UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARIO G. BENAVIDEZ,

Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee.

No. 97-2313

Order

Filed June 8, 1999

Before PORFILIO, KELLY and LUCERO, Circuit Judges.

Appellant’s unopposed motion to delete the name of Cathleen Cain from

the caption of this appeal is granted. The revised slip opinion cover sheet is

attached to this order.

Entered for the Court

PATRICK FISHER, Clerk of Court

 by:

Keith Nelson

Deputy Clerk
F I L E D

United States Court of Appeals

Tenth Circuit

MAY 20 1999

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARIO G. BENAVIDEZ,

Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee.

No. 97-2313

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CIV-95-823-LH)

Bruce E. Pasternack (Neil R. Blake and Valerie A. Chang with him on the briefs),

Pasternack and Blake, P.C., Albuquerque, NM, for Plaintiff - Appellant.

William G. Cole (Frank W. Hunger, Assistant Attorney General, John J. Kelly,

United States Attorney, and Robert S. Greenspan with him on the brief),

Department of Justice, Washington, D.C., for Defendant - Appellee.

Before PORFILIO, KELLY and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

This appeal raises the issue of whether the intentional tort exception to the

Federal Tort Claims Act (“FTCA”) applies to a suit alleging that a government-
1The IHS is a division of the Public Health Service of the United States

Department of Health and Human Services.

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employed psychologist negligently mismanaged the patient-therapist relationship

by engaging in sexual contact and drug and alcohol abuse with his patient. 

Concluding that the therapist’s actions constituted an intentional tort, the district

court dismissed appellant’s suit for lack of jurisdiction. See Benavidez v. United

States, 998 F. Supp. 1225, 1231 (D.N.M. 1997). We have jurisdiction pursuant to

28 U.S.C. § 1291 and reverse.

I

 Appellant Mario G. Benavidez is a member of the Laguna Pueblo Indian

Tribe in New Mexico. As a teenager, Benavidez suffered from depression and a

drug and alcohol dependency problem that led to frequent arrests by the local

police. After attempting suicide, Benavidez was referred by the police and the

Indian Health Service (“IHS”)1

 to a government-employed psychologist, Dr.

David J. Bullis, for counseling. Bullis diagnosed Benavidez, who was then just

shy of his sixteenth birthday, as suffering from a variety of psychological

disorders, including depression with suicidal intent, polysubstance abuse, and

cannabis dependence. 

Despite this diagnosis, Bullis allegedly told Benavidez that continued

alcohol and drug abuse would be appropriate and even therapeutic. Bullis also
2Benavidez claims that he was Bullis’s patient from February 1989 to October

1994. In granting the government’s motion to dismiss, the district court assumed “that all

of the acts alleged took place in the course and scope of Bullis’s employment.” 

Benavidez, 998 F. Supp. at 1229. Because we are reviewing the district court’s dismissal

of Benavidez’s complaint, we also assume that Bullis acted within the course and scope

of his employment as a government psychologist. 

3As required by 28 U.S.C. § 2675(a), Benavidez first filed his claim with the IHS. 

Because the IHS failed to dispose of the claim within six months of its filing, Benavidez

properly instituted this action in federal district court. 

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allegedly used therapy sessions to convince Benavidez that he was homosexual

and that he should have sex with Bullis. During the course of the patienttherapist relationship, Bullis allegedly engaged in sexual contact with Benavidez.

Together, the two also allegedly used alcohol, marijuana and other illegal drugs.2

The record includes testimony that Bullis had a reputation for using drugs

and alcohol with many of his teenage patients, and Bullis himself told one of his

supervisors that he had engaged in “some exploratory sexual contact” with

Benavidez. The supervisor never notified his superiors of Bullis’s conduct, but 

merely wrote in his notes that he felt comfortable allowing Bullis to continue with

his regular duties. The IHS did not relieve Bullis of his clinical responsibilities

until January 1995, when Benavidez filed an administrative tort claim against the

agency.

