Present: Lacy, Keenan, Koontz, Kinser, Lemons, and Agee, JJ., 

and Russell, S.J. 

JOHN DOE OPINION BY 

SENIOR JUSTICE CHARLES S. RUSSELL 

v. Record No. 050155 November 4, 2005 

SHOMER ZWELLING, L.C.S.W. 

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG 

AND JAMES CITY COUNTY 

Samuel T. Powell, III, Judge 

 In this action to recover damages for professional 

malpractice, the plaintiff alleged that, while being treated 

by the defendant, a health care provider, the defendant 

breached the applicable standard of care in several respects, 

including engaging in “an inappropriate and extraprofessional 

relationship with Plaintiff’s wife.” The sole question 

presented on appeal is whether the plaintiff’s cause of action 

for professional malpractice is barred by Code § 8.01-220, the 

“heart balm” statute. 

Facts and Proceedings 

 John Doe, the plaintiff,∗

 brought this action against 

Shomer Zwelling, a licensed clinical social worker, for 

professional malpractice. The defendant filed a demurrer to 

the original motion for judgment on the ground that the 

plaintiff's cause of action, while ostensibly a claim for 

 ∗

 The trial court entered an order adopting the pseudonyms 

“John Doe” for the plaintiff and “Sally Poe” for his wife, to 

protect their privacy and that of their children. 
2

professional malpractice, was, in fact, an action to recover 

damages for alienation of affection, which had been abolished 

by Code § 8.01-220. The court sustained the demurrer and the 

plaintiff, by leave of court, filed an amended motion for 

judgment. 

 Because the case comes to us upon a demurrer to the 

amended motion for judgment, which is complete and does not 

incorporate by reference allegations in the original motion 

for judgment, we address only the allegations contained in the 

amended motion for judgment. Fuste v. Riverside Healthcare 

Assoc., 265 Va. 127, 129-30, 575 S.E.2d 858, 860 (2003). The 

facts will be summarized as set forth in the amended motion 

for judgment, and will be considered, along with those 

reasonably and fairly implied from them, in the light most 

favorable to the plaintiff. Id.

 The defendant is a licensed clinical social worker in 

Williamsburg, Virginia, providing professional psychotherapy 

and counseling services. The plaintiff’s wife had been 

treated professionally by the defendant from early 1999 until 

2001, for psychological problems and to improve the 

relationship between husband and wife. In 2001, the defendant 

suggested that the relationship between husband and wife would 

improve if the defendant were also to treat the husband 

individually. The plaintiff then entered into a professional 
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relationship with the defendant, who thereafter treated both 

husband and wife separately. During the defendant's treatment 

of the plaintiff, the defendant asked for intimate details 

concerning the plaintiff's relationship with his wife and his 

past sexual, emotional and social history. The defendant 

cautioned that the substance of these confidences should never 

be revealed to plaintiff's wife and intimated that she might 

become suicidal if she learned of them. The defendant told 

the plaintiff that his wife had been sexually abused as a 

teenager and that she could not "express love in a normal, 

healthy way due to the traumatic experiences she had 

undergone." The plaintiff was unwilling to submit to the 

defendant's suggested treatment consisting of "Buddhist 

meditation" and "spiritual meditation retreats," and the 

defendant then advised him to take psychotropic drugs. The 

defendant referred him to a psychiatrist who prescribed such 

drugs, which the plaintiff took. 

 The plaintiff concluded that both his emotional condition 

and his marriage were deteriorating rather than improving 

while he was under the defendant’s care. Consequently, he 

withdrew from the defendant’s treatment in August 2002. At 

about the same time, the plaintiff's wife told him that she 

wished to terminate the marriage. 
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 The plaintiff thereafter discovered that the defendant 

had been maligning him during the treatment of his wife, 

disclosing to her intimate details that the plaintiff had 

disclosed to the defendant in confidence and that before, 

during, and after defendant's treatment of the plaintiff, the 

defendant had been "engaged in an inappropriate and 

extraprofessional relationship" with the plaintiff's wife. As 

a result, the plaintiff stated that he had suffered severe 

damage to his emotional health, had lost 23 pounds and had 

begun a heavy reliance on tranquilizing medications. The 

plaintiff attributed his damages entirely to the defendant's 

breaches of the applicable professional standard of care. 

 The defendant again filed a demurrer based on the effect 

of Code § 8.01-220. The trial court held that, 

notwithstanding the form of the action, the "overriding 

essential basis of the claim is one for alienation of 

affection which is barred by Va. Code § 8.01-220." The trial 

court sustained the demurrer and dismissed the case with 

prejudice. We awarded the plaintiff an appeal. 

