                               STATE OF MICHIGAN

                                COURT OF APPEALS



LALE ROBERTS and JOAN ROBERTS,                                     FOR PUBLICATION
                                                                   December 18, 2014
                    Plaintiffs-Appellants,

v                                                                  No. 316068
                                                                   Houghton Circuit Court
KATHRYN SALMI, LPC, d/b/a SALMI                                    LC No. 2012-015075-NH
CHRISTIAN COUNSELING,

                    Defendant-Appellee.


Before: MURPHY, C.J., and SAWYER and M. J. KELLY, JJ.

SAWYER, J. (dissenting).

          I respectfully dissent.

        While the majority lays out a strong policy argument in favor of the conclusion that we
should create a duty between a therapist and a patient’s parents under the circumstances of this
case, I nonetheless believe that represents a policy decision best left to the Legislature. In
reaching this conclusion, I am guided by the wisdom expressed by the Supreme Court in Henry v
The Dow Chemical Co.1 While the majority correctly points out that the facts, as well as the
specific question presented, is significantly different than those presented in our case, the more
fundamental jurisprudential question is the same: when should a court exercise its authority to
modify the common law and recognize a duty in tort law and when is that determination best left
to the Legislature?

       In Henry,2 the Court noted the extensive fact-finding and resolution of conflicting policy
concerns that would be required:

                  Although we recognize that the common law is an instrument that may
          change as times and circumstances require, we decline plaintiffs’ invitation to
          alter the common law of negligence liability to encompass a cause of action for
          medical monitoring. Recognition of a medical monitoring claim would involve


1
    473 Mich 63; 701 NW2d 684 (2005).
2
    Id. at 68-69.


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         extensive fact-finding and the weighing of numerous and conflicting policy
         concerns. We lack sufficient information to assess intelligently and fully the
         potential consequences of recognizing a medical monitoring claim.

                 Equally important is that plaintiffs have asked this Court to effect a change
         in Michigan law that, in our view, ought to be made, if at all, by the Legislature.
         Indeed, the Legislature has already established policy in this arena by delegating
         the responsibility for dealing with health risks stemming from industrial pollution
         to the Michigan Department of Environmental Quality (MDEQ). As a matter of
         prudence, we defer in this case to the people’s representatives in the Legislature,
         who are better suited to undertake the complex task of balancing the competing
         societal interests at stake.

        The same concerns, and the same need for prudence, exist in the instant case. Plaintiffs’
claim is, in essence, that defendant relied upon “junk science” as a therapy method, which
resulted in the creation of a false memory. It is far outside the expertise of this Court, or any
future jury for that matter, to determine what is, or is not, an appropriate therapy method. It
would seem to me that this is a question better left to the Legislature to address, or for the
Legislature to delegate to an appropriate regulatory body with the expertise to determine under
what circumstances a therapy method may be utilized, if at all. Under these circumstance, a
court could entertain a claim that a therapist used a prohibited method, or utilized a method
outside the circumstances approved for its use.

        Moreover, this case presents a plethora of competing policy considerations. For example,
as is often the case in the health professions, a particular approach to treatment or diagnosis
presents potential benefits to the patients, but is often accompanied by some risk as well. And
while we impose upon the health care professional the obligation to assess those benefits and
risks in recommending a particular treatment or test to the patient, what the majority would do
here imposes another level of risk-benefit analysis to the professional: what are the risks and
benefits to the patient’s parents? While these risks and benefits may often be aligned between
patient and parent, it can hardly be taken for granted by this Court. It is possible that adding this
additional duty may well create a conflict in the exercising of professional judgment where
meeting the duty owed to one may constitute a breach of a duty to the other. I suggest that the
determination whether such a conflict exists and, if so, how it should be resolved is best left to
the Legislature’s investigative and policy resolution functions.

       This is particularly true given that this particular case represents an area that has not been
ignored by the Legislature. The Legislature has addressed policy issues not irrelevant to this
case. For example, the Legislature has created a policy of mandatory reporting of child abuse.3
The Legislature has also addressed the question of privilege in these contexts.4 The creation of a
duty to the parents of a child being treated for abuse, or where abuse is discovered during the


3
    MCL 722.623.
4
    See MCL 330.1750.


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course of treatment for something else, may well be at odds with these legislative policy
determinations. Prudence would dictate that the Legislature should determine how such a duty
may, or may not, fit into the legislative policy determinations in this area.

       The California Court of Appeals made a similar observation in Trear v Sills.5 Under the
heading “A Therapist Should Not Be Required to Serve Two Masters,” the court6 said as
follows:

                  Indeed, the law would hardly impose upon a lawyer the duty to refrain
          from negligently doing harm to his or her client’s adversary. (E.g., Norton v
          Hines (1975) 49 Cal. App. 3d 917, 921 [123 Cal. Rptr. 237].) An attorney is not
          even required to believe that his or her client would prevail in a court of law in
          order to avoid liability for malicious prosecution--a sin rather more grievous than
          mere negligence. If an attorney who cannot know the absolute truth of a client’s
          position has no duty in negligence toward the client’s adversary, how much less
          of a reason is there to impose a duty on a therapist, who must, by necessity,
          choose between possible harm to a patient if a recovered memory story is not
          believed and harm to a possible abuser if the patient’s recovered memory story is
          believed. If therapists are to be put in what is so obviously an untenable position,
          it should be by the Legislature, not the legal fiat of appellate judges.

In the same vein, our Supreme Court in Henry,7 summed it up best:

                  It may be desirable that our tort law should expand to allow a cause of
          action for medical monitoring. But what we as individuals prefer is not
          necessarily what we as justices ought to impose upon the people. Our decision in
          this case is driven not by a preference for one policy or another, but by our
          recognition that we must not impose our will upon the people in matters, such as
          this one, that require a delicate balancing of competing societal interests. In our
          representative democracy, it is the legislative branch that ought to chart the state’s
          course through such murky waters.

I find the waters in this case to be equally murky, and I too think it best to leave it to the
Legislature to chart a course on this issue.

          For these reasons, I would affirm.

                                                                /s/ David H. Sawyer




5
    69 Cal App 4th 1341; 82 Cal Rptr 281 (1999).
6
    69 Cal App 4th at 1352; 82 Cal Rptr at 289.
7
    473 Mich at 98.


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