In July 1995, Benavidez, acting pursuant to 28 U.S.C. § 2675(a), filed suit

in the United States District Court for the District of New Mexico,3

 alleging

various injuries as a result of Bullis’s conduct and seeking recovery against the
4

In addition to its motion to dismiss for lack of subject matter jurisdiction, the

government filed an alternative motion for summary judgment. Having granted the

motion to dismiss, the court denied the alternative motion as moot. It also denied as moot

a separate motion to dismiss Benavidez’s medical malpractice claim, and an alternative

motion for partial summary judgment as to limitation of damages. 

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United States under the respondeat superior theory of liability. The district court

concluded that Benavidez’s allegations constituted a claim for assault and battery

rather than for professional negligence or malpractice. Applying the intentional

tort exception to the FTCA’s waiver of sovereign immunity, the court thus

granted the government’s motion to dismiss for lack of jurisdiction.4

II

We subject to de novo review the question of whether a district court has

subject matter jurisdiction to hear a tort claim against the United States. See

Franklin v. United States, 992 F.2d 1492, 1495 (10th Cir. 1993), aff’d on appeal

after remand, 34 F.3d 1076 (10th Cir. 1994).

The FTCA provides that the United States can be sued for personal injury 

resulting from: 

[The] negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or

employment, under circumstances where the United States, if a

private person, would be liable to the claimant in accordance with the

law of the place where the act or omission occurred. 
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28 U.S.C. § 1346(b)(1). But this waiver of sovereign immunity does not extend

to claims arising out of assault or battery. See 28 U.S.C. § 2680(h). 

The issue before us, therefore, is whether, Bullis’s alleged conduct

constituted a “negligent, or wrongful act” rather than an assault or battery for

purposes of the FTCA. “[W]e assume Congress proceeded from an understanding

of established tort definitions when enacting and amending the various sections of

the FTCA.” Franklin, 992 F.2d at 1495. Thus, although the issue of whether a

claim falls within the FTCA’s waiver of immunity is a matter of federal law, a

resolution of that issue often turns on the “traditional and commonly understood

legal definition of the tort” that the plaintiff alleges. United States v. Neustadt,

366 U.S. 696, 706 (1961).

A

A review of relevant federal and state court cases shows that Bullis’s

conduct has traditionally been understood and commonly defined as negligent

malpractice, which does not fall within the intentional tort exception to the

FTCA’s waiver of sovereign immunity. See, e.g., Simmons v. United States, 805

F.2d 1363, 1368-71 (9th Cir. 1986); Andrews v. United States, 732 F.2d 366, 371

(4th Cir. 1984); Doe v. Samaritan Counseling Center, 791 P.2d 344, 348-49

(Alaska 1990); Corgan v. Muehling, 522 N.E.2d 153, 156-57 (Ill. App. Ct. 1988),
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aff’d, 574 N.E.2d 602 (Ill. 1991); Zipkin v. Freeman, 436 S.W.2d 753, 761-62

(Mo. 1968).

In Simmons, for example, an IHS therapist seduced his patient, a member

of the Chehalis Indian Tribe, into a sexual relationship. See Simmons, 805 F.2d

at 1364. The patient suffered a subsequent deterioration in her mental and

emotional health. Another therapist traced her worsening condition to the sexual

relations she had with the former therapist. The patient thereupon filed suit

against the government under the FTCA, and the district court entered judgment

in her favor. Dismissing the government’s appeal, the Ninth Circuit ruled that by

seducing his patient, the therapist had mismanaged the “transference

phenomenon” and thus engaged in negligent malpractice. See id. at 1365.

“Courts have uniformly regarded mishandling of transference as

malpractice or gross negligence.” Id. (citing cases); see also Greenberg v.

McCabe, 453 F. Supp. 765, 771-72 (E.D. Pa. 1978), aff’d, 594 F.2d 845 (3rd Cir.

1979); Samaritan Counseling Center, 791 P.2d at 348. The “transference

phenomenon” refers to the tendency of patients to become emotionally dependent

upon, and trusting of, their psychologist or psychiatrist. See generally Michael D.

McCafferty & Steven M. Meyer, Medical Malpractice: Bases of Liability

§ 10.18 (1985) (explaining that transference “is one of the most significant

concepts in psychoanalytic therapy,” and accounts for the “strong dependency of
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the patient upon the therapist”). Specifically, transference describes a patient’s

“projection of feelings, thoughts and wishes onto the analyst, who has come to

represent some person from the patient’s past.” Simmons, 805 F.2d at 1364

(quoting Stedman’s Medical Dictionary, 1473 (5th Lawyer’s Ed. 1982)). 

