Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in “non-religious” counseling.
* A Utah court ruled that a counselee’s lawsuit against a pastoral counselor had to be dismissed on the ground that it was in essence a claim of “clergy malpractice” that the civil courts could not resolve without violating the First Amendment. An adult male church member alleged that during a pastoral counseling session a pastor breached his fiduciary duty and intentionally inflicted emotional distress on him. The member sued the church, and a trial court dismissed the lawsuit. A state appeals court affirmed the dismissal. The appeals court noted that the state supreme court previously ruled that claims for clergy malpractice or similar claims are not recognized in Utah since recognition of such claims “would require an unconstitutional evaluation of religious philosophy and teachings, contrary to the First Amendment’s non-establishment of religion clause.” The state supreme court also noted that, regardless of the title of a claim, it “will not survive constitutional scrutiny if an adjudication of the claim would foster an excessive governmental entanglement with religion in violation of the First Amendment.” The appeals court concluded that “when a claim for breach of fiduciary duty in an ecclesiastical setting is, in essence, a claim for clergy malpractice or would otherwise require excessive entanglement with religion, the claim is barred.”
The court noted that “the plaintiff’s claim for breach of fiduciary duty in an ecclesiastical setting is, in essence, a claim for clergy malpractice. He asserts that [the pastor] breached a duty owed as part of his role as a cleric—essentially the same elements as clergy malpractice. Even if not identical to a clergy malpractice claim, the claim would require the same excessive entanglement in evaluating standards and duties in a religious setting, and would thus lead to the same violation of the First Amendment. Accordingly, the trial court correctly dismissed the plaintiff’s claim for breach of fiduciary duty.”
The court also rejected the plaintiff’s claim that the pastor intentionally inflicted emotional distress. It noted that such a claim requires proof of conduct that “may reasonably be regarded as extreme and outrageous,” and concluded that “there is nothing so shocking in [the pastor’s] conduct that evokes outrage or revulsion, or shows that the conduct was extreme.” Lowery v. Cook. 2007 WL 772782 (Utah App. 2007)