ANNAPOLIS -- A man who says his wife was having an affair with their marriage counselor has the right to sue the counselor, Maryland's highest court ruled yesterday.
The Court of Appeals reversed lower court rulings that dismissed a $10 million suit filed in 1989 by District resident Silvio Figueiredo-Torres against counselor Herbert J. Nickel, of Bethesda.
Figueiredo-Torres, 49, charged the psychologist with malpractice and intentional infliction of emotional distress by having an affair with his wife, Marsha, 50.
Nickel demoralized Figueiredo-Torres by ridiculing him and telling him to stay away from his wife, the suit alleged.
During therapy, Nickel called Figueiredo-Torres "a codfish" and said his wife deserved a "fillet," said Thomas Sippel, one of Figueiredo-Torres's lawyers. Nickel also told the husband that he had bad breath and was to blame for the couple's problems, Sippel said.
Nickel denied having sex with Marsha Figueiredo-Torres during the therapy or before she separated from her husband, but married her after her husband divorced her.
The counselor twice persuaded Montgomery County Circuit Court judges to dismiss the lawsuit, saying his relationship with the wife was his private concern, and separate from his professional practice.
Figueiredo-Torres had no right to sue because Maryland no longer recognizes alienation of affection and sex with someone else's spouse as illegal, Nickel contended.
The high court disagreed and sent the suit back for trial.
"Nickel was not the milkman, the mailman or the guy next door. He was Torres's psychologist and marriage counselor," the Court of Appeals judges said in a unanimous ruling.
The judges said Nickel had a professional responsibility to preserve the marriage, not break it up.
Nickel and his wife declined to comment yesterday. Nickel's lawyers were unavailable for comment.
Sippel said he was pleased with the decision.
"We felt this was clearly a case of professional malpractice," Sippel said. "People expect to have treatment in their best interest and not for somebody else's self-gratification. There was a very horrible result. Our client was terribly affected by this."
Nickel counseled the couple from 1985 to 1987.
Figueiredo-Torres, who operates a hair salon in Washington, suffered high blood pressure, partial loss of sight in one eye, depression, anxiety, obsession, shock and fright, his lawyer said. He spent two weeks in a mental hospital after discovering the affair, he said.
Nickel is still practicing as a counselor.
Nickel's lawyers, Paul Newhouse and Jeri Lynn Balenson, argued in a written brief that the law required Figueiredo-Torres to prove that Nickel's conduct was "extreme and outrageous."
"While beginning a relationship with another man's estranged wife, from whom he is separated at the time, may be considered unquestionably rude, insensitive, callous and in poor taste, it is not, however, extreme and outrageous," the lawyers wrote.