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Trotter v. Okawa6/10/1994
OPINION BY JUSTICE BARBARA MILANO KEENAN
In this appeal of a medical malpractice action, we consider whether the trial court erred in sustaining demurrers on two grounds: (1) that the plaintiff was barred from recovery by his participation in an illegal act, based on Zysk v. Zysk, 239 Va. 32, 404 S.E.2d 721 (1990); and (2) that his cause of action was further barred against one defendant by the doctrine of sovereign immunity.
Since this action was concluded in the trial court on demurrer, we consider as true all material facts expressly alleged in the amended motion for judgment, those facts that can be fairly inferred from the facts alleged, and those facts that are impliedly alleged. CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993).
Robert A. Trotter filed an amended motion for judgment against Judy B. Okawa, Roger Wolff, and George Washington University (the University), seeking damages for the defendants' acts and omissions during a period in which Trotter received outpatient treatment at the Arlington County Mental Health Center (the center). Trotter sought treatment at the center and received individual psychotherapy from Okawa. Okawa was employed by the Arlington County Department of Human Services, Division of Mental Health, Retardation, and Substance Abuse Services ("Arlington County"), as a clinical psychologist intern. Her internship took place pursuant to the placement and under the supervision of the University. In addition, her work at the center was supervised by Roger Wolff, a licensed clinical psychologist employed by Arlington County.
Trotter's provisional diagnosis indicated that he was suffering from depression and a dependent personality disorder. This diagnosis also included observations that Trotter had "powerful fears of abandonment and rejection," and that "his interpersonal relationships are a source of much pain." Okawa treated Trotter for these problems between January 1991 and June 1991 during his individual psychotherapy sessions.
The amended motion for judgment alleges that, during this period, Okawa initiated and promoted a sexual relationship with Trotter. The pleading alleges that she initiated provocative physical contact with Trotter at therapy sessions, telephoned Trotter at his home to discuss her sexual attraction to him, made repeated visits to his home where she initiated sexual contact with him, and invited Trotter to her home where they engaged in sexual intercourse.
Trotter alleges in the amended motion for judgment that he participated in this sexual activity "as a result of duress, coercion, and the exploitation of his status as a mentally ill patient under the care of the Defendants." He also alleges that Wolff and the University knew of Okawa's actions, but "failed to adequately investigate, supervise or stop the activities of Okawa."
The amended motion for judgment alleges "gross breach of professional duty, misconduct and gross negligence" on the part of all defendants, based on Okawa's actions, on the failure of Wolff and the University to properly supervise and monitor Okawa, and on the failure of each defendant to protect Trotter's mental well-being and provide him proper treatment. Trotter's pleading further
alleges that, "as a direct result of these Defendants' violations of their duties as aforesaid, has suffered severe traumatization and impairment of his mental health and well-being, and has b
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