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Doe v. McKay

June 18, 1998


The opinion of the court was delivered by: Justice Miller

Agenda 11

March 1998.

The pseudonymous plaintiff, John Doe, brought the present action in the circuit court of Du Page County seeking damages relating to the psychological treatment rendered to his daughter by the defendants, Bobbie McKay, Ph.D., and McKay's employer, the professional corporation of Bobbie McKay, Ph.D., Ltd. Following a hearing, the trial Judge granted the defendants' motions to dismiss various counts of the plaintiff's amended complaint for failure to state a cause of action. The plaintiff appealed the circuit court's dismissal of counts that sought recovery on theories of negligence and intentional interference with a family relationship. The appellate court reversed the dismissal of those counts, concluding that they stated causes of action. We allowed the defendants' petition for leave to appeal (166 Ill. 2d R. 315(a)), and we now reverse the judgment of the appellate court and affirm the judgment of the circuit court.

The circuit court dismissed the challenged portions of the amended complaint under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)) for failure to state a cause of action. Our review of that ruling is de novo (Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997)), and it requires us to assume the truth of all well-pleaded factual allegations in the plaintiff's amended complaint (People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 11 (1991). According to the allegations in the amended complaint, beginning in 1990 and continuing through October 1995, when the amended complaint was filed, the plaintiff's daughter, Jane Doe, underwent psychological treatment under the care of defendant Bobbie McKay, a licensed clinical psychologist. During the course of this treatment, Jane Doe supposedly discovered repressed memories of sexual abuse allegedly committed by the plaintiff. Jane Doe, who was born in 1964, had not been aware of these memories before beginning her treatment with Dr. McKay.

According to the amended complaint, during a counseling session attended by McKay, Jane Doe, and the plaintiff on February 6, 1992, Jane Doe accused the plaintiff of sexually abusing her when she was about 11 years old. Also during this session, McKay suggested to Jane Doe that the plaintiff might harm her further. At that time, McKay told the plaintiff that his daughter's memories of the alleged abuse had been repressed until they were retrieved during therapy, and that the plaintiff had repressed his own memories of the abuse. McKay recommended that the plaintiff commence treatment with another therapist; McKay spoke with the plaintiff the next day by telephone and recommended that he see Vicki Seglin, another psychologist employed by the McKay practice. The plaintiff saw Seglin individually until October 1992. The plaintiff further alleges that he later learned from his daughter that the February 6, 1992, session was arranged by the therapist to maximize the shock effect of his daughter's accusation and to force from the plaintiff a confession regarding the alleged abuse. The plaintiff denies that he ever sexually abused his daughter.

The amended complaint also alleges that at a counseling session on September 9, 1992, attended by McKay, Jane Doe, and the plaintiff, McKay told the plaintiff of the specific act of abuse he allegedly committed against his daughter. At that time, McKay again asserted that the plaintiff and his daughter had repressed their memories of the abuse. Later, at a session held on October 27, 1992, which was attended by McKay, Seglin, Jane Doe, and the plaintiff, McKay stated again that Jane Doe and the plaintiff had repressed their memories of the plaintiff's alleged sexual abuse. On this occasion, McKay said that the only explanation for Jane Doe's psychological condition was that she had been abused by the plaintiff.

Regarding the method of treatment employed in Jane Doe's case, the plaintiff alleges that McKay believes that mental or emotional problems in adults are often the result of childhood sexual abuse, the memory of which has been repressed. The plaintiff further asserts that McKay believes that previously repressed memories of abuse can be recalled with the techniques she uses, and that "healing" can occur when a patient recovers those memories and resolves the ensuing emotional turmoil. The plaintiff asserts that McKay's views regarding repression and the recovery of repressed memory are not supported by scientific evidence and are not generally accepted by the psychological community. The plaintiff further alleges that he paid a total of $3,208 for services rendered by McKay to his daughter from January through August 1992, and that he paid a total of $4,435 for services rendered to him by Vicki Seglin from February through October 1992. Jane Doe is not a party to this action, and she has not alleged any malpractice by the defendants.

The plaintiff commenced the present action on September 9, 1994. The plaintiff sought recovery from McKay and Seglin individually and, under a theory of respondeat superior, from the professional corporation with which they were associated, Bobbie McKay, Ph.D., Ltd. The circuit court granted the plaintiff's request to permit him to use the pseudonym "John Doe" in these proceedings; his daughter, the subject of the challenged treatment, is identified similarly as "Jane Doe." The plaintiff's amended complaint comprised 17 counts, and it sought recovery on theories of negligence-toward both the plaintiff and his daughter-intentional interference with a parent-child relationship, intentional infliction of emotional distress, defamation, and misrepresentation.