Although it occurs in other professional relationships, “it is only in

psychotherapy that the management of this [transference] effect is so

critical—legally as well as therapeutically.” Joseph T. Smith, Medical

Malpractice: Psychiatric Care § 9.10 (1995). No other professional relationship

“offer[s] a course of treatment and counseling predicated upon handling the

transference phenomenon.” Simmons, 805 F.2d at 1366 (citing Alan A. Stone, 

Law, Psychiatry, and Morality 199 (1984)). In order to manage the transference

phenomenon properly a therapist must avoid emotional involvement with a patient

who transfers feelings of affection to him. See Aetna Life & Cas. Co. v. McCabe,

556 F. Supp. 1342, 1346 (E.D. Pa. 1983).

 Despite the wide acceptance of transference in the medical and legal

communities, the district court summarily dismissed the Simmons court’s reliance

on the phenomenon. See Benavidez, 998 F. Supp. at 1229 n.4. But we need not

rely exclusively on Simmons and other cases that employ the transference

phenomenon. Faced with a case very similar to the one before us, the Fourth

Circuit, without relying on transference, concluded that a therapist’s sexual
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relationship with his patient constituted grounds for a negligent malpractice

claim. See Andrews, 732 F.2d at 370-71.

In Andrews, a government-employed therapist diagnosed the plaintiff as

suffering from chronic depression. The therapist soon began using counseling

sessions to convince his patient that she needed an affair, and ultimately

succeeded in seducing her into a sexual relationship. See id. at 367-68. As a

result of the therapist’s conduct, the plaintiff’s emotional health worsened, and

she ultimately filed suit under the FTCA. The government argued that the suit

stemmed from an assault and battery for which sovereign immunity is not waived. 

See id. at 371. The Fourth Circuit disagreed, and simply held that when a

therapist seduces his patient while purporting to provide counseling, “the

resulting cause of action is described as medical malpractice [and] not assault and

battery.” Id. 

The government attempts to distinguish Andrews by arguing that the patient

in that case consented to her therapist’s sexual advances because he convinced her

that sexual intercourse with him was the best course of treatment for her. The

government contends that unlike the plaintiff in Andrews, Benavidez did not

consent to Bullis’s sexual contacts. Thus, this case involves the intentional tort

of assault and battery rather than negligent malpractice. The district court agreed,
5 See First Am. Compl. at ¶ 15 (alleging that “Bullis engaged in . . . psychological

manipulation so as to negligently manipulate [Benavidez] into a long-term sexual

relationship which served Bullis’ needs”) (emphasis added). 

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stating that “there is no doubt that Plaintiff does not allege that the sexual acts

were consensual.” Benavidez, 998 F. Supp. at 1229. 

 To state a claim for negligence rather than a claim for assault and battery,

Benavidez did not have to allege that he engaged in consensual sexual relations

with Bullis. One of the key distinctions between claims sounding in negligence

and those sounding in intentional tort like assault and battery is that the latter

requires an unconsented touching. See Restatement (Second) of Torts § 13 cmt.

d (1965) (“The absence of consent . . . is inherent in the very idea of those

invasions of interest and of personality which, at common law, were the subject of

an action for trespass for battery [or] assault.”). By alleging negligence,5

Benavidez implicitly asserted that he consented to Bullis’s sexual advances, and

thus pleaded a claim for professional negligence or malpractice rather than for

assault and battery.

Of course, a mere allegation of negligence does not turn an intentional tort

into negligent conduct. See Wine v. United States, 705 F.2d 366, 367 (10th Cir.

1983); Naisbitt v. United States, 611 F.2d 1350, 1355-56 (10th Cir. 1980). To 

determine the nature of an asserted claim, we focus not on the label the plaintiff

uses, but on the conduct upon which he premises his claim as supported by the
6Relying on our decision in Franklin v. United States, 992 F.2d 1492 (10th Cir.

