide her as well as alleging liability of Family Service under the doctrine of respondeat superior, plaintiff's theories are all dependent upon the counselor, Balke, having provided service in a manner constituting malpractice.

Plaintiff has failed to present any direct statutory or common law authority as precedent for applying the tort of malpractice to the social work profession. Similarly, we have been unable to discover any such precedent. Plaintiff seeks to draw analogy to the medical profession, where a breach of duty has been held to arise from a psychiatrist having intercourse with his patient as part of her prescribed therapy (Roy v. Hartogs (1976), 85 Misc.2d 891, 381 N.Y.S.2d 587), a psychiatrist beating a patient (Hammer v. Rosen (1960), 7 N.Y.2d 376, 165 N.E.2d 756), and a hospital negligently failing to abide by licensing regulations (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill.2d 326, 211 N.E.2d 253). Plaintiff points out that a code of ethics has been adopted by the National Association of Social Workers which would have been violated by the conduct of Balke alleged here. Plaintiff also maintains that breach of the social worker's code alleged here would be similar to a breach by a lawyer of codes promulgated by various bar groups such as the American Bar Association.

Plaintiff emphasizes the loyalty and trust that should be at the heart of a relationship between a social worker and a client, likening it to a fiduciary relationship. Plaintiff cites Suchy v. Hajicek (1936), 364 Ill. 502, 4 N.E.2d 836, where the court stated:

"In general, a fiduciary or confidential relationship exists where trust and confidence are reposed by one person in another, who, as a result, gains an influence and superiority over the first." 364 Ill. 502, 509, 4 N.E.2d 836, 840.)

In Steinmetz v. Kern (1941), 375 Ill. 616, 32 N.E.2d 151, the court held that the existence of such a relationship "prohibits the one trusted from seeking or obtaining any selfish benefit for himself during the course of the relationship." 375 Ill. 616, 620, 32 N.E.2d 151, 154.) However, neither of the above cases held a breach of a fiduciary duty to be a tort.

Plaintiff also relies on the following statements:

"The therapist-patient relationship is one of great intimacy and trust, in which the therapist encourages the patient to confide in the therapist, and the therapist has a corresponding fiduciary responsibility to the patient." 20 Proof of Facts 2d 433 (1979).

"Psychiatrists, psychologists, and other mental health professions are required to exercise due skill and care in conformity with that ordinarily exercised by qualified professionals in their respective fields." 20 Proof of Facts 2d 439 (1979).

The most authoritative texts give a broad scope to the types of endeavor in which the tort of malpractice may be committed:

"Sec. 299 A. Undertaking in Profession or Trade

Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities." Restatement (Second) of Torts sec. 299 A (1965).

"Beyond this the American courts have extended the tort liability for misfeasance to virtually every type of contract where defective performance may injure the promisee. An attorney or an abstractor examining a title, a physician treating a patient, a surveyor, an agent collecting a note or lending money or settling a claim, or a liability insurer defending a suit, all have been held liable in tort for their negligence. The same is true of contractors employed to build a structure, to transport people or goods, to install a windmill or a lightning rod, or to shoot an ...

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