At issue in this appeal are counts alleging the negligent treatment of Jane Doe by McKay, which allegedly deprived the plaintiff of his daughter's society and companionship (counts I and XI), as well as counts alleging intentional interference by McKay with the parent-child relationship (counts IV and XIV), and loss of his daughter's society and companionship (counts V and XV). The defendants moved to dismiss those counts on the ground that Illinois does not recognize those theories of liability in the circumstances alleged here. The trial Judge granted the motions to dismiss and made the requisite finding under Supreme Court Rule 304(a) to permit an immediate appeal from that ruling. The plaintiff did not appeal the dismissal of a number of other counts, and the trial Judge denied the defendants' motions to dismiss other parts of the amended complaint.

The appellate court reversed and remanded. 286 Ill. App. 3d 1020. The appellate court concluded that the plaintiff stated causes of action against McKay and her practice under the theories asserted in the counts challenged here, and the appellate court therefore remanded the cause to the circuit court for further proceedings. We allowed the defendants' petition for leave to appeal (166 Ill. 2d R. 315(a)), and we now reverse the judgment of the appellate court and affirm the judgment of the circuit court. We granted leave to the False Memory Syndrome Foundation to submit a brief as amicus curiae in support of the plaintiff. 155 Ill. 2d R. 345. Also, we allowed the following organizations to file a joint brief as amici curiae in support of the defendants: the Alliance for the Rights of Children; the American Counseling Association; the American Professional Society on the Abuse of Children; the Illinois Coalition Against Sexual Assault; Justice for Children; The Linkup; the Marilyn Van Derbur Institute, Inc.; Mothers Against Sexual Abuse; the National Alliance of Sexual Assault Coalitions; the National Coalition Against Sexual Assault; One Voice, the National Alliance for Abuse Awareness and the American Coalition for Abuse Awareness; Survivor Connections, Inc.; Survivors and Victims Empowered; Voices in Action, Inc.; and the Women's Law Project.


We consider first counts I and XI of the amended complaint. Count I alleges negligence against Dr. McKay individually; count XI is based on the same allegations, but is directed against her practice, Bobbie McKay, Ph.D., Ltd., under an agency theory. Both counts allege that McKay committed negligence toward Jane Doe. Separate counts alleging negligence by McKay toward the plaintiff himself were not dismissed by the trial Judge, and they remain pending in the circuit court of Du Page County. The defendants argue that the negligence counts at issue here did not allege a legally recognized duty toward the plaintiff.

To state a cause of action for negligence, a complaint must allege facts that are sufficient to show the existence of a duty, a breach of the duty, and an injury to the plaintiff proximately caused by the breach. Widlowski v. Durkee Foods, Division of SCM Corp., 138 Ill. 2d 369, 373 (1990); Curtis v. County of Cook, 98 Ill. 2d 158, 162 (1983). Whether a duty exists is a question of law to be determined by the court. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 116 (1995); Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 542 (1991); Cunis v. Brennan, 56 Ill. 2d 372, 374 (1974). In deciding whether a duty exists in a particular case, a court will consider the foreseeability of the plaintiff's injury, the likelihood of the occurrence, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant. Ward v. K mart Corp., 136 Ill. 2d 132, 140-41 (1990); Lance v. Senior, 36 Ill. 2d 516, 518 (1967).

In Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507 (1987), this court ruled that a third party injured by a patient could not bring a malpractice action against the patient's doctors, who allegedly failed to warn the patient that prescription drugs he was taking could impair his abilities. The plaintiff in that case was injured when the car in which he was riding struck a tree; the car was being driven by a recently discharged psychiatric patient who had received psychotropic drugs at a hospital and who had later consumed alcohol. The plaintiff sued the hospital, the manufacturers of the drugs, and two doctors. This court rejected the plaintiff's contention that the doctors' failure to advise the patient of the possible side effects of the drugs gave rise to a duty of care toward nonpatient third-parties such as the plaintiff. Kirk, 117 Ill. 2d at 529-32. The court believed that allowing the action against the doctors to go forward would improperly enlarge their duty of care, for "[s]uch a broad duty extended to the general public would expand the physician's duty of care to an indeterminate class of potential plaintiffs." Kirk, 117 Ill. 2d at 532. ...

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