Analysis

 Clinical social workers are among the professions defined 

as "health care providers" by Code § 8.01-581.1 and are thus 

subject to the provisions of Title 8.01, Chapter 21.1 of the 

Code, relating to medical malpractice. Actions against such 
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persons for professional malpractice are subject to the same 

laws as those governing such actions against physicians. In 

the present case, the plaintiff phrased his allegations in 

terms of the defendant’s departures from the applicable 

standard of care. A substantial part of his claimed damages, 

however, arose from the effect of the defendant’s conduct upon 

the plaintiff’s marriage. 

 Code § 8.01-220(A) provides: 

Notwithstanding any other provision of law to the 

contrary, no civil action shall lie or be maintained in 

this Commonwealth for alienation of affection, breach of 

promise to marry, or criminal conversation upon which a 

cause of action arose or occurred on or after June 28, 

1968. 

 We applied that section in McDermott v. Reynolds, 260 Va. 

98, 530 S.E.2d 902 (2000), to an action ostensibly brought to 

recover damages for intentional infliction of emotional 

distress. There, the plaintiff contended that the defendant 

had carried on an adulterous relationship with the plaintiff’s 

wife, had refused plaintiff’s demand that he desist and, 

instead, had “flaunted it outwardly,” causing the plaintiff to 

suffer severe emotional distress, loss of weight and 

interference with his ability to perform the duties of his 

profession. Id. at 100-01, 530 S.E.2d at 903. The trial 

court sustained a demurrer, holding that the action was, in 

reality, based on a cause of action for alienation of 
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affection and was therefore barred by Code § 8.01-220. Id. at 

100, 530 S.E.2d at 902. We affirmed, basing our analysis upon 

the defendant’s alleged conduct rather than upon the 

differences between the causes of action for alienation of 

affection (now barred by statute) and intentional infliction 

of emotional distress (still alive and well). We adopted that 

approach to “foreclose a revival of the abolished tort of 

alienation of affection asserted in the guise of an action for 

intentional infliction of emotional distress.” Id. at 103, 

530 S.E.2d at 904. 

 In McDermott, all of the plaintiff’s injuries were 

ascribed to the effect of the defendant’s conduct upon the 

plaintiff’s marriage. In the present case, that cannot be 

said. Here, the plaintiff has alleged facts constituting 

breaches of the defendant’s professional standard of care that 

would be compensable in damages even if the plaintiff were 

unmarried. Such breaches might include maligning him to a 

third person and administering improper treatment, as well as 

subjecting him to the humiliation and embarrassment of having 

his most intimate confidences disclosed to a third party 

without his authorization. 

Conclusion 

 The amended motion for judgment thus presents a 

combination of claims, some of which are barred by Code 
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§ 8.01-220 and others which are not. Because a demurrer goes 

to the whole pleading to which it is addressed, it should be 

overruled if any part of the pleading states a cause of action 

upon which relief may be granted. 

“A demurrer to an entire declaration, . . . raises 

the question, whether or no there be matter in the 

declaration sufficient to maintain the action. If 

the declaration contain several counts, and any one 

be good, it follows that there is matter enough to 

maintain the action. . . . The same rule applies 

when there is a demurrer to a single count 

containing several breaches, any one of which is 

well assigned; or to a demurrer to a single count 

containing a demand of several matters which in 

their nature are divisible, and any one of which is 

well claimed. . . . [I]f there be matter enough in 

the declaration to maintain the action, the demurrer 

must be entirely overruled.” 

Henderson v. Stringer, 6 Gratt. (47 Va.) 130, 133-34 (1849). 

 We conclude that those claims not barred by Code § 8.01-

220 state a cause of action for professional malpractice and 

that it was error to dismiss the entire case by sustaining the 

demurrer. 

 Nevertheless, we adhere to the view expressed in 

McDermott, that a revival of the abolished tort of alienation 

of affection in the guise of another cause of action must be 

avoided. Therefore, in any further proceedings upon remand, 

the trial court should, by appropriate rulings on the 

admissibility of evidence (and in the event of a jury trial, 

by appropriate instructions), exclude from the fact-finder’s 
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consideration any effect the defendant’s conduct may have had 

upon the plaintiff’s marriage. We will therefore reverse the 

judgment of the trial court and remand the case for further 

proceedings consistent with this opinion. 

Reversed and remanded.