1993), aff’d on appeal after remand, 34 F.3d 1076 (10th Cir. 1994), the government

argues that “an incompetent consent to the intentional invasions of one’s person has no

effect,” and that therefore this case involves a battery. Appellee’s Br. at 30 (quoting

Franklin, 992 F.2d at 1497). However, Franklin and the other cases on which the

government relies, including Thigpen v. United States, 800 F.2d 393 (4th Cir. 1986),

overruled on other grounds by Sheridan v. United States, 487 U.S. 392 (1988), and New

Mexico Physicians Mutual Liability Co. v. LaMure, 860 P.2d 734 (N.M. 1993), do not

involve a therapist engaging in sexual contact with his emotionally distraught patient

under the guise of therapy. Instead, they involve sexual relations between physicians and

patients. “[C]ourts do not routinely impose liability upon physicians [or other

professionals] for sexual contact with patients” or clients. Simmons, 805 F.2d at 1366.

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record. See Sabow v. United States, 93 F.3d 1445, 1456 (9th Cir. 1996). In

concluding that Benavidez asserted a claim for assault and battery, the district

court merely stated that “the complaint avers that Bullis forced himself on the

plaintiff by misusing the therapeutic relationship and by encouraging the Plaintiff

to use alcohol and drugs.” Benavidez, 998 F. Supp. at 1229 n.5. Nowhere in the

complaint or in the record, however, do we discern any support for the district

court’s conclusion that Bullis forcibly engaged in sexual relations with

Benavidez.

B

The government argues, alternatively, that Benavidez admits to being so

incompetent during the course of his therapy as to render meaningless whatever

consent he may have given to Bullis’s conduct.6

 The government relies on

Benavidez’s testimony that his psychological condition rendered him unable to
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reject Bullis’s sexual advances, although he nonetheless felt emotionally raped by

Bullis’s conduct. The district court agreed, stating that “the Plaintiff was in no

condition at the time of the abuse to give his consent, and had essentially turned

his will over to Bullis.” Benavidez, 998 F. Supp. at 1229 n.5 (citing First Am.

Compl. at ¶¶ 11-14). 

The district court’s finding and Benavidez’s testimony merely reveal

Benavidez’s confusion about how to respond to the unsolicited sexual advances of

a therapist upon whom he was so emotionally dependent, and whose suggestions

he was unable to resist. The plaintiff in Andrews displayed a similar “confused

dependency” and “ambivalence about continuing treatment” in the face of her

therapist’s sexual advances. Andrews, 732 F.2d at 369. Nonetheless, the Fourth

Circuit rejected the government’s argument that the therapist’s sexual relationship

with the plaintiff was nonconsensual. 

Moreover, the court suggested that in such a case, consent may be

irrelevant because the egregious nature of the therapist’s conduct constitutes an

act of professional negligence separate and apart from the act of intercourse. 

“‘[T]he injury to the plaintiff [is] not merely caused by the consummation of acts

of sexual intercourse. Harm [is] also caused by the [therapist’s] failure to treat

the patient with professionally acceptable procedures.’” Andrews, 732 F.2d at

371 (quoting Roy v. Hartogs, 381 N.Y.S.2d 587, 588 (N.Y. App. Term. 1976));
7Benavidez argues that even if Bullis’s conduct fell within the FTCA’s intentional

tort exception, the district court still erred in dismissing his suit because (1) the

government was directly negligent in hiring and supervising Bullis; and (2) 42 U.S.C. §

233(e) nullifies the FTCA’s intentional tort exceptions so that the government is liable for

the intentional tort of public health employees like Bullis. Because we conclude that

Bullis’s alleged conduct constituted negligent malpractice, we do not reach the other

bases for Benavidez’s suit.

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see also Art. 4.05 Ethical Principles of Psychologists and Code of Conduct

(“Psychologists do not engage in sexual intimacies with current patients or

clients.”)

III 

The gravamen of the complaint in this case is that under the guise of

providing counseling, a therapist violated professionally acceptable procedures

and induced an emotionally depressed and suicidal teenager, already prone to

alcohol and drug abuse, to indulge in the use of such substances and to engage in

sexual conduct. Given the settled federal and state law on this issue, we conclude

that the allegations in the complaint sufficiently support a claim for professional

negligence or malpractice. This sort of claim does not fall within the intentional

tort exception to the FTCA’s waiver of sovereign immunity.7

REVERSED.